Volume 9 — Maryland Reports

Covenant, by tire appellee against the appellant, a Pennsylvania corporation, doing business by agents in Baltimore, to recover $1500 upon a fire insurance policy, issued by the appellant to Evans upon certain merchandise in a store in Winchester, Yirginia. Plea, non infregit. 1st Exception. The plaintiff offered in evidence the policy sued on, which expired on the 29th of January 1850, and proved that the fire occurred on the 20th of March 1849.

The record in this case shows, that on the 21st of November 1853, a justice of the peace for Frederick county took and-returned to the circuit court for that county the recognizance of the defendant in error, reciting that a certain Ruth Barnes hath charged him on oath with being the father of a male illegitimate child, of which she was delivered on the 6th of August 1847, which charge he denies, and conditioned for his appearance before said court at its ensuing term to…

The defendant in error was indicted for fishing with gill nets in the Potomac river, contrary to the act of 1845, ch. 148, but the indictment contained no averment that this act had been assented to by the legislature of Virginia, as required by the 8th article of the compact between the two States, made in 1785, and recited in the act of 1785, ch. 1.

In this case a petition was filed in the court, below by the appellant, the widow of William H. Dorsey, deceased, to ascertain whether under the will of her husband, which was duly admitted to probate, she took the personal property thereby bequeathed absolutely, or only a life estate therein. This will was in the shape of a letter written by the testator to the appellant, his father and executor, and is set out in full in the opinion of this court.

<p>Appeal from the Superior Court for Baltimore city.</p> <p>This was a petition by the appellants for a mandamus, to compel the State lottery commissioner to pay to each of the petitioners $425.01, the balance alleged to be due upon a lottery grant, and decreed to be paid to them by decree of Baltimore county court, as á court of equity, the decree giving one-fourth of the sum ordered to be paid, to each of the petitioners. The court' (Lee, J.) refused the application, and the petitioners appealed.</p> <p>The argument of the case before Le Grand, C. J., Eggleston and Tuck, J., was stopped by the court, who affirmed the order appealed from.</p>

Debt, by the appellant against the appellee, upon a sealed bill alleged to have been executed by the defendant’s testator in favor of the plaintiff for $1000, dated the 22nd of March 1852, and payable in six months.

This is the second appeal in this case, the first being reported in 4 Md. Rep., 476. The action was assumpsit, brought by the appellee, on the 24th of April 1850, against the appellants, to recover money expended by the plaintiff for the support., maintenance and education of two grandchildren of the testator.

Catharine Hammer, by her will, devised as follows: 1st. “To my two daughters, Elizabeth Smith and Susan Hammer, the sum of $375. 2nd. “The $500 due me from the executor of George Hammer, deceased, I give and bequeath to my children, Jacob Hammer, Elizabeth Smith, Susan Hammer, Sarah McCullough, Leah Kreigh, Eleanor Wise, and the heirs of my daughter, Catharine Artz, to be equally divided between them, share and share alike, all the heirs of Catharine Artz as one heir, or…

An estate was sold under a decree of the court of chancery for distribution amongst the parties entitled, one of whom was Joseph Kent, Jr., a resident of Arkansas, and in regard to his share the controversy in this case arose, originally between James Kent, as adm’r of Joseph Kent, and the appellant, each of whom claimed said share, as a creditor of said Joseph Kent, Jr., and each resisted the claim of the other.

Ejectment brought by the appellants against the appellee for a tract of land called “Lady’s Luck.” Plea, non cut. 1st. Exception.

<p>Mandamus is the appropriate remedy for a party who claims title to an office, even where the office is filled, by the person against whom the writ is asked claiming title.</p> <p>The present circuit courts have the same, powers and jurisdiction in cases of mandamus as the old General Court had, and these powers are similar to the jurisdiction exercised by the court of Ring’s Bench in England.</p> <p>Mandamus ought to be used on all occasions where the law has established no specific remedy, and where in justice and good government there ought to be one.</p> <p>Mandamus will not lie if there be another legal remedy, but that remedy must be specific and adequate to the object in view, framed to effect directly the desired end.</p> <p>The judgment under quo warranto information might amove the occupant, hut would not install the claimant in the office.</p> <p>Where the Governor has been authorised by law to administer the oaths of office to certain officers, he may certify the fact, and his certificate under the great seal of the Stale is evidence of such fact.</p> <p>Such certificate need cot set out the form of the oath in words; it must be presumed that the oaths prescribed by the constitution and laws were administered and subscribed when the Governor’s certificate states that fact.</p> <p>But the constitution requiring the oaths to betaken and “subscribed,” the certificate must show in terms that the oath was subscribed, and without this it is not sufficient evidence of the qualification of an officer.</p> <p>The limitation of thirty days within which the oaths of office must be taken, fixed by the fifth section of the act of 1852, ch. 172, does not apply to the officers mentioned in the third section of that act.</p> <p>The bond of the Stale Librarian must, under the act of 1847, ch. 53, be approved by the separate committees of the Senate and House of Delegates on the Library; such approval by a joint committee would be against the terms of this act.</p> <p>Under this act the committees of a succeeding Legislature may approve the bond of a Librarian appointed by their predecessors.</p> <p>An' unqualified order directing a mandamus to issue for the delivery of an office is an order for a peremptory mandamus, and being final in its character is the subject of appeal.</p> <p>Upon petition for a writ of mandamus the writ must issue in the first instance in the alternative form, and where an order on such petition directs a peremptory writ to issue, it will on appeal be reversed.</p> <p>Where this court reverses an order of the court below in a mandamus ease, and the judgment of reversal is not necessarily final, a procedendo will be ordered under the act of 1826, ch. 200, whether the plaintiff or defendant be the appellant.</p>

This was an action on the case, brought by the appellee against the appellant, to recover damages for injuries received by falling into a vault, appurtenant to the property of the defendant and built under the foot pavement of Bank Lane, a public street in the city of Baltimore. The plaintiff was a free colored boy, from fourteen to sixteen years of age, and sued by his mother as next friend. The pleadings are sufficiently stated in the opinion of this court. Exception.

Assumpsit, by the appellant against the appellee, to recover damages for losses on the sale of flour shipped by the plaintiff on board the ship “Seaman,” on a voyage from Baltimore to Valparaiso and a market, alleged to have been occasioned through the negligence and misconduct of the defendant, who was part owner and master of the ship, and consignee of the flour.

Petition for freedom, by the appellants against the appellee. The case was tried upon the issue oí freedom, vel non. In the course of the trial the defendant took two exceptions, as follows: Exception of Defendant.

This was an action on the case, brought by the appellee against the appellants, to recover damages for an injury sustained by the plaintiff, in consequence of the negligence of the defendants in not preventing or removing an accumulation of ice on the footway on the north side of Fayette street, in the city of Baltimore, upon which the plaintiff slipped and fell down, and received injury, whereby he became lame and crippled for life. Plea, non cul. Exception.

The controversy in this case relates to the proceeds of the sale of a steam-engine, erected in a cotton factory, and constituting part of the motive power thereof. The property, including the land, factory and machinery, was sold by trustees under a decree in equity, reserving all question of priority as to the distribution of the proceeds for future adjudication.

The facts of this case are sufficiently stated in the following opinion of the court below, (Wm. Price, Special Judge,) delivered upon passing the decree appealed from: “The bill in tills case is for relief against a judgment at law, and for an injunction. The bond on which the judgment Was recovered, bears date the 4th of November 1842, and is for the sum of ¡$3042.51.

This was an action of covenant, brought by the appellant against the appellee, for an alleged breach of an agreement to convey to the plaintiff three hundred and twenty acres of land in Missouri, and this is the third appeal in the case, the two former being reported in 9 Gill, 251, and 4 Md. Rep., 498. The pleadings are the same as in the last appeal. 1st Exception.

Assumpsit by the appellees, as partners in trade, against the appellants, to recover the amount of a judgment obtained on a promissory note placed in the hands of defendants, as attorneys at law, for collection. Plea, non assumpsit. A bill of discovery rvas filed by the defendants and answered by the plaintiffs, and leave granted to take the testimony of Neale under a commission de bene esse, but neither the answers nor the deposition, if taken, were used at the trial.

A mortgage, under the act of 1833, ch. 181, of certain property in the city of Baltimore, was executed to the appellee, on the 22nd of April 1845, by Wm. H. and Wm. E. Hanson and wife, to secure a debt of f1000. On the 11th of March 1853, after forfeiture, the mortgagee filed her petition in the Superior Court for a decree for a sale under this act. This petition states the death of Win.

The act of 1853, ch. 409, required the clerks of the Court of Common Pleas, the Superior Court, and the Register of Wills, of Baltimore city, within thirty days after its passage, to file with the comptroller bonds in certain prescribed penalties, conditioned for the faithful performance of their duties, with sureties, the sufficiency of which was to be certified by the judges of the respective courts, the bonds to be approved by the comptroller, and, when so approved, to be…

<p>Under our testamentary system, the orphans courts have authority to make distribution in kind of personal estate, remaining in the hands of the administrator after payment of debts, consisting of chattels real, and they may make such distribution even where infants are parties interested.</p> <p>It is the policy of our testamentary system to require distribution to be made in kind, unless a sale is necessary for a satisfactory division, and whether such .necessity exists or not, is for the court to decide in view of the circumstances.</p> <p>Tho absence of power in the orphans court to appoint a guardian ad litem to infants, would not render nugatory and void the authority to make distribution, expressly given to that tribunal whose duty it is to take special care of the rights of infants in all cases before them involving such rights.</p> <p>The orphans court has the power, under a liberal construction of the remedial act of 1810, ch. 34, whenever called upon to distribute specific personal property, whether chattels real or personal, if they think proper so.to do, to appoint two disinterested persons to make such distribution.</p> <p>In making such distribution, it is not absolutely necessary in every case that the specific property allotted to each party should be equal in value; the inequality may be remedied by payments in money, the court having ample power to sell a portion of the estate to provide for such payments.</p> <p>A report of a partition previously made and set aside by the court, may, in a subsequent application for a partition, be used by the witnesses as a written memorandum to refresh their recollections, but not as evidence to show the correctness of the partition therein set forth.</p>

This appeal was taken from a pro forma order of the court below, (Krebs J.,) dissolving an injunction which had been granted upon a bill filed by the appellants. The only questions arising in the case relate to the construction of the two deeds, and marriage articles set out in the opinion of this court, in which, also, all the facts of the case are fully'stated.

The bill in this case was filed on the 2nd of December 1854, by the appellee against the appellant, and Barbara Lippy his wife, alleging, that on the 1st of September 1837, the appellant and his wife agreed to separate, and entered into the contract for a separation, which is set out in the opinion of this court; that according, to this agreement, the parties have lived separate from its date, and continue to do so; that the husband delivered to the wife the property…

This appeal is from an order of the court below in reference to the distribution of funds in the hands of the appellant belonging to the estate of William Pottinger. The facts of the case are briefly these.

Trespass q. c. /., by the appellant against the appellee. Plea, non cut. and defence on warrant. At the trial of this case, before Thomas Donaldson, Esq., as special judge, four exceptions, raising the same question, were taken by the plaintiff to the rulings of the court, which, with all the facts of the case, are fully stated in the opinion of this court. The verdict and judgment were in favor of the defendant, and the plaintiff appealed.

• Appeal from the Circuit Court for Baltimore city. This appeal was taken from an order of the court below, (Krebs, J.,) setting down for hearing, on a named day, the petition of the appellee, and directing the appellant, its trustee, under a decree for the sale of the mortgaged property, to suspend further proceedings in relation to the sale, and withdraw his advertisement of sale until the further order of the court.

Trespass vi et armis for an assault and battery, brought by the appellee against the appellant. Plea, non cul. Exception.

The appellant, a corporation incorporated by the State of New York, claimed the bequest of $>500 under the clause in the will of Mrs. Reynolds, set out in the opinion of this court, averring: that it was the legatee intended to be named, and that such intent could be proved by the party who wrote the will and others.

The object of the bill in this case is to vacate five several deeds of real estate to the appellant: the first dated April 4th, 1846, from Henry Long to Ludwick Long, conveying 154 acres of land, for the consideration of $1500; the second, dated June 6th, 1848, from John T. Johns to Ludwick, conveying a small tract of land which had been purchased by Ludwick and Henry jointly; the third, dated June 21st, 1852, from Henry to Ludwick, conveying another small tract; the fourth,…

Watts, the appellee, on the 21st of October 1843, mortgaged a.tract of land in Baltimore county, called “The Bare Hill Farm,” containing about ninety-three acres, to Johnzee Hook, to secure a debt of $1657.67.

Assumpsit by the appellee against the appellants, upon a promissory note, dated “Philadelphia, October 18th, 1847,” for $437.28, made by John B. Kunkel & Co., payable to E. Levick &• Co., or order, at six months, and endorsed by the payees and also by Comer, Willow and Gardner, and J. & J. P. Steiner.

Debt, brought on the 27th of November 1852, by the appellee against the appellant, on a sealed note for $265, dated the 11th of November 1888, and payable ten days after date. The nar contained two counts, the first, in debt on the single bill in the usual form, the second, a general indebitatus assumpsit count for money paid, laid out and expended, as of the 16th of July 1850.

The object of the bill in this case, filed by the appellants, creditors of Wm. S. Holliday, was to vacate a deed executed by Holliday to N. B. Worthington, in trust for the benefit of Caroline Holliday his wife and her children.

fa. issued thereon, under which the interest of William Lowe in the above property was sold at sheriff’s sale, to the complainant, and the sheriff’s deed therefor duly executed, and the complainant put in possession under a writ of habere facias.

By the will of Dennis O’Byrne, who died in 1842, the testator directed that his real estate should remain in the possession of his wife, with power to manage it in her discretion, for her own support, and the education aud maintenance of his children, until his son, Terrence, should attain the age of twenty-one years,- unless his wife should sooner die, marry, or his executors should think the interests of his children required a separation from their mother, in either of…

The bill in this case was filed by the appellant, for an injunction to restrain execution of a judgment recovered against him on a bond, upon the ground that the consideration of the bond was money won in betting and gambling at cards. The allegations of the bill, and the facts of the case, are fully stated in the opinion of this court.

Caveat to the will of Abraham Wampler, which had been previously admitted to probate, filed by the appellants, who were the children of a deceased brother of the testator, alleging that the will was written b.y one of the executors and legatees; that at the time of its execution, the testator was not of sound and disposing mind, and was and had been for some years before, totally blind; that the will was not read to him in presence of the subscribing witnesses, and was not…

Replevin by the appellants against the appellee for a grey mare and wagon. Pleas non cepit, property in defendant, and property in a stranger. Exception. The plaintiffs claimed the property as belonging to Elizabeth Unger, the wife of Frederick Unger.

Assumpsit by the appellant against the appellee upon a subscription for forty shares of stock in said Plank Road Company, at $25 per share. Plea non assumpsit. Exception. The plaintiff offered in evidence the subscription book containing, among others, the defendant’s subscription for forty shares of stock.

The appellant obtained from the Land Office, on the 7th of September 1854, a special warrant of survey to take up a small tract of vacant land lying on the north side of Severn river, in Anne Arundel county. All the preliminary steps were duly taken for the obtention of a patent, but the appellee filed a caveat to the granting of the same, and testimony was taken before a justice of the peace, in support thereof.

Tongue, deceased, held an undivided interest. The appellant, Hatch D. Billingsley, who was the surviving husband of Ann C., one of the children of the deceased, claimed one-third of that portion of the proceeds to which the deceased would have been entitled if living, as heir at law of his (the appellant’s) three infant children, who died intestate, whilst the appellees, the surviving children of the deceased, claimed the whole thereof.