Volume 50 — Maryland Reports

<p>Act of 1804, ch. 0 — Joinder of issue, and, Verdict for defendant after overruling plaintiff’s motion to have Judgment entered, in his favor, on the ground of insufficient Affidavit to pleas — Appeal.</p> <p>The motion of the plaintiff in the Court of Common Pleas, to have judgment entered in Ms favor for the reason alleged, that there was no sufficient affidavit to the pleas under the Act of 1864, ch. 6, sec. 7, was overruled; the case at the instance of the defendant was then removed to the Circuit Court for Baltimore County, tried on its merits and the verdict and judgment being for the defendant, the plaintiff appealed. Held:</p> <p>That the appellant was not injured by the ruling of the Court of Common Pleas on his motion; that the pleas were valid in themselves, the only objection of the appellant was, that they were not verified by affidavit as required by the Act of 1864, ch. 6,. but their truth was established by the verdict of the jury, and the want of an affidavit, or the insufficiency of the affidavit accompanying them, became immaterial.</p> <p>To raise the question on appeal as to whether or not the affidavit was in conformity with the requirements of the seventh section of the Act of 1864, ch. 6, the proper course for the appellant was to refuse to join issue on the pleas and suffer judgment by default.</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 plaintiff offered seven prayers, all of. which the Court, (Dobbin, J.) rejected, except the sixth, which was granted and is as follows: 6.

This appeal was taken from an order of the Circuit Court (Gilmor, J.,) overruling exceptions on the part of the Howard Bank to the auditor’s account, (which, under the Court’s ruling, had rejected a part of the claim of said hank,) and ratifying the same. The facts of the case sufficiently appear in the opinion of the Court.

The appellee filed his petition in the Circuit Court for Dorchester County on the 9th May, 1818, representing: that by the Act of the General Assembly of… Held: that the title describes any subject at all. This Act embraces provisions concerning the following matters and things: 1. Certain sections fix the number of the County Commissioners for said county, appoint the districts from which they are to he respectively chosen, and provide in regard to their compensation. 2.

The facts of the case are stated in the opinion of the Court. The Court below erred in allowing the larceny of a watch to be given in evidence.

This was a proceeding in equity by the appellee, to establish the validity of a deed of mortgage, (discovered to be without a seal after having been recorded,) and to give the complainant the benefit of his lien upon the mortgaged premises, as against the mortgagor and his creditors, both prior and subsequent to its date, and to obtain a decree for the sale of the land for payment of the complainant’s debt.

The case is stated in the opinion of the Court. Exception. — At the trial the defendant offered four prayers, which need not he set out, and which the Court (G-arey J.,) rejected; and gave the following instruction: The jury are instructed that if they shall find that the defendant is a building association duly incorporated, and that the plaintiff was a member of the same as a holder of twenty shares therein, and that he obtained on said shares from defendant $4000, and for…

This action was brought by the appellant to recover from the appellee a certain amount claimed.to he due for tolls. The case was submitted to the Court without the aid of a jury, upon an agreed statement of facts.

The case is stated in the opinion of the Court. Exception — At the trial the plaintiff offered the following prayer: If the jury shall believe from the evidence, that the defendant threw the snow from its tract on Gay street, across the mouth of Hoffman street, where it intersects Gay, in such a manner and in such quantities as to obstruct the usual flow of the water from Hoffman street, and that by reason of said obstruction the water on Hoffman street overflowed the gutter…

No exceptions having been filed to the auditor’s account in this cause by the appellant, the case cannot be considered by this Court. 1861, ch. 33, sec. 2.

<p>Landlord's right to distrain Goods on Demised Premises— Wife's property on premises where the Husband is not the Landlord's Tenant, not exempted under Art. 3, sec. 43, of the Constitution of 1867.</p> <p>For rent due and in arrear, a landlord may distrain any goods of a third party found on the demised premises, unless by statute they are specially exempted from seizure.</p> <p>Art. 3, sec. 43, of the Constitution of 1867, which declares that “the property of the wife shall be protected from the debts of her husband,” does not exempt from distress furniture belonging to the wife of a person, who was not the landlord’s tenant, and which chattels were on the demised premises when the distress was levied.</p>

The case is stated in the opinion of the Court. The appellant maintains that the sale of the mortgaged property ought to he set aside, or if the validity of the sale is not impeached, the proceeds ought to he awarded to the appellant. Because no proper affidavit was made of the mortgagee’s claim, that by Maull being inoperative, as he was not the mortgagee, nor was he in any way authorized to make the affidavit.

In addition to the statement of the case as contained in the opinion of the Court, the following Exhibits referred to therein, are inserted: Exhibit A. The farm known as “Mount Hebron,” containing five hundred and eighty acres, more or less, with the following articles: I horses, 4 oxen, 1 farm wagon, hay carriage, 1 market wagon, 2 ox carts, 1 horse cart, 1 iron roller, I 2 and 3 horse plows, 2 harrows, thresher and horse power, 1 Dorsey’s reaper, 1 mower for grass, 1 fan,…

When on a previous appeal this cause was before the Court, it was remanded for further proceedings.' The Court below, (Magruder, J.,) thereupon passed a final decree for the sale of the property of the defendants, (the appellants,) to satisfy the mechanic’s lien claim of the complainant with interest, and costs to the defendants, and allowed a day before the sale for the payment. From this decree the defendants appealed.

The .conceded facts of this case (which was removed from the Circuit Court for Allegany County,) and the substance of the prayers offered by the plaintiif and defendant are stated in the opinion of the Court. The defendant excepted to the rulings of the Court below, (Bowie, Bouic and Lynch, J.,) and the verdict and judgment being for the plaintiif, the defendant appealed.

Writ of Error to the Circuit Court for Charles County. The plaintiff in error was indicted in the Court below, and in the indictment it was charged that he did on a day named, marry a certain woman named, and that he after-wards, on a day named, feloniously did marry and take as his wife another woman named, the first being then living. The traverser demurred to the indictment. The Court overruled the demurrer and the traverser pleaded not guilty, was tried and convicted.

<p> The Court of Equity in which a Proceeding is first begun alone to take Cognisance of a question, that could he raised in such proceeding. </p> <p>Proceedings to sell mortgaged premises were begun by the appellee in the Circuit Court for Anne Arundel County, and the property advertised for sale. Thereupon the appellant, R. J. B. filed his petition, praying for reasons therein stated, that the sale might be •stayed. Beford the filing of this petition, a suit had been instituted by the wife of the appellant, for whom he was trustee in a lease of the same property, to him for her benefit, in the Circuit Court of Baltimore City, for the purpose of having set aside and vacated the mortgage, the lease and a deed of the fee of the property to her, on the ground of undue influence and coercion, and in that proceeding, an injunction was prayed to suspend the sale, for a stay whereof, the appellant R. J. B. had filed the petition as above. The parties in both proceedings were the same. The Circuit Court for Anne Arundel County dismissed the petition, and on appeal, it was Held:</p> <p>That that Court could not take cognizance of the question sought to be raised on the petition of the appellant.</p> <p>There was a prior proceeding depending in another Court of competent jurisdiction, -where the question attempted to be raised by this proceeding, could have been raised and decided, if necessary for the protection of the interest of any of the parties concerned.</p>

<p>Construction of Art. 64, of the Public General Laws — The Attorney or Agent authorized to sell must be Named in the Mortgage — A Corporation can execute the Power of Sale only through its Attorney or Agent named in the Mortgage.</p> <p>Art. 64, sec. 5, of Public General Laws, which provides, that “ in all mortgages there may be-inserted a clause authorizing the mortgagee, or any other person to be named therein to sell the mortgaged premises,” recognises the deputation of authority to some person other than the mortgagee, but it requires that person to be named therein; it does not authorize the execution of the power by any one to be delegated by the mortgagee.</p> <p>The sections of this Article of the Code, import a natural, and not an artificial person, (such as a corporation,) as the depositary of the power of sale. A corporation can execute such a power only through its attorney or agent named in the mortgage.</p>

This was an action brought by the appellee on a policy of insurance, issued to him by the appellant, to recover the amount of the insurance, for loss and damage hy fire to his stock in trade. Held: it was admissible for the insured. City Fire Insurance Co. vs. Carrugi, 41 Georgia, 660. Defects in preliminary proofs not pointed out are waived. 16 Barbour, 245; McMasters vs. Westchester Co. Mu.

Exception. — At the trial of this cause the plaintiff proved that Estep Hall died in February, 1876, and that letters testamentary were granted upon his estate by the Orphans’ Court of Anne Arundel County, to the defendant in the same month.

This was a proceeding in equity hy the appellants, as creditors of one John J. Brosius, to obtain a decree to set aside and have declared null and void, a judgment hy confession in favor of George Brent, the appellee, on the ground that Brosius was of unsound mind when the suit was brought; that the summons issued in the action was not served on him; that afterwards Brent procured from Brosius a power of attorney authorizing the appearance of attorneys to the suit; and that…

Upon a mechanic’s lien claim filed hy the appellee against a tenant house and a harn of the appellant, a writ of scire facias was issued and a return of scire feci thereon .made hy the sheriff. Afterwards the defendant by his attorney, moved the Court to quash the writ of scire facias, which issued in this cause against him, and the return of the sheriff thereon, for the following reasons: 1.

This was an action instituted the 29th May, 1877, by the plaintiffs below against the Mayor and City Council of Baltimore, to recover damages for injury to their property alleged to have been sustained under circumstances sufficiently stated in the opinion of the Court. Exception. — At the trial the plaintiffs offered the following prayers: 1.

This was an application by the County Commissioners of Queen Anne’s County for a writ of mandamus against the County Commissioners of Talbot County to compel them to comply with the provisions of the Act of 1876, ch. 314, for the construction and maintenance of a drawbridge over the channel of Kent Narrows, a body of water within the limits of Queen Anne’s County.

This appeal was taken from two orders of the Circuit Court of Baltimore City, (Gilmor, J.,) one dismissing the petition of the appellant praying to he made a party in a proceeding for the sale of mortgaged premises, on the ground that he had a judgment against the mortgagor which should he satisfied out of the balance undistributed after satisfaction of the mortgage claim; and the other, overruling his exceptions to the ratification of the auditor’s account, whereby the…

Appeals from the Baltimore City Court. On 26th July, 1877, the Western Maryland Railroad Company filed a petition in the Baltimore City Court to have the following property stricken from the list of property valued and assessed against the petitioner, under the Act of 1876, ch. 260; that is to say: A lot, Burén and Falls Streets and Liberty Alley; improvements, round-house and turn-table; lot FT.

Appeals from the Baltimore City Court. The appellees in proceedings under the Act of 1876, ch. 260, sec. 28, petitioned the Court below to have stricken from the assessment under that Act, certain shares of stock belonging to them respectively, as members of building associations. The Court (Pinkney, J.,) granted the relief prayed by order passed the 25th May, 1878; and the respondent, the Appeal Tax Court of Baltimore City, appealed.

Appeals from the Baltimore City Court. These are appeals from orders of the Court below, passed on the 23rd-25th May, 1878, in proceedings severally instituted by the appellees under the Act of 1876, ch. 260, sec. 28, by which exemptions from taxation under the second section of that Act were allowed the appellees; and from which several orders the respondent, the Appeal Tax Court, appealed. The cases are further stated in the opinion of the Court.

This is an appeal from a pro forma order of the Court below, passed on the 26th June, 1878, on the petition of the appellee, in proceedings under the Act of 1876, ch. 260, sec. 28, whereby the Appeal Tax Court was directed to strike from the list of property valued and assessed to the appellee as not subject to taxation, certain bonds and certificates of indebtedness of the States of New York, Pennsylvania and Ohio, and of the Cities of New York and Philadelphia, and of the…

Appeals from the Baltimore City Court. The appeal in the first named case was taken from a pro forma order of the Court below, passed on the 1st of July, 1878, in proceedings instituted by the… Held: that this State could tax all stockholders of corporations in this.

Cross-Appeals from tire Baltimore City Court. These cross-appeals were taken by the Philadelphia, Wilmington and Baltimore Eailroad Company and the Appeal Tax Court, from an order of the Court below, passed on the 24th June, 1878.

This appeal was taken from a pro forma order passed hy the Court below, on the 9th September, 1878, in proceedings instituted hy the Northern Central Railway Company under the Act of 1876, ch. 260, sec. 28, whereby the Appeal Tax Court was directed to strike certain property of the Company, as not subject to taxation, from the list of property, valued and assessed to it. From this order the Appeal Tax Court appealed. The case is further stated in the opinion of the Court.

Appeals from the Baltimore City Court. These appeals were taken from orders, passed by the Court below, on the 23rd-25th May, 1878, in proceedings severally instituted by the appellees, under the Act of 1876, ch. 260, sec. 28, whereby the Appeal Tax Court was directed to strike from the list of property valued and assessed, to the appellees respectively, certain property belonging to them, as not subject to taxation; from which several orders the Appeal Tax Court appealed.

This appeal was taken from an order of the Court below passed on the 23rd May, 1878, in proceedings instituted by the Baltimore Cemetery Company, under the Act of 1876, ch. 260, sec. 28, whereby the Appeal Tax Court was directed to strike from the list of property valued and assessed to it, as not subject to taxation, certain property belonging to it. From this order the Appeal Tax Court appealed. The case is further stated in the opinion of the Court.

This appeal was taken by the Appeal Tax Court from an order of the Court below, passed on the 24th May, lSYS, in proceedings instituted by the Baltimore Academy of the Visitation, under the Act of 1876, ch. 260, sec. 28, whereby the appellant was directed to strike from the list of property valued and assessed to the appellee, as not subject to taxation, certain property belonging to it. The case is further stated in the opinion of the Court.

The appeal in this case was taken by The Redemptorists from an order of the Court below, (Miller and Hayden, J.,) passed on the 24th September, 1877, in proceedings instituted by the appellants against the County Commissioners of Howard County, under the Act of 1876, ch. 260, sec. 28, whereby it was determined that the property mentioned in the appellants’ petition was not exempt from assessment under the second section of that Act, but that the same was subject to valuation…

This appeal was taken hy the Appeal Tax Court from a pro forma order of the Court helow, passed on the 17th •July, 1878, in proceedings instituted by the Pullman Palace Car Company, under the Act of 1876, ch. 260, sec. 28, whereby the appellant was directed to strike from the list of property valued and assessed to the appellee, as not subject to taxation, sundry palace cars belonging to it. 'The case is further stated in the opinion of the Court.

The appeal in this case was taken hy the Appeal Tax Court, from an order of the Court helow, passed on the 24th May, 1878, in proceedings instituted by the Regents of the University of Maryland, and hy the Faculty of Physic of that University, under the Act of 1876, ch. 260, sec. 28, whereby the appellant was directed to strike from the list of property valued and assessed to the appellees, as not subject to taxation, certain property mentioned in the petition of the…

This case was tried before a jury, upon issues sent for trial from the Orphans’ Court of Baltimore City, in the matter of the paper writings offered of probate, as the last will and testament of Sarah Ann Griffith, deceased, and as a codicil to the last will and testament of the said decedent.

Cross-Appeals from the Circuit Court for Anne Arundel County, in Equity. The facts of this case are stated in the opinion of the Court. After the order of the Court below (Hammond and Hayden, J.,) had been passed, dissolving the injunction in part and continuing it in part, Arthur George Brown, by order of Court, was made a party complainant in the cause, as trustee in the stead of, and as successor to Frederick W. Bruñe, trustee, deceased.

The facts of the case are stated, in the opinion of the Court. The appellants contend that a full case must he made out by the hill, otherwise the order for an injunction must he reversed. If the appellee has a remedy at law, the extraordinary and summary process of injunction must not he set in motion. Banks, &c. vs. Busey, 34 Md., 437; Hankey vs. Abrahams, 28 Md., 588; Johnston vs. Glenn, et ad., 40 Md., 200.

Cross-Appeals from the Circuit Court of Baltimore City. The case is stated in the opinion of the Court. In the absence of fraud, unless both parties labored under a mistake, and have done what neither party intended, relief cannot he given. Kerr on Injunctions, 55 ; Groff vs. Rohrer, 35 Md., 333 ; 1 Story Eq., sec. 151; Gillespie vs. Moore, 2 Johns. Ch., 595 ; Townsend vs. Stangroom, 6 Ves., 333.

Mary’s County, iu Equity. The facts of the case are stated in the opinion of the Court. It was not competent for the parties to said mortgage at any period subsequent to the judgment, hy any new parol arrangement, to revise said mortgage, neither could they hy hill, answers and decree, affect the rights of the appellants who were not parties to those proceedings. Story’s Equity Pleading, sec. 193; Griffith vs. Hammond, 45 Md., 88; Code, Article 64, sec. 2.

The facts of the case are stated in the opinion of the Court. The appeal from the decree of the Court below, (Hotter, J.,) was taken hy Hamilton Gr. Eant, who had been duly appointed receiver of the Bank of the Valley, in Yirginia.

The facts of the case are stated in the opinion of the Court. The deed in question purports to convey only certain real estate, described in it by metes and bounds, and nowhere either states that this was all the grantors’ real estate, or conveys in general terms all other real estate owned by them.

The facts of the case are stated in the opinion of the Court. There is in the hill no statement of fact or form of prayer to enable the Court to decree a sale of the property.

By an ordinance approved the 25th of October, 1875, the. Held: by the Act of 1876, chapter 20; and that no valid title to the land in question could he acquired thereunder. The city authorities, therefore, refused to take possession of any of the, land under the award of the Commissioners; nor did they take any steps to condemn under the provisions of the Act of 1876, chapter 20.

The facts of the case are stated in the opinion of the Court. It is not competent for a jury to allow a party the value of his stock as a set-off, though they believe from the evidence that there will he a surplus after the payment of all the liabilities of the hank. Whittington vs. The F. Bank of S. & W., 5 S. & J., 498; Hall vs. United States Ins.

The facts of the case are stated in the opinion of the Court. Upon the general law of trade-marks the appellant’s counsel referred to Stonebraker vs. Stonebraker, 33 Md., 263, 268; Canal Co. vs. Clark, 13 Wallace, 322. No person has a right to monopolize the name of a place or a geographical district, as an element in a trademark. Canal Co. vs. Clark, ubi supra. The registration of a trade-mark is not conclusive, in favor of the right to claim it.