Volume 84 — Maryland Reports

), where the case was tried upon an agreed statement of facts, upon an action brought by the appellant against the appellee.

At the trial the plaintiff offered the following prayers : First.—That if the jury find that the defendant owned and operated a coal mine in Allegany County, and that the rooms of said mine were connected with the mouth of the mine by an underground heading or gallery more than a mile long, through which defendant transported its coal from said rooms to said mouth of the mine in mine cars drawn by horses and run on railway tracks or rails laid on the floor of said heading,…

<p> Devise and Legacy—Construction of a Will. </p> <p>A testatrix, who was entitled to an interest in certain land with a power of sale, executed a will by which she gave her bank stocks and “all other personalty ” to her brother F. for life, and upon his death gave the bank stocks and “whatever other personalty may go under this paper to F.,” to her niece E. In this will she declared that it was not her intention to make any devise or bequest of the said land. By a codicil to the will the testatrix declared that it was her intention to give to E. upon the death of F. her household furniture and all chattels not disposed of by said will. After the execution of the codicil, testatrix sold her interest in the land and took a promissory note secured by mortgage for the purchase money. This note was paid after her death to her executor. Held, that the proceeds of the note did not pass to E., but should be distributed as property not disposed of by the will.</p>

At the trial the plaintiff offered the following prayers: Plaintiffs ist Prayer.—That if the jury find from the evidence that the defendant built the culvert or underground sewer, spoken of by the witnesses, under and along the bed of North Eden street, in front of the property of the plaintiff, and that the said culvert or sewer was intended to receive and carry off the surface water in times of rain from a section of the city to the north of the plaintiff’s property to a…

The plaintiff offered the following prayer, which was granted and conceded to be correct as to the measure of damages. “ If the jury find for the plaintiff, the measure of damages in this case is the difference between what 357,700 lbs. of steel scrap from the Government cruisers would have been worth at Latrobe, Pa., free from impurities, and what they may find the material mentioned in the evidence as having been actually shipped from Baltimore was worth in Latrobe, Pa.,…

■ Appeal from the Circuit Court for Carroll County, where the case was tried before Roberts, C. J., Jones and Reveix, JJ. .The appellant was indicted for bastardy and upon the overruling of his demurrer to the indictment pleaded as follows “First.—That the Court has no jurisdiction in this cause. , And for a second plea, that there is no judgment of a justice of the peace upon which the indictment in this cause is based, a.nd this Court is without jurisdiction.

<p>Appeal as upon writ of error from the Circuit Court for Frederick County.</p>

On March 2, 1894, the appellant, Mrs. Hopkins, leased to the appellee, Holland, her farm in that county, “for the term of one year, with the privilege of three years, the said Holland to pay unto the said Mary J. Hopkins the sum of three hundred and fifty dollars per year rent, and the said Holland agrees to put not less than three hundred pounds of fertilizer per acre on what ground he may plough, the rent to be paid half-yearly, Mrs. Hopkins to find the material for…

This action was brought by the appellee against the appellant, the declaration alleging that the plaintiff was the owner of a lpt on the east side of Centre Market Space, and that defendant entered the same and tore down a portion of the walls.

The first four prayers offered by the plaintiff at the trial are not material to the questions discussed on appeal.

2, of Baltimore City (Harlan, C. J.), directing the appellant company to transfer, to the appellee nine shares of the capital stock of the appellant standing upon its books in the name of Louis Yakel. _

) The cause was argued at the October Term, 1895, before Robinson, C. J., Bryan, McSherry and Briscoe, JJ., by Alexander Armstrong and James P. Matthews (with whom was Norman B. Scott, Jr., on the brief), for the appellant, and Fred. F. McComas, for the appellee. After the decision of the cause on January 8th, 1896, a motion asking for a re-argument was made, and a re-argument on notes to be filed at the April Term was ordered.

2, of Baltimore City (Wickes, J.), dismissing the bill of complaint in this case. Benjamin Hardester, in 1818, conveyed certain land to trustees for use as a burying-ground. He died in 1842, intestate as to this property, leaving surviving him eight children and heirs at law, of whom Abraham Hardester was one. Abraham died before 1890, leaving as his only child and heir at law, the plaintiff, Henry S. Hardester.

The by-law of the State Board of Education referred to in the opinion of the Court is as follows: “Art. 6, sec. 3. Terms of Certificate.—No certificate shall continue in force longer than six months from the date of issue, unless the Examiner is satisfied from personal observation of the teacher’s fitness to govern a school and impart instruction. When the Examiner is satisfied on these points he may extend the certificate for five years from the original date.

<p> Contributory Negligence—Injury to Passenger Riding on Foot-board of Open Electric Car from a Trolley Pole Located Between the Tracks. </p> <p>Deceased was riding in an open car on defendant’s electric railway, sitting at the end of a seat next to the adjoining track. There were no guards on that side of the car. Poles supporting the wires were placed at intervals between the tracks. Notices warning passengers against riding on the platforms, etc., and stating that the car would stop at cross streets only, were posted in the car. Deceased, who had frequently travelled on the line, after having made an ineffectual effort to attract the attention of the conductor, left his seat and got upon the foot-board on the side of the car, which projected eighteen inches, while the car was in rapid motion, at some distance from the stopping place, and was turning around motioning to the conductor, when he was struck by one of the poles between the tracks and mortally injured. In an action to recover damages, Held,</p> <p>ist. That the deceased was guilty of such contributory negligence, as a matter of law, as to preclude recovery.</p> <p>2nd. That it was not shown that the position of the poles between the tracks was unusual and dangerous in railway construction.</p> <p>3rd. That it was not negligence on the part of the defendant not to have a guard-rail on the side of the car next to the poles.</p>

<p>Appeal from a pro forma decree of the Circuit Court of Baltimore City, dismissing the bill of complaint filed for the specific performance of a contract to lend money upon a mortgage of certain land.</p>

<p>Appeal from a pro forma decree of the Circuit Court of Baltimore City, dismissing the bill of complaint.</p>

), directing the issue of a writ of mandamus commanding the appellant to surrender and deliver to the appellee the funds, books, papers and corporate seal of the town of Bel-Air.

2, of Baltimore City, sustaining a demurrer to the bill of complaint and dismissing the same.

Creager, as City Collector, the oath of office prescribed by ordinance for municipal officers, and that the petitioner recover his costs from the respondent. The first appeal in this case is reported in 83 Md. 490.

The bill in this case was filed by one of the appellants against the others as devisees under the will of Wm. J. Anderson, asking for a sale of the real estate of said testator and a division of the proceeds among the parties entitled. The will of W. J. Anderson, who died in 1881, contained the following provisions: “ist.

<p>Appeal from a judgment of the Circuit Court for Cecil County (Stump, J).</p>

The controversy between the parties to this appeal related chiefly to the true location of the lines describing their respective tracts of land.

<p>Appeal from the Circuit Court for Prince George’s County (Brooke, J.)]</p>

<p>Appeal from a judgment of the Circuit Court for Baltimore County, imposing a fine upon the appellant.</p>

J.), dismissing the bill of complaint in this case. The bill alleged that the plaintiff was the owner of property on Wolfe street, in said city, upon which street the Central Railway Company, one of the defendants, intended to lay its tracks under the authority of an alleged ordinance of the Mayor and City Council; that the said ordinance had not been lawfully enacted and was void; that the plaintiff was opposed to the construction of an overhead electric wire in front of…

), sustaining the exception filed by the appellee, the Second 'National Bank of Hoboken, to the allowance of $341.00 as State tax for auction duties upon the first sale of the property made in this case. The record shows that this suit was instituted for the sale of mortgaged premises in the city of Baltimore, on October 7th, 1895. On November 20th, 1895, the property was sold to Daniel V. Manning for the sum of $68,200.

<p>Appeal from a judgment of Baltimore City Court quashing the writ of summons as to Margaret Benjamin, one of the defendants, in a suit on a promissory note.</p>

<p>Appeal from a decree of the Circuit Court for Dorchester County (Lloyd, J.)</p>

The prayer of the bill in this case was for thp sale of the unassigned dower interest of Rachel C. Clayton in the lands of her deceased husband in order to satisfy the judgments obtained by the plaintiffs against her. The Court below (Wickes, J.) sustained a demurrer to the bill.

<p>Attachment Against Non-resident—Acquisition of Domicil in this State by Citizen of Another State—Affidavit in Attachment Cannot be Changed by Amendment—Maker and Endorser of Promissory '• • Note not fointly Liable:</p> <p>In order to support an attachment against the property of a defendant as a non-resident debtor, the non-residence of the defendant is as essential as his indebtedness, and if in fact the defendant is a resident of this State, the attachment is in fraudemlegis, and will be quashed.</p> <p>When a citizen of another State comes here with a bona fide intention of making this State his place of residence, he cannot be proceeded against as a non-resident, whether he has resided here long enough to acquire a right to vote or not.</p> <p>In an attachment against a party alleged to be a non-resident the fact</p> <p>■ that he can be or is summoned does not of itself defeat the attachment if he is really a non-resident, but the fact that he is summoned in the capias case is a circumstance to be considered in determining whether he is a non-resident or not.</p> <p>Defendant, a former citizen of Richmond, Va., came to Baltimore in August, 1895, and rented rooms in a private house, where he continued to reside. He communicated to several persons his purpose to make Baltimore his home, and the newspapers of both Baltimore and Richmond announced his change of residence. He had business interests in Baltimore, and testified that he came there with the intention of making that city his home. An attachment against him, as a non-resident of this State, was issued on November 7,1895, and the writ of summons was served on him shortly afterwards. Held, that the defendant had acquired á residence in Baltimore, and the attachment should be quashed.</p> <p>Under Code, Art. 9, sec. 27, providing for the amendment of attachment proceedings, no change in the substance of the affidavit can be made.</p> <p>An attachment against A and B as non-residents was based upon promissory notes made by A and endorsed'by B. There was no allegation that the parties were joint-makers, but the short note contained the common counts and counts against an endorser. The affidavit was that A and B were indebted to the plaintiff. ■ Held, that the attachment should be quashed because the affidavit included A and B as jointly bound, while the notes sued on as the cause of action showed separate and distinct liabilities, i. e., on the part of A as maker and of B as endorser, and no amendment of the affidavit could be made by striking out the name of A as one of the defendants.</p>

At the trial the plaintiff offered the following prayers : Plaintiff's 1st Prayer.—If the jury find from the evidence that the defendant was a physician and surgeon, and, as such, undertook to treat the plaintiff, Caroline Griffith, for a disease of her finger, and entered upon said treatment; that said finger was subsequently amputated, and that said amputation was rendered necessary by the want of such reasonable skill, care and diligence in the treatment of said finger…

At the trial the plaintiff offered the following prayers : First.—IfW. H. Garrett was arrested and detained against his will for two days in the custody of Hardesty and Miller, as testified to by the plaintiff, and there were no circumstances in the transaction, out of which the arrest and detention arose, to induce a reasonable and dispassionate man to make such arrest and detention, then the plaintiff is entitled to recover against Hardesty and Miller. (Granted).

•Appeal from the Circuit Court for Howard County. The amended declaration set forth that the defendants in the year eighteen hundred and ninety-three, and prior to the institution of this suit, did unlawfully, wrongfully, willfully and maliciously break and enter certain lands of the plaintiffs, consisting of two adjoining tracts or parcels of land called “ Shad Island ” and “ Addition to Shad Island,” situated in Harford County, State of Maryland; and the defendants did,…

The plaintiff’s first prayer, which was granted, is set forth in the opinion of the Court.

<p>Bills and Notes—Partnership Note Payable to One Partner—Rights ■of Bona Fide Endorsee— Taking Note for Pre-existing Debt— Transfer of Note as Collateral Security—Distribution of Partnership Assets.</p> <p>When a promissory note is drawn by a partnership payable to one of the partners, and is by him endorsed for his own debt to a third person, who takes the same bona fide, before maturity, such endorsee has all the rights of a creditor against the firm, and upon its insolvency is entitled to share equally with partnership creditors in the distribution of the assets.</p> <p>A person to whom a negotiable promissory note is transferred before maturity in payment of a pre-existing debt is a bona fide holder for value.</p> <p>A promissory note drawn by a firm to the order of one of the partners was endorsed by him before maturity to a party as collateral security for such partner’s individual debt. The firm subsequently became 'insolvent. Held, that the holder of the note was entitled to share in the distribution of the partnership assets equally with partnership creditors to the amount of his claim, the note so held as collateral being taken as the basis of the calculation of the amount of the dividend to be allowed.</p> <p>In this case the nature or form of the note so transferred affords no sufficient ground for imputing bad faith to the endorsee, and there is no evidence of any actual fraud on his part.</p>

An action of covenant was brought by the appellees to recover the sum of $750, being one-quarter’s rent of certain wharf property situated in Baltimore City, due January 1, 1896. The Court below (Dobler, J.) overruled the defendant’s demurrer to the declaration, and in default of a plea judgment was entered for the amount claimed.

<p>Appeal from a decree of Circuit Court No. 2, of Baltimore City, (Harlan, C. J.), dismissing the bill of complaint.</p>

), passed in the case of the Baltimore Trust and Guarantee Company, agent of two syndicates, against T. Edward Hambleton and others, by which it was held that the defendant, Colden Rhind, was absolutely entitled to the entire fund brought into Court by the complainant free from all claims of other parties.

) The action was for malicious prosecution. The jury returned a verdict for the plaintiff for $250, and from the judgment thereon the defendant appealed.

<p>Mortgage Sales—Selling Two or More Lots Together—Exceptions— Inadeqiiacy of Price—Subsequent Incumbrances—Pariies.</p> <p>A mortgage covered two adjoining leasehold lots fronting on a cer tain street and a small lot in fee-simple in the rear. The leasehold lots were each improved by houses, which had been rented together, connecting doors having been cut between them. The back building of one of the houses covered a part of the fee-simple lot in the rear. Held, upon exceptions to the ratification of a foreclosure sale, that the trustee had exercised a sound discretion in selling the property together and not in separate parcels.</p> <p>A mortgage sale will not be set aside upon the ground of inadequacy of price unless it be so gross and inordinate as to indicate misconduct or want of judgment on the part of the trustee.</p> <p>When mortgaged premises are sold under the ex parte proceedings authorized by Code P. L. L., Art. 4, secs. 694-704, the fact that a subsequent incumbrancer is not a party is no objection to the decree, but after the claim of the mortgagee is paid any surplus of the proceeds of sale may be applied to the discharge of subsequent incumbrances.</p>

<p>Appeal from a judgment of the Circuit Court for Cecil County (Wickes and Stump, JJ.)</p>

) The plaintiff offered the following prayers, all of which were granted: 1.

), without a jury. The guaranty sued upon was as follows: “In consideration of one dollar to me in hand paid, the receipt whereof is hereby confessed and acknowledged, I hereby guarantee to the Davis Sewing Machine Company, a corporation duly created and existing under the laws of the State of New York, the full performance on the part of John C. Foote, of all and singular conditions contained in the within contract, and the payment by said John C. Foote ot all indebtednesss…

<p>Appeal from a decree of the Circuit Court of Baltimore City (Harlan, C. J.)</p>

<p>Appeal from a decree of the Circuit Court of Baltimore City (Dennis, J.), dismissing, without prejudice, the bill of complaint of the appellants, which was filed on February 21, 1895.</p>

<p>Appeal from a decree of Circuit Court No. 2, of Baltimore City (Dennis, J.)</p>

Two appeals from the Circuit Court of Baltimore City (Harlan, C. J.); one by Connar and wife from a decree declaring the plaintiff, Leach, to be entitled to conveyances of two pieces of property mentioned in the proceedings; and the other by Amanda A. Leach from an order of Court overruling plaintiff’s exceptions to evidence, etc.

Appeal frpm an order of the Circuit Court of Baltimore City, (Harlan, C. J.), dismissing the appellant’s petition asking for a rescission of the final order of ratification of the sale reported in this case, and overruling the exceptions thereto.

J., and Lynch, J.), dismissing appellants’ bill of complaint asking that the appellees be enjoined from collecting taxes claimed to be due upon the electric light plant of the appellant.

The bond sued on in this case was as follows: “Whereas, Frank L. Thomas has employed the above-bound John E. Sard to act for him in his stead and as his agent, in selling and leasing New Home sewing machines, and other sewing machines, in the discretion of said Thomas ; and in collecting the moneys that may arise from such sales or become due under said leases, made and taken by said agent, and , in collecting the moneys due upon sales and leases made by former agents of…

2, of Baltimore City (Harlan, C. J.), by which it was adjudged as follows : “ That the plaintiffs are not entitled to the relief of a writ of injunction restraining and prohibiting the defendant, its officers and agents from further conducting its affairs and the appointment of a receiver to take charge of its affairs and a decree dissolving the defendant corporation as prayed in the bill of complaint. “ It appearing, however, in the proceedings in Article XII of the by-laws…

J.), sustaining exceptions to an auditor’s account distributing the proceeds of a mortgage sale, and directing a new account to be stated in accordance with the opinion of the Court.

A bill was filed by the appellant, as administrator of John A. Groves, late of Kent County, setting forth that the decedent in his life time received from the appellees (defendants) a lease of a farm on Wye Island for fifteen years, and entered into possession,-planting upon the demised premises about 24,000 peach trees ; that the lease contained the provision relating to its termination, which is stated in the opinion of the Court; that the defendants claimed a right to the…

<p>Appeal from an order of Circuit Court No. 2, of Baltimore City (Harlan, C. J.), overruling exceptions to the ratification of the sale reported by the trustee in this cause.</p>

<p>Appeal from an order of the Circuit Court for Howard County (Jones, J.), quashing an attachment on original process.</p>