Volume 36 — Maryland Reports

This was an action of assumpsit brought by the appellee against the appellant. The facts of the case are sufficiently stated in the opinion of the Court.

Three exceptions were taken by the defendant w'ho appealed. First Exception: This is fully stated in the opinion of the Court.

The bill of complaint in this case was filed by the appellee on the 20th of January, 1871, against the appellant and his wife and David C. Blackiston and his wife, to procure the sale of certain real estate in Talbot county, which had been mortgaged by the defendants to the complainant on the 14th of June, 1870. Subpoenas were issued against the defendants.

<p>Appeal from the Superior Court of Baltimore City.</p> <p>The ease is fully stated in the opinion of the Court.</p>

This was an action of assumpsit on the».money counts, by the appellee against the appellant. The pleas were non assumpsit, payment and set-off. The defendant offered a prayer to be found sufficiently set out in the opinion of the Court. This prayer was rejected, and the verdict and judgment being for the plaintiff, the defendant appealed..

On the 24th of June, 1869, Judson H. Smith executed a bill of sale, by way of mortgage to the appellee, of' certain goods, furniture and household stuff. By a provision in the mortgage, the mortgagor was entitled to retain possession of the property until default, which could not occur until the 24th of June, 1870, the date fixed for the payment of the first instalment of the mortgage debt.

Writ op Error from the Superior Court of Baltimore City. , This suit was instituted under the Act of 1864, ch. 6.

On the 4th of December, 1869, John Glenn executed an agreement to lease certain property in the city of Baltimore to- George .Spreekelmyer; and on the same day Spreekelm.yer mortgaged said property to Glenn to secure the sun; of $12,000, the same to be advanced as certain buildings to be erected on the property progressed.

The bill in this case, the object and purport of which are fully stated in the opinion of the Court, was filed on the 29th of January, 1872, by the appellees against the appellant.

A statement of the case will be found in the opinion of the. Court. During the progress of the cause, it was referred to ■the auditor .of the Court to state accounts between the parties; .accounts were accordingly stated and reported to the Court.

This was an action of covenant on a policy of insurance issued by the appellant to the appellees, insuring against loss or damage by fire, to the amount of twenty-five hundred dollars, from the 10th of November, 1868, to the 10th of November, 1869, “their one story frame ice house, situate, detached, on the line of the Chicago and North Western Railroad, at Chrystal Lake, McHenry County, Illinois.”' The fire occurred early on the morning of the 11th of August, 1869, and on…

<p> Practice. </p> <p>In a suit instituted against C and M, a decree was passed adjudging that M held a market stall in trust for S, deceased, and directing M to convey the same to the administrator of S. \From this decree C, who claimed an interest in the stall, appealed, and on the appeal the decree was affirmed. Afterwards, within nine months from the date of the decree, M appealed. On this appeal it was Held :</p> <p>That the affirmance of the decree on the appeal of 0, was a conclusive* adjudication against any interest which he might have had in the stall, and his rights could not be set up to support the claim of M, which rested solely upon the title of O.</p> <p>'Where the purpose of an injunction was to prevent a transfer to a third party, or any disposition of a market stall which would defeat or embarrass the passage of the final decree, under which the complainant’s rights could be effectively secured and enforced, an objection to the final decree, that it did not dissolve the injunction previously granted, is untenable. The injunction served its whole office and purpose by being obeyed until the final decree; and no order of dissolution was necessary to the validity and effectiveness of that decree, which disposed of the whole controversy by granting the relief prayed by the bill.</p>

The case is stated in the opinion of the Court. Exception: The plaintiffs offered the two following prayers: 1.

This was an action by the appellants against the appellee, to recover from the latter as a stockholder of the Oakland Coal and Iron Company of Baltimore, $4,692.38, with interest, alleged to be due by the company, on its note for that amount, dated the 28th of September, 1867, payable iour months after date, for which it was alleged that the appellee was liable, because the whole amount of the capital stock of the company had not been paid in, and he was a stockholder…

The bill in this case was filed by Catharine A. Webb and Benjamin F. Deford, children of the late Benjamin Deford, and executors under his will, and by John D. Kremelberg, as father, guardian and next friend of his three children, grand-children of the testator, against the appellants, Harriet B. Deford and Ella Y. Deford, also grand-cliildren of the testator, and others.

On the 20th of April, 1869, George \Y. Kugler and wife executed a mortgage on certain parcels of land in Caroline County to the appellee, to secure to him the sum of $2,000— one-half of which sum -was to be paid on or before tbe 20th of April, 1870, with interest on the whole amount, and the other half, with all the interest then due, on or before the 20th of December, 1870.

This was an attachment on warrant issued at the instance of the appellants to recover the sum of $5,055.38, claimed to be due to them from the appellee. The vouchers or evidence of debt produced by the attaching creditors consisted of the following articles of agreement, and an account purporting to show the amount of money due : This article of agreement, made this fifth day of October, Á.

This was an action of ejectment, brought by the appellee against the appellant, to recover possession of some five acres of land in Washington county. The plea was “not guilty,” and defence was taken on warrant, under which surveys and locations were made. The plaintiff claimed title as purchaser from James Marshall, trustee in insolvency of Benjamin Lancaster.

Oil a creditors’ bill filed in the Circuit Court for Prince George’s county, in equity, by Paulina A. Berry and others against Rachel M. Berry and others, a decree was passed on the 9th of November, 1865, for the sale of the real estate of John E. Berry, Sr., deceased, and Daniel Clarke and Alonzo Berry were appointed trustees to make sale of the same. On the 9th of November, 1867, certain portions of this estate •were sold by the trustees.

This suit was brought by the appellees to recover from the appellant the price of a reaper and mower sold to him. Mceeption: The plaintiffs offered the following prayers: 1.

This suit was instituted by the appellee in the Circuit Court for Calvert County, to recover damages from the appellants for injuries done to his wagon and carriage, while they ■were being used with due care and caution on certain of the public roads in said county. The plaintiff alleged that the defendants had negligently suffered said roads to be out of repair and unmended, so as to be impassable with safety, and that thereby his wagon and carriage were broken.

This was an attachment sued out of the Superior Court of Baltimore City on the 20th of October, 1869, by the appellees against the property of Thomas Clyde, a non-resident.

This was an action for malicious prosecution by the appellee against the appellant and his brothers Samuel and Leopold. The declaration contained two counts.

Writ op Error to the Circuit Court for Baltimore County. The plaintiff in error was indicted for murder in the Circuit Court for Baltimore County, at August Term, 1871, together with five other persons. A motion for leave to sever in defence was made and granted. A jury sworn and empanelled to try the case of the plaintiff in error, on the 8th of November, 1871, were unable to agree, and were discharged by the Court on the 12th of the same month.

On the 23d of April, 1867, there was deposited in the Orphans’ Court of Anne Arundel County, a paper purporting to be the last will and testament of Mrs. Eliza Higgins, wife of Dr. James Higgins, with memoranda showing the circumstances of the finding, and the reasons for depositing it with the Register of Wills.

A general statement of the ease will be found in the opinion of the Court. The following Exhibit of the complainant, which was received by its agent from the appellee Gittings, and tlie agreement of counsel, will further contribute to elucidate the questions discussed : Exhibit C. Chesapeake and Ohio Canal Co. in aect. with Chesapeake Bank and J. 8. Gittings, for the Trustees of the Canal Go. Dk. 1840.

In May, 1869, the appellant sub-leased to the appellee a lot of ground with the improvements, situate on the south side of McHenry street in the city of Baltimore, in consideration of the sum of §1,200, and the payment of the annual rent of §36. In September, 1869, the appellant commenced the erection of several houses on the ground to the west of the appellee’s house.

<p>Secondary Evidence — Res inter alios — Declarations of a Party as evidence against Ms pretensions — Rebutting evidence — Prayers and Instructions — Practice in the Court of Appeals — Presumption of Fact— Verdict in Ejectment.</p> <p>In an action of ejectment, the tho.ory of the defence was that at March Term, 1820, of Washington County Court, two judgments were recovered against J, under whom the plaintiff claimed title to the lands in controversy; that writs of fieri facias had been issued thereon to lie, from term to term, until in 1827, the interest and estate of J in the lands in question were seized by the sheriff and sold. To support this defence, the defendants gave in evidence the docket entries and papers in the two suits against J and the judgments thcrein-j-ouc for $011.00 and costs, and the other for $815.09 and costs, with the entries of the fieri facias and continuances down to March Term, 1827, on which were entries in one ease of 11 Made by sale of real estate,” and in the other “Made $38.84 — N. B. balance.” These entries were proved to have been made by the clerk on the clerk’s dockets. To the admission of this testimony the plaintiff excepted. It was further proved that the original writs of fieri facias were lost and could not bo found after diligent search. The defendants further proved that the sheriff advertised the interest of J in the lands mentioned in tho declaration, or some of them, for sale at sheriff’s sale; that several persons were present at the sale, and among them the plaintiff in the executions, to whom the lands were struck off, he being the highest bidder therefor; that J had often, after said sale, declared to several persons that his interest in said lands had been sold by the sheriff; that after said sale J was insolvent, and professed to own no property; that no letters of guardianship were over taken out for his son the plaintiff; and that no letters of administration wore granted upon the personal estate of J, &c., Held:</p> <p>1st. That the docket entries and papers in the suits against J, accompanied with the other facts offered in evidence by the defendants, were admissible for the purpose of raising the presumption that tho writs of fieri facias, corresponding with the docket entries, did in fact exist, and wore issued to the sheriff; tliat the same were levied on tho interest of J in the lands, and that full and due return thereof was made by tho sheriff. The primary evidence being lost, the secondary evidence was admissible for the purpose of raising the presumption that a valid seizure and sale had been made by the sheriff; and for the same reason the printed advertisement from a newspaper of the sheriff’s sale, and the testimony of an appraiser as to the appraisement of the property, at the instance of tho sheriff, were admissible in evidence.</p> <p>2d. It having been shown by the proof that the purchaser at the sheriff’s sale, had exorcised no act of ownership over the property during tho lifetime of J, evidence to show that the rents of the farm were, after the death of J, paid to such purchaser for ten or eleven years, until he conveyed by deed his interest in tho land, and certain receipts by him for rent within that time, and his deed of conveyance, were inadmissible to affect the title or interest of J or of his heir-at-law, tho plaintiff. Such evidence was inadmissible as res inter alios.</p> <p>In an action of ejectment for an undivided moiety of certain lands, evidence having been offered by the defendants, tending to prove the seizure and sale by the sheriff of tho interest in said lands of the party under whom the plaintiff claimed, to the party under whom the defendants claimed, the declarations of one of the defendants, made long after the sale, recognizing the title of the plaintiff,’ arc admissible against such defendant, for the purpose of showing that in fact there had been no valid and effectual seizure and sale by the sheriff, or of ' explaining the real character and effect of tho sale itself.</p> <p>A witness for the plaintiff' having testified as to certain conversations with a defendant, it was not competent, for tho purpose of contradict-mg such evidence, to ask the defendant who testified in his own behalf, to state all the conversations he had had with the witness. As rebutting evidence, the testimony of the defendant should have been confined to the particular conversations deposed to by tbe witness.</p> <p>"Where the prayers, granted by the Court cover the defendants’ case, and give them the full benefit of their legal defence, the judgment will not be reversed, though some of their prayers which were rejected, may have been correct.</p> <p>In an action of ejectment the defendants relied upon an outstanding title, derived under a seizure and sale by the sheriff of the interest in the land in question, of the party under whom the plaintiff claimed, and offered various facts and circumstances as presumptive evidence that such seizure and sale was valid. Held :</p> <p>That the presumption arising from the facts and circumstances given in evidence by the defendants, was not a presumption of law, conclusive upon Iho plaintiff and irrebuttable, but a presumption of fact to bo found by the jury.</p> <p>A plaintiff in ejectment declared for a term of fifteen years in the undivided moiety of certain lands, particularly described in the declaration. Issue was joined on the plea of not guilty. The whole question was the plaintiff's title to the land described in the narr. The jury found a 11 verdict for the plaintiff and assessed the damage at one cent. ’ ’ Held :</p> <p>That the plain meaning- and import of the verdict was, that the defendants were guilty of the trespass and ejectment complained of in the declaration of the plaintiff, and the jury assessed the damage of the plaintiff by reason thereof, to be one cent. Such a verdict, if set out in terms would be sufficient, and judgment would be entered thereon that the plaintiff recover his term, &c., in the undivided moiety of the tracts of laud, &e., as in the narr.</p>

, Appeal from the Circuit Court for Cecil County. The facts of the case are sufficiently stated in the opinion of the Court. Three exceptions were taken by the plaintiff; the first and second are omitted, as upon the questions thereby raised, no opinion was expressed by the Court. Third Exception: The plaintiff prayed the Court to instruct the jury as follows : 1.

<p>Mechanics'1 Lien — Husband as Agent for his Wife— Construction of sees. 10 and 11 of the Mechanics’ Lien law — Inadmissible Evidence — Ratification of a Contract.</p> <p>In a proceeding by scire facias, to enforce a mechanics’ lien for materials furnished and work done in the erection of a house, it was proved that the plaintiff was employed by the builder and contractor, for a stated sum, to paint the house which ho had contracted to build and complete by the 1st of January, 1869, for a married woman: that the husband, as the authorized agent of his wife, made the contract for building the house; that the plaintiff was engaged on the painting at intervals till April, 1869, when on the 19th of the month lie served a written notice of his intention to claim the benefit of his lion under the medians’ lion law, on the husband. IIbld :</p> <p>1st. That the service of notice upon the husband, the authorized agent of his wife to make the contract on her behalf, for the purchase of materials to be used in the erection of the house, was a valid and legal notice to her.</p> <p>2d. That the tenth section of the mechanics’ lien law (Article 61 of the Code) which requires a personal notice in writing to bo given to the wife, when a houso is erected upon ground belonging to her, relates to cases where such building is erected by the husband, or some person employed by him, acting in his character as husband, and undertaking to make the improvement in the exercise of his own authority as such. It docs not apply to a case where the husband acts as the agent of his wife and by her authority.</p> <p>8d. That the case of a husband who, in contracting for the building of a house to be erected upon ground belonging to his wife, acts as her agent and by her authority, falls within the eleventh section of the mechanics’ lien law', which provides that the notice shall be given to the owner or owners, or agents.</p> <p>A married man, as the authorized agent of his wife, made a contract with a builder and contractor to build and complete, by the 1st of January, 1869, a house on a lot of ground belonging to the wife. The builder employed a painter, for a stated sum, to paint the house, who, having completed his work in April, 1869, on the 19th of the month served a written notice of his intention to claim the benefit of his lien under the mechanics’ lien law, on the husband. In a proceeding by the painter to enforce his lien, the defendants, the husband and wife, offered to prove that the contract for building the house had been terminated by mutual consent about the 1st of January, 1809, on account of the builder’s default; that the last work done by the plaintiff, under his employment by the builder, was about the same time; but that the plaintiff visited the defendants in March following, and asked to be permitted to finish the painting on the house, and obtained an advance of $50 for such undertaking. The object of this testimony was to prove that the notice of lien had not boon given within the time required by the Code. Held :</p> <p>That the evidence was inadmissible for such purpose; that the act of the defendants, in authorizing the plaintiff to go on and finish the painting, amounted to a ratification, on their part, of his original contract with the builder, and estopped them from denying that the completion of his work was done under and in pursuance of the same contract.</p>

<p>Action for Damages — Ordinary Care and Prudence— Proximate Cause— Want of due Care and Caution.</p> <p>Where a person walking on a railroad track is run over and killed by an engine belonging to the railroad company, the company is responsible in damages for such killing, though the deceased was guilty of a want of ordinary care and prudence in so walking on the track, provided it appear that the accident would not have occurred if the agents of the railroad company had used in running the engine which occasioned the killing, ordinary prudence and care in giving reasonable and usual signals of its approach, and in keeping a reasonableTook-out.</p> <p>In considering the question'of ordinary care and prudence on the part of a person killed by being run over on a railroad track, the jury have a right to take into consideration, together with the other facts of the case, the known and ordinary disposition of _menjp__guard Jhemselvcs against danger.</p> <p>Where a person walking on a railroad track is run over by an engine belonging to the railroad company and operated by its agents, and in consequence of the injury thus received, dies shortly afterward, an action for damages for the use of his widow and children, is maintainable against the railroad company, if it appear that there was negligence on the part of its agents, which was the proximate and immediate cause of the injury, notwithstanding the deceased may have been guilty of a want of ordinary care and prudence, tending in a remote' degree to cause the injury which resulted in his death.</p> <p>A person walking on a railroad track, away from any public crossing, was told by his companion, who heard the noise, that an engine was coming, and he replied, “I seen a train running up and down the other track this evening,” and was immediately run over by the approaching engine, and died in consequence of the injury which ho received. In an action'against the railroad company by the State, in behalf of the widow and children of the deceased, it was Held :</p> <p>That if the deceased at the time he received the warning from his companion, could have left the railroad track, and' under all the circumstances and surroundings of his situation had sufficient time to do so, and would by doing so have escaped injury, then his remaining upon the track of the railroad after such warning, was sneh a want of due care and caution on his part as to debar the equitable plaintiffs from recovery, though there was negligence on the part of the defendant’s agents.</p>

On the 1st of June, 1868, the appellant executed to the appellee, a mortgage of a leasehold interest in a lot of ground situated on the north… Held: for every such weekly neglect or refusal, to be charged Avith the Aveekly dues. Sec. 5. If any member of this association, ha\Ting taken a loan, shall neglect or refuse to pay his Aveekly interest, he shall forfeit the additional sum of ten cents on each share of stock redeemed, to be charged and collected with the Aveekly dues.

Two actions of covenant, consolidated by consent, were instituted by tho appellants, Hough, Clendening & Co., for the use of their assignee, the Baltimore Warehouse Company, against the appellees: the first to recover on a policy issued by the appellees, dated the 21st of June, 1870, whereby the company insured Hough, Clendening & Co., during thirty-five days, from the date of the policy, against loss or damage by fire to the amount of $1,400, on fifteen bales of cotton…

Cross Appeals from the Superior Court of Baltimore City, in Equity.

On the 21st of September, 1871, George W. Jones, Joshua A. Jones, Sarah Ann Robinson, Ellen McComas and Georgeanna Russell, filed their petition in the Orphans’ Court of Baltimore City, alleging that they were the only children of David Jones, deceased, who was the brother of Andrew D. Jones, who departed this life on or about the 10th of August, 1870, intestate,- leaving a widow but no child, nor brother or sister, nor the child of a brother or sister, except the…

The appellant on the 27th of July, 1872, filed her petition in the Orphans’ Court of Baltimore City, alleging that since the decree of the Court of Appeals in the case of Jones,' Adm’x, vs. Jones, et al. (see ante, p. 447,) passed on the 20th of June, 1872, a certain Henry Jones, professing and alleging himself to be the sole and only son and heir of Andrew D. Jones, deceased, had filed his petition in the said Orphans* Court, claiming the whole of the property in her hands…

The bill in this case, the object and purport of which are stated in the opinion of the Court, was filed by the appellants, stockholders of “ The Antietam Manufacturing Company of Washington county,” who sued for themselves as for all others, stockholders, who should come in and contribute to the expense of the suit, against the appellees, other stockholders of the company.

This was an action brought by the appellees under the provisions of sec. 52 of Article 26 of the Code of Public General Laws, to recover of the appellant a debt due them by the Antietam Manufacturing Company of Washington county, and contracted when he was a stockholder in the company.

The bill of complaint in this case was filed by the appellant against the appellees, John E. Turton, sheriff, and Samuel H. Berry and John E. Berry, administrators of Albert B. Berry.

Under the will of Jeanet Clarke, executed on the 15th of February, 1847,'a certain Matthew St. Clair Clarke was appointed trustee to carry out certain trusts therein created. George A. D. Clarke, called George Augustus Clarke in the will, and such children as he might leave at the time of his death, were the primary beneficiaries of the trust.

<p>Jurisdiction of the Orphans' Court — Effect of a Divorce a mensa et thoro — Husband and Wife.</p> <p>By a decree of the Circuit Court for Howard County, divorcing Conrad and Margaret Hagaman a mensa, et thoro, it was also decreed, in accordance with an agreement of the parties through their solicitors, that Conrad should pay his wife the sum of $1,076, which should bo in full of all arrears for counsel fees and alimony, and should free him from any obligation to contribute to her support in the future, and should release all claim on her part for dower and thirds in any property or estate, then held, or which might thereafter be acquired by him. This sum was paid by the husband. The parties afterward became reconciled and lived together as man and wife nearly two years, and were recognized as such. They separated again, and again lived together as man and wife for a short time. Conrad died,'leaving a last will, hy which he undertook to dispose of all of his property, leaving nothing to his wife, who survived him. Ho never had a child, and left no parent, or brother or sister, or child of a brother or sister. On the petition to the Orphans’ Court hy the widow, claiming the whole of the personal estate of^her deceased husband, after payment of debts, it was Held :</p> <p>1st. That the Orphans’ Court, notwithstanding the decree of the Circuit Court divorcing the parties a mensa et thoro, with the accompanying terms, had authority to supervise the distribution of the estate of the testator among the parties entitled thereto.</p> <p>2nd. That the decree of the Circuit Court did not dissolve the relation of husband and wife, and could not deprive the widow of her dower or of a reasonable, part of the personal estate of her husband, and as ho left no child, she was entitled, according to the principles of the common law, to one-half of his personal estate after payment of debts and funeral charges.</p>

<p>Construction of the Act of 1835, ch. 395, known as “ The Eight Million Loan Bill,” and of the Act of 1838, ch. 38,6 — Effect of the Legal Tender Laws upon a Contract for the payment of money made prior to their Enactment.</p> <p>By the first section of the Act of 1835, ch. 395, the Legislature directed the Treasurer of the State to subscribo to the capital stock of the Baltimore and Ohio Railroad Company, the sum of three millions of dollars, to be paid in the manner and upon the conditions mentioned in the Act. By the ninth section, it was made a condition precedent to the subscription to the road, that the stockholders in general meeting should guarantee to the State the semi-annual payment out of the profits of the work, of six per cent, per annum, on the amount to be paid to the Company under the Act; such semi-annual payments to begin after the expiration of three years from the payment by the State of each successive instalment of its subscription, and to continue “ until the clear annual profits of the railroad should be more than sufficient to discharge the interest which it should be so liable to pay to the State, and should be adequate to a dividend of six per centum per annum among its stockholders.” After that period the State was “ to have and receive a perpetual dividend of six per centum per annum out of the profits of the work, as declared from time to time, and no more;” and the surplus of profits over six per cent, was to be divided among the stockholders generally. The guarantee required by this section was given by the company and accepted by the State. By subsequent sections provision was made’ for the appointment of commissioners to proceed to Europe to negotiate loans, and for the issue of the bonds or certificates of stock of the State, to raise money for and on behalf of the State to gratify the purposes of the Act. These bonds or certificates wore issued by the State, but the commissioners failed to negotiate the loan on the terms prescribed by the Act, and the company took the whole three millions from them at the minimum rate indicated by the Act, viz : twenty per cent, premium. This sale was ratified by the Legislature. The bonds, however, proved as unavailable in the hands of the company, as in those of the commissioners. As a measure of relief, the Act of 1838, ch. 386, was passed. Its first section provided that on the release by the company of its interest under the contract for the purchase of the six per cent, securities, and thei rdelivery to the Treasurer, the Commissioners of Loan should deliver to the company in exchange, sterling bonds or certificates of stock, payable in London and bearing interest at five per cent., payable semi-annually, at the rate of three thousand two hundred of the five per cents for every throe thousand of the six per cents; provided, however, that the company should secure by mortgage or lien on all its property and revenues, the .payment for three years, of the five per cent, interest semi-annually, ninety days before it became payable in London, together with the cost of remittance and exchange. The company did not begin to sell or negotiate the sterling bonds till about 1849. As they were disposed of, it paid the interest, &c., upon them for three years, and then applied thereto, directly, the six per cent, interest or dividend due the State, rendering no account of the difference. This system continued to the 1st of July, 1865; from which time the company made no payments of interest in London, but simply paid into the Treasury six per cent, per annum in currency, leaving to the State to pay the premium on gold for remittance, as well the cost of exchange, &c., and the gold besides. The State claimed that it was entitled to be fully indemnified by the railroad company, and that as the sterling interest could only be paid in gold, or its equivalent, the six per cent, guaranteed dividend could only be paid in like currency. In an action by the State against the company to recover the amount so claimed to be due and payable in gold, it was Held:</p> <p>1st. That as the law stood at the daté of the contract by which the subscription to the stock of the company was made, and the bonds of the State were furnished as means of payment for such stock, the State could have required the guaranteed dividend to be paid in gold.</p> <p>2nd. That likewise, at the date of the institution of the action by the State, the railroad company was bound to pay the dividend in gold; but that by the operation and effect of the Legal Tender laws recently declared by the Supreme Court of the United States to be constitutional, and applicable, alike, to contracts for the payment of money made prior to, and since their enactment, the railroad company was exonerated from such obligation; it not appearing either by express stipulation, or by fair implication, that it was the intention of the parties to the contract, that the dividend should be paid in gold specifically.</p>

<p>Effect of a Judgment by Default — Practice.</p> <p>When a judgment by default bas been entered, it is error in the Court to enter a judgment of nonpros., because the verdict or inquisition of the jury was for a sum below the jurisdiction of the Court. The judgment by default is conclusive of the question of jurisdiction.</p> <p>But a judgment by default does not settle the right of the plaintiff to recover the amount stated in his cause of action. The defendant is entitled to have an inquisition by the jury.</p>

This was an action brought by the appellee against the appellant for the breach of a contract. The facts of the case are stated with sufficient fulness in the prayers of the respective parties and in the opinion of the Court.

This suit was instituted in the Superior Court of Baltimore City, and, upon the suggestion and affidavit of the defendants, was removed to the Circuit Court for Howard County. The facts of the case sufficiently appear in the opinion of the Court.

<p>Construction of section 58, Article 29, of the Code of Public General Law's — Appeals from Courts of Equity — Trial of issues by a Jury in virtue of section 58, Article 29, of the Code — Interlocutory Decree — Practice in Equity — Practice in the Court of Appeals — Eight of the Circuit Court of Baltimore City to assemble where its convenience dictates — Issues in Equity tried by a Jury.</p> <p>The language, “when proceedings shall be had in such ease as is usual in like cases in Equity,” in section 58 of Article 29 of the Code of Public General Laws, does not import any change in the organic character of the Circuit Court of Baltimore city, as a Court of Equity, nor imply any material change in the proceedings and practice in Equity, in pleadings or evidence; it relates to the incidents of the trial and effect of the verdict, as a means of informing the mind of the Court.</p> <p>In the execution of the special power vested in the Circuit Court of Baltimore City, hy the 58th section of Article 29 of the Code, is included, as means necessary to the end, the right of framing the issues, and directing the position of the parties litigant, as plaintiff's or defendants; and the Court would have the right to instruct the jury, and to admit or exclude the evidence offered.</p> <p>The right of appeal from Courts of Equity is a statutory right, and does not exist except where expressly given.</p> <p>Upon the trial of issues by a jury ordered by the Circuit Court of Baltimore City, in virtue of section 58 of Article 29 of the Code of Public General Laws, bills of exception to the rulings of the-Court will not lie,</p> <p>A decree requiring money to ho paid into Court, enjoining the defendants from further proceedings at law, and.requiring them to interplead and answer, is interlocutory, and at all times, prior to a final decree, subject to revision and alteration, being merely ancillary to further proceedings ; and may with propriety be rescinded, as having been improvidently and prematurely passed.</p> <p>A jury having boon ordered by the Circuit Court of Baltimore City, in virtue of the provisions of section 58, Article 29, and the sheriff having made return that he had summoned twenty lawful jurors, the Court of Appeals cannot inquire whether they wore a part of the pannel summoned to attend some other Court, from which they wore taken, or whether they wore in attendance on some other Court, or not.</p> <p>The jurisdiction of the Circuit Court of Baltimore City is co-exlensive with the limits of the city, and unless restrained by law, it may assemble, within such limits, wherever its convenienee dictates.</p> <p>When issues are framed in a Court of Equity, they are so condensed as to present some proposition, the affirmative or negative of whieh cannot he affirmed or denied, without finding all other facts necessary to the conclusion.</p> <p>Where no objection is made to the form of the issues before the trial in the Court below, such objection will not be considered in the Court of Appeals.</p> <p>Upon the rendition of the verdict, upon issues submitted to a jury by the Circuit Court of Baltimore City, in virtue of section 58, Article 29, the party against whom it is given, if he thinks it is contrary to evidence, has the right to move for a now trial, or to proceed to take further testimony.</p> <p>[The arguments upon the exceptions are omitted, the Court having decided that they were not before it for review. — Rep.]</p>

Motion to strike out the entry of “judgment satisfied.” On the 21st of June, 1871, Thomas J. Fitzpatrick, infant, by his next friend, obtained a judgment against the Baltimore and Ohio Railroad Company, in the Court of Common Pleas, for the sum of $8,000, which on appeal was affirmed on the 12th of January, 1872, (see 35 Md., 32.) Soon afterward the amount of the judgment was paid by the defendant to Robert J. Brent, the attorney of record, regularly employed by 'the next…

The. alleged nuncupative will of Laura L. Biddle, propounded by the appellant, who claimed as sole legatee, consisted of four affidavits or depositions taken before the Orphans’ Court of Cecil county, on the 10th of January, 1871.