Volume 7 — Maryland Reports

This was an action of debt, docketed by consent of parties in the name of the State, against the appellant, for the purpose of trying the right of the defendant to have and use a billiard table without taking out a license. The cause was submitted to the court below upon a case stated, and the facts are sufficiently set forth in the opinion of this court.

Trespass, quare clausum, fregit, by the appellant against the appellee, to try the title to a tract of land, containing thirty-six and one-half acres, which was conveyed T>y deed from William Price, executor of Dr. John J. Hays, to Col. John Blackford, dated the 20th of January 1827. The controversy in the case arises upon the construction of certain clauses in the will of said John Blackford, which are set out in the opinion of this court.

Debt by the appellant against the appellee, brought on the 13th of September 1851, upon a bond, in the penalty of $10,000, executed on the 1st of January 1844, by William Adams, the defendant’s testator, to Elizabeth Rawlings, the then wife of the plaintiff.

George Smith died in March 1834, leaving a will, by which he made the provisions in favor of his widow, Nancy Smith, which are set out in the opinion of this court. The widow died in June 1852, intestate, and letters of administration upon her estate were granted to her son, David Smith, the appellee, who was also the devisee under the will of his father, the said George Smith.

This appeal was taken from an order of the court below, revoking and annulling the probat of the will of Fielder War-field, and annulling letters of administration cum testamento annexo, which had been previously granted upon his personal estate. The facts of the case are all sufficiently stated in the opinion of this court.

This appeal was taken from an order of the court, below, (Thomas Donaldson, Special Judge,) dissolving an injunction which had been granted upon a bill filed by the appellant, on the 25th of July 1851. The facts of the case, so far as necessary to elucidate the opinion of this court, are sufficiently stated therein.

Assumpsit by the appellee against the appellant, to recover the surplus proceeds of certain notes deposited in the Union Bank for collection, by Edward M. Kerr, after payment of his indebtedness to said bank. The declaration contained all the common counts. Plea non assumpsit. Exception.

<p>An attachment on judgment is treated by the several acts of Assembly upon the subject as an execution, and as its office is the same as that of a fl.fa., it should be governed by the same rules.</p> <p>The Court of Common Pleas has the power to issue an attachment upon a judgment rendered by it upon appeal from a magistrate’s decision, such judgment thereby becoming its own judgment and the attachment being an execution.</p>

Appeae from the Superior Court of Baltimore city. The record in this case shows, that a decree was passed by Baltimore county court, sitting, in equity, for the sale of certain mortgaged real estate, which had been mortgaged by Thomas H. Fulton and wife by deed of mortgage, dated the 19th of June 1847. The property was sold,- and,- by the auditor’s report, dated the 2nd of July 1852, the trustee was allowed the sum of $386.92 on account of taxes due on the property so sold.

These were two cases between the same parties, tried together in the court below upon the same evidence. The facts are briefly as follows : In August 1828, Evan Jones recovered two judgments against the Elkton Bank, before a justice of the peace, one for $10, debt, and 58-|- cents, costs, the other for $20, debt, and the same costs, with interest on each till paid.

This appeal was taken from a decree of the court below, (Perry, J.,) for the sale of certain mortgaged real estate, upon a bill filed by the mortgagee, Winters, and directing how the proceeds of sale should be distributed between the mortgagee, Watson, a judgment creditor of Bane, one of the mortgagors, and the two Clagetts the vendors of this and other property, sold by them to Bane, but who also united with Bane in the mortgage to Winters.

The plaintiff-in error was indicted at the May term 1851 of Baltimore city court for an assault, with intent to' kill and murder one George Konig, and the indictment contained also a second count for a simple assault and battery upon the same party, at the same time. On' the 10th of July 1851, at the same term and before' the same court, the prisoner made a suggestion and affidavit for the removal of his case for trial.

By the act of 1821, ch. 77, entitled, “An act to provide for the inspection of ground black-oak bark intended for exportation,” it is provided, that no such bark “shall be exported from the port of Baltimore until the same shall be inspected by a person to be appointed annually by the governor and council.” The act then specifies particularly the manner in which this officer was to perform his duties, and what fees he was to receive;- and the 7th section imposes a penalty…

<p>A mortgage was assigned by the mortgagee, and also the equity of redemption by the mortgagor. The assignee of the latter created liens on the property by way of mortgage, and then gave his notes, with an endorser as surety, to the assignee of the original mortgage, for interest due thereon. These notes were paid by the endorser at maturity, but no assignment of the mortgage was ever made to him. The property was afterwards sold, and this endorser asked to he subrogated to the rights of the original mortgagee, to the extent of the notes so paid by him, and thereby to have a preference over the-subsequent mortgagee, to the surplus proceeds of sale, after payment of the original mortgage, Held :</p> <p>1st. That the endorser of these notes not being g party to the original transaction, and ther.e being nothing in the original mortgage which provided for making him a surety so as to be subrogated to the rights of the original mortgagee, he was but a volunteer, and as such not entitled to the priority claimed.</p> <p>2nd. If when he endorsed the notes he supposed he would have the benefit of the security held by the creditor, he should have entitled himself to such indemnity by an agreement to that effect, or by an assignment pro tanto when the notes were paid.</p> <p>An equitable assignment in favor of a surety, cannot be effected unless he has paid the entire debt of the creditor: the principles of substitution require payment in full of the debt on which the equitable assignment is claimed.</p>

This was a bill filed by the appellant as permanent trustee of Clark, who had applied for the benefit of the insolvent laws on the 11th of December 1850, to vacate a deed executed by the insolvent on the 26th of September 1850, conveying a house and lot to the appellee Griffith, as fraudulent against the creditors of the grantor. The allegations of the bill and answer, and the facts of the case, are fully stated in the opinion of the chancellor, (Johnson,) reported in 3 Md.

Debt by the appellees against the appellant, upon an injunction bond executed by Speake and Pye, principal obligors, and Burgess and Jones, as sureties, to Janney and Brown, in the penalty of $6000, dated the 18th of August 1819, and containing the following recital and condition. “Whereas the above bound Speake and Pye have obtained an injunction to stay proceedings at law, on a judgment recovered against them in Charles county court, by the above named Janney and Brown,…

Assumpsit by the appellee against the appellants, to recover compensation for building two windows in a gateway, which the plaintiff, by a written contract under seal, had agreed to build for the defendants. The declaration contained a count for work and labor, and materials furnished, and the common money counts. Plea, non assumpsit. Exception.

This was an attachment on warrant procured by the appellants, and issued on the 17th of November 1S51, out of the Superior Court for Baltimore city, against James Kennedy, as an absconding debtor; and on the same day laid in the hands of the appellees, as garnishees, who appeared and plead “non assumpsit” for Kennedy and “nulla bona” for themselves.

<p>In future, in all cases of a divided court, no opinions will tie filed representing the views of the different judges.</p>

Attachment on warrant, instituted by the appellee on the 21st of October 1S50, against Elbert Wolf, as an absconding debtor. The plaintiff’s claim, to which he made affidavit, was of an account consisting of various- items of merchandise, amounting to $1787.28: credited by cash, September 16th 1850, $258, and October 5th 1850, $498.40, leaving A balanee due of $1030.88.

Debt upon an injunction b.ond by the appellees, the obligees, against the appellants, the obligors therein. The bond was for the penalty of $1500, and was .dated the 14th of February 1846.

.Assumpsit by the appellant against the appellee, to recover value for work and labor, and services rendered by the plaintiff to the defendant’s testatrix. The nar claimed damages to the amount of $1000. Pleas, “non assumpsit,” and “ limitations .” The verdict was in favor of the plaintiff for $30, and the defendant then moved for a rule on the plaintiff to show cause why a non pros, should not be entered.

Assumpsit, by the appellee against the appellant, upon a promissory note. Pleas, “ non assumpsit ” and “accord and satisfaction.” 1st Exception. The plaintiff proved the execution of the note and there rested his case. The defendant then offered the testimony of Dennis Etzler, which is fully stated in the opinion of this court. The plaintiff then offered to prove by the same witness the facts also stated in the opinion of this court.

-The record in this case shows, that on the 7th of September 1851, William Lefferman executed a deed to Jacob Pas-quay and others, of all his property and effects including a stock in trade of hides and leather in the vats, in trust to permit the grantor with all reasonable expedition to complete the process of tanning all said hides and leather, and prepare the same for market, and sell the same and pay the proceeds over to the trustees, who were then to apply them, 1st, to…

The appellees, Collier and wife, on the 19th of October 1849, executed a mortgage of certain leasehold property in the city of Baltimore, belonging to the wife, to Wildey, the appellant, to secure the payment to him of five promissory notes, drawn by John M. Slaney, in favor of and endorsed by Collier, amounting to $2558.96.

This appeal was taken from an order of the chancellor, passed on the 19th of April 1853-, discharging Benjamin H. Ellicott, as receiver of the real and personal estate of Rachel Colvin, a deceased lunatic, and directing him to account for and deliver up the personal estate to the' appellee, who had been appointed administrator pendente lite of the deceased, by the orphans court of Baltimore city. The appellants are parties who claim to be interested in the fund.

This was an attachment on judgment, issued at the instance of the appellees, a foreign corporation, on the 26th of June 1848, to affect the property and credits of Edward M. Kerr, and on the same day laid in the hands of John Glenn, the permanent trustee in insolvency of said Kerr, as garnishee, who appeared, and, at September term 1848, pleaded “nil debet” for Kerr,, and “nulla bona” for himself.” .Exception.

<p>A contractor agreed to build a section of a railroad by a written contract, which stipulated that four-fifths of the monthly estimates should he paid to him during the progress of the work, and ihe balance on the completion of the contract, and that the monthly and final estimates made by the local engineer should be conclusive between the parties, unless modified by the chief engineer, in which event his estimate was to he conclusive. After part of the work was done under this contract a pafol modification of it was made, by which the estimates were to he paid the contractor according to his expenses until the work was completed, the understanding being that he was not to lose his twenty per cent, on the work already done, and was to be protected from further loss, and, save in these particulars, the contract was to stand as it w‘aS; his expense's were to be the monthly estimates. Held :</p> <p>1st. That by the contract as modified a final estimate was to be made, after the whole was completed, of the work done prior to the new arrangement, and paid for according to contract prices, and the work done after was to he paid for according to its actual cost, to be ascertained by the monthly account of expenses.</p> <p>2nd. The fact that these fnonthly estimates ascertained the quantity and kind of work, but did not give the calculation of the value in columns of dollars and cents, is no objection to them; they are a substantial compliance with the requisitions of the contract.</p> <p>3rd. The measure of damages for work done after flic new arrangement waff its actual cost, and a prayer which asserts that the measure of damages for such work is the rates fixed by the original contract, is erroneous.</p> <p>4th. For all work done after the new arrangement the contractor was to bo indemnified his expenses, no matter what the measurement of such work was.</p> <p>5th. The company having released the contractor, by consent, from the completion of the wort under the contract, he can sue in assumpsit for the work' done.</p> <p>If a prayer is defective in any particular, it is properly rejected.</p> <p>A prayer that if the jury find that the plaintiffs performed the work “under the contract offered in evidence by the defendant,’” assumes the existence and execution of the contract, and is for this reason defective.</p> <p>A contract provided that the balanee due on it should be paid to the contractor, “ upon his giving a release under seal” to the company. Held, that the tender of this release is not a condition precedent, but an act to bo done simultaneously with the payment of the money.</p> <p>The interpretation of a contract is a question of law, and a prayer which submits this to tho jury is for this reason defective.</p>

In this case certain property was sold under a decree of the court below, and a controversy arose in the distribution of the proceeds whether the claim of the appellant, for certain advances made by him, or that of the appellees, under (he mechanics lien laws, for materials furnished, was entitled to a preference. The contract under which the appellant made his advances, and all the facts of the case, are fully stated in the opinion of this court.

<p>Under a covenant in the lease of a mill to keep the same in repair, and to deliver it, up at the expiration of the term in as good order as the tenants found it, “natural wear and tear, andjire excepted'” if the mill falls down in consequence of its own defective construction, and not from an improper use of it by the tenants, this falling down is within the exception “ natural wear and tear,” and the tenants are not bound to repair.</p> <p>If the tenants used the mill with ordinary care and prudence, and were ignorant of the defect in its construction, and this defect was of such a secret character as not to be discovered by reasonable and ordinary diligence, they are not bound to prove that the lessors knew of this defect and concealed it from them.</p> <p>The plaintiffs cannot object to an instruction given by the court, that it left a question of law to the jury in authorising them to decide what constituted “reasonable and proper use of the will,” when their own prayer, which the court granted, submitted the same question to the jury, and when they had taken issue to a plea assorting that the falling down of the mill was the result of natural wear and tear in the “reasonable me” of it.</p>

This appeal was taken to an order of the chancellor overruling certaiu exceptions to the auditor’s report, and confirming the same. The facts of the case are fully stated in the opinion of this court, and in that of the chancellor, (Johnson,) reported in 3 Md. Ch. Dec., 224.

<p>A suit at law cannot be maintained against the assignee of a lessee after he has assigned over, for rent falling due subsequent to the assignment to him and before the assignment over, the remedy of the lessor in such case being in equity alone.</p> <p>The liability of the assignee at law continues only so long as the privity of estate continues,, and-when he makes an assignment, this privity, so far as regards himself,- is determined and is transferred to the new assignee.</p> <p>The doctrine of estoppel, as between landlord and tenant, does, prevent the assignee of the lessee, who has assigned over, from denying the right of the lessor to sue him at law.</p>

Trespass on the case by the appellee against the appellant, for obstructing a way. Plea, non cut. 1st Exception. (The pleadings and facts of the case are so fully stated in the opinion of this court, as to render but a brief additional statement of the proof necessary.) The proof on the part of the plaintiff is substantially embodied in his prayer granted by the court below and set out in full in the opinion of this court.

<p>Appeal from the Circuit Court for Talbot county.</p> <p>This case, between the appellant as plaintiff, and the appellee as defendant, was submitted to the court below upon a ease stated, showing substantially that defendant leased a farm from Martin Goldsborough for the years 1851 and 1852, agreeing to pay as rent one-half the wheat and corn raised thereon; that in December 1851 and January 1852, after the tenant had paid all the rent for the former year, and before any for the latter year was due, Goldsborough drew two orders upon the defendant in favor of the plaintiff, payable out of the rent, which the defendant accepted; that in May 1852, after these orders had been accepted, but before the rent for that year was due, the farm was sold at sheriff’s sale to John W. Martin, under judgments against Goldsborough, recovered long prior to the commencement of defendant’s tenancy; that after this sale the defendant acknowledged the purchaser as his landlord, and paid him the rent for the year 1852, except the above orders, but by this attornment it was agreed no admission was made by defendant of his obligation to pay these orders to the purchaser, but the existence or non-existence' of this obligation was to be deduced from the facts of the case' as a legal inference, and the attornment was to have the same effect as if the purchaser had obtained and executed an habere facias possessionem under the act of Assembly, and was made with the understanding that any rights the plaintiff might have under these orders were not to be affected thereby. It was then agreed, that if the defendant is liable to pay to the purchaser the whole rent for the year 1852, notwithstanding these orders and acceptances, and that upon payment thereof he cannot claim the same as a credit on the rent for that year, judgment is to be entered for defendant, otherwise for the plaintiff, for the amount of the orders and interest, with the right to each party to appeal.</p> <p>The court below, (Hopper, J.,) gave judgment for the defendant, and the plaintiff appealed.</p>

Attachment on judgment sued out by the appellant, to affect the property and credits of Turnbull & Co., and laid in the hands of the appellee as garnishee, who appeared and pleaded nulla bona. Exception.

The bill in this case was filed by the appellant, for an injunction to restrain execution of a judgment recovered against him by the appellee upon a promissory note.

The bill in this case, filed by the appellee against the appellant and Frances Guyton, the administratrix of William C. Guyton, deceased, alleges, that William C. Guyton, carrying on-business under the firm of Wm. Guyton & Co., became indebted to the complainant. It then contains the allegation as to the partnership between the appellant and the said William C. Guyton, which is set out in the opinion of this court.

The record in this case shows that the appellant recovered judgment against the two Hooks on the 1st of March 1848, on which a fi.fa. was issued on the 24th of August following, but was immediately countermanded, and on the same day a ca. sa. issued, and was returned on the 2nd Monday of September, non esl as to one, discharged under the insolvent laws as to the other, of the defendants.

The bill in this case was filed by the appellant against the appellees, alleging, that complainant is seized in fee-simple of a tract of land and plantation in Carroll county, (the title deeds to which are set out and exhibited with the bill,) consisting of two hundred and forty acres, more or less, and has been in the peaceable possession and occupancy thereof, claiming title thereto, for more than thirty years; that it constitutes and is the residence of complainant and…

Appeal-from the Circuit Court for Baltimore city. The bill in this case is a bill of discovery filed in the name of the State, at the instance of Lemuel Roberts, the lottery commissioner, against the appellants, to procure evidence in aid of suits at law, which had been instituted against the defendants, under the acts of 1846, ch. 109, and 1854', ch. 138. Its allegations are fully stated in the opinion of this court.

Trespass on the case by the appellant, one of the negroes who recovered freedom in the case of Henderson vs. Jason, reported in 9 Gill, 483, against the appellee, to recover damages for unlawfully detaining her in servitude. Pleas non cul. and limitations. Exception.

The plaintiff in error was indicted for the murder of his wife, and upon this indictment he was tried, and the jury rendered their verdict, as appears by the docket entry thereof, “guilty of murder in the second degree.” This entry appears in the record amplified as follows, “that the said Henry Weighorst is guilty of the felony and murder aforesaid above charged and imposed upon him, and that the said felony and murder is murder of the second degree.” The prisoner then…

Petition for freedom by the appellees, who claimed their freedom under the following clause of the will of John Collinson, executed on the 24th of September 1836. “Item. I will and devise that all my negroes, of which I shall die possessed, shall be free from the servitude of all persons whatever, from and after my decease: provided that they, my said negroes, shall go to Liberia, or some one or other of the American settlements on the coast of Africa.

<p>Points decided in the court below, in favor of the appellant, will not be considered by this court on his appeal, when the judgment must be affirmed upon a point decided against him.</p> <p>A person appointed State Librarian under the present constitution, before he is entitled to the office, must give bond, approved, during the session of the Legislature, by the committees of the Senate and House of Delegates on the Library, as directed by the act of 1847, ch. 53.</p> <p>Committees have no power to act as such during the recess of the Legislature, unless they are specially authorized to do so.</p> <p>The acts of 1826, ch. 53, and 1847, ch. 53, so far as they relate to the bond to be given by the Librarian, previous to entering upon .the duties of his office, are not repealed by the constitution, and the Governor has no power to approve such bond.</p>

<p>By the true construction of the acts of Assembly, defining the limits of Baltimore city, that city is not an adjoining jurisdiction to Anne Arundel county, and, therefore, under the present constitution and laws, a criminal case cannot be removed from the Criminal Court of Baltimore city to the Circuit Court of Anne Arundel county, for trial.</p>

The bill in this case was filed by the appellant, praying for an injunction to restrain the city authorities from further proceedings under ordinance No. 58, approved June 8th 1853, for the opening, grading and paving of Baltimore street, from the east side of Fulton street to the city limits.

Plea non assumpsit. The case was submitted to the court, below, (Frick, J.,) upon a case stated, which is sufficiently set out in the opinion of this court, and a pro forma judgment rendered in favor of the defendants, from which the plaintiff appealed.

, The original bill in this case was filed on the 7th of February 1846, by the appellee against the appellant, Isaac Feigley, for a divorce a vinculo and for alimony.

The original bill iu this case was filed on the 24th of October 1848, by the appellant, against the appellee and the ex.ecutor, widow and devisees of Robert W. Bowie, deceased.

This was a case of issues from the Orphans court, to try the validity of two wills executed by Rachel Colvin, deceased, the one on the 30th of October 1845, and the other on the 6th of April, 1848. These issues were granted by the Orphans court for Baltimore city, and sent to the Superior court of said city for trial, but were afterwards, upon suggestion of the appellants, removed to the Circuit court for Baltimore county.