Volume 78 — Maryland Reports

The ease is stated in the opinion of the Court. The First, Second, Third and Fourth Exceptions, taken to the rulings of the Court upon questions of evidence, are sufficiently set out in the opinion of this Court. Fifth Exception. — The plaintiffs offered the following twelve prayers : 1.

This appeal was taken from an order of the lower Court (Dennis, J.,) construing a clause of the will of James Boyce, and dismissing the petition of John Coyne. The case is stated in the opinion of the Court.

<p>Estate of Lunatic — Sale of Estate for Support of Lunatic— Application by Guardian, Committee, or Trustee.</p> <p>A Court of equity lias no jurisdiction to decree a sale of tlie estate of a lunatic for his maintenance and support, or to effect a change of investment, until his lunacy has been established by tlie inquisition of a jury, and a guardian, committee, or trustee to take charge of his person and estate has been appointed according to law; and the application for such sale must be made by the guardian, committee, or trustee of the lunatic.</p>

This appeal was taken from a pro forma decree of the lower Court (Dennis J.,) dismissing the bill of complaint, with costs to the defendant. The case is stated in the opinion of this Court.

Appjsal from the Circuit Court of Baltimore City. This is an appeal from a pro forma decree in an amicable suit for specific performance of a contract of purchase of a piece of property in Baltimore City, instituted by the appellants against the appellee to determine the title of the property involved. In 1802, Daniel Deady died seised and possessed of a considerable estate, of which the leaseholds in lots A, B, C, D and E on the plat marked “S. P. No. 1,” constituted a part.

This appeal was taken from a pro forma decree of the lower Court (Dennis, J.,) adjudging that Eben B. Hunting, the plaintiff, was entitled to the relief prayed for in his bill. — the specific performance of an agreement, for the sale of a house and lot on Charles street, in the City of Baltimore, — that the title to said property was good and marketable and in fee simple; and that upon the tender by the plaintiff to Paul A. Seeger, the defendant, of a deed in fee, executed…

<p>Appeal from tbe Circuit Court of Baltimore City.</p> <p>Suit was instituted by the appellee in the Superior Court of Baltimore City against the Mutual Reserve Fund Life Association to recover on a policy for $1,500 issued by said Association to Alfred B. Faulkner, and which said Faulkner had duly assigned to the appellee. The association filed a bill of interpleader in the Circuit Court of Baltimore City, and paid the amount of the policy into the registry of the Court. Under an order of the Court, the appellee and the appellants were directed to interplead, and set forth their respective rights and claims to the fund. From a decree of the Court, (Dennis, J.,) awarding the sum to the appellee, the appeal in this ease was taken. The facts of the case are sufficiently presented in the opinion of this Court.</p>

It was agreed between counsel in the Court helow that the facts in the case of the Mutual Reserve Fund Life Association vs. Robinson W. Gator, and others, were identical with facts in the case of John E. Hurst, except that the Association did not assent to the assignment of the policy as in the case of Hurst, and the case of Cator was submitted to the Court for its determination.

The case is stated in the opinion of the Court. The cause was tried before the Court without the intervention of a jury. First Exception. — The defendants offered in evidence the record of the chattel mortgage from Eugene May to George C. Suero. The plaintiff' objected to its admissibility. The Court (Jones, J.,) overruled the objection and admitted the mortgage in evidence.

The case is stated in the opinion of the Court. Exception. — -The plaintiff offered the two following prayers: 1.

2, of Baltimore City. The bill in this^case was filed on the 8th of July, 1891, by Henry Handy, Jane W. Justice, widow, Margaret H. Reeves, widow, and Julia J. Handy, feme sole, against William W. Handy, Mary H. Ellicott (infant children of Thomas P. Handy, deceased) and Erancis Ellicott, her husband, and Maria P. Handy, widow of Thomas P. Handy.

Appeal as upon Writ of Error, from the Circuit Court for St. Mary's County. Thé appellant was indicted in the Court below for an assault with intent to kill L. J. Wise. A plea in abatexnent was filed to the indictment. The State demurred to the plea, and the Court (Crane, J.,) sustained the demurrer.

<p>Master and Servant — Contract of Employment — Entire contract — Breach.</p> <p>A contract of employment for a year for a certain sum per week, payable weekly, is entire and indivisible, and only one action for the breach thereof can be maintained by the discharged employe.</p> <p>Where under such contract the employs is wrongfully dismissed, and all wages actually earned up to that time are paid, the only action he would have, would be an action for the recovery of damages for the breach of the contract, and he could not maintain an action for salary as such on the ground that he was ready and willing to perform his work.</p> <p>Where the employe sued for the breach of the contract and obtained judgment for only one week’s salary, and the judgment was satisfied, no further recovery can be had.</p>

A petition was filed in this case by the appellants for a mandamus to compel the appellees, as Supervisors of Election for Frederick County, to hold a meeting at such time as the Court might designate, and place upon the official ballots to be used at the ensuing election in November, 1893, the names of the petitioners as candidates for County Commissioners of Frederick County.

<p>Creditors’ bill — Mortgage—General creditors of .Deceased mortgagor — Right to Redeem — Final order — Tender—Secs. 27 and 28 of Art. 5 of the Code.</p> <p>A creditors’ bill filed by a general creditor, and making a mortgagee of the deceased debtor defendant, sought to secure a sale of the mortgaged real estate for the benefit of all the creditors, after paying the mortgage debt. The bill prayed that the mortgagee be required to accept the mortgage debt and the complainant be allowed to pay the same. To this bill the defendant mortgagee demurred on the ground that the complainant, being only a general creditor, had no legal right to redeem or pay off the mortgage debt, and be subrogated to the rights of the mortgagee. Held:</p> <p>That the order sustaining the demurrer was final, from which an appeal would lie, although the bill was not dismissed, since to have proceeded further with the bill would have been fruitless.</p> <p>Although under section 188 of Article 16 of the Code, the land of a decedent is contingently or conditionally liable to be sold for the payment of his debts, a general creditor has no such right to, interest in, or lien on the decedent’s real estate, as to give him the right to redeem a mortgage upon such real estate, and be subrogated to the rights of the mortgagee.</p> <p>Where the mortgagee has filed his bond and advertised the property under the mortgage, the administrators of the deceased mortgagor, in order to prevent a sale of the real estate under the mortgage, must, in addition to the mortgage debt and interest, tender the legal costs incurred.</p> <p>A mortgagee who has filed his bond and advertised the property for sale under his mortgage before the institution of a creditors’ suit to subject the property to the payment of the debts of the deceased mortgagor, is not prevented from proceeding with the sale, after an injunction granted to restrain the sale has been dissolved, and the creditor’s bill dismissed, by an appeal on the part of the creditors, they having failed to give bond as required by sections 27 and 28 of Article 5 of the Code.</p>

The case is stated in the opinion of the Court. Exception. — At the trial the plaintiff offered four prayers. The fourth prayer having been rejected, is omitted. The other prayers are as follows: 1.

This appeal was taken from a decree of the lower Court, (Holland, J.,) dismissing the bill of complaint, with costs to the defendants.

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

<p>Appeal as upon Writ of Error, from the Circuit Court for Kent County.</p> <p>The case is stated in the opinion of the Court.</p>

The case is stated in the opinion of the Court. Exception. — At the trial below, after the evidence was closed on both sides, the plaintiff offered the two following prayers: 1.

The appeal in this case was taken from a decree of the-lower Court (Dennis, J.,) setting aside and annulling the tax sale of a certain lot, mentioned in the proceedings, to the Mayor and City Council of Baltimore, and the subsequent sale by the latter to Clarence M.' Ellinger, and adjudging that Jacob Craft Whittington hold the reversionary fee simple interest in the property free- and clear of any claim whatsoever of the said Mayor and City Council of Baltimore, or of the…

Appeals from the Superior Court of Baltimore City. The cases are stated in the opinion of the Court. Exception. — At the trial Walker and Myers offered five prayers, the first and fifth of which the Court (Ritchie, J.,) rejected, and they are omitted. The second, third and fourth prayers, which are sufficiently set out in the opinion of this Court, were granted. Bagby and Rivers offered five prayers. Their insertion is deemed unnecessary.

<p>Master and Servant — Injury to Servant — Contributory negligence.</p> <p>The plaintiff, with other employes of the defendant, was required to unload a car, weigh the iron with which the car was laden upon the platform beside the car, and then put it into another car, near said platform. The floor of the car to be loaded was above thp level of the platform, and was provided with afoot-board for the men to walk upon to and from the car. The floor of the car which was to be unloaded was on a level with the platform, and the space between the platform and this car was sixteen inches wide and four feet deep. There was no foot-board over this space of sixteen inches; and it was so dark that no one could see whether there was a foot-board in position at the car or not, without stooping down to examine the place where it was supposed to be. The plaintiff, supposing there was a foot-board there, without making any examination, and assuming the place to be safe, stopped into the car, and on returning with his armful of iron, fell into the open space of sixteen inches, and was Injured. There was a foot-board near at hand, as also a lamp, which could have been used by the plaintiff and his companions. Held :</p> <p>That the plaintiff was the author of his own misfortune, and the defendant was not liable.</p>

This appeal was taken from an order of the lower Court, (Jones, J.,) overruling exceptions to a sale made and reported by Albert N. Horner, sole acting executor of Alexander H. Horner, deceased, and finally ratifying said sale. The case is stated in the opinion of this Court.

<p>Declaration in Trover — Sufficiency of Description — Chattel mortgage — After-acquired chattels — Equitable lien — Trustee in Insolvency.</p> <p>A declaration in trover alleging that the defendant converted to his own use “three horses, three carriages, and one set of double harness, of great value,” sufficiently describes the property under Article 75, section 23, sub-section 31, of the Code.</p> <p>A mortgagee of chattels, though in law the owner of the chattels mentioned, does not, in virtue of the legal effect of his mortgage, become entitled to the substituted or after-acquired chattels; section 40 of Article 21. of the Code, providing that no personal property, of any description whatever, whereof the vendor, mortgagor or donor shall remain in possession, shall pass to any purchaser, mortgagee, or donee unless by bill of sale or mortgage acknowledged and recorded.</p> <p>Assuming that a mortgagee of chattels may have an equitable lien upon after-acquired property by virtue of a special agreement to that effect between himself and the mortgagor, such lien cannot be enforced or relied upon by the mortgagee in trover by the trustee in insolvency of the mortgagor for conversion by the mortgagee of such property to his own use, since under the insolvent law such trustee takes all the property of the insolvent, whatever may be the liens upon it, and, after converting such property into money, the proceeds of sale are brought into the insolvent Court for distribution among lien creditors and all other creditors, according to their legal precedence and priority.</p>

<p>Alteration of Public road — Judgment of County Commissioners— Conclusiveness of Judgment.</p> <p>The Code confers upon the County Commissioners of the several counties the power to o.pen and to change public roads, and to appoint examiners who shall report the result of their examination, together with the reasons on which their judgment is based, and the damages awarded to the owner through-whose land the road may be located, to the Commissioners, subject to their ratification, rejection or alteration. From the judgment of the Commissioners an appeal lies to the Circuit Court. Section 91 of Article 25 of the Code,' provides that “no public road shall be opened or altered so as to pass through the buildings, gardens, yards or burial grounds of any person, without the consent of the owner thereof in writing.” Held :</p> <p>That a judgment of the Commissioners ratifying the report of the examiners altering a road so as to make it pass across the front yard of the owner, and within a few feet of his dwelling-house, and from which judgment no appeal was taken, was no bar to the owner’s right to recover in an action of trespass against the Commissioners, it not appearing upon the face of the proceedings that the plaintiff had ever given his consent in writing to the change.</p>

The appeal in this case was taken from a decree of the Court below (Wickes, J.,) adjudging that the plaintiff was entitled to a deed in fee simple of the property in the proceedings mentioned, and of all the right, title, interest and estate, legal and equitable of the defendants and of each of them in and to said property, and freed, clear and discharged of all claims of the defendants or either of them therein or thereto; and appointing a trustee to execute and deliver to…

This suit was instituted in the Circuit Court for Calvert County, and on the suggestion and affidavit of the appellee, it was removed to the Circuit Court for Prince George’s County, where it was tried. The case is stated in the opinion of this Court. First Exception, fully stated in the opinion of the Court.

This appeal was taken from an order of the lower Court, (Fowler, J.,) dismissing the bill of .complaint, and dissolving the temporary injunction previously granted. The case is stated in the opinion of this Court.

The appeal in this case was taken from a decree of the lower Court, (Dennis, J.,) dissolving the injunction previously granted, and dismissing the bill of complaint. The case is stated in the opinion of this Court.

The case is stated in the opinion of the Court. First Exception, taken to the leave given by the Court to amend the declaration, is stated in the opinion of this Court. Second Exception. — The plaintiff offered five prayers, the fifth of which only, as follows, need be reported: 5.

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

The appeal in this case was taken from a decree of the lower Court, (Dennis, J.,) dissolving the injunction previously issued, and dismissing the bill of complaint. The case is stated in the opinion of this Court.

The case is stated in the opinion of the Court. Exception. — The case was submitted to the Court below without a jury, on an agreed statement of facts, the right of appeal being reserved. The plaintiff offered the following prayer: That under the agreed statement of facts in this case the plaintiff is entitled to recover $1,394.95, with interest- from the 31st of January, 1893, and costs. The defendants offered the following prayers: 1.

The case is stated in the opinion of the Court. First Exception.- — At the trial the defendant asked one of its witnesses, the following question: “Can yoa tell whether or not the degree of skill which is exacted of players in the clubs in the league, to which the Baltimore Club belonged, is more than the degree of skill which is exacted of players in clubs in other associations, and whether this was well known to all base ball players whom you have met?” To this question…

<p>Appeal from the Court of Common Pleas.</p> <p>The case is stated in the opinion of the Court.</p>

Tlie case is stated in the opinion of the Court. First Exception. — At the trial the plaintiff called A. M. Bowen, who testified that he was present at the examination before the Commissioner for the purpose of testifying to Mr. Brewer’s character, and that he heard the testimony of the officers of the railroad company.

This was an action brought in the name of the State, for the use of the widow and children, and mother of Edward Ringgold, deceased, against the appellant, a street railway company, a body corporate under the laws of the State, to recover damages for the death of the deceased, who was run over and killed by a car of the defendant. The case is stated in the opinion of the Court.

2, of Baltimore City. The bill in this case was filed by the appellees to enforce a mechanics’ lien. At a subsequent stage of the proceedings the bill was amended by making tbe appellants parties defendants. The appeal is taken from a pro forma decree of the Court below, (Wickes, J.,) refusing to strike out tlie order making the appellants parties, and refusing to quash the subpoena served upon them. Tbe case is stated in the opinion of this Court.

The case is stated in the opinion of the Court. Exception. — The testimony having been closed on both sides, the plaintiff offered the two following prayers: 1.

The case is stated in the opinion of the Court. Exception. — The plaintiffs offered four prayers, the fourth of which the Court (Ritchie, 1.

Cross Appeals from the Circuit Court of Baltimore City. .These appeals were taken from a decree of the lower Court (Wiokes, J.,) construing the will of Samuel Brady, Sr., late of Baltimore County. The case is stated in the opinion of this Court.

Tbe case is stated in the opinion of the Court. Exception. — At the trial the plaintiff offered the three following prayers: 1.

The case is stated in the opinion of the Court. Exception. — In the Court below, at the close of the testimony on both sides, the plaintiff offered the two-following prayers: 1.

<p>Appeal — Delay in Transmitting record — Dismissal.</p> <p>Under Rule thirteen of the Court of Appeals, requiring the record, on appeal from an order or decree of the Orphans’ Court, to he transmitted within thirty days after the praying of the appeal, the Appellate Court will, sua sponte dismiss an appeal, where the transcript of the record was not filed in said Court until more than two years after the appeal, no explanation of the delay being given, notwithstanding an agreement of counsel that neither party should take advantage of the delay.</p>

This action was brought by the appellee against tbe appellant, a body corporate, to recover damages for injuries sustained by the former through the wrongful act of tbe latter, in constructing a wooden sewer or box, and flooding the premises of the appellee with water and nauseous liquids discharged from the appellant’s brewery. The facts are sufficiently stated in the opinion of the Court. Exception. — At the trial the plaintiff offered the three following prayers: 1.

<p>Appeal as upon Writ of Error, from the Circuit Court for Kent Court.</p> <p>The case is stated in the opinion of the Court.</p>

The case is stated in the opinion of the Court. Exception. — -At the trial in the lower Court the testimony on both sides being closed, the plaintiff offered two prayers, which the Court (Phelps, J.,) granted. The first prayer is set out in the opinion of this Court. The second as to the matters proper to be considered by the jury in estimating the damages should they find for the plaintiff, is omitted, no exception being taken to it by the defendant.

<p>Criminal law — Sentence to House of Correction — Title of AcL</p> <p>Section 310 of Article 27 of the Code, providing for imprisonment in the House of Correction when, under existing law, the convicted person is liable to be sentenced to imprisonment, either in jail or penitentiary, for a period not less than two months, and not exceeding one year, does not conflict with section 313 of the same Article, which provides for imprisonment in the same place in a class of misdemeanors which are punishable only by imprisonment in jail, or by both fine and imprisonment therein without limitation as to the length of imprisonment, and a person convicted of assault and battery, a misdemeanor, for which no statute other than section 313 itself, prescribes a penalty, may be sentenced under said section to imprisonment in the House of Correction for eighteen months.</p> <p>The Act of 1874, cli. 233, entitled “An Act to establish the Maryland House of Correction,” is not in violation of section 29 of Article 3 of the Constitution,'which provides that “every law enacted by the General Assembly shall embrace but one subject, and that shall be described in its title.”</p>

<p>Attempt to Murder — Indictment.</p> <p>An indictment charging that the traverser did attempt to commit an offence, to wit to poison A. and in such attempt did a certain overt act towards the commission of said offence, to wit, did deliver knowingly and wilfully to A. a pill containing a large quantity of deadly poison, and did solicit, and incite the said A. to swallow it, with intent to kill and murder the said A. sufficiently charges an attempt to murder by poison.</p>

<p>¡Sale — Instruction—Separate deed of Married woman.</p> <p>Mliere the purchaser of a farm and certain personal property thereon, from a man and his wife, employed the husband to attend to the farm for him. the fact that the personal property was in the possession of the wife with the owner’s concurrence, would not authorize a reasonable inference that she had a right to sell it; and a person purchasing such property from her, without the necessary evidence of her right to sell it, would have to take the consequences of his own improvidence.</p> <p>An instruction that the plaintiff in replevin could recover on a temporary right of possession, although the title to the property was in another person, should be refused for failing to inform the jury what facts in evidence would establish a temporary right of possession against the owner.</p> <p>A bill of sale of property belonging to a married woman executed without joining her husband, is void under section 2 of Article 45 of the Code.</p> <p>Appeal from the Circuit Court for Baltimore County.</p>

Appeals from the .Circuit Court for Alleghany County, in Equity. These appeals were taken from an order of the lower Court (Stake, J.,) ratifying the auditor’s account. The case is stated in the opinion of this Court.

<p>Appeals from the Circuit Court of Baltimore City.</p> <p>The case is stated in the opinion of the Court.</p>

The case is stated in the opinion of the Court. Exception. — At the trial the plaintiff offered the two following prayers: 1.

The traverser was tried before the Court (Roberts, J.,) without the intervention of a jury, and was found guilty, and he was thereupon sentenced. The case is further stated in the opinion of this Court.

This appeal was taken by the plaintiff from a pro forma judgment entered for the defendant by the Court below (Ritchie, J.,) on a case stated. The right of appeal was reserved to each party. The case is stated in the opinion of this Court.

The case is stated in the opinion of the Court. The second prayer of the defendant, which the Court below (Ritchie, J.-,) refused, is set out in full in the opinion of this Court. The insertion of the other prayers of the defendant, as also those of the plaintiff, is deemed unnecessary. The jury rendered a verdict in favor of the plaintiff for $5,500, and judgment was entered thereon. The defendant appealed.

The case is stated in the opinion of the Court. First Exception. — The petitioner, Constantine A. Bowling, prayed the Court to strike out all the testimony of the witness, Sydney E. Mudd, tending to show his intention of returning to Charles County at the time of his leaving or thereafter, as testified to by him, and that it be not considered by the Court, said testimony being incompetent and irrelevant.

The case is stated iu the opinion of the Court. Exception. — At the trial the plaintiff offered eight prayers, the first, second, third, fifth, sixth and seventh of which the Court (Ritchie, J.,) rejected, and they are omitted. The fourth was withdrawn, and the eighth, as to the measure of damages, was granted, but its insertion is deemed unnecessary. The defendant offered four prayers, the first, second, and fourth of which were rejected, and the third was granted.

The case as affecting the validity of the appeal is stated in the opinion of the Court. A motion was made by tbe appellee to dismiss the appeal because the same was not entered in time, the notice of appeal not being made in writing, and because there was no entry showing that an appeal had been taken.