Volume 81 — Maryland Reports

Under the Act of 1894, ch. 620, a building committee was appointed to purchase a lot in the city of Annapolis and erect thereon a public school… Held: &c. The answer further insisted that the Act is a special Act in a case for which provision is already made by general.law, and, therefore, is in violation of the provisions of Article 3, section 33, of the Constitution; also, because “the imposition of taxes'upon the taxpayers of the city of Annapolis for objects outside the…

J. Nicholson & Sons among its creditors prorata, and rejects the appellants’ claim of a priority. The late firm of J. J. Nicholson & Sons consisted of Johns H. R. Nicholson and Andrew J. Nicholson, and was dissolved by the death of Andrew, on January 5, 1892. On that day and for sometime prior thereto the said firm, and each member thereof, was insolvent.

J., Stake and Hoffman, JJ.), refusing to grant the injunction asked for in the bill of complaint filed by the appellant.

This was an action of replevin brought by the appellant as receiver of the Surbridge Manufacturing Company of Washington County, against the appellee, to recover possession of seventy bicycles. The Surbridge Company was incorporated under the general law, on August 18, 1893, for the purpose of manufacturing bicycles, with a capital stock of $50,000.

Was the provision contained in the paper-writing purporting to be the last will and testament of James Boyce, and therein set forth in the following words, that is to say : “And all the sums which have been charged by me, or by my authority, on any of my books of account or memoranda, against any of my children, or which may appear on memoranda made by me, and not yet entered into my books of account, shall be treated as parts of my estate, and the charges against each child…

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

This was an action of ejectment brought by the appellant, Joseph H. Rieman, for the purpose óf endeavoring to oust the Belt Railroad Company from a portion of the bed of South Howard street, which it is now occupying with its tunnel. The appellant is the owner in fee of a lot of ground situated on the southeast corner of German and Howard streets, in the city of Baltimore. Howard street runs north and south, and German street runs east and west.

<p>Landlord and Tenant — Distraint for Rent Issued after Application in Insolvency.</p> <p>When, at the time a distraint is issued by a landlord, the tenant had applied for the benefit of the insolvent law, his property cannot be taken under the distress for rent due at the time of the application.</p> <p>When a debtor applies for the benefit of the insolvent law, his property passes in custodia legis for the benefit of all of his creditors.</p>

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

At the trial below, the evidence produced on the part of the plaintiff was to the effect that he, together with J. W., Robert and J. W. C. Watkins, boarded defendant’s train at Washington Grove camp-meeting to go to Washington; that R. Watkins, who was sitting by plaintiff, had a stump of a cigar in his hand, and, upon being accused by the conductor of smoking, denied that he was smoking, and threw the cigar out of the window; that Watkins and the conductor had a verbal…

247. This Act is summarized in the opinion of the Court. On June 11, 1894, the petition of Mrs. Annie Moylan, a sister of the habitual drunkard, in compliance with the terms of the Act of x 894, chapter 247, was filed in the Circuit Court of Baltimore City, and on same day the Court passed a decree directing that the habitual drunkard be sent to the appellee to be treated for drunkenness, at the expense of the city of Baltimore.

Walshe, deceased. The question on this appeal was whether the said distributees were the children of Walshe, On November 6, 1875, Carlotta Walshe, then Carlotta Simmonds, filed a bill in the Circuit Court of Baltimore City, for the purpose of obtaining a divorce a vinculo from her husband, Florian V. Simmonds, and the exclusive care, custody and control of their six children, whose names and ages are stated as follows: Edward E. Simmonds, aged fifteen years; Attela E.…

The case is stated in the opinion of the Court. At the close of the evidence adduced on behalf of the caveators, the defendants offered the following prayers; i and 2.

2, of Baltimore City (Wickes, J.), by which it was adjudged that the defendant pay to the plaintiffs the sum of $14,329.97. The case is stated in the opinion of the Court.

the appellants. The agreed statement of facts showed that the land described in the declaration in this cause is at present a portion or part of Perkins’ Spring Square, formerly called Perkins’ Spring property, which land, described in the said declaration, is now and and has been ever since the 14th January, 1873, used by the city of Baltimore in connection with the property leased by it on the said 14th January, 1873, as per Exhibit B, as one of the public squares of the…

The executors of James Boyce filed a bill for the administration of the estate in the said Circuit Court, and in the course of the administration Auditor’s Accounts were stated, allowing the sum of $1,240 to the appellee, Worley, for salary as clerk to the executors, at the rate of $40 per month, from September 1, 1891, to April 1, 1894. To this allowance the appellants excepted and appealed from the order of the Court below (Dennis, J.), overruling their exceptions.

2, of Baltimore City (Wickes, J.), as follows: “This case having been originally set down for a hearing on the application of the plaintiff for an injunction to restrain the defendant, Katharine Hohman, from further prosecution of her suits at law, on the policies of life insurance mentioned in the pleadings, and to have this Court take jurisdiction in the premises, and the Court not having time for full consideration of the case before the said suits would come on for trial…

<p>Appeal from a decree of the Circuit Court of Baltimore City (Dennis, J.), dismissing the plaintiffs’ bill of complaint. The case is stated in the opinion of the Court.</p>

<p>Appeal from a decree of the Circuit Court for Allegany County (Stake, J.), ratifying one Auditor’s Account and rejecting another.</p>

<p>Rule Security for Costs.— Constitutiotial Law.</p> <p>The provisions of Code, Art. 24, sec. 9, requiring non-resident plaintiffs to give security for costs, when a rule is laid upon them, is not in conflict with Art. 4, sec. 2 of the Constitution of the United States, concerning the privileges and immunities of the citizens of the several States.</p> <p>A rule security for costs laid upon the plaintiff in one Circuit Court, is subsequently enforceable in the Circuit Court of another county, to which the case is removed for trial; and the removal does not make any change in the time within which the plaintiff is required to comply with the rule.</p> <p>The right of a defendant to move for a judgment of non-suit for the failure of the plaintiff to comply with a rule security for costs, is not lost by a delay of eight months, but continues up to the time of trial.</p>

<p>Appeal from an order of the Court of Common Pleas (Phelps, J.), dismissing a petition for a writ of mandamus.</p>

J., and Burke, J.), sustaining a demurrer to the bill of complaint in this case and dismissing the same.

2, of Baltimore City, by which it was adjudged that “the defendant has a right to maintain its bulkhead as at present constructed within the line, constituting the southeast boundary of defendant’s property, extended by a straight line southeasterly to the bulkhead line, and for the purpose of constructing piers, has the right to extend the line now constituting the southeast boundary of the defendant’s lot, in a straight line southeasterly, until it reaches the Pierhead…

) The bill in this case was filed on February 28, 1885, by the appellant, John D. Keiley, Jr., against Joshua J. Turner and Joseph J. Turner, Jr. Its object was to procure a decree for an account of the affairs of the dissolved firm of J. J. Turner and Company, composed of the appellant and J. J. Turner, Sr. and J. J. Turner, Jr. Subsequently J. J. Turner, Sr., died, and the Safe Deposit and Trust Co. of Baltimore, his executor, was made a party defendant.

), dismissing the petition of the appellant, asking the Court to order his name to be reinstated as a qualified voter upon the registries of voters of Charles County. The case is stated in the opinion of the Court.

<p>Appeal and writ of error from the Criminal Court of Baltimore City. The case is stated in the opinion of the Court.</p>

J., Brooke arid Crane, JJV), overruling a demurrer to an information in the nature of quo warranto filed by the .State’s Attorney, and entering a judgment of ouster from the office of County Commissioner against the appellant. The case is stated in the opinion of the Court.

At the trial below, appellant proved that he was tenant of certain property on Gay street under a lease for twenty years, beginning in 1885 ; that a part of such property was condemned by the appellee for the widening of said street, and also offered evidence to show the cost of constructing a new front in said premises, and making the other changes therein rendered necessary by the condemnation.

<p>Appeal from a judgment of the Circuit Court for Dorchester County, sustaining defendant’s demurrer to the declaration. The case is stated in the opinion of the Court.</p>

At the trial the plaintiffs offered the following prayer: Plaintiffs’ Prayer. — The plaintiffs pray the Court to instruct the jury, that if they shall believe from the evidence that the plaintiffs and defendant signed the contract offered in evidence, and that the defendant, Davis, commenced the erection of the court-house building mentioned therein and continued to prosecute work thereon until the 7th day of May, 1892, when the defendant’s foreman, Layfield, left the said…

<p>Criminal Pleading■ — Diiplicity—Charging Offence Disjunctively— Negativing Exception in Statute.</p> <p>The Act of 1894, ch. 232, making it unlawful to gamble or make pools on the result of any horse race, etc., contained an exception providing that it should not be unlawful to make a pool or bet within the grounds of any agricultural association upon a race held within the same on the same day. A criminal information against the defendant charged that he made pools, etc., in this State on the result of a race at Sheepshead Bay in the State of New York.' Held, That such averment sufficiently negatived the exception in the statute.</p> <p>The said Act provided that it should be unlawful for any person to gamble or make books and pools on the result of any trotting race or running race of horses, or race of any kind, or to keep or use or knowingly suffer to be used any house for the purpose of making or selling any book or pool, or otherwise betting upon the result of any trotting race or running race. The information against the defendant charged that he unlawfully made books and pools on the result of a trotting race or running race of horses on a certain race track ; that he unlawfully kept a house for the purpose of making or selling pools on the result of a certain trotting or running race ; that he used a house for said purposes, etc. Upon demurrer, Held, that the information was bad for duplicity, in that it charged the alleged offence disjunctively or in the alternative.</p>

The case is stated in the opinion of the Court. The will of John Bitner, duly admitted to probate, under which the appellant claimed title to the property in question, was as follows, after the introductory clause : “ Whereas, I have this day made and executed a deed conveying to J. Monroe Zimmerman the farm whereon I now reside, I do hereby give and bequeath unto him, the said James Monroe Zimmerman, all my personal property of whatever description and wheresoever situate.

The instructions given to the jury are set forth in the opinion of the Court.

<p>Easements and Servitudes — Sufficiency of Declaration.</p> <p>A declaration set forth that the defendant was the owner of a narrow strip of land extending from his property to a public road, the same being used by him as a way; that plaintiff owned the land on both sides of said strip, and was entitled to have a gate maintained by the defendant at the public road where defendant’s strip of land ended; but that the defendant removed the gate therefrom. Held, upon demurrer, that the declaration did not set forth a good cause of action, there being no allegation of any contract or deed by which defendant was bound either himself to maintain a gate at that point, or to allow the plaintiff to maintain one on defendant’s land; and there being no allegation of a prescriptive right.</p> <p>The owner of a tract of land may convey a portion of it, and in the deed may retain an easement therein, for the benefit of the undisposed of part; or he may convey to his grantee an easement in the land which he retains. But these easements do not compel the owner of the land subject to them to perform work or service. It is the nature of a servitude not to constrain the owner of the servient tenement to do anything, but to restrain him from doing, or to compel him to suffer something to be done upon his property.</p>

This action was brought in the name of the State to recover damages for the killing of John W. Chambers at the East Brunswick station of defendant’s road, on April 21, 1894, through the alleged negligence of defendant’s servants' The evidence showed that Chambers, being near the West Brunswick station, and desiring to go to Washington, enquired when the next train would leave by which he could go.

<p>Appeal from a decree of Circuit Court No. 2, of Baltimore City (Wickes, J.), dismissing the bill of complaint. The case is stated in the opinion of the Court.</p>

<p>Appeal from the Circuit Court for Prince George’s County. The case is stated in the opinion of the Court.</p>

This was an action to recover damages for an injury alleged to have been sustained by the female plaintiff while a passenger on the defendant’s train. The evidence and the first three prayers of the plaintiffs, which were granted,-are set forth in the opinion of the Court.

<p>Appeal from a judgment of the Court of Common Pleas (Harlan, C. J.), sustaining a demurrer to plaintiffs declaration. The case is stated in the opinion of the Court.</p>

Two appeals, the one by Littig as executor, and the other by Cassandra A. Kirk, from the Circuit Court of Baltimore City. The case is stated in the opinion of the Court.

At the trial the plaintiff offered the following prayers : Plaintiff's ist Prayer. — The plaintiff prays the Court to declare that upon the testimony of the defendant himself,, there was no such repudiation of the contract of the defendant as a stockholder of the Valley Land and Improvement Company as to discharge him from liabilities as such stockholder in this suit.

<p>Limitations — Code, Art. ¿7, sec. 5 — Absence from the State of Defendant — Attachment suit by Non-resident against Non-resident.</p> <p>A non-resident defendant who voluntarily appears in an attachment suit cannot rely upon the Statute of Limitations, although the plaintiff is also a non-resident, unless the defendant has been within this State for the statutory period after the cause of action accrued.</p> <p>A resident of another State has the same right to maintain an action in the Courts of this State that is possessed by a resident of this State, and if the suit be against a non-resident debtor, the defendant has no greater right to plead limitations against him than he has when the plaintiff is a resident of this State.</p> <p>Where both plaintiff and defendant are non-residents and the cause of action sued on is a contract made and to be performed in another State, the plaintiff is entitled to the benefit of Code, Art. 57, sec. 5, which provides that if a defendant is absent from the State when the cause of action accrues, he shall not be entitled to rely upon limitations if the plaintiff shall commence the action within the statutory period after defendant’s presence in this State.</p>

On February 24th, 1892, Johns H. R. Nicholson, who was the surviving partner of the banking firm'of J. J. Nicholson & Sons, was adjudicated an insolvent debtor, and the appellee became in due course permanent trustee of the insolvent’s estate.

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

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

2, of Baltimore City (Wickes, J.), sustaining á .demurrer to the bill of complaint and dismissing the same. The case is stated in the •opinion of the Court.

This was an action of assumpsit by the appellant against the appellee and Wm. Wilcoxon, surviving makers of the following promissory note: “ Frederick, Md., Aug. 4, ’92. Six months after date, we jointly and severally promise to pay to the order of the Frederick-Town Savings Institution, five thousand dollars, for value received, negotiable and payable at the Frederick-Town Savings Institution.” (Signed), Wm. Wilcoxon, Andrew J. Wilcoxon, Jno. L. Michael.

<p>Appeal from a decree of the Circuit Court for Dorchester County (Page, C. J., Holland and Lloyd, JJ.) enjoining the Clerk of the Circuit Court for that county from paying into the Treasury of the State more than one-third of the money received by him for licenses issued under Code Public Local Laws, Art. 10, sec. 260. The case is stated in the opinion of the Court.</p>

The case is stated in the opinion of the Court. The jury rendered a verdict for the plaintiff assessing his damages at $1,700.

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

The case is stated in the opinion of the Court. At the trial the plaintiff offered one prayer, which is set forth in the opinion and which was granted. The defendant offered the following prayers: Defendant's ist Prayer. — The defendant prays the Court to instruct the jury, that the plaintiff in this action has offered no evidence legally sufficient to entitle the plaintiff to recover.

<p>Appeal from a judgment on verdict of the Superior Court of Baltimore City (Ritchie, J.) The case is stated in the opinion of the Court.</p>

<p>Caveat to Wills — Within what Time tobe Filed — Constitutional Law— Retroactive Statute— Vested Right — Persons under Disability— Title of Statute.</p> <p>The Act of 1894, ch. 405, provides that no will shall be subject to caveat, or other objection to its validity, after the expiration of three years from its probate. Previous to this Act there was no limitation as to the time within which a caveat could be filed. Held, that since the Legislature could not rightfully give to this law a retroactive effect, it would be construed as prospective in its-operation, and that under it proceedings against wills probated before the Act was passed must be commenced within three years from the date of the passage of the Act, and proceeding against wills thereafter probated must be commenced within three years from the date of the probate.</p> <p>A retroactive effect could not be given to this Act, because if a will probated more than three years before its passage was really invalid, the heirs at law of the testator had a vested right in his property, and as the law then stood had a right to recover it. This vested right could not be taken away by a statute which took away at once all remedy.</p> <p>The above Act cannot be said to be unconstitutional merely because there was no saving clause in favor of those under disability, such as coverture, infancy, etc. It is discretionary with the Legislature whether or not such persons shall be exempted from the operation of a Statute of Limitations, and unless the statute does exempt them they are governed by the same law that others are.</p> <p>Where the title of an Act is to add an additional.section to a certain Article of the Code, it is a sufficient compliance with the Constitution, Art. 3, sec. 29, which provides that the subject of every law shall be described in its title.</p>

<p>Promoters of Corporations — Priorities Between First and Second Mortgage Bondholders — Simulated Payment for Shares of Stock— Vendor's Lien— Waiver — Receivers' Certificates — Liability of Stockholders — Cross-Bill—Bona Fide Purchaser of Bonds.</p> <p>Where the promoters of a corporation, by falsely representing to a vendor that improvements of great value will be placed upon the property and paid for, induce such vendor to convey the same to the corporation and accept in part payment second mortgage bonds, so as to let in as a first lien certain first mortgage bonds which are held by the said promoters, who also issue to themselves shares of stock in the corporation upon which they pay nothing, then the lien of such first mortgage cannot obtain priority over the second mortgage for the unpaid purchase money.</p> <p>Where the promoters of a corporation, by various devices, cause shares of stock to be issued as full paid, as if in consideration of property acquired by the corporation, when in fact the property was not paid for by the shares, and the same are assigned to the promoters, who also hold the bonds secured by a first mortgage on the estate of the corporation, then such promoters cannot recover as creditors of the corporation and first mortgage bondholders without paying the amount due by them to thé company as stockholders, if the rights of a vendor of the property to the corporation are thereby put in jeopardy.</p> <p>A vendor’s lien is not waived by a recital in the deed that the consideration has been paid ; and it prevails against the grantee and his privies in estate and against those claiming as volunteers, or even as purchasers for value, if they have notice that the purchase money remains unpaid.</p> <p>When the property of a private corporation has been placed in the hands of a receiver, all expenses for safe-keeping and preservation are properly payable out of the income, or if there be none, then out of the proceeds of the corpus of the estate when sold.</p> <p>But this power by no means includes authority in such case to allow the creation of liens through the medium of receivers’ certificates which will take priority over existing liens.</p> <p>A suit by a receiver, or by the creditors of a corporation, to enforce payment of unpaid subscriptions to the capital stock, is governed by tire law of the domicil of the corporation.</p> <p>A cross-bill may set up additional facts not alleged in the original bill, when they constitute part of the same defence and relate to the same subject-matter; and though the allegations of the cross-bill must relate to the matter of the original bill, it is not restricted to the issues under it.</p> <p>The promoters of a corporation, through their agents, bought certain land from H., it being agreed that $100,000, being a part of the price, should be paid in second mortgage bonds of the M. Co., to be thereafter formed. This company’s purpose was the manufacture of ice, and the contract with H. provided that machinery, etc., to the value of $130,000, should be placed upon the property. One of the promoters guaranteed to H. the erection of the machines, and stated that he then had in his hands the funds necessary to pay for the same. This guaranty was not true and was not performed. The machines were furnished by the A. Co. under a contract reserving title to that company until payment of the price. Upon the faith of the guaranty H. executed a deed to the M. Co. of the property, and that company then executed two mortgages to a Trust Co. — the first to secure an issue of $250,000 of M. Co.’s bonds, and the second to secure an issue ■of $110,000 of bonds. Of these latter second mortgage bonds. $100,000 were given to H. in pursuance of the contract of purchase, and $10,000 in settlement of another transaction. The M. Co. issued shares of stock of the par value of $500,000, stated to be issued for property purchased, but upon which, in fact, nothing was paid, the property having been purchased partly with money and partly with the $100,000 second mortgage bonds. All of the shares of stock were assigned to the different promoters and their agents, and the said promoters were also the holders of the first mortgage bonds. Default having been made in the payment of interest on these bonds, the Trust Co., on behalf of the holders of the same, filed a bill for a receiver and foreclosure and sale, to which the M. Co. consented. Under this bill a receiver was appointed, who managed the affairs of the company and issued certificates of indebtedness. The A. Co., which had erected machinery on the mortgaged premises, intervened in the case and obtained a decree for the payment of its claim, the Court holding that the first mortgage bondholders were not bona fide purchasers without notice of the contract with the A. Co., but that the same was made by their agents. Some of the promoters paid the A. Co. and took an assignment of its decree against the M. Co. H., the holder of the second mortgage bonds, then came into the case by petition and filed a cross-bill and answer, claiming that the holders of the first mortgage bonds were not entitled to priority over the second mortgage bonds, so issued for the purchase money of the property, and that the first mortgage bondholders should be required to pay the amount due by them as stockholders in excess of the sum due to them on their bonds. Held,</p> <p>ist. That the first mortgage bondholders were not bona fide purchasers of the bonds without notice, but were the real purchasers of the property and owe to the vendor the balance of the purchase money, and that since they induced the vendor to waive his lien in favor of the first mortgage bonds by the false representations contained in the guaranty, they cannot now claim a preference over the lien of the second mortgage bonds.</p> <p>2nd. That the first mortgage bondholders are not entitled to a preference to the extent of the decree assigned to them by the A. Co., as against H., since they were really the debtors of the A. Co. and. simply paid their- own debt.</p> <p>3rd. That a decree should be passed for the sale of the mortgaged property, and giving to the second mortgage bondholders, in the distribution of the proceeds, apriority, to the extent of $100,000 and interest, and interest on overdue interest, over the first mortgage bonds, and also priority over the receivers’ certificates and the decree of the A. Co. assigned to the first mortgage bondholders.</p>

<p>Appeal from the Baltimore City Court (Wright, J.) The case is stated in the opinion of the Court.</p>

<p>Appeal from a judgment of the Circuit Court for Garrett County (Stake, J.), sustaining a demurrer to an indictment for perjury. The case is stated in the opinion of the Court.</p>

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

), sustaining a demurrer to the bill of complaint in this case and dismissing the same. The bill prayed for a decree enforcing the performance of a contract by the defendant to buy an original irredeemable ground rent of $140 per annum issuing out of lot No. 418 Forrest street, in said city.

<p>Appeal from the Court of Common Pleas of Baltimore -City (Dennis, J.) The case is stated in the opinion of the -Court.</p>

<p>Appeal from a decree of the Circuit Court for Anne Arundel County, in Equity (Roberts, C. J.), dismissing the„ appellant’s bill of complaint. The case is stated in the opinion of the Court.</p>

<p>Appeal from a decree of the Circuit Court for Baltimore County, directing the sale of certain land for the purpose of partition. The case is stated in the opinion of the Court.</p>

27. The plaintiffs, J. West Aldridge et al., being the owners of a tract of land near Annapolis, made an agreement in September, 1889, with the defendants, Melvin and Mancha, copartners, by which the latter were appointed agents to lay out and plat into lots and small farms the plaintiffs’ land, and sell the same upon the best terms obtainable, subject to- certain restrictions.