Volume 4 — Maryland Reports

This appeal was taken from an order of Ihe orphans court, dismissing the petition of the appellants for an account and distribution of certain assets of the estate of Andrew Meyer, deceased, in this State. The facts of the case are fully stated in the opinion of this court.

Charles Torrance died in 1822, leaving a will duly executed to pass real estate, by which he devised to his wife, Elizabeth Torrance, during her natural life, the whole of his estate, real and persona], and then directed as follows: “And as to what shall become of it after her decease, I do hereby authorise and empower my said wife, Elizabeth, by deed, will, or otherwise, to give, grant, convey, devise or dispose of my said estate Tinto and among all op such of my children,…

The bill in this case was filed on the 16th of February 1852 by the appellants, charging that they are members of a religious corporation styled “The Colored Peoples5 First Baptist Church in the city of Baltimore,55 originally incorporated in March 1837; that complainant, Clayton, was for many years the minister in charge of said congregation, and they have been duly elected trustees of the corporation.

<p>Under the 2nd section of the act of 1833, ch. 181, relating to mortgages in Baltimore city, the court is only restricted in fixing a time for the sale to “one of the periods limited” in the mortgage for forfeiture thereof, and it may prescribe such terms of sale as shall seem proper.</p> <p>Under this authority it is clearly within the power of the court to direct, as one of the terms of sale, that the property shall be sold for cash.</p> <p>The mortgage itself fixes the time for the payment of the money, and the mortgagor cannot complain that further notice was not given to him.</p>

Apff.aju from the Equity Side of the Superior Court for Baltimore city.

The bill in this pase was filed by the appellant on the 14th of August 1851, stating that in 1849, he became possessed of the right to mine zinc ore on certain lands in Lehigh county, Pennsylvania, for the space of three years from the 1st of January 1850, which ore was of unexampled purity and richness, yielding over sixty per cent of clear metal, but could only be rendered profitable by being manufactured into metals and paints, and that for this purpose he, on the 1st of…

The appeal in this case was taken by the appellees, the defendants below, from the order of the court below overruling their demurrer to the' bill of the appellee, and also from the order granting the injunction prayed for by the bill.

Appeal- from the Court of Chancery. The appeal in this case was taken by the appellant from an order of the chancellor, passed on the 19th of April 1853, discharging him- as receiver of the estate of Rachel Colvin, a deceased lunatic, and directing him to account for and deliver up the property under his control to the appellee, who had .been appointed administrator pendente lite of the deceased by the orphans court of Baltimore city.

The object of this suit was to set aside as fraudulent three deeds, executed by Ann Watson prior to her application for the benefit of the insolvent laws. The first was made to her son, Hugh McNeal, on the 11th of July 1843, and conveyed to him certain leasehold property, on Pratt street, in Baltimore, for an ostensible consideration of $404.

The appellant and Walter Farnandis filed their bill against the appellee, Keen, alleging that the latter, as their agent, had purchased for them a tract of land called lot No. 4 of “Hall’s Park,” sold by Benjamin C. Presstman, as trustee, under a decree in chancery. That Keen, in violation of his contract, was fraudulently claiming the land as his own, and selling the wood and timber therefrom, (for which the land was chiefly valuable,) and cutting and carrying away the same.

The bill in this case was filed by the appellee, on the 4th of December 1850, against the appellant and others, stating in substance that by deed, dated tbe 17th of April 1843, Catharine Drake conveyed to complainant certain property in that deed described, and all other her property, in Irust for her use during her life, with absolute power in any manner, and free from the control of any future husband to dispose of said property, and in the event of a failure on her part…

AppeíXi from the Equity Side of Washington county court. The bill in this case was filed by the appellant, on the 13lh of September 1850, and seeks to set aside a sale of lands made by Martin and Kemp, two of the defendants, as trustees under a deed of trust, executed by her to them, on the 8th of December 1845. The bill states the execution of the deed and makes an exhibit of it.

This was an action of ejectment, and the present appeal arises from a second trial of the case of Casey vs. Inloes, after it was remanded under the decision on the first appeal in 1 Gill, 430. After remanding and before the trial, there was a suggestion of the death of Mrs. Casey, the lessor of the plaintiff, and an appearance entered for Henry Hammond, as her heir at law. Exception.

This was an action of ejectment, instituted by the lessors of the appellant to recover one acre of land, described in the declaration as part of “ Mountenay’s Neck” which is referred to in the preceding case of Hammond1 s Lessee vs. Inloes, et al., and in the cases in 11 G. J., 351; 6 Gill, 321; and 1 Gill, 430. The plea and defence were the same as in those cases. s Exception.

The appeal in this case was taken from an order of the circuit court refusing to grant a writ of mandamus, applied for by the appellant.

The allegations of the bill in this case, -which was filed by the appellants against the appellee, on the 16th of December 1852, are sufficiently stated in the opinion of this court.The injunction was granted as prayed. The answer, which, was made under oath and filed on the 8th of January 1853, denies all notice, either actual or constructive, of the conveyance to Mrs. Winchester, and sets up the defence that the company was a bona fide purchaser without notice.

This was an action of trespass on the case, instituted by the appellee against the appellant, on the 30th of April 1847, to recover damages for injuries caused by fire communicated to the plaintiff’s property by the defendant’s locomotives.

This appeal was taken from an order of the court below, refusing to order the issue of a fieri facias, as prayed by the petition of the appellant, and referring the case to the auditor to state an account. The facts of the case are stated in the opinion of this court.

This was an action of trespass vi et armis, instituted on the-28th of March 1848, by the appellee against the appellants, and two others, who were returned non sunt, to recover damages for an assault and false imprisonment. The appellants appeared and pleaded: — 1st. Noncul. 2nd, Non cul infra annum. 3rd.

<p>An appeal was taken from a judgment rendered by confession upon a single bill which did not appear to have been stamped, and for this reason, and the want of a declaration, a reversal was asked. Held :</p> <p>That under the act of 1825, ch. 117, the judgment must be affirmed, there being no motion in arrest, and the record presenting no point or question upon which the court below decided.</p> <p>The act of 1825, ch. 117, does not apply to motions in arrest of judgment, yet the motion must be made before this court can look behind the judgment.</p>

This was an action of debt, instituted by the appellee against the appellant, as one of the sureties upon the constable’s bond of one Kelita Suit, dated the 28th of June 1845, the condition of which was, that if said Suit “shall well and truly execute the office of constable in the 4th election district of Charles county,” “and shall well and truly account for all moneys placed in his hands for collection, and shall well and truly pay all sums of money received by him, then”…

Mary’s county. This was an attachment, issued on the 29th of October 1850, at the instance of the appellant, upon a judgment, of which he was the assignee, recovered in St. Mary’s county-court in March 1848, by the State against Russell, as principal, and the appellant, as sureties. The attachment was, on the 20th of November 1850, laid in the hands of Pembroke, who appeared and pleaded thereto: — 1st, nul tiel record.

This was an action of assumpsit, brought by the appellee against the appellant, upon a promissory note, dated the 12th of July 1847, for $200, at sixty days, payable to the appellee, or order, and purporting to be signed by “Fogg and Thurs-ton.” The declaration contained a count upon the note and the common money counts. Exception.

This was an action of assumpsit, brought by the appellants as holders against the appellee, as endorser of a promissory note drawn by Robert Wright for $895, dated “Bladensburg, Aug. 31st, 1844,” at four months, and “negotiable and payable at the Farmers Bank of Maryland, Annapolis.” The plea was non-assumpsit. Exception. The testimony offered by the plaintiff in regard to notice of protest is stated in the opinion of this court.

A scire facias was issued by the appellees on the 12th of August 1848, under the act of 1838, ch. 205, upon a lien claimed by them upon a house and lot owned by the appellant, for materials furnished by them to one Wall, the contractor for the construction of said house. The claim for lien, amounting to $491.47, was filed on the 25th of March 1848.

This was an attachment upon warrant, issued on the 2nd of May 1850, by the appellants, non-resident creditors of Wiggins and McConnekin, trading under the firm of B. F. Wiggins & Co., and laid in the hands of the appellee, Horsey, permanent trustee in insolvency of Wiggins.

This appeal is from a decree of the chancellor, (Johnson,) directing the appellants to deliver up to the appellee certain bonds in their possession, under the circumstances stated in the bill and answer. The allegations of the bill and answer, and the proof in the case, are so fully stated in the opinion of this court, as well as in 3 Md. Ch. Decisions, 119, where the chancellor’s opinion is reported, as to render any additional statement unnecessary.

Michael B. Carroll died in August 1851, leaving a will executed on the 10th of September 1837, by which he devised, “after payment of debts,” &c., as follows: “Item-, to my dear wife, Jane, I give and bequeath all my slaves, and do request that none of them may be sold or disposed of for the payment of my debts, but that provision shall be made for discharging the same out of the other personal property and effects which I shall leave at the time of my death.” * * * “Item. —…

This was an action of trover, brought on the 2nd of November 1850, by the appellee, Norman, an infant, by Sprigg, as bis prochein ami, against the appellants, to recover the value of three certificates of stock particularly described in the declaration. Plea, non cul. Exception.

This appeal was taken from several orders of the chancellor, excluding claims Nos. 4, 5, 6 and 45, filed against the estate of Thomas Mackall, deceased, which had been sold under the proceedings in this cause for partition amongst his heirs at law. The first three were claims of Anne R. G. Mackall, a sister of the deceased, and were, after various proceedings, allowed by an order of the chancellor, dated the 21st of July 1849.

This case is connected with the preceding, and is an appeal taken by the heirs at law of Thomas Mackall from the decree of the chancellor, overruling their exceptions to claim No. 1 against the estate of said Thomas, and allowing the same. The exceptions were that the claim was not fully proved and was barred by limitations. All the material facts of the case relating to this claim are stated in the opinion of this court, and also in 3 Md.

This appeal was taken from an order of the court below, dismissing a petition of the appellants.

The appeal in this case was taken from an order of the orphans court, awarding issues upon the application of the appellees.

<p>A promissory note dated.the 17th of October 1849, and payable “twelve months after date,” falls due .on the 20th of October 1850, and that day being Sunday the demand was- properly made on the preceding Saturday.-</p>

This was an action for an assault and lattery, committed by the appellants upon the appellee, and was instituted against them jointly. The writ was served upon John only, and an alias writ was sued out against Geo. A. The declaration was filed against both at April term 1850, and at the same term the alias writ was returned non est, a second one sued out, and John pleaded separately wow. cul, and son assault demesne.

This was an action of .assumpsit, by the appellees against the appellant, as endorser of a promissory note, dated the 23rd of June 1847, payable “six months after date”' at “the Farmers Bank of Maryland.” Plea, non assumpsit. 1st Exception.

This is an appeal from the order of the court below rejecting the application of the appellants for a commission of five per cent., as administrators upon the estates of Raphael C. Edeien, Sen., and Sarah A. Edelen, and allowing them but three per cení.

This was an action of assumpsit, brought by the appellant on the 12th of August 1850, upon a promissory note in her favor, dated July 26th, 1847,, payable one day after date,, signed by the appellee and another. The pleas were non assumpsit and limitations. A ne recipiatur to the second plea having been overruled the case was tried at April term 1852, upon issues joined on both pleas, and a verdict was rendered for the defendant upon both. Exception.

<p>The act of 1838, ch. 114, is-a public general law, and in an action under it, an averment in the declaration that the words were spoken “ against the form of the statute in such case made and provided,” is a sufficient reference to it.</p> <p>tinder the act of 1809, ch. 153, sec. 2, a judg'ment will not be stayed or reversed for any defect in form or substance in any count in the declaration, if there he one good count.</p> <p>The purpose of the act of 183S, ch. 114, was to make all words spoken maliciously touching the character for chastity of an unmarried woman, slander per se, atid prima facie actionable as slanderous words are now actionable at common law.</p> <p>At common law where the slander is prima facie actionable, a declaration stating the malicious intention of the defendant and the slander concerning the plaintiff is sufficient without any prefatory inducement.</p> <p>Under the act of 1809, ch. 153, the court may properly allow a declaration to he amended after a demurrer to it has been ruled good, it being a power resting in the sound discretion of the court.</p>

Crandall, and Elizabeth his wife, against the appellant. The declaration contains four counts. 1st, for articles properly chargeable in account, as per particular account thereof filed. 2nd, for goods sold and delivered. 3rd, the usual money counts. 4th, an insimul computassent count. The plaintiffs also filed with the declaration, the following account stating their cause of action, “Charles Ridgeley, Jr. To James H. Crandall and Elizabeth, his wife, Dr. 1850.

This was an action of replevin, brought by the appellant, as administrator ad colligendum of Samuel Owens, deceased, against the appellee, to recover a negro slave, alleged to belong to the estate of the said Owens. The first plea of the defendant, (which is the only one necessary to be noticed,) denies that the plaintiff is, or ever was collector, as alleged in the declaration, and issue was joined thereon. Exception.

This was an action of assumpsit by the* appellant against-the appellee, to recover money paid to defendant for the use of the plaintiff, for the rent of a certain house and lot, for two years from- the 2nd of April 1849. The declaration contained simply the count for money had and received. The plea was non assumpsit. ■ 1st Exception.: The plaintiff offered the evidence set out in the opinion'of this- court.

This was an action of slander, by the appellant against the appellee. The declaration charges the defendant with maliciously speaking of the plaintiff these words: “Ben Long stole Ben Lancaster’s old sow, and drove her away in the night, and it can be proved.” Plea, non cul. Exception. The plaintiff proved by Wm.

<p>In cases for the specific performance of contracts, the complainant must establish the very contract set up in his bill, and all the acts of part performance relied upon must be clear and definite, and refer exclusively to the alleged agreement.</p> <p>Agreements to devise real estate may be enforced, by specific performance, against the devisees of the land, if it bo otherwise disposed of by the party making the agreement, hut such agreements are to he dealt with in equity no less strictly than other contracts within the statute of frauds.</p> <p>All agreements to he executed in equity must be certain and defined, equal and fair, and proved a3 the law requires, and it is enough to doubt upon any one of these points to refuse relief.</p> <p>If a party in the sale of a slave gives up to the vendee a part of the purchase money, in the hope that the latter would devise to the former’s wife a certain tract of land, this imposes nothing more than an obligation of honor upon the vendee, out of which no action can arise.</p>

This appeal was taken from the decree of the court below, dismissing the bill of the appellant, filed in that court orr the 4th of September 1847.

<p>Appeal from the Circuit Court for Anne Arundel county.</p> <p>This was an action of assumpsit, by the appellant against the appellees, executors of John Peterson, to recover money expended by the plaintiff for the support, maintenance, and education of two grandchildren of the testator, Peterson, who were also step-children of the plaintiff, he having- married their mother, who was the daughter of said Peterson. The case was tried before the jury upon issues to the pleas: — 1st, of non assumpsit; 2nd, limitations; 3rd, set-off; and 4th, that plaintiff did not sue within nine months after dispute and rejection of his claim by defendants, as executors, as required by the act of 1798, ch. 101, sub-ch. 8, sec. 18. Jn the course of the trial two exceptions were taken by defendants, which need not be stated, as they did not appeal. The exceptions by the plaintiff are as follows:</p> <p>1st Exception. The proof in this exception is fully stated in the opinion of this court. The defendants then offered their fifth and sixth prayers, the former of which is also set out in the opinion, and the latter is in substance as follows: If the jury find that the claim of plaintiff for the board of the boy is founded on an agreement between the parties, that plaintiff was to board and clothe him, and the testator of defendants was to pay plaintiff therefor $ 125 per annum, and that this agreement was not in writing, and was not to be performed or completed by either party, according to the understanding of the parties thereto, within one year from its date, then the promise of said testator is void and inoperative, and no recovery can be had thereon; and if they further find that said testator afterwards acknowledged that he owed f 500 to plaintiff for said board and clothing, and was anxious to pay him, and declared he -would pay him as soon as he should sell his crop of tobacco, then this acknowledgment and promise are inoperative and void, if the jury further find that they had reference to the supposed liability of the testator under the agreement between the parties, as above found.</p> <p>The plaintiff then offered his first prayer, that if the jury find that the contract between the plaintiff and defendants’ testator was executed by the plaintiff, he is entitled to recover so far as they shall find it was executed by him.</p> <p>The court, (Brewer, J.,) granted the prayers of the defendants, and rejected that of the plaintiff. To this ruling the plaintiff excepted.</p> <p>2nd Exception. This exception was taken by the plaintiff to the refusal of the court to grant his second prayer, to the effect, that if the jury find that the contract on the part of the plaintiff with defendants’ testator was performed by him for the first year after such contract was entered into, and that said testator, within three years before the commencement of this suit, promised to pay for the same, then plaintiff is entitled to recover the amount so agreed to be paid him.</p> <p>3rd Exception. The plaintiff offered to read to the jury the evidence taken under a commission issued to Louisiana. The commission upon its face directed the commissioner to examine witnesses in a cause “depending in Anne Aiundel county court, between George Ellieolt, plaintiff, and George Peterson and John Turner, executors of John Turner, deceased.” The interrogatories by plaintiff, and cross-interrogatories by defendants, filed with this commission, were entitled as of the present case, viz: “George Elllicott vs. George Peterson and John Turner, executors of John Peterson, .deceased.” The evidence taken consisted of the testimony of Ann W. Bryant, formerly Ann W. Iglehart, who was one of the children for the recovery of the expenses of whose board and education this suit was instituted. The defendants objected to the admissibility of this commission, because of irregularities apparent on its face, it appearing in the body thereof to authorise testimony to be taken in a different case from the present, and the court concurring with them in opinion refused to permit the testimony to be read. To this ruling the plaintiff excepted, and the verdict and judgment being for defendant, appealed.</p>

Shipley and wife were appointed administrators of Wood, on the 3rd of February 1853, and gave bond as such. On the 2nd of August of the same year, one of the sureties in the bond, filed his petition in the orphans court, praying for an order directing the administrators to bring into court $2800, part of the estate in their hands, to be invested until final settlement and distribution.

<p>Patent ambiguities appear on the face of the writing itself, and, as a general rule, cannot be explained or removed by extrinsic evidence; in such cases the court is to ascertain the meaning of the words actually employed, not what the parties may have secretly intended as contradistinguished from what their words import.</p> <p>Defendant covenanted to convey to plaintiff ” three hundred and twenty acres of unimproved land in Clarke county, Missouri, being the same land which was purchased from government by Z. and R. and by said Z. and R. sold to defendant. ” Held:</p> <p>That one of the ambiguities in this covenant, if any, is, whether the land to be thereby conveyed was to consist of land conveyed to defendant by Z. and R. jointly, or by each separately; but it cannot be shown by parol that it was intended to be land conveyed by Z. alone or R. alone, for this would be to vary or contradict the written instrument.</p> <p>Where the description in a written instrument, of the person, thing, or place, intended, is equally applicable to each of several subjects, there is a latent ambiguity, and extrinsic evidence is admissible to show which of these several subjects was meant.</p> <p>Latent ambiguities are first created by extrinsic evidence, which afterwards renders extrinsic evidence necessary to explain or reconcile them.</p> <p>The bona fide acceptance by plaintiff of a deed from defendant, though not embracing the identical lands described in the covenant, operates a full discharge of the latter, and a subsequent conveyance by plaintiff of the same lands embraced in the deed is evidence of such acceptance.</p> <p>In a suit for a breach of this covenant in not conveying the land, its value at the time of the breach constitutes the measure of damages, and evidence of what its value was at the time of the execution of the covenant is irrelevant and inadmissible.</p> <p>After the plaintiff had accepted the deed from defendant for the land in separate parcels, it was too late' for him to attempt to show that the covenant contemplated land in one body.</p> <p>Evidence offered for a particular purpose may be properly rejected, though admissible generally or for some other purpose.</p> <p>Declarations of defendant that the land was to lie in one body, made before his deed to plaintiff was executed, are not, per se, evidence of fraud on his part, or mistake in the acceptance of the deed by the plaintiff, unless accompanied by a proffer to follow them up with other facts connected with them, from which the jury could rationally infer the fraud or mistake.</p> <p>But such declarations, if made after the deed was executed, without any qualifying or explanatory remarks showing that plaintiff had waived his right to have the land in one body, would be evidence, per se, tending to show the alleged fraud or mistake.</p> <p>Kvidence relative to the issue is admissible, though it is insufficient, unless followed and supported by other evidence.</p> <p>The declarations of an agent are not admissible to bind his principal, under any circumstances, until the agency is first clearly established.</p> <p>Where part of the evidence in an exception is admissible, and part not, and the rejection of the whole is asked for, there is no error in the court’s refusal to sustain such application.</p> <p>Any instruction which may he asked for by counsel, however correct it may he in the abstract, should he rejected by the court, if unsupported by evidence properly in the cause.</p> <p>If one or more of several propositions contained in the same prayer he incorrect, though the remainder be right, there is no error in the refusal to grant the prayer in its entirety.</p>

In this case an action of assumpsit for goods sold and delivered, was brought by the appellees against the appellants and one Arthur Johnston, on the 18th of March 1846. An account, (the cause of action,) was filed with the declaration, with the affidavit of William G. Thomas, one of the firm of Thomas and George, and Richard Plumer, their clerk, as to its correctness, annexed thereto.

The appeal in this cause was taken from an order of an associate judge (Bbeweb) of the third judicial district, acting as chancellor, to whom the case was certified under the act of Assembly by the chancellor, who had been counsel for one of the parties. The proceedings in the cause are so fully stated in the opinion of this court as to render any additional statement unnecessary.

This appeal was taken from a decree of the chancellor dismissing the bill of the appellant, the complainant below. The facts of the case are fully stated in the opinions of this pourt, and also in the opinion of the chancellor, reported in jhe case qf Holmes vs. Mitchell, in 4 Md. Ch. Decisions.