Volume 80 — Maryland Reports

On August 17, 1893, the appellants, John K. and George B. White, non-residents of the State of Maryland, but owning real and personal property situate in Allegany County, Maryland, executed an assignment to trustees for the benefit of creditors, conveying all the real and personal property of the grantors, in trust to sell and dispose of the same, etc., and pay all the just demands of the creditors of the grantors in full, or equally in proportion in the event of an…

<p>Appeal from a pro forma judgment of the Baltimore City Court.</p>

On June 30th, 1894, two of the appellants, next of kin of John H. Keene, Sr., deceased, filed in the Orphans’ Court of Baltimore County a notice of objections to the probate of the will of said Keene, and asked that when the same should be exhibited for probate they might receive notice and have an opportunity to file a caveat in regular form.

The appellee, while a passenger on defendant’s train, was assaulted by the conductor, and brought an action against the appellant to recover damages. The evidence on the part of the defendant tended to show that the assault was provoked by threatening and profane language on the part of the plaintiff, while this was denied by the latter.

This was an action to recover damages for an injury alleged to have been, caused by the defective condition of a bridge on defendant’s road. The plaintiff’s evidence is set forth in the opinion of the Court. The defendant’s witnesses testified that a constant supervision was exercised over the bridge, and that it was examined immediately after the accident and found to be in a sound condition.

Writ of error and appeal from the Circuit Court for Frederick County. On September 6, 1892, the appellees, Goldsborough and Hoffman, gave public notice by due advertisement in “ The Examiner,” a newspaper published in Frederick County, that on the 17th day of October, 1892, they intended to petition the County Commissioners of Frederick County, for the locating and opening of a public road in that county described in their notice.

), made on May 24, 1894, by which it was adjudged that John F. Gontrum, trustee of the estate of William Galloway, under the last will of Miriam R. Lyons, deceased, recover against John H. Hunt, executor of the last will of Robert S. Hunt, deceased, the sum of $692.80, with interest, &c. The case is stated in the opinion of the Court.

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

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

On March 23, 1894, the appellees filed a petition in said Court setting forth that .the appellant recently located and appropriated five acres in the waters of Holland’s Straits, in Dorchester County, for the purpose of preserving, bedding or sowing oysters ; that the said five acres are a natural bed or bar of oysters ; that the appropriation thereof by the appellant would injure the petitioners in their right to take oysters from the same, and praying that the location…

The appellants filed a petition in said Court alleging that the appellee, a married woman, being a licensed feme sole trader under Code, Art. 56, had committed certain acts oí insolvency, and had executed an assignment of her property for the purpose of hindering, delaying and defrauding her creditors and praying that she might be adjudicated an insolvent and a trustee appointed.

This was an action by the appellee to recover damages for an injury alleged to have been caused by the negligence of the driver of defendant’s wagon. The driver was offered as a witness by the defendant,'and was asked on cross-examination whether he had been sent to jail under a charge or conviction, and for what offence. To the ruling of the Court (Wright, J.), allowing these questions to be asked, the defendant excepted.

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

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

This was an attachment against a non-resident, upon the account set forth in the opinion of the Court. After a confession of assets in the hands of the garnishee, and a judgment of condemnation, certain claimants of the credits attached moved to strike out the judgment (at the same term of Court) ; and the defendant moved to strike out the judgment and quash to the attachment.

The case is stated in the opinion of the Court. The bill in this case was filed by the appellees to enforce a vendor’s lien, and alleged that at the time of the conveyance of the trust property by the trustee to the party under whom the appellant claims, only a part of the purchase money was actually paid to the trustee; and that the appellant, then having knowledge of this fact and of the trust, was bound in equity for the deficiency.

,) overruling exceptions to an Auditor’s account distributing the proceeds of land sold under a decree for partition, and finally ratifying the same. The case is stated in the opinion of the Court.

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

<p>Appeal from an order of the Circuit Court for Prince George’s County (Brooke, J.), refusing to issue a writ of certiorari. The case is stated in the opinion of the Court.</p>

The case is stated in the opinion of the Court. The bill of complaint of the appellant set forth the assignment of the mortgage and notes by Mrs. Blandin, that default had been made in payment and prayed for a foreclosure of the mortgage. The defendants were A. Victor Cherbonnier, Sarah C. Cherbonnier, M. Corinne C. Blandin and John T. Blandin, her husband.

<p>Appeal from a pro forma decree of the Circuit Court of Baltimore City. The case is stated in the opinion of the Court.</p>

This was an action to recover damages for a personal injury alleged to have been caused by defendant’s negligence.

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

2, of Baltimore City. The bill of complaint in this case alleged that certain officers of the Board of Health of Baltimore City, acting under an ordinance of tne city, had destroyed a quantity of milk belonging to the appellant, and had declared their purpose to destroy all milk belonging to the appellant and other daily men which, after -inspection by means of a mechanical instrument known as the “Lactometer,” and by a test taken with Litmus paper, they should conclude not…

The appellee filed a petition in the Orphans’ Court of Dorchester County, alleging that she was the only child of Richard Watson Jackson, late of said county, deceased, and .asking for the grant of letters of administration on his personal estate.

The case is stated in the opinion of the Court. A petition in insolvency was filed by the appellee, the First National Bank of Frostburg, against Wm. Parker and Josiah Parker, partners, trading as Wm. Parker & Brother, and certain creditors alleged to have obtained unlawful preferences from them.

This was an action on a policy of fire insurance, covering a stock of goods contained in a brick building in Union Bridge, Maryland. The jury returned a verdict for the plaintiffs, assessing their damages at $4,200; and, under the agreement of the parties referred to in the opinion of the Court, judgment was entered against this defendant for $1,020.

This was an action of assumpsit, brought by the appellee against the appellant.

The case is stated in the opinion of the Court. One of the orders appealed from revoked the letters of administration granted to George W. Lutz and John B. McGraw upon the estate of Valentine Lutz, because the Court found that the representation made at the time the letters were obtained, to the effect that George W. Lutz was the only sofi and entitied to the administration, and that-he desired to associate John B. McGraw with him, was not a correct statement, as John W.…

John M. Wahl, by his will executed in 1888, and probated the same year, in Baltimore City, gave his entire estate to his wife, who is still living, for life. After his wife’s death his estate is disposed of in the mannér indicated subsequently in his will.

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

), overruling exceptions to a trustee’s sale and finally ratifying the same. The case is stated in the opinion of the Court.

), overruling the defendant’s exceptions and demurrer to the bill of complaint. The case is stated in the opinion of the Court.

Cross appeals from the Circuit Court of Baltimore City. Proceedings were instituted in said Court for the purpose of making partition of the residue of the estate of William E. Hooper, deceased, and by the return of the commissioners, ratified April 25, 1893, personal property valued at the sum of $210,382 was allotted to Wm. J. Hooper and others, trustees under the will of said decedent, in trust for the testator’s daughter, Grace Feigner, for life, as hereinafter set forth.

The appellant filed a petition in said Court, -alleging that he had applied to the appellee for a single license authorizing the corporation represented by the appellant to carry on business at thirteen different stores in Baltimore City, which application was refused, and the petitioner prayed for a writ of • mandamus directing the Clerk of said Court to issue such license. -The appellee relied in his answer upon the Act of 1894, ch. 113, which is set forth in the opinion…

The bill of complaint in this cause, filed by The Glymont Improvement and Excursion Company against the appellee, set forth the following facts : On November 21, 1883, The Upper Glymont Improvement and Excursion Company was incorporated under the general law, and purchased upwards of one thousand acres of land, lying on the Potomac River, in Charles County.

<p>Appeal from the Circuit Court for Caroline County.</p> <p>-;*Thf eáselis Stated;;®! ,íhe oprnicñíof -tbeijCpurf/ív.- •>:.vc<j n</p>

<p>Specific Performance — Marketable Title — Bona Fide Purchaser.</p> <p>Upon a bill for specific performance, where the defence is that the title to the property is not marketable, the Court does not decide whether the title is absolutely good or absolutely bad, but whether it is reasonably clear and free from doubt.</p> <p>It is not every doubt, or even threat of contest, that will be sufficient to defeat a demand for the specific performance of a contract to buy land, but the doubt must be a reasonable one.</p> <p>A. made a voluntary conveyance of certain property to his daughter B. in 1879, and four days later he made a will. On a caveat filed to this will in 1892, the same was set aside as having been obtained by' fraud and undue influence exercised by B. After the filing of the caveat, the property so conveyed to B. was conveyed by her to the plaintiff, who agreed to sell the same to the defendant. The heirs at law of A. refused to relinquish their rights- in the property, if any, but did not threaten to assail the validity of the deed from A. to B. Held,</p> <p>That since the plaintiff was a bona fide purchaser for value without notice, his title was free from reasonable doubt, and that specific performance should be decreed.</p>

2, of Baltimore City, by which it was ■ adjudged that upon the sale of the property described in the case stated, with or without the consent of Annie Stein, widow, she should be entitled to one-third of the income derived from the proceeds of sale in lieu of dower in said property. The case is stated in the opinion of the Court.

The case is stated in the opinion of the Court. As to the issue of the writ of mandamus referred to in the opinion, see the next case of County Commissioners of Cecil County v. Banks.

The case is stated in the opinion of the Court. The petition of the appellee, therein referred to, also alleged that after the passage of the Act of 1894, ch. 25, the County Commissioners of Cecil County admitted to the office of treasurer of said county, the defendant, Manly Drennen, and delivered to him the books and papers of said office, and that he had refused the petitioner’s demand for the same.

The case is stated in the opinion of the Court. At the trial the plaintiff offered the following prayers: Plaintiff’s ist Prayer. — That if the jury find from the evidence that the plaintiff, while crossing Caroline street, on Monument street, was struck by a car of the defendant, and injured; and if the jury further find that the injury to to the plaintiff was caused by the want of ordinary care and prudence of the servant of the defendant, and that the plaintiff used…

), sustaining exceptions to an auditor’s account, distributing among creditors the funds of the Bay Ridge Company, and disallowing the claim of the appellants. This claim arose out of certain contracts between the Receiver of said company, appointed by said Court, and one ¥m. H. Pitcher and the appellants, who became substituted, by agreement, to the rights and liabilities of Pitcher under his contract with the Receiver.

The plaintiff alleged that while driving on the Baltimore and Yorktown Turnpike Road her horse was frightened and made to run away, throwing her out of the vehicle, by the negligent manner in which an engine was used on the tracks of the defendant, an electric railway company.

J.), directing a writ of mandamus to issue. The case is stated in the opinion of the Court. At the trial the petitioner (appellee) offered the following prayers : 1.

<p>Appeal from an order of the Circuit Court No. 2, of Baltimore City (Wright, J.) The case is stated in the opinion, of the Court.</p>

fund among creditors. Under the will of Wm. H. Hoffman, which was admitted to probate in Baltimore County in 1886, the residue of his property, embracing three paper mills, several farms an'd other real estate in said county, was devised to his four children, Lydia A. Smyser, Geo. W. S. Hoffman, W. E. Hoffman, and John W. Hoffman, and one-twentieth of the testator’s estate was given to his son-in-law, P. Vondersmith.

The appellant was indicted for a violation of the local road law of Dorchester County, in that, after having been duly summoned by the road supervisor, he refused to work on the roads of said county, or to provide a substitute, or to pay the sum of seventy-five cents in lieu thereof.

<p>Attachment Against Non-Resident — Sufficiency of Affidavit.</p> <p>In an attachment against a non-resident, an affidavit by the plaintiff that the defendant “is not a citizen of the State of Maryland and doth not reside therein,” is a substantial compliance with Code, Art. 9, sec. 4, requiring the affidavit in such case to state that the plaintiff “ knows, or is credibly informed and verily believes, that the defendant is not a citizen of the State, and that he doth not reside therein.”</p>

The bill of complaint in this cause charged that the defendant had for some years treated his wife, the plaintiff, with great cruelty, harshness and brutality, at times striking, kicking and beating her, and that on account of his intolerable conduct she was obliged to leave his house and seek shelter elsewhere. The bill prayed for a divorce a mensa et thoro, alimony, and the the custody of three infant children.

<p>Judicial Notice of an Election — Constitutional Law — Title of Statute.</p> <p>The Court cannot take judicial notice of the result of a local option election directed to be held by an Act of Assembly, and upon the result of which the efficacy of the Act is made to depend.</p> <p>Where the title of an Act states that its object is to regulate the liquor traffic in a certain town, and the Act itself provides for the total abolition of the liquor traffic within a larger territory, including the town, upon a certain contingency, such Act is in violation of the Constitution, Art, 3,' sec. 29, which provides that the subject of every law shall be described in its title.</p> <p>The title of the Act of 1894, ch. 484, is “An Act to provide for an election to be held in the town of Cambridge, Dorchester County, to regulate the liquor traffic therein; and repealing sections 207 to 213, inclusive, of Article 10 of the Code of Public Local Laws, title, ‘Dorchester County,’ sub-title, ‘Liquors and Intoxicating Drinks,’ so far as the same may relate to or affect said town of Cambridge; and repealing and re-enacting, with amendments, section 218 of said Article.” Under the existing law the sale of liquor within certain districts of the county was prohibited, except by druggists upon bona fide written prescriptions. The Act of 1894 provided for holding an election on a designated day in the town of Cambridge, and if the majority of votes were for the sale, then it was made lawful for all persons to sell liquor in that town, and the former law was repealed pro tanto; but if a majority should be against the sale, then the sale of liquor in said town, and in Election District No. 7, including said town, was prohibited even by druggists. There was nothing in the record to show what the result of the election was, but the defendant, a druggist, was indicted for selling liquor in said town. Held, that assuming that the result of the election was a majority against the sale, then that part of the Act of 1894, prohibiting the sale of liquor by druggists upon bona fide prescriptions, was invalid, because in violation of Art. 3, sec. 29 of the Constitution, since the title of the Act relates to the regulation of the liquor traffic in the town of Cambridge, and does not disclose a purpose totally to abolish the same within a larger territory, including the said town.</p>

), directing the appellants to enter the name of the appellee as a qualified voter in the registries of voters of the First Election District of said county.The petition of the appellee set forth that in the month of October, 1894, he applied to the appellant, Blackford, to be registered as a voter; that his application was refused, and he prayed for the passage of the above order.

<p> Sale of Real Estate of. Intestate in Orphans' Court. </p> <p>A sale of the real estate of an intestate, of less value than $2,500, . made under an order of the Orphans’ Court having jurisdiction of the subject-matter and of the parties, cannot be impeached collaterally for mere errors or irregularities in the procedure.</p> <p>A sale of the real estate of an intestate decedent was made by his administratrix under an order of the Orphans’ Court, and the land was subsequently conveyed to the defendants. In an action of ejectment by the heirs at law of the decedent, Held, that although the sale should have been made by a trustee, yet the failure to do so was not such an error in procedure as would make the sale by the administratrix absolutely void, or open to collateral attack.</p>

The case is stated in the opinion of the Court. The bill of complaint in this case was filed by the appellees to set aside as fraudulent the conveyance of certain real estate situate in said county by O. Hull to Eubank in trust for Hull’s wife. The property was sold under a decree, and the amount of net proceeds in the hands of the trustees was $1,363.18.

This was an action of ejectment brought by Miss Hutch-ins, the residuary devisee under the. will of Mary Louisa Pearce, to recover the property devised to the latter by the codicil to the will of John B. Pearce. The defendants were the surviving son and daughter of John B. Pearce and the husband of the daughter.

), by which it was determined that the appellant, a corporation incorporated on July 30, 1891, was liable to the State in this action for the second instalment of the bonus tax imposed by the Act of 1890, ch. 536.

Anderson. The first and eighth clauses of the said will are as follows : 1st. “I give, devise and bequeath to my executors and trustees hereinafter named, and the survivor of them, and the heirs, executors and administrators of the survivor, all my estate, real, personal and mixed, wherever situated or being, with full power and authority to do whatever may be proper and necessary to the performance of the duties hereby imposed on them, either in effecting sales, executing…

), on the trial of an appeal from the award of the Commissioners for Opening Streets in Baltimore City, in the matter of the opening of Madison, street, from Patterson Park avenue to Grove alley, assessing benefits to the Smith & Schwartz Brick Company. The exceptions to the evidence are stated in the opinion of the Court.

This was an attachment against a non-resident sued out by the appellant against the appellee, and laid in the hands of the Continental National Bank. The voucher was a running account of debits and credits showing a balance due to the appellant of $1,024.75. The case is stated in the opinion of the Court.

<p>Delay in Condemnation Proceedings — Liability of Municipality— Proof of City Ordinances.</p> <p>The Court does not take judicial notice of municipal ordinances, and in a declaration relying on them, they should be more particularly referred to than by number and date.</p> <p>Ordinances of the city of Baltimore directed that a certain square should be acquired as a site for a new Court House. Plaintiff was the lessee of a hotel occupying part of the site, and all the interests in the square were purchased or condemned by the city, except the plaintiff’s. No condemnation proceedings had been instituted when plaintiff sued the city to recover damages alleged to have been caused to his business by the delay in acquiring his property. The delay complained of was from May 1, 1893, when a Building Committee was appointed by ordinance, to April 7, 1894, when the suit was instituted. The Building Committee had no power to condemn until after they had failed to agree upon a price with the land owners, and there was no allegation that they had acted in bad faith. Held, that the passage of the ordinances was not a commencement of condemnation proceedings, and that the plaintiff had no right of action against the municipality on account of the delay to institute such proceedings.</p>

), sustaining a demurrer to the bill of complaint and dismissing the same without prejudice to the right of the plaintiff to proceed at law.

<p>Taxation for a Private Purpose — Constitutional Law — Injunction by Taxpayer.</p> <p>An Act of the Legislature, the effect of which is simply to levy a tax on the citizens of a certain county to pay certain residents of that county the debts due them by an insolvent railroad company, is unconstitutional, because it involves taxation for a private purpose.</p> <p>Counties have no inherent power of taxation, and the Legislature can only delegate to them the power to tax for public purposes.</p> <p>The Act of 1892, ch. 295, authorized the Commissioners of Talbot County to issue bonds to the amount of $25,000, “to pay a subscription” of the county to the B. & E. S. R. Co.; and provided that the proceeds of the sale of the bonds should be first applied to the payment of the claims of the citizens of Talbot County against said company. This Act was confirmed by the Act of 1894, ch. 152. At the time of the passage of the Act of 1892, Talbot County had not in fact made any subscription, either to the stock or to the bonds of the company, and the railroad had then been completed, but was insolvent and in the hands of a receiver. Held, that the Act was unconstitutional, and that an injunction should be issued restraining the County Commissioners from issuing the bonds.</p>

<p>Appeal from an order of the Court of Common Pleas (Phelps, J.) The appellants, voters of the first ward of Baltimore City, filed a petition in said Court against the Officers of Registration of the fifth precinct of that ward, and Jas. Bond, Clerk, &c., alleging that James Bosley and Charles Williams, who had been registered in that precinct at the September sitting, 1894, were not duly qualified voters of the precinct, and were not entitled to be registered therein, and they prayed the Court to strike the names of Bosley and Williams from the registries of said precinct. The evidence is stated in the opinion of the Court.</p>

Charles Hoffman, by his will, probated in Baltimore City in 1875, devised as follows : “ I give and bequeath to my beloved wife, Anna Hoffman, all my real and personal estate, wherever situated, to be held by her for her sole and separate use for and during the period of her natural life, with full power and authority to her, my ■ dear wife, to collect the rents, issues, incomes and profits of the same and apply the same to her sole and separate use, with full power and…

2, of Baltimore City (Wickes, J.), dismissing the bill of complaint filed by the appellants. The case is stated in the opinion of the Court.

<p>Boundary of Anne Arundel County — Criminal Pleading — Venue-Judicial Notice of Territorial Divisions of the State.</p> <p>The jurisdiction of the Circuit Court for Anne Arundel County extends ‘ to the channel of the Patapsco River.</p> <p>In a criminal information the venue is sufficiently laid when the county is named in the margin and the place where the offence was committed is'named in the information as being in the county aforesaid.</p> <p>The Court will take' judicial notice of the civil divisions of the State created by statute.</p>

The case is stated in the opinion of the Court. At the conclusion of the plaintiff’s evidence, the trial Court (Wright, J.), instructed the jury that “ though they should find the defendant guilty of negligence, yet the uncontradicted evidence shows that the accident happened by reason' of the contributory negligence of the plaintiff, and their verdict must therefore be for the defendant.”

<p> Striking out Judgment when Defendant not Summoned. </p> <p>Upon a motion to strike out a final judgment by default, the evidence showed that the defendant, although returned summoned, had not in fact been summoned; that he had some indefinite knowledge that he had been sued, and attempted in good faith to find out who had sued him and for what cause, but was informed by the plaintiff’s attorney that “it was all over.” Held, that the judgment should be struck out.</p>

The case is stated, in the opinion of the Court. The policy sued on provided “ that in case the above mentioned premises shall at any time, after the making and during the timé this policy would otherwise continue in force, be so altered, or be appropriated, applied or used, to or for the purpose of carrying oh or exercising therein any trade, business or vocation, which, according to the by-laws and conditions, class of hazards, or rates hereto annexed, would increase the…

This was an action for money lent. The declaration contained four of the common counts, and a special count, setting forth “that the defendant, by his written contract, dated April 20th, 1889, for and in consideration of the loan of $10,000, agreed with the plaintiff to repay the said sum, with interest, two years after date, upon certain terms and conditions therein fully set forth,” and concluding with a general averment of the performance of all things necessary' to be…

This was an action to recover damages for injuries to plaintiff’s person and property alleged to have been caused by defendant’s negligence. The evidence showed that the plaintiff, driving west, in the day time, on Chase street, in Baltimore City, attempted to cross the tracks of the defendant,' an electric railway company, on Guilford avenue, at the intersection of Chase street.

The evidence showed that the plaintiff, driving east in a one-horse wagon, on an intersecting street, came to Charles street, where are the double tracks of the defendant, an electric railway company. When his horse reached the first, or western track, plaintifflooked south and saw a car about 337 ft. distant coming north on the second or eastern track.

), perpetually enjoining the execution •of a judgment against the appellee, a married woman. The execution was levied on the statutory real estate of the married woman, which had not been purchased with money earned by her own skill and industry. The case is stated in the opinion of the Court.

), sustaining a demurrer to the bill of complaint filed in .this cause, and dismissing the same. It appeared from the bill and exhibits that, on March 21, 1890, Thos. A Mitchell and wife conveyed to W. F. Hellen, of the District of Columbia, certain real estate in Prince George’s County, known as “ Thos.

<p>Apportionment of Ground Rent — Presumption of Apportionment— Curative Act — Administration on Leasehold Estate.</p> <p>In 1793, the owner of a tract of land, including the lot in question, leased the whole tract for 99 years, renewable forever, to Q., subject to the yearly rent of two pounds and fourteen shillings. In the same year Q. subleased the lot in question to P., whose title by mesne conveyances became vested in appellants. In the sublease from Q. to P. the rent reserved was one pound four shillings per annum, and none of the subsequent conveyances mentioned any other rent as issuing out of the lot. There was evidence to show that for more than fifty years no other rent had been demanded from the owners of this lot. Held, that it was reasonable to conclude that the lot was not liable for any other rent, and that there had been an apportionment of the rent resting upon the original tract of which the lot in question was about one fifth.</p> <p>In 1856, M. then being the owner of the above-mentioned leasehold lot, conveyed the same to B. by a deed in fee, which was not recorded for more than six months after its date. In 1875 the children of B., then deceased, procured a deed of the lot to themselves from M., in which it was described as leasehold. Held, that the deed to B. became operative by virtue of the Curative Act of 1860 (Code, Art. 2, sec. 19); that the deed from M. to B.’s children could not convey anything, since M. had divested himself of all title by the former deed ; that since, at the time of the conveyance to B. by .M., the latter had only a leasehold interest, B. acquired that only ; and that in order to vest title in B.’s children, administration on B.’s estate was necessary.</p>