Volume 43 — Maryland Reports

This was an application by the appellant for a writ of mandamus The petitioner, in substance alleged that on Easter Monday, 1874, he was re-elected an elder in the Evangelical Reformed Church of Frederick, and that he was entitled to be admitted into said office as a member of the consistory of said church, and to exercise and perform the duties thereof; but that the appellees had excluded and continued to exclude him from the exercise of his authority as member of said…

The following is added to the statement of the case as presented in the opinion of the Court. First Exception.

This was an action of ejectment brought by the appellees against the appellant. The plaintiffs, assuming that they were entitled to a portion of the accretion in front of their lot, No. 27, and the water, advanced five different methods of laying out the same.

The facts of the case are sufficiently stated in the opinion of the Court. The surety will not be discharged, where the act of the holder, (as giving time to the principal, or accepting a composition, &c.,) was with the assent or approval of the surety, as is relied on in the replications in question. 2 White & Tudor’s Lead.

<p>Equitable Set-off — An Attorney has no IAen on a Judgment recovered for his Client, for Professional services rendered'in the Suit — Insolvency an Equitable ground of Set-off.</p> <p>A judgment for $6000, was recovered in an action of tort by U. against 0. in tlie Superior Court of Baltimore City in 1871, and was affirmed by the Court of Appeals in 1873. Prior to the institution of that suit, namely: in 1866, U. became indebted to 0. in the sum of $11,000, for which, with interest thereon, C. held the promissory notes of U. secured by a deed of trust to R. conveying certain lands in Virginia. In 1868, C. instituted proceedings in equity in Virginia to enforce his claim against the property conveyed by the deed of trust. This claim was resisted by U. upon the alleged ground of fraud and usury, and by other defendants in the cause, who claimed to hold liens upon one of the parcels of land described in the deed of trust, prior and superior to the lien of C., but the Court in 1871, passed a decree in favor of C. not only against U. but also against the other defen-' dants in the suit, and adjudged that C. was entitled to a priority of lien as against the property. Prom that decree the parties defendants took an appeal to the Court of Appeals of Virginia. U. being indebted to his attorneys M. and P. for professional services rendered by them in the aforementioned action of tort, he having contracted at the time of retaining them to prosecute the suit, to pay them one-third of the amount which might be recovered, assigned the judgment therein recovered, to them, to the extent of $2000, being the one-third thereof. U. being indebted to other persons, the said judgment was entered to their use to the extent of their respective claims; these latter uses being entered subject to the previous entry to the use of M. and P. Upon failure by C. to pay to M. and P. upon their demand, the sum of $2000 with the costs adjudged by the Court of Appeals of Maryland, they caused a fieri facias to be issued out of said Court in the name of U. against C. who thereupon filed his bill to restrain by injunction the enforcement of the judgment against him, until the determination of the proceedings pending in the Court in Virginia, and until the mutual claims and demands of the complainant and TJ. should be adjusted by proper accounts to be taken between them under the direction of the Court. The relief sought by the complainant was-asked on the ground of an equitable set-off, the bill charging that he was precluded by the ordinary' rules of law from setting up his claim, against U, in the action of tort, in which the judgment was recovered. U. the judgment creditor was utterly insolvent. Held :</p> <p>1st. That the complainant was entitled to the equitable right of set-off, not only as against U. but also as against the parties to whose use the judgment was entered; and consequently entitled to be protected by injunction against the enforcement of the judgment.</p> <p>2nd. That, as against the equitable right of set-off, claimed by the complainant, M. and F. were not entitled to any lien upon the judgment,1 growing out of their contract with U. or for professional services rendered by them as attorneys in the suit.</p> <p>The insolvency' of a party seeking to enforce his judgment, furnishes a sufficient ground for the interposition of a Court of equity io enable the debtor to avail himself of a set-off.</p>

<p>When the decision of the Circuit Court on an Appeal from a Justice of the Peape, is Final — Construction of Art. 51, secs. 14 and 33, of the Code, relating to the Jurisdiction of Justices of the Peace.</p> <p>On an appeal to the Circuit Court from the judgment of a justice of the peace, the decision of the Oii'cuit Court, if it have jurisdiction, is final.</p> <p>A case was instituted before a justice of the peace for the recovery of a small debt. The suit was based on an account “for ground-rent, for loading iron-ore on sideling at fifty cents per car,” and stating the dates and numbers of the cars. No objection to the jurisdiction was made before the justice. At the trial of the appeal in the Circuit Court the defendant filed a paper signed by his counsel, and verified by the affidavit of the defendant alleging' that the title to land was involved in the case, and denying the plaintiff’s title to the land upon which the rent claimed was alleged to have accrued. On appeal to this Court, it was Held :</p> <p>1st. That a suit brought for the recovery of rent is not within sections 14 and 33, of Art. 51, of the Code, relating to the jurisdiction of justices- of the peace, as such a suit is not one in which title to the land is “necessarily and directly in issue.”</p> <p>2nd. That the statement of' the defendant in his affidavit, that the title to land was involved, was not conclusive, and could not govern or control the action of the Court, or determine its jurisdiction.</p> <p>3rd. That it must appear to the Court from the nature of the action itself that it is one in which the title to land is necessarily and directly in issue between the parties.</p> <p>4th. That the appeal to this Court must be dismissed.</p>

<p>Practice in the Court of Appeals — Prayers and Instructions— Question of Law — Partnership—Limitations—New Promise.</p> <p>The objection to a prayer that it assumes a fact which ought to have been submitted to the jury, may be raised in the Court of Appeals, if the prayer were rejected by the Court below.</p> <p>A prayer is defective which places the plaintiff’s right to recover upon a single fact, omitting to submit to the jury the other facts material to establish the plaintiff’s case, and ignoring the proof offered by the defendant, and his defence under the Statute of Limitations.</p> <p>Whether a promise was made “ before the Statute of Limitations had attached to the note sued on,” is a question of law, and improper to be submitted to the jury.</p> <p>A prayer which groups a number of facts together, and asks the Court to say to the jury that from the facts so enumerated, if found by them, they may infer that a firm had been dissolved, and that the plaintiff knew it when the note sued was given, may properly be granted, the facts so enumerated being such, if found by the jury, as to authorize them to draw the inference sought to be deduced fronqsuch facts.</p> <p>There can be no objection to a prayer which merely asks that tlie jury may presume, or are at liberty to presume, y.c./ upon the facts and circumstances as stated in the prayer.</p> <p>After a partnership was dissolved, a note was given in the partnership name by one of two partners for a pre-existing partnership debt. In an action on the note against the other partner, it was Hhld :</p> <p>1st. That if the debt was barred by limitations at the time the note was given, the defendant would not be liable upon the note, the same having been made without his knowledge or authority.</p> <p>2nd. That the admission or promise of the partner who signed the note, if made without the authority of the defendant, though made within three years before the institution of the suit, could not revive the right of action on the note against the defendant, or deprive him of his defence under the statute.</p>

This was an action of assumpsit on a promissory note, by the appellee, the holder, against the appellant, the last endorser.

On the 1st day of June, 1869, the appellee conveyed certain real estate to the appellant and took from him a mortgage bearing date the 5th of June, 1869, to secure the balance of the purchase money.

Exception. — The plaintiff offered the following prayer : If the jury believe that the defendant, Samuel Kinsey, together with A. W. Shipley, rented the premises known as No. 875 W. Baltimore Street, from the plaintiff, upon the terms set forth in the paper offered in evidence, dated the 22nd of September, 1869, and that they entered into tlie possession of said promises under said paper, and shall further find that it was agreed between the plaintiff and the defendants,…

This was an appeal from an order of the Orphans’ Court of Allegany County, directing the administrator c. t. a. of John Hays, deceased, after paying out of the funds in his hands, as shown by his third administration account, the costs of the proceeding in said Court, to distribute the residue equally between Charlotte Wright and Ann Seay, wife of Charles A. Seay, as representatives of Ann M. Hays, to the exclusion of Thomas Hays and others, claiming said fund as the…

This action was brought hy the appellant against the appellees.

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

Appear from the Circuit Court for Baltimore County, sitting in Equity. Tills appeal was taken from an order of the Court below, (Yerrott, J.,) dismissing the complainant’s bill. Tlie case is stated in the opinion of the Court.

This was an appeal from an order of the Circuit Court, setting aside an award which had been made in the cause, and directing the cause to be re-instated. The case is stated in the opinion of this Court. “ When the arbitrator or referee has made, or as it is said in some cases, has made and published his award or report as a completed instrument, his power is wholly at an end. He has exhausted his authority.

The bill in this case was filed by the appellee against the appellant and her husband (now deceased) and Henry W. Ellicott, for the specific performance of an alleged contract, that the appellant was to take a lease from the appellee of certain land in Baltimore County. During the pendency of the cause the land was sold under a mortgage, and by a supplemental bill the complainant prayed compensation for the non-performance of the contract.

This was an action of ejectment brought by the appellant against the appellees. The facts are sufficiently given in the opinion of the Court.

This case was tried in the Court below upon the following issues sent from the Orphans’ Court of Baltimore City, at the instance of the appellants, who were the caveators of the will of John Mason, the other issues having been withdrawn : 1st. Is the paper-writing purporting to be the last will and testament of John Mason, deceased, which was admitted to probate on the 30th day of July, 1870, the complete and final last will and testament of said deceased, and was it…

The case is stated iu the opinion of the Court. The Court below only passed upon one of the many .points argued before it, and decided that section 16 of tbe Act of 1870, cb. 309, was unconstitutional, because it did not make any provision for tbe swearing of the jury of condemnation ; and while providing that each party should strike four from the list of those summoned as jurors, so that the number be reduced to twelve, it did not authorize any person, in the event of each…

The bill in this case was filed by the appellees against the appellant and others for the foreclosure of the following mortgage, which was properly executed : “This mortgage made this 31st of May, in the year 1869, by Matthew W. Kilgore, of the City of Baltimore in the State of Maryland. “Whereas, Margaret A. Warner, of the City of Baltimore aforesaid, has this day endorsed three promissory notes all of even date herewith, drawn by the said Matthew W. Kilg'ore, each note for…

This suit was instituted by the appellee, in the Baltimore City Court, against the appellant to recover the last three instalments of the subscription of the latter, for ten shares of the capital stock of the former, suit for the first instalment thereof having been previously instituted in the Superior Court of Baltimore City and judgment recovered, which has been entered, subject to this appeal.

The facts of the case are stated in the opinion of the Court. The charge of insolvency in the bill is not sufficiently stated. Allegations “that complainant is informed and believes” that material facts exist, are not sufficient. McDowell vs. Graham, 3 Dana, 73; Jones vs. Cowles, 26 Alab., 612. Insolvency must have existed at the date of the assignment, or the assignment will be good — no equities existing to cling to it.

The petition of Henry M. Warfield, as administrator of Daniel Warfield, deceased, filed in this case on the 22nd of July, 1874, represented that the Mayor and City Council of Baltimore, under and in pursuance of the Acts of 1870, ch. 113, and 1870, ch. 115, authorizing and empowering them to improve Jones’ Falls, and to issue bonds, to an amount not exceeding two million five hundred thousand dollars, for that purpose, passed various City Ordinances for the purposes…

The nature of this case is stated in the opinion of the Court.

This was an action of ejectment brought on the 10th of August, 1874, by the appellants against the appellees to recover the undivided half of certain tracts of land in Allegany County, called “ Iloye’s Coal, Iron and Lime Discovery, ’’and “Duff Green’s Iron Ore Lands.” The plaintiffs claimed title through Michael P. O’Hern who .on the 7th of March, 1853, was seized in fee of the undivided half of said lands.

<p>Appeal from the Circuit Court for Baltimore County.</p> <p>The case is stated in the opinion of the Court.</p>

The nature of this case, and the pleadings and facts are sufficiently stated in the opinion of the Court. Exception. — At the trial the plaintiffs offered the three following prayers: 1.

The bill in this case was filed by tbe appellants to restrain proceedings under a fieri facias issued to enforce a judgment obtained against them in tbe Circuit Court for Washington Comity. Tbe judgment complained of was rendered upon a recognizance given by tbe appellants to indemnify tbe county against all charges for the maintenance of an illegitimate child, of which one of the parties to the recognizance was alleged to be the father.

On the 1st of April, 1875, on the petition of John Broadhelt, a creditor of Sarah Ann Fowler, deceased, letters of administration upon the estate of the said deceased were granted hy the Orphans’ Court of Baltimore City to the appellee.

A fieri facias against the appellant was issued out of the Circuit Court for Baltimore County, directed to the sheriff of Baltimore City, and returnable to the Superior Court of Baltimore City.

The appeal in this case involves the construction of the will of Robert H. Hammett, made and admitted to probate in the year 1850, and the terms of which are set forth in the… Held: doubts in relation thereto having been suggested, filed exceptions to the sale, on the ground that the children of Robert H. Hammett did not acquire a fee-simple title under their father’s will. The Court, by consent of counsel, passed an order overruling these exceptions and ratifying the sale.

The appellant in this case was found to be non compos mentis, upon a writ de lunático inquirendo, issued in September, 1851. On the 16th of December, 1812, she filed a petition, asking the Court to restore her to her legal rights, and to the control of her property, on the ground that her reason was entirely restored, and she was capable of attending to her own affairs.

The bill of complaint in this case, was filed on the 7th of February, 1873, by the appellee against the appellants, Samuel M. Tubman and Agnes, his wife.

This appeal was taken by the plaintiffs from the action of the Court below overruling their demurrer, and giving judgment for the defendants upon an issue joined to a surrejoinder of nul tiel record filed by the plaintiff's, and tried before the Court.

The case is stated in the opinion of the Court. Very little importance is to be attached to the declarations of the deceased, as to the disposition he intended or had made by the will of his estate. Pemberton vs. Pemberton, 13 Vesey, 301; Colvin vs. Fraser, 2 Hagg., 150; Daniel vs. Nockolds, 3 Hagg., 777.

The facts of the case are sufficiently stated in the opinion of the Court. First Exception. — After the testimony was in the defendants offered the four following prayers : 1.

This action was brought hy the appellees on a policy of insurance executed hy the appellant, for the sum of $2500, being $1500 on the furniture factory, leasehold property, which belonged to the appellee, George Beck, and $1000 on the stock of lumber contained in the appellees’ lumber yard, adjoining the factory. The policy was dated the 1st of September, 1813, and was to continue in force for the period of one year.

John Hoover and the appellee, were married in February, 1855. Sometime in the year 1856, Jacob Krouse, the father of the appellee, died intestate, leaving real and personal estate. The real estate was sold under a decree of the Circuit Court for Washington County, as a Court of Equity, passed on the 2nd of December, 1856, and the sale was ratified on the 3rd of March, 1857. The proceeds of this sale were distributed to tbe beirs of said Krouse, of whom the appellee was one.

The facts of the case are sufficiently stated in the opinion of the Court. Firstly. The devise in question is not a charge ujion the estate devised by the will. Secondly. Even assuming said devise to be a charge upon the estate, the appellee must show that the appellant prevented her by his conduct towards her,from having or enjoying a home on the farm. Thirdly.

The case is stated in the opinion of the Court. If tbe rule in Sbelley’s case applies to this will, the first devisees took estates in tail, which estates in Maryland, are converted into estates in fee-simple. And the devisees, being right heirs of the testatrix, and taking the same interest under the will as they would have taken if there had been no will, they are in, by the superior title, as heirs and not as devisees, by descent and not by purchase.

The facts are stated in the opinion of the Court. The jurisdiction of the State Court having attached before the adjudication in bankruptcy, cannot be divested except in a clear case. There was no such clear case here. The power of Congress over State proceedings for the collection of debts, is only implied from the express power to legislate upon the subject of bankruptcy.

This is an appeal from an order of the Court below, overruling the exceptions of the appellants to the sale made and reported by the appellees Henry H. Keedy and George W. Smith, trustees, and finally ratifying and confirming said sale. The case is stated in the opinion of this Court.

<p>Removal of Causes under Art. 4, sec. 8, of the Constitution— TJnconstitutionality of the Act of 1874, ch. 94, imposing Restrictions upon the right of Removal.</p> <p>Section 8 of Article 4 of the Constitution provides that, “the Judge or Judges of any Court of this State, except the Court of Appeals, shall order and direct the Record of proceedings in any suit, or action, issue, or petition, presentment or indictment, pending in such Court, to be transmitted to some other Court, (and of a different Circuit, if the party applying shall so elect,) having jurisdiction in such eases, whenever any party to such cause, or the counsel of any party, shall make a suggestion in writing, supported by tlie affidavit of of such party, or his counsel, or other proper evidence that the party cannot have a fair or impartial trial in the Court in which such suit, or action, issue, or petition, presentment or indictment is pending; «■ « ::s ■* » s-s an¿ t¡le General Assembly shall make such modifications of existing laws, as may be necessary to regulate and give force to this provision.” The Act of 1874, ch. 94 ; provides, that in all civil cases, unless the party upon whose suggestion the cause has been removed, shall pay to the cleric the costs of the record, within sixty days after the passage of the order of removal, and shall also cause the record to he transmitted within the same period, the Court may, upon the application of the opposite party strike out the order of removal, and reinstate the case upon the trial docket. Held :</p> <p>That these conditions werea restraintupon the constitutional rightof removal, which the Legislature had not the power to impose.</p>

Tbis was an action on tbe common money counts brought by tbe appellee against the appellant, to recover for money expended by tbe plaintiff as agent for the defendant in the purchase of certain lands for the latter. First Exception. — Stated in the opinion of the Court.

The Maryland Agricultural College obtained a judgment in 18G3, in the Circuit Court for Prince Gleorge’s County against Robert Bowie and John H. Skinner and others. This judgment was paid by said Skinner, one of the sureties, and it was entered to his use.

This was an action of indebitatus assumpsit, brought by the appellees against the appellant. The facts of the case are sufficiently stated in the opinion of the Court. The verdict and judgment were for the plaintiffs. The defendant appealed.

The case is stated in the opinion of the Court. Exception. — At the trial, the plaintiff offered the following prayer : If the jury find from the evidence, that the defendant occupied the premises of the plaintiff on the York Road, in Baltimore County, from the first day of May, 1868, for three years, and for the probable holding for so much longer time as he pleased, by virtue of a contract of renting by and between the plaintiff and defendant, at and for an annual rental…

This was an action of assumpsit brought by the appellants against the appellees as endorsers of the following promissory note: §900. Baltimore, June 21 si, 18*73. Sixty days after date, Old Town Permanent Building Association, promises to pay to the order of Myers Brothers, nine hundred fW dollars, with interest, for value received, payable at the German Savings Bank. Thomas H. Boyer, Prest. Robt. L. Dickey, Secy. A. 8. Miles, Treas. G. 8.

<p> Negotiability of Notes issued by a Building Association. </p> <p>In this case certain notes issued by a Building Association, were held to be negotiable promissory notes and not sealed bills. (See the immediately preceding case of Jackson and Wife vs. Myers Brothers.)</p>

The bill of complaint in this case was filed by the appellant against the appellees. During the years 1871, 1872 and 1873, the appellee, Daniel Eatcliffe, exectited to the appellee, The Liberty Perpetual Building Association, No. 3, three mortgages upoii the house No. 141 North Calvert Street, Baltimore, for ’various sums, amounting in the aggregate to $6100.

This appeal was taken by tiro caveators, from the decree of the Orphans’ Court of Baltimore City, overruling their objections to tlio will of Samuel R. McElwee, and admitting tlie same to probate. The testator had not at the making of the will, a “sound and disposing mind,” as required by lire express language of the Code. He was the victim of a disordered mind, and of delusions and hallucinations — the unequivocal evidences of insanity.

This was an action of trespass vi,et armis, brought by the appellee against the appellant, for an alleged assault and battery. The defendant was a police officer of the city of Baltimore, and justified the acts complained of as' having been done in pursuance of his duty as such officer. First Exception. — Stated in the opinion of the Court.

This was an action of assumpsit brought by the appellee on a policy of insurance, executed on tbe 20th of December, 1872, and issued by tbe appellant. The facts of tbe case will sufficiently appear in the opinion of tbe Court. The verdict and judgment were for the plaintiff, and the defendant appealed.

<p>Construction of Statutes — Construction of Art. 47, sec. 29, of the Code, relating to the legitimation of children born out of Wedlock/ whose parents subsequently Marry.</p> <p>It must be a very clear case of intent to justify a departure from the words of a law. It would be dangerous and unwarrantable for a Court to grope for an intent, or to make one from their own ideas of policy and morals, and on that ground say that a particular case is withdrawn from the operation of the plain and unambiguous language of a statute.</p> <p>The 29th section of Art. 4.1, of the Cod© provides, that !,If any man shall have a child or children by any woman whom he shall afterwards marry, such child or children, if acknowledged by the man, shall in virtue of such marriage and acknowledgment, be hereby legitimated and capable in law to inherit and transmit inheritance as if bom in wedlock.” Held :</p> <p>That this provision is not limited to the children of those who are capable of contracting lawful marriage, but extends to the issue of an adulterous connection.</p>

The appellee having recovered a judgment against Israel Cooke', in an action of slander, caused an attachment to be issued and laid in the hands of the appellant. Verdict was rendered for the plaintiff, and a judgment of condemnation was entered against the garnishee for $1000, with interest, &c. The garnishee prosecuted this appeal.

- This is an appeal taken by the defendant below, from a judgment rendered against it in an action brought by the appellee to recover damages for a personal injury. The plaintiff, a child slightly over two years of age, ran in the way of a passing car of the defendant, on one of the streets of the City of Baltimore, and received the injury in question.

Tbe case is stated in the opinion of the Court. Tlie order of the Orphans’ Court of tbe 29th of June, 1875, referred to in the opinion of this Court, adjudged, ordered and decreed, that if tlie said Stephen Scliwallenberg do not upon the tender to him at any time on or before the first day of August next, after the date hereof, of a conveyance of all the interest, legal and equitable, of tlie estates of Josliua Jennings, tbe lather, and of Grayson Jennings, tbe son, in and…

Tliis was an action of assumpsit, brought by the appellants to recover of the appellee, the value of a certain quantity of .wheat, claimed to belong to the plaintiffs, which was sold by the defendant. The plea was, never promised. Issue was joined.

This was au action brought by the appellant against the appellees, husband and wife, to recover for money which he had expended at their request, in payment of mechanics’ liens and other claims resting upon the property of the wife.

At a general election held on the 2nd of November, 1875, Messrs. S. Teackle Wallis and Charles J. M. Gwinn, were candidates for the office of.Attorney General of the State. The returns of the election, as certified to the Governor by the proper officers, showed that Mr. Gwinn had received a majority of all the votes cast for Attorney General.