Volume 39 — Maryland Reports

The nature of the case, together with the first, third and fourth exceptions of the defendant, are stated in the opinion of the Court; the other exceptions of the defendant are as follows : Second Exception: After the plaintiffs had concluded their evidence and rested their case, the defendant called Dr. Samuel P. Smith, and by him proved that he acted as the agent of John A. Smith, deceased, in his life-time, and for his widow since his death, in respect to lands mentioned…

The nature of the case, together with the pleadings, are stated in the opinion of the Court. The appellant, the plaintiff below, on the 2nd October, 1869, loaned T'hos. R. Rich & Co. $6650, on the security of 350 shares of the appellee’s stock, on that day issued from its office, by John L. Crawford, the treasurer of the company, in the usual way, in the name of the plaintiff.

This was an action brought on the 13th of April, 1872, by the appellee to recover damages for the destruction of certain cord-wood and growing timber, by fire occasioned by sparks and cinders omitted from a locomotive of the appellant. The defendant pleaded; 1st. Not guilty. 2nd. That the plaintiff was not seized of the land on which he alleges that the cord-wood and woods were destroyed by the defendant. 3rd.

The appellant filed his petition in the Orphans’ Court of Harford County, under section 238, of Article 93 of the Code of Public General Laws, alleging concealment of property'belonging to his decedent’s estate, by the appellee. The answer of the appellee, under oath, as required by the Code, denied emphatically the concealment charged. The Orphans-’ Court, after hearing witnesses, dismissed the petition. From this action of the Court the present appeal was taken.

<p>Pleading — Joinder of Counts — Tori—Proximate Cause.</p> <p>In an action against a railroad company the declaration contained two counts. The first charged that the defendant, by its agents, so carelessly an d negligently drove and conducted its locomotives and cars, that sparks and fire therefrom were dropped, blown, cast, and spread by burning, in and upon plaintiffs’ fences, trees, timber, etc., whereby the same were set fire to, burned and destroyed. The second averred in substance, that the mother of the plaintiffs, being seized of certain land, did, in 1862, by her deed, grant to the defendant a right of way through the same, subject to the condition that it should make and keep in repair substantial fences between the railroad and her adjoining lands; under which deed the defendant entered into and continued in the enjoyment of the said right of way, whereby it became and was its duty to perform all the conditions in said deed; that the mother of the plaintiffs died in 1871, leaving them her sole heirs-at-faw and seized of fhe same land, but that, since that time, the defendant, in neglect of its duty, had suffered said fences to be out of repair, by reason whereof plaintiffs’ land suffered from inroads of cattle, and their • crops were destroyed, etc., whereby they sustained damage. Demurrer to this declaration, on the ground of misjoinder of counts, which was overruled, and, on appeal, it was Held :</p> <p>That both counts were in tori, and so properly joined.</p> <p>Where the law imposes upon a party an obligation which he neglects to perform, whereby damage results to another, the parly injured may bring an action on the case founded in tort.</p> <p>In an action against a railroad company, the defendant proved that a fire, for which damages were claimed, began on a lot owned by one H., immediately adjoining the railroad, and covered with broom-sedge and dry grass; that the fire burned across this lot, about one hundred and fifty yards, to the land of the plaintiffs, where it encountered a fence and dry grass, and, . spreading from these, destroyed certain young timber, fences, and fence-rails on said land. Held :</p> <p>1st. That the fact that the fire was first communicated to the material on the land of the adjacent proprietor, H., did not affect the defendant’s responsibility to the plaintiffs.</p> <p>2nd. That the fire injured the plaintiffs’ property in its natural and direct course, and by naturally and gradually spreading from the .place where it began, without any intervening force or power, and the injury was, therefore, its proximate effect.</p>

<p>Practice in the Court of Appeals — Practice in a case tried before the Circuit Court, without the aid of a Jury.</p> <p>An action for the obstruction of a right of way claimed by the plaintiff as appurtenant to his land, was tried before the Court without the intervention of a jury. The Court gave judgment for the plaintiff and the defendant appealed. No bill of exceptions was sent up with the record, nor was there anything in the transcript to show that any exception was taken in the Circuit Court to the rulings there made upon any matter of law, or any agreement or statement of facts, from which the Court of Appeals could ascertain the points or questions of law raised and decided in the Court below. Hbld :</p> <p>That there was nothing upon which error could be assigned, no question presented for review by the Court, and the judgment was affirmed.</p> <p>Where a case is tried before the Court, without the intervention of a jury, exceptions may be taken to the rulings of the Court made in the progress of the trial, and if duly taken the rulings may be reviewed in the Court of Appeals, provided the questions are properly presented by a bill of exceptions; and when the finding is special, the review may also extend to the determination of the question, whether the facts found are sufficient to support the judgment.</p> <p>The opinion of the Court below, rendered in a case tried before it, without the aid of a jury, is no part of the record, and without some bill of exceptions or other aid, it is not a subjectanatter for review in the Court of Appeals.</p>

This was a petition filed by' the appellants, charging that the appellee, under the provisions of certain mining charters to which it had succeeded, was bound to carry over its railroads, at certain rates, such coal or other merchandize as should be offered by other individuals or companies who might construct connecting roads; that the Spruce Hill Coal Company had, for the conveyance of coal from its mines, built such a road connecting with a branch road of the appellee,…

Petition to have an appeal docketed and then dismissed. The appellee on the 6th of January, 1874, filed a petition in this Court alleging that he had purchased on the 8th of April, 1872, from M. W. Beveridge, trustee, certain real estate in Prince George’s County; that the sale was reported by the trustee to the Circuit Court for said county, and an order of ratification nisi was passed; that subsequently certain exceptions to the sale were filed by the appellant; that after…

The nature of the case is stated in the opinion of the. Court. Reference may be also had to the same case heretofore tried in this Court, and reported in 33 Md., 1.

The facts are stated in the opinion of the Court. First Exception. — At the trial of the cause, the defendant, in pursuance of notice from the plaintiffs, produced the original contract, made in May, 1869, for the building by the plaintiffs of a framé dwelling-house for the defendant. This contract, it is not important to set out here. When produced, it had affixed to it a five cent U. S. Internal Revenue stamp.

The judgment on which this attachment was founded, was recovered against Joseph N. Baden, and another in Calvert County at the February Term, 1870; the attachment was issued on the 28th of May, 1870, directed to the sheriff of Prince George’s County, and filed in the Circuit Court thereof, on the 31st of May. Joseph N. Baden, by deed in which his wife joined, conveyed his lands in Prince George’s County to Townshend on the 2nd of May, 1870.

This action was brought by the appellee against the appellants as guarantors of a note of Carlos Gf. de Garmendia for $1004, in favor of the appellee for insurance premiums.' The facts of the case are stated in the opinion of the Court.

The case is stated in the opinion of the Court. Exception. — The plaintiff offered three prayers, the first of which is stated in the opinion of the Court, the others are as follows: 2.

This was an action on the case, instituted by the appellee under Article 77, of the Code, to recover damages for tbe destruction of his property by fire from the engines of the appellant. The track of the defendant ran through the farm of the plaintiff, some three or four hundred yards on the north side, and a still greater distance on the south side.

<p>Insufficient reason for Striking out a Judgment — Degree of Intoxication necessary to Avoid an express Contract.</p> <p>The appellant, on the 26th of March, 1812, executed and passed his promissory note to G. for $394.61, payable sixty days after date. G. immediately assigned it to the appellees. At the same time and place the appellant executed a power of attorney, dated the 29th of May, 1812, authorizing Y. an attorney at law to appear for him in a case to be docketed by consent in th e Circuit Court for Baltimore County, and confess judgment for the amount of the note with interest, and costs, in favor of the appellees, and to do all things necessary for the proper entry of said judgment, either in open Court, or before any Judge thereof in the recess of the Court. On the 1st of June, 1872, the counsel for the appellees filed the titling of a cause against the appellant, with a written order to the clerk to “enter np judgment against the defendant as per agreement stated within.” Accompanying this was a narr. with the note attached, and an agreement signed by the plaintiffs’ attorney and by Y. as attorney for the defendant, to docket the cause as of May Term, 1872, and to enter judgment in the suit by confession for $398.71 and costs, with interest from date. On the same day the plaintiffs’ attorney presented the aforementioned papers to the Court when in open session, while a deputy clerk was acting as Court clerk, called the attention of the Judge to the -case, and to the fact that Y. as attorney for the defendant had signed the agreement to have the judgment entered; the Judge thereupon in open Court gave a verbal order requiring the clerk to docket the ease and enter up judgment against the defendant by confession, according to the terms of the agreement; the deputy clerk marked the papers “Filed 1st June, 1872,” and took them from the Court room into the clerk’s office, and gave them to another deputy clerk, or placed them on his office desk, notified him of the verbal order of the Court, and requested him to docket the case and make the proper entries, which he did in the clerk’s office, including the entry, “Judgment by confession for plaintiffsfor $398.71 and costs, with interest from date.’ ’ On motion by the defendant to strike out the judgment for irregularity in entering it, and for other reasons, it was Held :</p> <p>That the mere fact that the docket entries were not made in the Court room, but in the clerk’s office by the deputy to whom that duty was specially assigned by the clerk in conducting the business of his office, did not invalidate the act; and there was no such irregularity or mistake as would justify the striking out of the judgment on motion made after the term had elapsed.</p> <p>Where a party seeks to avoid an express contract upon the ground that he was intoxicated at the time he entered into it, it is incumbent on him to produce clear and satisfactory proof that he was at the time in such a state of drunkenness as not to know what he was doing, or the consequences of his own acts.</p>

The bill in this case was filed by the appellee as guardian of the children of Leander McKee, deceased, against the appellants as executors of John McKee, deceased, to enforce against them a trust alleged to have been created by their testator in his life-time, in favor- of said children. The note or single bill referred to in the opinion of the Court, is as follows : $4000.

The bill of complaint in this case, the object and purpose of which are stated in the opinion of the Court, was filed by the appellant against the appellee. The Circuit Court (Motter, J.,) passed a decree dismissing the bill, and the complainant appealed.

In this case, the appellee, assignee of two mortgages, each of which contained a power of sale, as provided for by Article 64 of the Code, having complied with the requirements of that Article, advertised the mortgaged property for sale, and on the 28th of December, 1872, sold the same at public sale to the appellant, and on the 1st of January, 1873, filed his report of the sale in the Circuit Court for Howard County.

William Adams sued Seligman Herzberg in trover, before a justice of. the peace, for the conversion of a horse, and in a statement of the cause of action claimed damages to the extent of $99. The plaintiff filed a claim for $100. The justice after hearing the evidence rendered judgment in favor of the defendant, and the plaintiff thereupon appealed to the Baltimore City Court.

On the 18th June, 1870, Thomas R. Rich borrowed from James Boyce $4,500, and gave him his promissory note, which was in the following terms : Baltimore, June 18iA, 1870. (U. S. Rev. Stamp, $2.50.) $4,500. Ninety days after date, I promise to pay to the order of myself forty-five hundred dollars, secured by 300 shares Parkersburg Branch R. R. Co. stock, with authority to sell, if not paid at maturity. Value received. T. R. Rich. Endorsed: T. R. Rich.

This suit was instituted in the Circuit Court for Allegany County, by the appellee against the appellant, and on the suggestion and affidavit of the latter, it was removed to the Circuit Court for Frederick County, where it was tried. The case is stated in the opinion of this Court. First Exception. — Stated in the opinion. Second Exception. — The plaintiff offered three prayers, the first of which only, as follows, was granted, the others were rejected : 1.

Writ or Error from the Circuit Court for Washington County. The plaintiff in error was indicted in the Circuit Court for Carroll County in manner and form as follows: “The State or Maryland, Carroll County, to wit: The grand jurors of the State of Maryland, for the body of Carroll County, do on their oaths present, that Joseph Davis, late of Carroll County aforesaid, yeoman, on the fifth day of April, in the year of our Lord one thousand eight hundred and seventy-two, with…

This is an appeal from an order of the Circuit Court for Prince George’s County, passed on the 20th of December, 1873, on the petition of the appellee, directing the writ of mandamus to issue, commanding the appellant to vacate the office of Clerk of the Circuit Court for Prince George’s County, &c. The case is sufficiently stated in the opinion of the Court.

This was an action of ejectment. The case is stated in the opinion of the Court.

<p>Appeal from the Circuit Court for Prince George’s. County.</p> <p>The case is stated in the opinion of the Court.</p>

<p>Orders from which an Appeal will not lie — Equity Pleading; proper parties Defendants — Bill for Belief against Usury.</p> <p>Prom an order of the Circuit Court refusing further time to take testimony, on a motion to dissolve an injunction, no appeal will lie.</p> <p>No appeal will lie from an order granting leave to a complainant upon application, to amend his bill in certain particulars, by a day named, and on failure to make such application, and to file the amended bill on or before the day mentioned, declaring that the injunction previously issued, would be dissolved, and in the mean time continuing the injunction till the further order of the Court; such order is merely interlocutory.</p> <p>Where a bill filed to restrain the execution of a judgment at law against the complainant, rendered in favor of the defendant, charges distinctly that other persons participated in the alleged fraud, they are necessary and proper parties defendants.</p> <p>Where a party goes into a Court of Equity seeking relief against usury, he must set forth in Ms bill the sum actually due, with legal interest, and offer to pay the same, and must confine his claim to the interposition of the Court to the usurious excess.</p>

The appellant was indicted, tried and convicted for selling lager beer to a minor. The case is further stated in the opinion of the Oourt.

<p> Extinguishment of a Vendor’s Lien. </p> <p>A bill obligatory executed by the purchaser of real estate, for the balance of the purchase money, was assigned by the vendor; subsequently the assignee surrendered the bill to the purchaser and received from him in its stead, a new bill 'for the balance found to be due at the time, the bill stating that it was for the purchase money of the land. Held :</p> <p>That the vendor’s lien, even if it passed by the assignment, was extinguished by the delivery to the purchaser of the original bill, and the taking of a new bill in its stead.</p>

The case is stated in the opinion of the Court. Exception. — The plaintiff offered five prayers, the first and second of which are set out in the opinion of the Court; the others aro as follows: 3.

This was an appeal from a final order of the Circuit Court, ratifying an account and statement of the auditor awarding to the appellee, the residue of the proceeds of the sale of a tract of land called <f Tu-sculum.” The case is stated in the opinion of the Court.

The case is sufficiently stated in the opinion of the Court.

This was an action of assumpsit by the appellee to recover from tbe appellants the price of certain butter grease, alleged to have been sold and delivered by the former to the latter. Pleas, never indebted and never promised. Issues joined. Evidence was offered by tbe plaintiff tending to prove a verbal sale by him of 3148 pounds of butter grease to tbe defendants at eight cents a pound.

The facts are stated in the opinion of the Court. Exception —The plaintiffs prayed the Court to instruct the jury as follows: 1.

This was an action on the case brought by the appellee, against the appellants, in the Circuit Court for Carroll County, and subsequently removed at the instance of the defendants, into the Circuit Court for Baltimore County. The suit was instituted the 30th of April, 1870, and tried in April, 1873.

The facts are stated in the opinion of the Court. The following is the defendant’s third bill of exceptions. The plaintiffs offered the following prayers: 1.

<p>Competent Witness under the Act of 1864, ch. 109 — What is a sufficient Testamentary disposition of Personal property — Bequests in blank.</p> <p>Under the Act of 1864, ch. 109, a beneficiary under a will is a legal and competent witness to sustain it.</p> <p>A paper purporting to be a testamentary disposition of the personal property of H. he having' no real estate, was written at his request and by his dictation, at a time when he was in the full possession of his faculties, was signed by him ill lead pencil in the presence of his wife, after he had carefully read it, was kept in his possession, and after his death was found in the place where the wife herself had put it as his will. A duplicate of this paper was prepared at the request of H. was executed by him at the same time, and delivered to the custody of P. the trustee and residuary legatee therein named, with the injunction to take care of that will so that if the one in his own possession should be lost, he (P.) would know upon his death what to do. The paper among other things stated that P. would at the death of H. and his wife, distribute to certain enumerated persons the sum of money sot out after each name. Three person named had no specific sum annexed to their names, but a blank space was left after each, which II. his attention being thereto particularly called by the draftsman of the paper, said, “could be filled np at any time, or something to that effect,” This paper upon the death of H. was offered for probate by P. and annexed to it was a paper signed by the widow of H. in which she acknowledged that the paper offered for probate contained the desires and wishes, of her deceased husband in regard to the disposition of his property after his death, requested that the same might be admitted to probate and renounced her right to administer with the will annexed, in favor of P. The paper was admitted to probate and letters of administration c. t. a. were granted to P who gave bond and qualified according to law. Subsequently the widow filed a petition in the Orphans’ Court praying that the matter of the probate might be again examined and heard according to the provisions of Art. 93, sec. 320, of the Code, and that the letters of administration c. t. a. might be revoked. The petition alleged that the petitioner when she signed the paper filed with the alleged will, did so in the full trust and belief that said alleged will set forth the full testamentary scheme and purposes of her deceased husband, but that in this respect she was misled and misinformed ; and she had since learned, and so averred and declared, that said paper did not contain the testamentary scheme or purposes of said deceased, in that it did not set forth the legacies or bequests which he intended to give to the persons mentioned, after whose names no amount was stated. The petition went on to state the specific amount which as alleged by the petitioner it was the intention of her deceased husband, to give to those persons respectively — which was well known to the petitioner, and which she believed was set forth in the alleged testamentary paper when she signed the paper filed therewith. P. fully answered the petition and testimony being taken on both sides, the Orphans' Court dismissed the petition. On appeal it was Held :</p> <p>That the paper writing was properly admitted to probate as a valid will; the existence of the blanks did not defeat the will, although the particular bequests being in blank, would fail for uncertainty; the other bequests being clearly expressed and being in no manner connected with or dependent upon those in blank, would have effect, it being the manifest intention of the deceased that the paper as it stood, should operate as his will.</p>

Writ of Error from the Circuit Court for Carroll County. The appellant was indicted in the Circuit Court for Washington County for an assault and battery upon one John Delosier. At the suggestion and upon the affidavit of the accused, the case was removed to the Circuit Court for Carroll County. The indictment contained six counts. The traverser demurred to the sixth count, which is set out in the opinion of this Court.

The appellant filed his petition in the Orphans’ Court of Baltimore City, under section 238 of Article 93, of the Code of Public General Laws, alleging the concealment of a large amount of assets belonging to the estate of his testator, by the appellee. The answer of the appellee under oath, denied the concealment charged.

John Blair on the 13th of October, 1870, became a member of the United ¡States Railroad Conductors' Life Insurance Company, a voluntary association, the object of which was to provide for the widows and children, heirs or representatives of its members when they died. In November, following, John Blair died, and the sum of §3275, was assessed upon the members of the Company, to be paid to his widow, he having died intestate.

<p> Accident the result of the Plaintiff’s negligence. </p> <p>On a suit for injuries produced by the defendant’s negligence, the defendant claimed that the injuries were the result of the plaintiff’s negligence. Held :</p> <p>1st. That the burden is first on the plaintiff to prove the defendant’s negligence, and evidence of this being offered, the burden is then on the defendant to prove the contributing negligence of the plaintiff.</p> <p>2nd. That the plaintiff does not lose his right to recover, except when the injury would not have happened without his negligence, nor even then where, by reasonable care, the defendant might have avoided the result of such negligence.</p> <p>An injury under the circumstances of this case was held to be the result of the plaintiff's negligence.</p> <p>When the employés in charge of a railway train, have given all the usual and proper signals to warn persons of their approach, they are not required to stop the train on discovering a person on the track, unless they have reason to believe that he is labouring under some disability, or that he does not . hear or comprehend the signals.</p> <p>[The arguments in this case being minute examinations and analyses of the prayers, are omitted, inasmuch as the Court did not enter into this examination, but held that the Circuit Court should have instructed the jury that there was no evidence of negligence on the part of the defendant. Rep.j</p>

<p>Appeal from the Superior Court of Baltimore City.</p> <p>The facts are stated in the opinion of the Court.</p>

The case is stated in the opinion of the Court. Exception. — The plaintiff offered two prayers, which the Court (Dobbin, J.) granted ; the first is set out in the opinion of this Court, the second is as follows: If the jury find from, the evidence that the defendant came unlawfully into the premises of the plaintiff, and then and there conducted himself in a violent and angry 'manner, using abusive and insulting language to the plaintiff, and putting her and her family into…

This was an action of assumpsit on the common counts to which the general issue was pleaded, and errors of pleading were waived.

The first and second exceptions are sufficiently stated in the opinion of the Court; the third is as follows: Third Exception. — The defendant, Porter, offered the following prayers: 1.

<p>Construction of a Will — Punctuation; when resorted to in Construction.</p> <p>The seventh clause of the will of Gr. M. was in these words “Seventh — All the rest and residue of my estate, real, personal or mixed, I give and devise to my three children, Rhoda A. Weatherly, Beverly Waugh Mister and Mary A. Mister,' to be equally divided between them; but if either of my said children should die prior to my decease, leaving no child or children living at the time of his or her death, in that event my surviving child or children shall be entitled to the said rest and residue of my estate, and the part which may fall to my daughter Rhoda A. Weatherly, shall he held by her as her sole and separate estate, and subject to the limitations as to her husband, and as to its further disposition contained in the third item of this will.” The third item bequeathed a legacy to Rhoda A. Weatherly free from the control of her husband, and at her death to vest in any child or children she might have, and in case she died without issue surviving her, then to vest in the testator’s children surviving her, equally. The three children of the testator survived him. Held :</p> <p>That Rhoda A. Weatherly took an estate for life to her sole and separate use, with a limitation over, and not an absolute estate in the one third residue bequeathed her by the seventh clause.</p> <p>In construction, punctuation may be resorted to when no other means can be found of solving an ambiguity; but not in cases where no real ambiguity exists except what the punctuation itself creates. In such cases it will not be allowed to confuse a construction otherwise clear.</p> <p>[Counsel here made an elaborate examination of the provisions of the will, and contended that it did not show a general intention of the testator to subject to one and the same limitation every thing that he gave his daughter, Rhoda. Rep.]</p> <p>[Counsel here contended from an examination of the will, that the construction claimed to be correct by the appellants would effectuate the special intention of the clause. Rep.]</p>

In the year 1821, the appellee purchased in fee a parcel of land for a burial ground, and it was used for many years for that purpose. The late Eaton R. Partridge, in his life-time, paid to the appellee the sum of $25 for a lot in said burial ground, and obtained a certificate therefor, in the form issued to lot-holders by the appellee, which was neither sealed, acknowledged nor recorded.

<p>Testamentary Law: Code, Article 93, sections 143, 238 — Ex parte account and distribution by Administrator — Jurisdiction of Courts — Delay as a Defence — Agency of wife for Eusband.</p> <p>Where a will which has been admitted to probate is declared by the Court of Appeals to be void, administration with the will annexed, granted upon an ex parte application, and distribution made under such administration, are also void.</p> <p>An alleged nuncupative will having been held void by the Court of Appeals, the Orphans’ Court revoked its letters of administration c. t. a. formerly issued to M. and granted letters of administration to H. who thereafter filed a petition on the l-8th of March, ÍSÍI, under Article 93, section 238 of the Code, charging that M. concealed and withheld from him the assets. M. answered under oath, denying the allegations of the petition, and thereupon on the lYth of May, lSYl, the Court dismissed the petition, no proof having been taken to sustain it. Two days afterwards, H. as administrator, filed a bill in the Court of Equity against M., his wife, who was legatee under the .alleged will, and others, charging as in the previous petition, and praying an account and injunction and vacation of certain conveyances. Pending proceedings under this bill, on the llth of April, 18T2, H. as administrator, filed another petition in the Orphans’ Court, praying to surcharge and falsify the last administration account of M passed ex parts in February, I860, by which the balance of the estate was "retained by M. in right of his wife’’ as legatee. Upon appeal from an order that said account be reopened for this purpose, Hjsuj :</p> <p>1st. That the second petition, though analogous to the first, was entirely distinct in its object and nature.</p> <p>2nd. That the second petition was not too late.</p> <p>3rd. That no possible conflict could occur between the two Courts in the exercise of their respective powers, and that the reformation of the account in ¡he Orphans’ Court was ancillary to the proceedings in Equity:</p> <p>4th. That the receipts of rent by M’s wife as legatee, after the account of Feb. 1866, if bom fide and sno jure, were ihe receipts of M. as administrator, she being his agent pro tanto.</p>