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Horton, Johnston, Valentine

atchison-topeka-santa-fe-railroad-v-hawkins

Hawkins

Atchison, Topeka & Santa Fé Railroad v. Hawkins

The Atchison, Topeka & Santa Fé Railroad Company v. Michael Hawkins

Geo. JR. Peck, A. A. Hurd, and C. N. Sterry, for plaintiff in error., Ady & Nicholson, for defendant in error.

<p>Railboad Company — Stock-Killing Law — Erroneous Instruction. In an action brought by the plaintiff against a railroad company to recover the value of stock which plaintiff alleged were killed at a public crossing by the negligence of the railroad company, the bill of particulars alleged, among other things, “ That the whistle of the engine was not sounded as prescribed by law, and that in consequence thereof the stock were not warned of the approach of the train until it was too late to prevent them from being killed, and that if the whistle of the engine had been sounded as prescribed by law, the person in charge of the stock could have prevented any injury.” The bill of particulars further stated, “That the railroad company permitted a very high and dense growth of hedge to extend out on its right-of-way, and nearly to the track;” and further stated, “It prevented persons traveling upon the public road from observing the approach of trains.” Held, That under the allegations of the bill of particulars, it was misleading and erroneous to instruct the jury, “if the railroad company permitted and suffered a hedge to stand upon its right-of-way so as to obstruct the view of the track, and but for such obstruction the injury to the stock would not have happened, the company is liable for the injury to the stock.” Held, also, That where it appears from the instructions and findings of the jury, under the allegations of such a bill of particulars, that the liability for the injury to the stock was fixed by the jury for the negligence of the railroad company in permitting the hedge to grow upon the right-of-way as alleged, the verdict and judgment must be set aside.</p>

Error from Harvey District Court. Michael Hawkins commenced his action against the Atchison, Topeka & Santa Fé Railroad Company before a justice of the peace, of the city of Newton, in Harvey county, to recover $200. His bill of particulars, omitting caption, was as follows: “ The plaintiff complains of the defendant, and alleges that defendant is a corporation duly organized under the laws of the state of Kansas, and that it owns and operates a line of railroad through the county of Harvey, in said state, and did at all of the times herein mentioned; that the plaintiff was on or about the 14th day of August, 1885, the owner of two cows of the value of $150; that on that day said cows were in his possession, and were being driven by a competent person along the public highway, upon and along the section-line road between see. No. 30, T. 23, R. 1 east, and sec. No. 25, T. 23, R. 1 west, in Harvey county, Kansas; and that at a point where the public highway crosses defendant’s railroad the cows were, through the carelessness and negligence of defendant’s servants and employés, who were in charge of a certain engine and train of cars, in the management thereof upon its railroad track, struck by the engine and cars and instantly killed, to his great damage in the sum of $150; that the defendant, upon approaching said crossing with its train, failed to sound its whistle as required by law, in consequence of which the person in charge of the cows was not warned of the approach of the train until it was too late to prevent the killing of the cows; that had the whistle been sounded as required by law, said person could have prevented the injury; that upon said occasion the train was late, and the person in charge of the cattle supposed it had already passed the crossing; that defendant has failed to provide a safe and convenient crossing at said point, as required by law; that the approaches to the track were very abrupt and high above the natural elevation of the surrounding land, which greatly impedes progress in crossing the same; that defendant has permitted a very high and dense growth of hedge to extend out upon its right-of-way and nearly up to the track on either side, which prevents persons traveling upon the road from observing the approach of trains upon its road; that the crossing is and long has been so maintained by defendant in a dangerous, inconvenient and unsafe condition; that immediately after the cattle were killed, plaintiff demanded payment therefor of defendant, and that defendant positively refused to pay for the cattle any sum whatever; that $50 is a reasonable attorney’s fee for the prosecution of this action. “ Wherefore, plaintiff prays judgment for the sum of $200 and costs of suit against defendant, and interest at 7 per cent, per annum from August 15, 1885.” Upon the trial before the justice, judgment was rendered against the railroad company, from which judgment the company appealed to the district court. Trial at the May term, 1887, upon the original bill of particulars. The jury returned a verdict in favor of the plaintiff for $134.80, and also made special findings of fact. The company filed its motion for judgment upon the special findings of fact, which motion was overruled. The company also filed its motion for a new trial, which was overruled. On July 2, 1887, the court rendered judgment for $134.80, together with costs, against the railroad company. The company excepted, and brings the case here.

Published

Supreme Court of Kansas

Supreme Court of Kansas

S

Kansas, KS

Horton

state-v-summers

Summers

State v. Summers

The State of Kansas v. Charles Summers

L. B. Kellogg, attorney general, and Chas. Howard, county attorney, for The State; Wm. L. Aaron, of counsel.

<p>New Teial — Overruling Motion, Pro Forma. It is error for a trial court to overrule a motion for a new trial merely pro forma, even if the case is submitted to the court for trial without a jury, by the agreement of the parties.</p>

Error from Ellis District Court. The opinion states the case.

Published

Supreme Court of Kansas

Supreme Court of Kansas

S

Kansas, KS

Johnston

ehrhard-v-mckee

Ehrhard

Ehrhard v. McKee

Adolph Ehrhard v. John McKee, as Administrator of the estate of Michael Jones

Uarhness & Codard, for plaintiff in error., Dawes & Durin, for defendant in error.

<p>1. Jubi — Separation—Presumption Against Verdict. Where a jury in a civil action separate and mingle with the public after they had retired to consider of their verdict, without permission of the court, and without having been duly admonished, as the statute requires, a presumption against their verdict arises that will vitiate it, unless it affirmatively appears that no prejudice was suffered by the losing party.</p> <p>2. --Burden of Proof. When it is shown that a jury separated without having been duly admonished, the burden is shifted to the prevailing party, and it will devolve on him to show that the jury was not subjected to any improper influence, and that no injury resulted to the unsuccessful party.</p> <p>3. Statements op Stbangebs, Received in Evidence — Error. The admission of the statements of strangers to the action, not made in the presence of the party against whom they were offered, in respect to attempts made to prevent adverse witnesses from testifying in the action against such party, and to improperly influence other witnesses to testify in his favor, was prejudicial error.</p>

Error from Clay District Court. The opinion states the case.

Published

Supreme Court of Kansas

Supreme Court of Kansas

S

Kansas, KS

Valentine

g-b-shaw-co-v-smith

G. B. Shaw & Co. v. Smith

G. B. Shaw & Company v. Yates Smith

Samuel Dalton, and Samuel J. Day, for plaintiffs in error., S. E. Fink, for defendants in error.

<p>1. Weitten Contbaot — Implied Warranty of Flax Seed Sold. .Shaw & Co., dealers in flax seed, and Smith, who desired to raise a crop of flax, entered into a contract that Shaw & Co. should furnish and deliver to Smith flax seed to sow and to raise a crop from it, which crop Shaw & Co. were to purchase from Smith upon certain terms and conditions stated in the contract. The flax seed was not present at the time the contract was made. Afterward Shaw & Co. furnished and delivered to Smith the flax seed, which appeared to be good and which the parties believed to be good, but which in fact was worthless. Smith prepared his ground and sowed the flax seed; but it did not germinate and he lost ^,11 his time and labor in procuring the seed and in sowing it and in preparing the ground for it, and also lost the use of his ground. Held, Under such circumstances, that a warranty may be implied upon the part of Shaw & Co., that the flax seed should be sufficient for the purpose of sowing it and raising a crop from it.</p> <p>2. Vendee May Recover Damages. And also, under the foregoing contract and the circumstances of the case, held, that Shaw <fc Co. cannot recover on the contract for the agreed price of the flax seed, and Smith may recover for all losses necessarily sustained by him by reason of the worthlessness of such seed.</p>

Error from Cowley District Court. The opinion states the facts. Judgment for defendants Smith and another, at the December term, 1887. The plaintiffs G. B. Shaw & Co. bring the case here.

Published

Supreme Court of Kansas

Supreme Court of Kansas

S

Kansas, KS

Valentine

schade-v-theel

Schade

Schade v. Theel

George Schade v. August Theel

J. F. Peffer, for plaintiff in error.

<p>Location on Highway — Sufficient Petition. Where a petition for the appointment of viewers to view, lay out, and looate a public road, shows upon its face that it is signed by more than twelve householders of the county, and the prayer of the petition is granted, and the road is viewed and located, and a report of the viewers made to the county board, and the county board approves the report and orders the road to be opened, held, that the petition and the proceedings following will be considered valid, although the oounty board did not make an express finding that the signers of the petition were householders. (See also Laws of 1885, ch. 16.)</p>

Error from Wabaunsee District Court. The opinion states the case.

Published

Supreme Court of Kansas

Supreme Court of Kansas

S

Kansas, KS

Green

state-v-probasco

Probasco

State v. Probasco

The State of Kansas v. Jake Probasco

W. D. Half hill, for appellant Handy.

<p>1. Ceiminal Law • — Defendant as Witness. A defendant who voluntarily becomes a witness in his own behalf is subject to the same rules as any other witness, and may be asked by the state, on cross-examination, if he had not been convicted of larceny at the previous term of the same court in which he was being tried.</p> <p>2. Instbuotions — No Exceptions. Error cannot be predicated upon instructions given, but not excepted to at the time.</p> <p>3. ---Objection to Evidence. An objection to evidence, to be available, should be made and excepted to when it is introduced.</p>

Appeal from Cowley District Court. The opinion states the case.

Published

Supreme Court of Kansas

Supreme Court of Kansas

S

Kansas, KS

Green

state-v-mclafferty

McLafferty

State v. McLafferty

The State of Kansas v. D. C. McLafferty

A. H. Case, for appellant., John N. Ives, attorney general, and R. B. Welch, county attorney, for The State.

<p>1. Information — Description of Defendant. Held, Under the corrected record in this case, that the defendant was properly described in the count of the information upon which he was convicted.</p> <p>2. Instbuotions, Not Misleading. Certain instructions considered, and held not to be misleading or erroneous, when considered with the entire charge to the jury.</p> <p>3. Oeau Statements by Court to Jury — New Trial Denied. The mere fact that the court made certain oral statements to the jury in relation to their agreeing upon a verdict, after they had retired to consider their verdict and had been returned into court, but did not direct them upon any rule of law involved in the trial, or make any comment upon the testimony, is not such an instruction as is required to be in writing, in accordance with § 236 of the criminal code; and while such statements may be subject to criticism, and ought not to have been made to the jury, still they are not considered sufficiently prejudicial to grant a new trial in a case where, from the entire record, the guilt of the defendant clearly appears.</p>

Appeal from Shawnee District Court. ■ Prosecution for the unlawful sale of intoxicating liquor. From a conviction at the April term, 1891, the defendant, McLafferty, appeals.

Published

Supreme Court of Kansas

Supreme Court of Kansas

S

Kansas, KS

Valentine

menger-v-board-of-commissioners

Menger

Menger v. Board of Commissioners

Anna G. M. Menger v. The Board of Commissioners of Douglas County

Jos. E. Riggs, and John Hutohings, for plaintiff in error., W. W. Nevison, for defendant in error.

<p>Soeoox, Lands — Taxation — Void Sale. School lands belonging to the state of Kansas are not subject to taxation; but, after their sale to individuals, they then become taxable; but prior to the amendment of the laws in 1879, if a purchaser of school lands from the state made default in the payment of any of the purchase-money, he, ipso facto, forfeited all his right and interest in and to the land, and the land at onoe became school land again, belonging to the state, and not subject to taxation; and if, while the land so belonged to the state, it was taxed and sold for the taxes, both the tax and the sale were absolutely void, and the tax-sale purchaser afterward, when the illegality was discovered, had the right to have all the taxes paid by him refunded.</p>

Error from Douglas District Court. The material facts appear in the opinion. Judgment for the defendant Board, at the November term, 1888. The plaintiff, Menger, comes to this court.

Published

Supreme Court of Kansas

Supreme Court of Kansas

S

Kansas, KS

Johnston

nelson-v-st-louis-san-francisco-railway-co

Nelson v. St. Louis & San Francisco Railway Co.

E. H. Nelson v. The St. Louis & San Francisco Railway Company

Wells & Wells, for plaintiff in error:, Geo. F. Peak, A. A. Hurd, and Robert Dunlap, for defendant in error:

<p>Cattle-Guards, Failure to Maintain —Liabilities. Where a railway company builds its road through a fenced pasture, and fails and refuses to erect and maintain cattle-guards at the entrance and exit of its road to and from the pasture, the owner is entitled to recover damages for the loss of the pasture, or, if he puts his animals therein, to reasonable compensation for his efforts in preventing them from straying from the pasture and injuring the crops on his own premises, or from trespassing on the lands of other persons. (G. K. & N. Rly. Go. v. Behney, 48 Kas. 47.)</p>

Error from Crawford District Court. The facts appear in the opinion. Judgment for the defendant Railway Company, at the .April term, 1889. The plaintiff, Nelson, comes to this court. 1. The several items of damage claimed by the plaintiff in his original bill of particulars constitute but one cause of action. The basis of the plaintiff’s claim, out of which this cause arose, was the one act of omission of positive duty, a failure and neglect of the defendant to do an act specially enjoined by law upon it to be done under the statute. A refusal to erect and maintain a cattle-guard at a point where the line of its road enters and leaves the plaintiff’s improved and fenced land, which single act of omission has continued for the period of more than three years, an act of negligence unconnected with the subject of any other act of omission or commission. And the statute provides that, “in order for the injured party to recover all damages he has sustained, it shall only be necessary for him to prove such neglect or refusal”— a neglect or refusal to erect and maintain a cattle-guard at a point where that law provides there shall be one. Whether his damage consists in an outlay of his own labor or that of his family, or whether it consists in an actual loss of the use of the pasture land, whether it continued by such negligence for one day, one month, or one or three years, the effect is a deprivation of a convenience otherwise enjoyed, except for defendant’s act of negligence as defined by the statute. Now, if it is to be said that each year of the time of such continued neglect constitutes a separate cause of action, as held by the honorable district court, then why not separate each year into months, weeks, days, hours, or even more minutely, and make of them separate causes of action, and require them to be separately stated and numbered? There is but one cause of action. And the cause of the action is the defendant’s continuing act of omission. And the gist of that single cause of action is the plaintiff’s damages sustained by the act of the defendant, unlike some tangible force put in motion by the defendant to the damage of the plaintiff, but a neglect of a positive duty enjoined by law, which is continuous to the damage of the plaintiff. And the yearly items and nightly losses of use are merely the elements that go to make up the plaintiff’s damages. Hence, we say that the district court erred in sustaining the defendant’s motion requiring the plaintiff to separately state and number the several items of damage and nightly loss of use of pasture as separate causes of action. 2. The plaintiff’s amended bill of particulars, although the yearly items of damage and nightly loss of use of pasture are stated separately as distinct causes of action at the instance of defendant, of which it is estopped to take advantage, if advantage there be in it, states all the material facts upon which the plaintiff bases his claim for a recovery, and does constitute a good cause of action. „ In its motion the defendant company claims that plaintiff has six separate and distinct causes of action, and in its objection to testimony denies the truth of its own proposition submitted -by motion; and the court’s rulings upon the motion and objection to testimony are directly opposite to each other, as we take it. But to say the plaintiff has no cause of action upon the facts alleged, when it has been conceded and decided that he has six causes of action, seems to be the acme of presumptuous nonsense, trifling with the principles of natural justice and equity, and in violation of the accepted rules of legal ethics. The statute provides that the railroad company failing to comply with the provisions of § 1 of the act quoted shall be liable for all damages sustained by any one, etc. The plaintiff alleges that he has been damaged, and shows how he has been damaged. He says in effect that he is and has been deprived of the use of his own land by the neglect of the defendant, unless he employed himself or some other competent person to guard the opening left by defendant’s line of road through his fenced land, which guarding was necessary to prevent damage accruing to himself by his stock escaping and trespassing upon the lands and crops of adjoining land-owners. This is not an action for trespass upon real estate, but an action upon a liability created by statute; and, as the defendant has already been informed to its cost, the injured party may recover for his services in preventing damage to crops. St. L. & S. F. Fly. Co. v. Sharp, 27 Kas. 134; St. L. & S. F. Fly. Co. v. Fitz, 33 id. 404. The court did not commit prejudicial error in requiring the plaintiff to make his bill of particulars more definite and certain. It will be seen that the motion to make more definite is sustained to the extent of requiring the plaintiff to set out the number of days he guarded the cattle during each year, who guarded the cattle, and the value thereof during each year, separately, and overruled the rest of the motion. The plaintiff then filed an amended bill of particulars, in which he set out particularly the matters required by the court. Now, there could be no prejudicial error in this order of the court. It simply required the plaintiff to set out separately for convenience the number of days he guarded the cattle during each year, and who guarded the cattle, and the value thereof during each year. It does not appear that the court in this order considered each year as constituting a separate cause of action, but if it did, inasmuch as the plaintiff complied with the order, we do not see how there has been any error so prejudicial as to require reversal of the case. Especially is this true, since, under the original bill of particulars and the amended bill of particulars, no cause of action for damages is stated against the defendant. This brings us to the second question, as to whether the court erred in holding the amended bill of particulars insufficient as not stating a cause of action. From the amended bill of particulars, while it is uncertain as to whether, at the time of the construction of the road, or any time prior to the bringing of the suit, the land through which the railroad was constructed and operated was fenced and improved, yet the matters alleged as constituting damages are not, in legal contemplation, damages. It will be seen from the amended bill of particulars that there was a failure simply to construct a cattle-guard on the east side of the premises, and upon this east side of the premises plaintiff’s pasture was situated. He does not allege that he had any crops upon his premises, or that he spent any time in guarding his premises against trespassing animals, but he simply seeks to recover for the value of his services in preventing his own animals escaping from his pasture land on the east side thereof and trespassing on the lands and crops of adjoining land-owners; and also he claims damages because he lost the use and benefit of his pasture by reason of being compelled to keep his stock tied up during the night-time and out of the pasture land, and that by reason thereof he was compelled to provide extra feed for his stock and lost the use of the pasture land in the nighttime during the three years. Section 1 of chapter 81 of the Laws of 1869 provides: “When any railroad runs through any improved or fenced land, said railroad company shall make proper cattle-guards on such railroad when they enter and when they leave such improved or fenced land.” The object of this law manifestly was simply to protect the land, or the crops, rather, upon the land, from injury from trespassing animals, that when the owner had fenced his land to keep out trespassing animals, when the railroad was built through such land, it should build cattle-guards as continuations of such fence sufficient also to keep out such cattle. Therefore, it was held by this court that, while the land-owner might recover from the railroad company damages to his crops which resulted from trespassing animals going upon his premises by reason of the failure to have a cattle-guard placed in the fence, it was also the duty of the land-owner to lessen his damages as much as possible; that, therefore, it was incumbent upon him to watch his crops and herd out or keep out trespassing animals. But that is the extent to which this court has gone; and when the argument was made that, under this rule, there would be no limit to the expense that the owner of the crop might incur in the effort to protect his crop, and that the expense might be made to exceed the value of the crop or the injury which could have been done had not the effort been made, this court held that he was only entitled to reasonable compensation for the time and labor necessarily expended in a reasonable effort to protect his crops, and would not be entitled to compensation beyond the damage which might be done by reason of the railway company’s negligence. See St. L. & S. F. Rly. Go. v. Ritz, 33 Kas. 404, 408, 409. To the same effect is Mo. Pao. Rly. Go. v. Ricketts, 45 Kas. 620. But it has never been thought that the land-owner would be entitled to compensation for his services in preventing his cattle from leaving his own premises. The plaintiff has sustained no damage by taking care of his own stock. The adjoining proprietor might be in a better position to claim damages from the railroad company for failure to put in a cattle-guard. The act provides that the railroad company shall be liable for all damage sustained by anyone by reason of such neglect or refusal. Before any cause of action arises, therefore, the party must show that he has sustained damages by reason of a failure to put in cattle-guards. Now, in the cases heretofore cited from this court, the right to recover for services in herding out cattle was merely incidental to the right to recover for damages to the crops which had been injured. It is claimed, however, that the plaintiff is at least entitled to nominal damages. This claim is no doubt made now to throw costs upon the defendant. It was not contemplated, however, by the act that for a mere failure or neglect anyone might maintain an action and recover at least nominal damages. Cases are numerous in which duties have been imposed upon railroad companies by statute, yet, unless the neglect to perform that duty was the cause of some injury, no cause of action exists. It is the duty of the railroad company to sound its whistle three times before approaching a public crossing, yet unless the failure to sound the whistle was the cause of the injury there can be no recovery. A. T. & S. F. Rid. Go. v. Morgan, 31 Kas. 77. The gist of the action under the statute is damages, and therefore, unless the plaintiff can show damage in legal contemplation, he cannot maintain his action. See Wood’s Mayne, Dam., § 9, p. 13; Duckworth v. Johnson, 4 Hurl. & Nor. 656. Of course there are cases in which the right of a plaintiff is invaded by the defendant, and in which an action may be maintained for nominal damages, at least; but these cases are upon the theory that, unless such action were maintainable for nominal damages, a continuance of the wrongful act might ripen by prescription into a right. See Wood’s Mayne, Dam., § 6, note 3, pp. 6, 7. In the present case the plaintiff for three years quietly sought to build up an action to recover from the railroad company for odd services performed by himself and his son in keeping his own cattle upon his own premises, and without any request upon the railroad company to put in a cattle-guard at this point, or without any notification to it. So, when he could not hire his boy out to anyone else or use him to any advantage, he sought to employ him at the expense of the railroad company. In legal contemplation, however, he has not been damaged by the failure of the railroad company to put in a cattle-guard on one side of his premises. His crops were not injured; his improved or fenced land was in no sense damaged by such failure.

Published

Supreme Court of Kansas

Supreme Court of Kansas

S

Kansas, KS

Green

stevens-v-state

Stevens

Stevens v. State

Thaddeus Stevens v. The State of Kansas

Geo. J. Barker, J. W. Green, and F. M. McHale, for plaintiff in error:, Biggs & Nevison, and Fenlon & Fenlon, for defendant in error:

<p>1. Bastabdx—Letter —Secondary Evidence of Contents. In a prosecution for bastardy, where secondary evidence as to the contents of a letter claimed to have been written by the relatrix is sought to be introduced, it must be first established by competent evidence that the letter was written by the relatrix, or signed by her, in addition to satisfactory proof of the loss of the writing, to entitle a party to give secondary evidence as to the contents of such letter.</p> <p>2. Witness, Declining to Answei--Privilege. Where, in,a prosecution for bastardy, a witness declines to answer the question as to whether he had intercourse with the relatrix, on the ground that his answer might render him liable to a criminal prosecution, he cannot be required to answer, if it reasonably appear that the answer would expose him to such prosecution, or if the fact upon which he is interrogated would lead to his conviction of a crime.</p>

Error from Douglas District (hurt. At the February term, 1889, Thaddeus Stevens was convicted of bastardy, and, on the judgment entered, he brings error. The material facts are stated in the opinion. Plaintiff’s first assignment of error is as follows: That said district court erred in ruling out and excluding evidence offered by said Thaddeus Stevens on the trial of said action in said district court, to which said Stevens excepted. The plaintiff in error produced one John Heathman as a witness, and sought to prove by him the contents of a certain letter written by the prosecuting witness, Sidney Brewer, to Richard Heathman, which evidence was, by the ruling of the court, excluded. The record shows positive evidence of the existence of the writing. The loss was proved by the testimony of Richard Heathman and of John Heathman. Diligent search was made for it in the place where it was most likely to be found. John Heathman swore positively that he knew the contents of it. Satisfactory proof having been given as to the loss of a writing, the party will be admitted to give secondary proof of its contents. Greenl. Ev., § 646; Abbott v. Coleman, 22 Kas. 250. When the absence of primary evidence has been satisfactorily accounted for, secondary evidence is admissible. 2 Best, Ev. 811; 1 Starkie, Ev. 355; Higgins v. Reed, 74 Am. Dec. 305; Allen v. The State, 68 id. 457; Bank v. Express Co., 84 id. 499; Bank v. Lambert, 72 id. 49; Tobin v. Shaw, 71 id. 547. See, also, 1 Rice, Ev. 163; 1 Taylor, Ev. 399; Kearney v. New York, 92 N. Y. 617; Clark v. Hornbeek, 17 N. J. Eq. 430; Jernigan v. The State, 81 Ala. 58. The rule holds good both in civil and criminal cases. United States v. Reyburn, 6 Pet. 352; United States v. Carrico, 2 Cranch, 110; C. B. U. P. Rid. Co. v. Shoup, 28 Kas. 394; Stainbrookv. Drawyer, 25 Kas. 383; Shepherd v. Pratt, 16 id. 209; Johnson v. Mathews, 5 id. 118; Conkey v. Post, 7 Wis. 131; Diener v. Diener, 5 id. 483; Williams v. Holmes, 2 id. 129; Jones v. Lake, 2 id. 210; Sebree v. Dorr, 9 Wheat. 558; DeLane v. Moore, 14 How. 253. Plaintiff’s second assignment of error is as follows: “That the said district court erred in refusing to compel the witness Heathman to answer the questions of defendant’s attorney in relation to his intercourse with Sidney Brewer, the prosecuting witness.” It has been often held that it is a question for the court and not for the witness, whether or not the answer would criminate the witness or tend to subject him to a criminal prosecution. Biehman v. The State, 2 Greene, 532; Ward v. The State, 22 Am. Dec. 449; Krisehner v. The State, 9 Wis. 140; State v. Duffy, 15 Iowa, 425; People v. Kelley, 24 N. Y. 74. See, also, Fries v. Brugler, 21 Am. Dec. 52; Chamberlain v. Willson, 12 Vt. 491; Janvrin v. Seammon, 29 N. H. 280; Hill v. The State, 4 Ind. 112; Ford v. The State, 29 id. 561; Bull v. Loveland, 10 Pick. 9; Taney v. Kemp, 7 Am. Dec. 673; Stevens v. Whitcomb, 16 Vt. 121; Cox v. Hill, 3 Ohio, 424. We do not dissent from any statement of the rules of evidence made by counsel in their brief on the first assignment of error. Upon the other question, as to whether or not the answer of the witness, under oath, that he believes that the answer to the question propounded would criminate him, should be taken as conclusive, the great weight of authority in this country is in favor of the rule that, where the witness has given such an answer, the court cannot compel him to answer, unless it is perfectly clear from a careful consideration of all the circumstances of the case that the witness is mistaken, and that the answer cannot possibly have any such tendency. Chamberlain v. Willson, 12 Vt. 491; Janvrin v. Seammon, 29 N. H. 280; People v. Mather, 4 Wend. 254; 1 Burr’s Trial, 244; Kirsehner v. The State, 9 Wis. 140; Fries v. Brugler, 21 Am. Dec. 55; Ford v. The State, 29 Ind. 541.

Published

Supreme Court of Kansas

Supreme Court of Kansas

S

Kansas, KS

Horton

state-v-obert

Obert

State v. Obert

The State of Kansas v. H. H. Obert

John T. Little, attorney general, for plaintiff in error., J. C. Cole, and Bertram & MoElroy, for defendants in error.

<p>1. County Tbeasubeb — Fees. Eees received by county treasurers for issuing school-land receipts must be accounted for by such treasurers and deducted from the quarterly installments of their salaries the same as other fees. (Comm’rs of Graham Go. v. Van Slych, 52 Kas. 622.)</p> <p>2. - Compensation — Accounting. Where a treasurer receives compensation for making and certifying abstracts of title and for writing letters and giving information concerning taxes, etc., he is not required to report or account for the same as fees arising in the performance of official duties.</p> <p>3. County, Judgment Against — Payment in Good Faith. Where judgment is properly rendered against a county, and the board of county commissioners orders the payment thereof from the funds of the county in the hands of the county treasurer, and such county treasurer, in pursuance of the order of the county commissioners, makes such payment in good faith, he cannot be compelled to return to or replace the same in the county treasury.</p>

Error from Rawlins District Court. The opinion states the facts.

Published

Supreme Court of Kansas

Supreme Court of Kansas

S

Kansas, KS

Stephen

naylor-v-semmes

Naylor

Naylor v. Semmes

James Naylor of George v. George Semmes

By Julius Forrest, for the appellant., Stonestreet, for the appellee.

<p>Where it was the general usage and custom during the time of a certain sheriff, for his deputies to deliver to him all process which came to their hands, when he endorsed such returns thereon, as he, by the said deputies might be directed; this was held to be competent evidence, in an aetion brought by the sheriff upon the official bond of one of his deputies— the inquiry being, whether a return so made was a false return or not. And although the plaintiff was not entitled to recover, unless the jury believed, that such return was made, either by the defendant, or his directions; yet it was held, that the custom was per se, under the circumstances, prima facie proof, as between the sheriff and his deputy, of such a return having been made.</p> <p>.It was competent for the sheriff and his deputies, to agree upon such a practice, as a law for the regulation of their own official conduct; but such usage or agreement would not be binding upon the interests of third persons.</p> <p>A witness cannot decline answering a question, merely because it will subject him to a civil liability.</p> <p>The refusal of the County Court, to compel an unwilling witness to answer a question, though erroneous, will not affect the judgment of the appellate court, where the answer to the question would be irrelveant or inadmissible.</p>

Appeal from Prince Georges County Court. This action was instituted by the appellee, against the appellant, on the 27th of October, 1824. The ease is fully stated by the judge, who delivered the opinion of this court.

Published

Court of Appeals of Maryland

Court of Appeals of Maryland

S

Maryland, MD

Horton

state-v-crane

Crane

State v. Crane

The State of Kansas v. Stub Crane

J. W. Deford, W. A. Deford, and McCormick & McKee, for appellant:, John T. Little, attorney general, H. L. Anderson, county attorney, for The State; S. I. Hale, of counsel:

<p>Cbiminab Conspibaoy — Information—Evidence. Am information for criminal conspiracy charged the defendant, C., and his codefendant, G., with having obtained from one M. a promissory note for $150 on account of a lightning rod put up on M.’s house, on the representation that it would cost $7.50 only. After the rodding was completed, M. was induced by C. to sign a written contract by which he obligated himself to pay $150. Subsequently, with full knowledge of all the facts, he executed the note of $150 to G. for the amount of the contract. Held, That the information, and evidence offered in support thereof, were insufficient to support the conviction, when it was not averred in the information that M. was so ignorant that he could not read the contract, or that he was blind, or that he was shown one paper, and by trick induced to sign another, and when it further appeared from the information and evidence that M., before signing thé note, had found out that G. was a fraud, and with full knowledge of all the facts executed the note, for the reason that G. stated to him that he could make his defense to the note better than to the written contract.</p>

Appeal from Rush District Court. On the 7th day of April, 1894, an information was filed in the district court of Rush county, which, omitting caption, verification, and indorsements, was as follows: “I, H. L. Anderson, the undersigned county attorney of said county, in the name and by the authority and on behalf of the state of Kansas, come now here and give the court to understand and be informed, that on the 20th day of February, 1893, in the county of Rush and state of Kansas, one Stub Crane and one J. C. Gray did then and there, unlawfully, feloniously, designedly, and with the intent to cheat, wrong and defraud one John Marquardt, then and there conspired together to obtain and procure the said John Marquardt to sign and deliver to them his promissory note in writing for $150, with interest on the same at 10 per cent, per annum from date; that in pursuance of the said conspiracy the said Stub Crane, on the 20th day of the said month of February, 1893, went to the residence of the said John Marquardt, in the said county of Rush and in the said state of Kansas, and represented to the said John Marquardt that he, the said Stub Crane, was the duly authorized agent of F. H. Miller & Co. to sell and put up lightning rods, and if the said John Marquardt would allow him, the said Crane, to sell to him and put up lightning rods to the house of the said John Marquardt, the same would only cost the said John Marquardt at the rate of 75 cents per foot for the excess of 100 feet of rod put up, and that it would only take 110 feet of rod for his house, and that the same would only cost him, the said John Marquardt, the sum of $7.50; that, relying upon the said statements of the said Crane, and believing them to be true, the said John Marquardt permitted the said rod to be so put up to his house, and signed a contract, as he thought, and as was represented to him by the said Crane, binding him to pay the said sum of $7.50, and took a copy of the said contract for himself; that the said Marquardt discovered soon after the said Crane had gone away that the said contract bound him to pay for said lightning rod the sum of $150, instead of the said sum of $7.50, as it should have done under his agreement with the said Crane; that on the 21st day of February, 1893, the said J. C. Gray, the co-conspirator of the said Stub Crane, went to the residence of the said John Marquardt and represented to him, the said Marquardt, that he, the said Gray, was the attorney of the said F. H. Miller & Co. and would take the said Marquardt’s note in payment for the said lightning rod, aud that, if the said Marquardt had a defense to said claim, the defense would be better presented against the said note than against the said contract; that he would take the said note in the name of the said F. H. Miller ■& Co., and that he would send the said-Crane to see the said Marquardt on the next day to adjust the matter with the said Marquardt, and that by the said statements of the said Gray the said Marquardt signed the note of $150, and delivered the same to the said J. C. Gray, and delivered to him, the said Gray, the copy of the said contract, believing the statements of the said Gray, and relying upon said statements that when the note was signed it would be better to deliver up the contract for the use of the said F. H. Miller & Co.; that all of the said statements and pretenses of the said Stub Crane and the said J. C. Gray, the said John Marquardt relied upon and believed them to be true, and was induced to sign the said contract and the said note under and by reason of the said statements and pretenses of the said Stub Crane and the said J. C. Gray; that all of the said statements and pretenses made to the said John Marquardt by the said Stub Crane and J. C. Gray were false and fraudulent, and that the said Stub Crane and the said J. C. Gray knew the aforesaid statements and pretenses to be false at the time they were made to the said Marquardt by the said Stub Crane and the said J. C. Gray; that by and through the said false and fraudulent statements and pretenses, the said Stub Crane and the said J. C. Gray obtained the signature of the said John Marquardt to thé said contract and the said note for the said amount of $150, dated February 21, 1893, due in three months from date thereof; that instead of taking the said note payable to the said F. H. Miller & Co., as they had falsely and fraudulently represented and pretended to the said John Marquardt they would do and had done, the said Stub Crane and the said J. C. Gray falsely, knowingly and fraudulently took the said note fraudulently from the said John Marquardt payable to the said J. C. Gray himself; that the said note is of the value of $150 — all contrary to the statute in such cases made and provided, and against the peace and dignity of the state of Kansas. H. L. Anderson, County Attorney.” On April 10,1894, the defendant, Stub Crane, filed his motion to quash the information, upon the ground that it did not state facts sufficient to constitute a public offense under the statute of the state. This motion was overruled. Trial had at the April term of the court for 1894, before the court with a jury. On April. 17,1894, the jury rendered a verdict against the defendant of guilty, as charged in the information. On April 18,1894, the defendant filed his motion to set aside the verdict and for a new trial, upon the various statutory grounds. On the same day he filed his motion in arrest of judgment, upon the ground that the facts stated did not constitute a public offense. Both of these motions were overruled, and the defendant was sentenced, upon the verdict of the jury, to be confined in the state penitentiary for the term of four years, commencing with the 27th day of April, 1894, and it was also adjudged that he pay the costs of prosecution, taxed at $150.10. To all the various rulings and the sentence of the court, and to the judgment rendered, the defendant excepted. He appeals. 1. The district court erred in overruling the motion to quash. The information does not state facts sufficient to constitute a public offense. See In re Schurman, 40 Kas. 542; The State v. Ripley, 31 Me. 386, 389; The State v. Crowley, 41 Wis. 271, 22 Am. Rep. 719; Ilazen v. Commonwealth, 23 Pa. St. 353, 363; The State v. Bradley, 68 Mo. 140. 2. Not only was there no conspiracy charged, but the information does not contain a single false pretense alleged against either Crane or Gray. It does not accuse either of them of having stated any past or existing fact to Marquardt to get from him the contract, much less the note. Everything uttered by them was a mere prophecy, promise or legal or other opinion. In re Snyder, 17 Kas. 556. 3. The statements made by Gray to Marquardt', as the information affirms, to obtain the note, were not false pretenses. “In this class of cases, good pleading requires that each distinct and material allegation should be directly and specifically negatived.” Indeed, no averment in the information is so negatived. The State v. Palmer, 50 Kas. 322, 323. 4. The court repeatedly erred in the admission of evidence, over the defendant’s objections. The state failed to establish a prima facie conspiracy of Crane and J. C. Gray to obtain the signature of Marquardt to the note alleged to have been obtained by unlawful means. The evidence of the statements of Gray was admitted before such a basis was laid. It is the ruling of this court that “ordinarily, when the acts and declarations of one co-conspirator are offered in evidence against another co-conspirator, the conspiracy itself should be established prima facie and to the satisfaction of the court or the judge trying the same.” The State v. Miller, 35 Kas. 334. See, also, Chapman v. BlaJceman, 31 Kas. 684. 5. The court below erred in the instructions it gave to the jury, and it also erred in denying the motion for a new trial. 6. To the question, “Tell the jury whether or not you believed and relied upon the statements which J. C. Gray made to you on the 21st day of February, 1893, at the time you signed the note which you delivered to him,” Marquardt answered : “ I could not say I did; I found out that he was a fraud.” Marquardt waited more than a year, and until he was sued on the note, before he commenced this prosecution; and he began and is pursuing it as a bluff, to get out of paying a just debt, or out of mere spite. A lightning-rod case as like to this as one hen egg is like to another is The State v. Cameron, 23 S. W. Rep. (Mo.) 767. The contract is nowhere set out, but it is alleged it was in writing. There is no averment that Richards could not or did not '‘read the contract, nor is there any averment of any fraudulent trick or device by which he was prevented from reading the contract before he signed it. It is not pretended that defendant failed to do the work. On the contrary, Richards says when it was finished defendant produced the contract, estimated the work, and found it came to $195, and he paid him the cash therefor without protest. It is not the policy of the law to punish as a crime the making of every foolish or ill-considered agreement. If it is, the jails and prisons must be greatly enlarged. See Commonwealth v. Hutchinson, 2 Par. Sel. Cas. 309; Buckalow v. The State, 11 Tex. App. 352; Commonwealth v. Grady, 76 Ky. 285. The very essence of this crime is that the injured party must have relied upon some false or deceitful pretense or device, and parted with his property. Fay's Case, 28 Gratt. 912; Trogdon v. Commonwealth, 31 id. 862. The representation, statement and pretense of Gray, made to' Marquardt on the 21st day of February, 1893, “that he was an attorney of F. H. Miller & Co.,” was to an existing fact; the same “that he would take the note of Marquardt in settlement for the lightning rod, payable to F. H. Miller & Co.,” when in fact he then had the note made payable to himself, was to an existing fact. These false pretenses, representations and statements of Crane as to existing facts, and the same made by Gray as to existing facts, blend with the false promise made by Gray to Marquardt, that he would send Crane the next day to adjust the matter. All these representations, pretenses and statements were made to Marquardt by Crane and Gray to accomplish a common purpose and design, namely, to induce him to place his signature to the note, and bring Crane clearly within the statute. 31 Vt. 279. Each material allegation in the information is definitely and specifically negatived. The information specifically charges that Crane and Gray conspired together to accomplish a certain purpose; that each in furtherance of a common design, namely, to procure Marquardt’s signature to the note, did certain things in furtherance of the common design and purpose. It states specifically what each one did; the means employed in furtherance of the design of the conspiracy, which they had entered into prior thereto. It alleges that the conspiracy was entered into; that the common design was carried out; that the purpose was accomplished, and states the means employed by Crane and Gray to accomplish the common design and purpose. It specifically alleges that all of the representations, pretenses and statements made by Crane and Gray to Marquardt to induce him to sign the note were false and fraudulent; that by the making of these false and fraudulent statements, pretenses and representations he was induced to sign the note. It alleges that Marquardt relied upon and believed the statements, pretenses and representations made to him by Crane and Gray, and that believing the statements, pretenses and representations made to him by Crane and Gray he signed the note. Hence, we think the the information is sufficient. The State v. Switzer, 63 Vt. 604, 25 Am. Rep. 789; State v. Mills, 17 Me. 211; Barton v. People,-135 111. 405. A glance at the following authorities, cited by the attorneys for the appellant, viz.: In re Sehurman, 40 Kas. 542; The State v. Crowley, 41 Wis. 271, and Hazen v. Commonwealth, 23 Pa. St. 353, and The State v. Cameron, 23 S. W. Rep. 767, shows that not one of them is in point. This Missouri case, on which the attorneys for appellant seem to rely, was a case in which the defendant was prosecuted for obtaining a signature to a contract, and in this Missouri case it seems that the conspiracy to obtain the note was not fully consummated as it was in the case at bar. The defendant was not prosecuted for obtaining the signature to a note in this Missouri case; no conspiracy was alleged, and the law in that case is not applicable in this case.

Published

Supreme Court of Kansas

Supreme Court of Kansas

S

Kansas, KS

Horton

atchison-topeka-santa-fe-railroad-v-wilkinson

Wilkinson

Atchison, Topeka & Santa Fe Railroad v. Wilkinson

The Atchison, Topeka & Santa Fe Railroad Company v. Matilda Wilkinson

A. A. IJurd, and Robert Dunlap, for plaintiff in error., Rohrbaugh & Rauch, for defendant in error.

<p>1. Damages — Opinion Evidence. A witness ought not to be permitted to state what damages, in his opinion, the plaintiff ought to recover for the injury to or destruction of his goods or other property.</p> <p>2. Lost Baggage — Incompetent Evidence. In an action brought by a passenger against a railroad company to recover damages for injuries to a trunk carried on the train, the statements of the bagr gagemen, if they do not constitute a part of the res gestae, are not binding on the railroad company.</p> <p>3. Tort — Damages—Action—Practice. Where goods or other articles have been damaged by the negligence of a common carrier in their transportation, the owner thereof, accepting and retaining the same, may bring his action against the carrier to recover damages for the tort or wrong by which the goods were injured, but cannot maintain an action to recover, upon a verified account, for the value of the goods so injured.</p>

Error from Harvey District Court. On the 8th day of April, 1890, Matilda Wilkinson commenced her action against The Atchison, Topeka & Santa Fe Railroad Company, before a justice of the peace in Harvey county, to recover $109.25 upon the following verified account: April 4, 1890. The Atehison, Topeka January 30,1890. To 1 black silk dress, destroyed in transitu. $40 00 To 1 colored silk dress, destroyed in transitu. 40 00 To 1 white embroidered silk dress, destroyed in transitu.... 12 00 To 1 French satine, destroyed in transitu. 6 00 To 1 white embroidered skirt, destroyed in transitu. 1 50 To 1 black velvet toqué, destroyed in transitu. 9 00 To 1 necktie, destroyed in transitu. 75 Total.,.$109 25 “ State of Kansas, Harvey county, to wit: Matilda Wilkinson, being first duly sworn, says that the foregoing account is just and true, and after allowing all just credits and offsets, there is due her on the said account the sum of one hundred and nine dollars and twenty-five cents ($109.25) from the said defendant. Matilda WilkiNSON. “Sworn to and subscribed before me, this the 8th day of April, 1890. — B. P. Reed, Justice of the Peace.” After judgment was rendered before’ the justice of the peace, an appeal was taken to the district court of Harvey county. Trial had before the court, with a jury. The jury returned a verdict in favor of the plaintiff and against the defendant for $100.21, and also made special findings of fact. The railroad company filed its motion for a new trial, which was overruled. Judgment was rendered upon the verdict. The railroad company excepted, and brings the case here.

Published

Supreme Court of Kansas

Supreme Court of Kansas

S

Kansas, KS

Johnston

risse-v-hopkins-planing-mill-co

Risse

Risse v. Hopkins Planing Mill Co.

John Risse v. The Hopkins Planing Mill Company

E. J. Wall, for plaintiff in error., Scroggs & McFadden, for defendant in error, F. G-. Husson., McQrew, Watson & Watson, for defendant in error, Thomas Lloyd.

<p>1. Mechanics’ Liens— Contractor's Bond for Payment of Claims. A bond given by a contractor under the statute relating to mechanics’ liens, and in accordance with § 13 of chapter 168, Laws of 1889, conditioned for the payment of all claims which might be the basis of liens or which might arise or grow out of the contract and the performance and completion of the work thereunder, is a substitute for the statutory liens to which laborers and material-men are entitled where no bond is given; and where such bond is given no lién can thereafter attach, and any which may have at-. tached or have been filed is discharged.</p> <p>2. SuReties, When not Believed from Liability. A slight departure from the plans and specifications of the work, without the knowledge of the sureties upon the bond, where alterations are authorized by the contract the performance of which the bond was given to secure, will not relieve the sureties from liability upon the bond.</p> <p>3. Principal’s Promise, Broken — Surety Held. The fact that the principal procured the signature of a surety upon the promise that the principal would afterward obtain the signature of another surety, which was not done, will not relieve the surety from obligation on a bond delivered, approved and filed as the law requires.</p>

Error from Wyandotte District Court. ActioN by The Hopkins Planing Mill Company and another against John Risse and others upon a bond given by a contractor. Trial before Hon. N. H. Loomis, judge pro tern., without a jury. There was a decree adjudging certain claims to be liens on the property of said Risse, and he brings the case here. All the material facts appear in the opinion herein, filed July 6, 1895.

Published

Supreme Court of Kansas

Supreme Court of Kansas

S

Kansas, KS

Allen

state-v-price

Price

State v. Price

The State of Kansas v. W. E. Price

W. II. Lewis, and Davidson & Williams, for appellant., F. B. Daiues, attorney general, and L. M. Fall, county attorney, for The State ; Z. L. Wise, of counsel.

<p>Criminal Case — Instructions—Alibi. In a criminal prosecution the mere statement by the. court in the charge to the jury that an alibi is a good defense, if proven, is not erroneous or misleading where the jury are directed in the same connection that if they have a reasonable doubt as to the presence of the defendant at the time and place when and where the crime was committed they must acquit.</p>

Appeal from Reno District Court. The opinion states the case.

Published

Supreme Court of Kansas

Supreme Court of Kansas

S

Kansas, KS

Archer, Chambers, Dorsey

state-ex-rel-clarke-v-mckee

McKee

State ex rel. Clarke v. McKee

State use of William Clarke v. Alexander McKee, Adm'r. of Benjamin B. Walls

By T. F. Bowie and J. Johnson for the appellants, and, By C. C. Magruder and Pratt for the appellees.

<p>A settlement in writing, acknowledging a sum due for the county paper of' the year 1835, made by the deputy of the county collector for that year, is* ¡prima facie proof against a security of such collector on bis official bond, andáis evidence, that the collector had collected and received sucli money.</p>

Appear from- Prince George’s County Court. This was'am action of debt, instituted on the 25th September 1837, by the appellant against the appellee, on the bond' of Thomas M. B. Baden, the appellee’s intestate, and others^ under the following condition: “The- condition oí the above obligation is such, that of the' above bound T. M. B. Baden, shall well and faithfully execute-his office, and the several duties required of him by law, and shall well- and- truly account for, and pay to the justices of.the-levy court or their order, the- several sums of money which he-shall receive, or be answerable for by law, at such time as the-law shall direct, then the obligation to be void, &c.” After the declaration and plea- of general performance, the' plaintiff replied, that at the time of making the writing obligatory aforesaid, and thereafter, the said Thomas M. B. Baden' was collector of the county charges and public assessments,, imposed by law on the inhabitants of said county, and that before the making of said- writing obligatory, to wit, on the-eighth day of July in theyear eighteen hundred and thirty-five, there was allowed by the levy court of said county, unto sundry citizens of said county, or other divers sums of money for divers services, &c-., amounting in the whole to the sum of one hundred* and twenty-two dollars and thirteen cents, which said sums had by the- persons thereto entitled, been transferred and assigned to the' said William Clarke, in the endorsement of the writ issued in this cause' mentioned, whereof the said-Thomas-M. B. Baden, as collector aforesaid, afterwards, that is is to say, on the day and year aforesaid, at the county aforesaid, there had notice, and the said State, by its said attorney, further in fact saith, that after the said sums of money had been transferred to him in manner aforesaid, to wit, on the nineteenth day of July in the year of our Lord eighteen hundred and thirty-seven, a certain John R. Baden of said county, the duly authorised agent of .the said Thomas M. D. Baden, as collector aforesaid, in this behalf accounted together with the said William Clarke, of and concerning the said sums of money, .and on that accounting, the said Thomas M. D. Baden as collector aforesaid, was found indebted to the said William Clarke, in the sum of $122.13, and the said Thomas M. D. Baden, as ■collector aforesaid, being so found indebted to the said William Clarke, in the said sum of, &c., the said Thomas M. 1). Baden, as collector aforesaid, in consideration thereof, after-wards, that is to say on, &c., at, &c., in consideration thereof, undertook and promised the said William Clarke, to pay him the said sum of, &c., when he should be thereto afterwards requested, and the said State by its said attorney, further in fact saith, that the said several sums of money, so as aforesaid allowed by the justices of the levy court of said county, were assessed, laid and imposed on the inhabitants of said county, and the said Thomas M. I). Baden, as collector aforesaid, was required by the duties of his office by reason of the premises, ■to collect and receive the same for the use of the said William Clarke, to whom the same had been transferred and assigned as aforesaid, and so forth; and the said State by it said atttorney further saith, that although the said Thomas M. D. Baden, as collector aforesaid, after making the said writing obligatory aforesaid, and before the issuing of the writ original of the said State in this cause, did collect and receive the said sums of money amounting as aforesaid, to the sum of one hundred and twenty-two dollars and thirteen cents current money, assessed, laid out and imposed as aforesaid, yet the said sums •of money or any part thereof, although thereto often requested, he the said Thomas M. D. Baden, to him the said William Clarke, hath not rendered or paid, but hath hitherto altogether ¡refused, and still doth refuse to render or pay the same, or any part thereof and this, &c. To this replication the defendant rejoins, that the said Thomas M. B. Baden, did not collect and receive for the use of the said State, the several sums of money in the said replication mentioned, nor any part thereof, in manner and form as, &c., and this he prays may be enquired of by the country, and the said State in like manner, &c. At the trial of this cause, the plaintiff to maintain the issue joined on his part, proved to the jury by competent testimony, that John R. Baden was the deputy collector of Thomas M. B. Baden, the principal in the bond on which this suit is brought, who was the collector of the county levies for the year 1835, and that as such deputy, he frequently settled claims against the county, due to the said witness as the agent and deputy of said collector. That after such settlements and liquidation of claims against the county by said deputy, the said Thomas M. B. Baden, as collector aforesaid, was in the habit of paying the sums so admitted to be due by the said deputy in such settlements, thus recognizing the authority of the said deputy, to come to such liquidations. He further proved by a competent witness, who was acquainted with the handwriting of the said deputy, that his signature to the following paper is his genuine handwriting. $122.13. On demand, I promise to pay William Clarke, or order, one hundred and twenty-two dollars and thirteen cents, with legal interest from date, it being for county paper for the year 1835. July 19th, 1837. John R, Ba.den, Beputy Collector. And the said plaintiff further proved by the attorney who instituted the present suit, that after the said paper was put in his hands for collection, he showed the same to the said collector, who promised as collector, to pay the amount thereby admitted to be due; that he thinks this promise was made before the suit was brought, but is confident, that similar promises were made after the institution of the suit, and the plaintiff insisted, that this proof, if believed by the jury, was sufficient to entitle him to a verdict against the defendant; that if presented, a prima facie case of indebtedness to the plaintiff on the part of the said Thomas M. B. Baden, as collector aforesaid, which unless rebutted by the defendant, entitled the plaintiff to recover upon the official bond of the collector, sued on in this action; but the court (Stephen, C. J., and Key, A. J.,) upon the prayer of the counsel for the defendant, were of opinion, and so instructed the jury, that the evidence so offered on the part of the plaintiff, did not authorise a recovery against the defendant as administrator aforesaid, the said Walls, his intestate having only executed said bond as a surety. The plaintiff excepted. And the verdict and judgment being against him, he brought this appeal.

Published

Court of Appeals of Maryland

Court of Appeals of Maryland

S

Maryland, MD

Martin

atchison-topeka-santa-fe-railroad-v-chance

Chance

Atchison, Topeka & Santa Fe Railroad v. Chance

The Atchison, Topeka & Santa Fe Railroad Company v. M. T. Chance, as Administrator of the Estate of John B. Finnegan

A. A. Hurcl, W. Littlefield, and O. J. Wood, for plaintiff in error., N. A. Yeager, and George Gardner, for defendant in error.

<p>1. Action against a Railroad Company —Incompetent Juror-la the examination of a juror on his voir dire, in an action against a railroad company for damages arising from personal injuries, he admitted that he had a feeling against railroads generally, and said that it would require a continual effort on his part to deal with the railroad company in the same way that he would with an individual, and that, perhaps, he could not consider the case in an impartial way. Held, That the juror ought to have been excused on the challenge of the defendant for cause.</p> <p>2. Injury to Employee —Management of Hand-cars. The distance that hand-cars running on the same track should be kept apart, under certain circumstances, in order reasonably to protect the men against danger, is a question for the jury to determine upon evidence of all the facts, rather than by the opinion of a witness.</p> <p>3. -Damages for Mental Suffering. A recovery may be had for mental suffering or anguish of mind resulting. from physical pain and suffering endured by the injured party; but it is improper to admit evidence as to mental suffering on account of the circumstances and condition of others.</p> <p>4. --Measure of Damages for Loss of Time. In fixing the value of time lost by an adult injured party, it is proper to consider his age, his occupation, and the wages he had earned in the past in whatever capacity he may have been employed; but the opinions of witnesses as to what he would be capable of earning at vocations in which he had never been employed are inadmissible.</p> <p>5. -Damages Where Death Occurs from Other Causes. Where the plaintiff, in an action for damages sustained from personal injuries, dies before the trial from a cause other than such injuries, and the action is revived in the name of his personal representative, damages for the permanent deprivation of health and of the capacity to work and enjoy life should be limited to the period between the injury and the death.</p> <p>6. --— Evidence and Findings Sufficient. The evidence and the answers of the jury to particular questions of fact examined, and held, that they justify a verdict and a judgment against the railroad company.</p>

Error from Butler District Court. Mon. C. W. Shinn, Judge. STATEMENT BY THE COURT. ' On December 1, 1890, John B. Finnegan, one of a gang of men employed by the plaintiff in error to relay its track with steel rails from a distance north of Augusta to that place, was seriously injured by falling off a derailed hand-car and being run over by another which was following it. On August 21,1891, he commenced his action against the railroad company to recover $20,000 damages by reason of said injury. He alleged that the hand-car on which he rode at the time was much worn by long usage and service, and was badly out of repair and unfit for use ; that three hand-cars were used in transporting the men and carrying the tools from Augusta to the place of doing the work in the morning and back again in the evening; that it was the duty of the foreman to keep the cars at a safe distance apart, and to place the defective car behind the others ; but, in returning from their work that evening, the defective car on which the plaintiff was riding was placed in the middle, and the hindmost car was negligently permitted to follow close upon it; that while propelling said defective car it came upon a rail that was badly battered, split, and in an unsafe condition, whereby said hand-car was derailed and the plaintiff thrown off behind the same and run over by the rear car, and he was greatly injured. On October 18, 1891, Finnegan committed suicide by hanging himself, and on December 2, 1891, the action was revived in the name of Hattie M. Finnegan, as administratrix, she being his widow. The action was tried at the March term, 1892, resulting in a judgment in favor of the plaintiff for $14,806.41, and this proceeding in error was brought to reverse said judgment. Since the case came here said Hattie M. Finnegan died, and M. T. Chance was appointed in her place as administrator, and the proceeding in error was revived against him. William Dye was called as a j uror and examined at some length by the respective counsel and by the court. He admitted that he had a feeling against railroads generally, which had existed for several years, and the following questions were propounded to and answered by him : “Ques. Would it not require a continual effort on your part to deal with the railroad company in the same way that you would deal with an individual? Ans. Yes. “ Q,. So believing and so feeling, Mr. Dye, don’t you believe that you could not take this case in the same impartial way that you would take a case between two individuals? A. Perhaps not.” The plaintiff’s counsel resisted the defendant’s challenge for cause, and it was overruled by the court. Mr. Dye was afterward challenged peremptorily, and the defendant exhausted all its peremptory challenges. Mr. Schroeder was called as a witness for the plaintiff. He had been a section-foreman, and over the objections of the defendant he answered questions as follows : “Ques. You may state, Mr. Schroeder, what are the duties of a section-foreman in the control of men in their work in the laying of steel, taking up of iron rails and laying of steel ones upon the track, where the gang of men go to and from their work on three hand-cars. Ans. To tell them the proper distance to run apart and instruct them to that effect. “ Q,. Define, now, what other duties would devolve upon the foreman besides telling them what distance they should run apart. A. To see that his instructions be carried out. ”Q. What duties would devolve upon him as to the distance the cars should run apart? A. To tell them they should not run any closer than four telegraph-poles apart, and explain the dangers, and why.” Several witnesses testified to the despondency of Mr. Finnegan during his illness and suffering, and that he was much troubled by the sickness and confinement of his wife and the fear that he would leave her and the child in a dependent and helpless condition. The defendant moved to strike out this evidence as to trouble on account of the wife and the child, but the court overruled the motion. Witnesses were permitted, over the objections of the defendant, to give their opinions as to what Mr. Finnegan would be capable of earning in several different vocations in which he had never been employed. As to the measure of damages, the court instructed the jury as follows : “21. If you find, from a preponderance of the evidence in the case, under the instructions of the court, that the plaintiff is entitled to recover in this action, you may, in determining the amount of her recovery, take into consideration : (1) The pain and suffering, physical or mental, if any, undergone by the said John B. Finnegan as a result of the injury ; (2) the money expended or liability incurred necessarily and reasonably, if any, by the said John B. Finnegan for medical attendance as a result of the injury ; (3) the value of the time lost, if any, by the said John B. Finnegan, as a result of the injury ; (4) the disability or diminished earning capacity, whether total or partial, temporary or permanent, incurred by the said John B. Finnegan as a result of the injury, and from these elements, or so many of them as you find are established by a preponderance of the evidence, assess the amount of plaintiff’s recovery at a sum which you believe would fairly and justly have compensated the said John B. Finnegan for the injury sustained.” After the jury had been in consultation during a day and a night, they were permitted to come into court, when they asked the following question: “ In estimating damages for permanent injury, if any, is the time limited to actual lifetime of injured?” The court in answering this question concluded as follows : “You cannot allow plaintiff anything for the loss, of the support and sustenance of her husband: if you find for the plaintiff, the question for you to determine is : What would have been a fair and just compensation for said Finnegan for the injuries, sustained? What ought he fairly to have received for each and all the elements of damages mentioned in' instruction number- 21, which you may find sustained by the evidence, including any permanent disability sustained by him? And, in estimating damages for permanent injury, you are not limited to the time said Finnegan actually lived.” The verdict of the jury was made lip of the following items : Doctor’s bill, $861; mental suffering and anguish, $4,000 ; physical suffering, $6,000 ; loss of service from the time of the accident until death, $350; permanent injury, $3,595.40. The last item was explained by the following question and answer : “Ques. For what length of time do you allow in estimating damages for permanent injury? Ans. A possibility of from 10 to 20 years.” The defendant moved for judgment in its favor on the answers of the jury to the particular questions of fact submitted to them, notwithstanding the general verdict, and further moved for a new trial, but these motions were overruled. Some other facts will appear in the opinion.

Reversed and Remanded.

Published

Supreme Court of Kansas

Supreme Court of Kansas

S

Kansas, KS

Johnston

lewis-v-lewis

Lewis

Lewis v. Lewis

David E. Lewis and Annie B. Lewis v. William E. Lewis

H. G. Root, for plaintiffs in error., A. W. Dana, for defendant in error.

<p>Mortgage Stipulation — that whole debt due if any payment defaulted and taxes not paid — to make debt due, both conditions must be broken. Iu a mortgage to secure the payment of several notes due at different times, interest thereon payable annually, there was a stipulation that, “if said sum or sums of money, or any part thereof, or any interest thereon, is not paid when the same is due, and if the taxes and'assessments of every nature which are or may be assessed and levied against said premises, or any part thereof, are not paid when the same by law are made due and payable; then the whole of said sum or sums, and interest thereon, shall, and by these presents does, become due and payable.....” Held, in a foreclosure proceeding, that, to make the whole debt due before the time stated in the notes and to authorize a foreclosure, two conditions must concur, namely : default in the payment of a sum when due, and default in the payment of the taxes on the mortgaged premises when due.</p>

Error from Shawnee District Court. Hon. Z. T. Hazen, Judge. This was an action to foreclose a mortgage. The defendants answered, and the plaintiff filed a general denial as a reply. On an agreed statement of facts, the substance of which is stated in the opinion, the court below rendered judgment in favor of the plaintiff. The defendants thereupon brought this proceeding in error.

Affirmed.

Published

Supreme Court of Kansas

Supreme Court of Kansas

S

Kansas, KS

Johnston

taylor-v-winnie

Taylor

Taylor v. Winnie

W. D. Taylor, Administrator etc. v. Scott E. Winnie

Fred IV. Casner and H. Fierce, for plaintiff in error. LeRoy Kramer, of counsel., McKinstry & Fairchild, for defendants in error.

<p>Exemption — library of resident professional man, who leaves svrviving him only a son, passes absolutely to such son, though of full age and a non-resident. A lawyer, not the head of a family, died in the possession of a law library. His wife had previously died, and only a son survived him, who lived in another state, was more than twenty-one years of age, and did not depend upon him for support. Held, that the library was exempt from attachment and execution, and that upon the death of the owner it passed absolutely to the surviving son.</p>

Error from Reno District Court. F. L. Martin, Judge.

Affirmed.

Published

Supreme Court of Kansas

Supreme Court of Kansas

S

Kansas, KS

Andoochran, Bartol, Tbe

williams-v-banks

Banks

Williams v. Banks

Nathaniel Williams, and others v. Daniel B. Banks, and others

Henry May, for the appellant:, St. Geo. W. Teaclde and J. Malcolm, for the appellees ;, Robert J. Brent, for the appellants, in reply:

<p>In cases remanded under the Act of 1832, eh. 302, where the opinion of the Court of Appeals has been pronounced on the several questions involved in the first appeal, the decision of that Court, thus pronounced, is, by the terms of that Act, made conclusive as to the points finally decided, and no error can be imputed to the Court below, if its subsequent proceedings have been in conformity with that decision.</p> <p>Where a claim has been allowed by the Court of Appeals, and the cause remanded for further proceedings, it is too late to plead to such claim, for the first time, the statute of limitations.</p> <p>Where the defence of usury is set up to the claims of the complainants, the affirmative of this charge by the defendants rests upon them under the Act of 1845, ch. 352, and must be sustained by evidence, which can enable the Court to decide that less than the nominal amount of a promissory note has been paid for it, and how much less, so that under the 3rd sect, of the Act, the Court may ascertain the amount really due, and decree accordingly.</p> <p>A complainant in a bill in equity alleges an indebtedness to him by one as maker or endorser of “certain promissory notes,” describing one of the notes filed as an exhibit with the bill; and the respondents, in their answer, make defence against “any note or notes” of the party indebted—Held: that any promissory notes of such party, held by the complainant at the time the bill was filed, are embraced within its allegations, though filed as claims, for the first time, after the cause was remanded; and also, that the plea of limitations cannot be sustained as to such of said claims as were not barred by limitations when the bill was filed.</p>

Appeal from tlie Circuit Court fox Baltimore city. Tliis cause was on a former occasion before tbis Court. The proceedings and decision of the Court upon the first appeal, will he found reported in 11 Hid. Hep., 198, &c. Subsequently to the remanding of the cause, additional claims were filed by the complainant, Banks, under a new commission, and further testimony taken, not only in reference to said additional claims, but also to those before this Court on the first appeal. Under the new commission, the complainant, Banks, as holder thereof, filed four additional promissory notes, drawn by Hannah K. Chase, and endorsed by William Chase Barney, marked D. B. B., Nos. 1, 2, 3 and 4, amounting to the sum of seven thousand dollars, dated on the 25th and 30th of July 1844, respectively, all of them payable two years after date; and proved by Joshua Cockey that the signatures thereto were in the handwriting of said Hannah K. Chase, and by Levi K. .Bowen that the endorsements were in the handwriting of William Chase Barney; and also proved the handwriting of the signatures and endorsements to the notes filed under the original commission, prior to the first appeal. The complainants also proved by George W. Earhart, that in the Spring of 1846, at the instance of William Chase Barney, he negotiated the said four notes with Daniel B. Banks, and that he recollected meeting with Hannah K. Chase about that time, and that she stated to- him that the notes were good, that they were her notes, and that she had given them to her grand-son, William Chase Barney. The defendants excepted to the declarations of Mrs. Chase as inadmissible. The complainants also filed,, under the commission, the following exhibits-; 1st. Exhibit A, being the record of proceedings in a suit at law in the Superior Court of Baltic more city, wherein Richard G. Berford is plaintiff, and Nathaniel Williams and Josej)h B. Williams, exrs.. of Hannah K. Chase, are defendants. 2nd. Exhibit B, the record of' proceedings in a suit at law in the Superior Court of Baltimore city, wherein Daniel B. Banks is plaintiff, and the said executors are defendants; to the admissibility of both of which, as evidence, the defendants excepted. The defendants then proved, by Mrs. Mary Barney, certain declarations of William Chase Barney, and also filed three letters written by him to said witness, who was his mother, tending to show fraud on the part of the said William Chase Barney, in obtaining the said notes, and usury on the part of those by whom they were negotiated. To the admissibility of which declarations and letters, as evidence, the complainants excepted. To claims D. B. B., No. 3 and No. !», .Oled under the original commission, and claims D. B. B. Los. 1, 2, 3 and 4, filed under the remanded commis-.ion, ¡be defendants plead the statute of limitations, and also to the notes bearing date subsequent to the date of the deed of trust, and to the claims of Renwick, Mills and Elion, which were, on. the former hearing, allowed b^ the Court of Appeals—the complainants objecting- to the right of the defendants to die the plea of limitations to said claims. The defendants also excepted to all of tire claims of the said Banks: 1st, “because the same and each of them were originated in usury, to which said Banks was a party;” and 2nd, “because the same were ante-dated, and were in fact, if executed by the said Hannah 1C. Chase, dated, as they purport to be, witli the fraudulent purpose of avoiding the effect of the said deed of trust of the 2nd of August 1844, and were, in fact, signed and executed long subsequently to the execution and recording of said deed, and this was well known to said Banks.” The complainant, Daniel B. Banks, being afterwards examined, in pursuance of a petition of the defendants, to certain interrogatories therewith filed, testified that he purchased the notes, filed since the cause was remanded, from Earhart, in the early part of 1846, and that ho did not recollect what ho paid for them, and had no memorandum showing the amount; that he was not aware, at the time of purchasing them, that 'William Chase Barney had received the notes without consideration from Mrs. Chase ; that be liad filed a list of all the notes held by him, which were signed by Hannah K. Chase, amounting to the sum of $2,250, and that he was unable to say what proportion the respective sums paid hy him Lore to the notes and property, but that, to the best of bis belief, the sums paid were a groat dea.1 more than one-third of the value of said notes and property. The 5th of the interrogatories propounded to the said Banks, is in the following words: “If yon held or possessed the said notes, now produced by you, since the mandate of the Court of Appeals, why did yotf trot produce or file them before this cause was appealed on?” hi reply, he testified that he did hold the said notes at the time of "filing tbe Bill of complaint, did not then file them, be-* cause he was told by D. Stewart, bis eoiinsel, at that time, that it was unnecessary to do so, be, Stewart, bating made an arrangement with N. Williams, a defendant in this cause, that they were to abide tbe decision of tbis case, and that be, Banks, was not aware' it was necessary to file them, until so informed by bis present counsel.- Tbe defendants excepted to the admissibility in evidence of so milch of said answer as relates to tbe statement of D. Stewart, and also to tbe answers generally, “as being vague, evasive, in com-* píete and unsatisfactory.” Tbe Court below, (Krebs, J.,) by its decree, overruled tbe defendants’ exceptions and plea of limitations to the complainants’ claims heretofore established by tbe Court of Appeals, and also tbe exceptions of tbe defendants to the' claim D. B. B., No. 4, under tbe original commission, and to tbe claims D. B. B., No. 1, No'. 2, No. 3: and No. 4, filed by Daniel B. Bank's, under tbe remanded commission, in which were set up tbe defences of usury, ante-dating and limitations ; and sustained tbe defendants1’ exceptions to Banks’ answers to interrogatory No. 5. Tbe complainants’ exceptions to so much of Mrs. Mary Barney’s testimony as related to conversations Between her a'nd William Chase Barney, Were also sustained by tbe decree, and tbe property covered by tbe deed of trust of Hannah K. Chase, was-thereby directed to be sold, for' tbe payment of tbe claims allowed. From this decree tbe defendants appealed.

Published

Court of Appeals of Maryland

Court of Appeals of Maryland

S

Maryland, MD

carlow-v-fowler

Carlow

Carlow v. Fowler

W. R. Carlow v. Edwin Fowler

L. B. & J. M. Kellogg, for plaintiffs in error., Miller, Buchan & Morris for defendants in error.

Published

Supreme Court of Kansas

Supreme Court of Kansas

S

Kansas, KS

Bartol

buchanan-v-turner

Buchanan

Buchanan v. Turner

E. Key Buchanan v. Dorothy Ann Turner

S. T. Wallis for the appellant., Thos. S. Alexander for the appellee.

<p>Will, — Probate of — Where a will is executed and attested in conformity with Aet. 93, secs. 300 & 301, and Aet. 45, secs. 1 & 2 of the Code of Public Geeekal Laws, there is no error in admitting it to probate.</p> <p>Feme Covert, — foweb oe to dispose oe iieb sepakate peopeety by will. — It was the settled law of Maryland even prior to the adoption of the Code, that where property is given to a feme covert to her separate use simply, without restricting her power of disposing of it, or prescribing the mode in which that power is to be exercised, she may aet in reference to the disposition of it as a feme</p> <p>The Act of 1842, oh. 2D3, sec. 6, refers only to the general property of the wife, and does not apply whore property is held by her to her solo and separate use.</p> <p>Art. 45, secs. 1 & 2 of the Code enlarges the rights and powers of a feme covert and provides that “the property, real and personal, belonging to a woman at the time of her marriage, and all property which she may acquire or receive after her marriage by purchase, gift, grant, devise, bequest, or in a course of distribution,” shall be hold by her “for her separate use, with power of devising the same as fully as if she were a feme sole, or she may convey the same by a joint deed with her husband.”</p> <p>The Act oh 1812, oh. 293, sec. 6, was codified by the Legislature in Art. 93, sec. 308 of the Code, but it was directed that its provisions should “not apply to property acquired after the adoption of the Code/ ill regard to which, secs. 1 & 2 of Art. 45 are plainly applicable.</p> <p>YVhere the only property held by a testatrix at the time of her death was the property in a mortgage assigned to her, acquired under a deed of trust executed in 1S54, and held by her to her sole and separate use at the time of her marriage, it was held that the testatrix had the power of disposing of the same by will executed as though she were a feme sole.</p>

Appeal from the Orphans’ Court of St. Mary’s county.. This is an appeal from an order of the Orphans’ Court' of St. Mary’s county, admitting to probate the will of Nannie Buchanan, the late wife of the appellant. The only question which it involves is the right of Mrs. Buchanan, as a feme covert, to make a will under the circumstances of the case, without the assent of her husband. The marriage between the parties took place in July, 1863. In September, 1854, George Thomas, the grandfather of Mrs. Buchanan, executed a deed of trust to Wm. H. Thomas for the benefit of the appellee, Mrsv Turner, then Mrs. Smith, and her children, of whom Mrs. Buchanan was one, with the proviso that the shares of any of the daughters who should marry should he invested by the trustee to their “sole and separate use,” without further limitations or powers. Wm. H. Thomas assigned to Mrs. Buchanan, after- her marriage, a certain mortgage from Henry Sothoron to said Thomas for $4,200, in consideration of which, she and her husband, the appellant, released him from all claims under the deed'of trust. That mortgage it was admitted constituted all the property which belonged to Mrs. Buchanan at the time of her death, and her power to dispose of it as a feme sole, by the last will and testament in question is the matter in controversy on this appeal.

Published

Court of Appeals of Maryland

Court of Appeals of Maryland

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Maryland, MD

Cunningham, Greene, Pollock

national-council-of-the-knights-ladies-of-security-v-phillips

Phillips

National Council of the Knights & Ladies of Security v. Phillips

The National Council of the Knights and Ladies of Security v. H. M. Phillips, as Treasurer, etc.

D. G. Tillotson, for plaintiff in error., Galen Nichols, county attorney, for defendants in error.

<p>SYLLABUS BY THE COUBT.</p> <p>Benevolent Association — Exemption from Taxation. An association conducted for the mutual benefit of its members, and for the purpose of providing' a fund, by the contribution of stated dues from such members, for the payment of a special amount upon the death of a member to a beneficiary named by him, is not such a benevolent association, within the meaning of the laws of the state, as is entitled to have its property exempted from taxation.</p>

Error from Shawnee district court; Z. T. Hazen, judge.

Affirmed.

Published

Supreme Court of Kansas

Supreme Court of Kansas

S

Kansas, KS

Cunningham, Hhícnh, Lollock

moore-v-city-of-paola

Moore

Moore v. City of Paola

G. E. Moore v. The City of Paola

Wells & Grossman, for plaintiffs in error., Alpheus Lane, and Jos. P. Trickett, for defendants in error.

<p>Taxation — Special Assessment The assessment and levy of a paving tax upon the abutting real property, regardless of improvements, sustained.</p>

Error from Miami district court; John T. Burris, judge.

Affirmed.

Published

Supreme Court of Kansas

Supreme Court of Kansas

S

Kansas, KS

Crain

state-v-elborn

Elborn

State v. Elborn

The State of Maryland v. John Elborn

Thomas J. Keating and A. Bandall, (Attorney General,) for the State., Henry M. Murray, for the appellee.

<p>Indictment — Criminal Law.</p> <p>In an indictment founded on the 122d section of Article 80 of the Code of Public General Laws, charging an assault by unlawfully shooting at a certain person, and also an assault by attempting maliciously and unlawfully to discharge a loaded pistol at the same person, contrary to the form of the Act of Assembly, &c., it is necessary to charge the intent with -which the act is done, in the words prescribed in the Code, and an omission to do so, renders the indictment insufficient, and it will be so held upon demurrer.</p> <p>In an indictment for an offence created by statute, the offence must be described in the words of the statute, and when they are descriptive of the offence, it is necessary that the defendant should be brought within all the material words of the statute.</p>

Writ oe Error to the Circuit Court for Queen Anne’s County. No statement of the facts of the case, in addition to such as will be found in the opinion of the Court, is deemed necessary.

Published

Court of Appeals of Maryland

Court of Appeals of Maryland

S

Maryland, MD

Bartol

dorseys-lessee-v-dorsey

Dorsey

Dorsey's Lessee v. Dorsey

John T. B. Dorsey's Lessee v. John W. Dorsey

, Levin Gale and Thomas G. Pratt, for the appellant, contended :, James MaehuMn, for the appellee:

<p>Sales of Beal estate, under Execution issued by a Justice of the Peace — An actual Seizure is essential to the Sale of property taken under Execution; and it must be so Described, that it can be Located — De: feats which render a Constable's sale Void — Special Jurisdiction.</p> <p>The power to seize and sell lands under an execution issued by a justice of the peace, is conferred by the 3d section of Article 83, of the 'Code of Public General Laws. Such a sale vests no title in the purchaser, until the proceedings shall have been returned to the Circuit Court, and the sale finally ratified and confirmed, as provided by the 10th section of the same Article of the Code.</p> <p>In every case where an officer sells under an execution, it is necessary that he should first effect an actual seizure, for the power to sell is limited to the property taken bjr the levy of the writ; and the land seized and sold by the officer- must be so described, that it may be ascertained and located, otherwise the seizure and sale are void.</p> <p>Two writs of fieri facias were issued upon judgments of condemnation in attachment; the property attached was described in each case as “one law office and lot of ground,” without further designation, except that it was called goods and chattels. It was described in the same way in the judgments of condemnation — one of the writs recited the property condemned, and which the constable was directed to-sell, as “one law office and the lot of ground upon which it stands,” the other as “one law office and the lot.” The returns to the writs stated that they were levied on “one lot and buildings thereon,” and that the-same was sold. A third writ of fieri facias- was issued upon a judgment regularly rendered on a warrant in debt; but the schedule stated the property levied onto be, “one office and lot, and stable,” and the return of the officer, set forth that he sold “the lot and .buildings mentioned in the schedule.” Hiclb;</p> <p>1st. That such levies and the sale made thereunder are void for uncertainty.</p> <p>2d.' That the defective description is not cured by the officer’s return to-the writ of attachment, setting forth that he had laid it in the hands of John Dorsey, it nowhere appearing that the lot was is the possession of John Dorsey, and no description or designation being given of the ground seized, nor any means furnished whereby it can be identified.</p> <p>8d. That the seizure and sale of the property by the constable, as shown on the lace of the proceedings, being void for want of a sufficient description or designation of the property, the defect is not cured by the order ef ratification ef the Circuit Court, containing a precise description of the property, so as to make the sale effectual to pass title to the purchaser.</p> <p>4th. That the deed from the constable to the purchaser, does not cure the defects in his proceedings under the writs.</p> <p>Where the Circuit Court in acting upon a subject, does so in the exercise of a special jurisdiction, conferred by statute, the proceedings must show on their face, a substantial compliance with the provisions of the law.</p>

Appeal from the Circuit Court for Howard County. This was an action of Ejectment, brought by the appellant to recover a lot of ground situated in Ellicotfc’s Mills, Howard county. His title to the property was admitted, except in so far as it might be shown that the same had been acquired by the appellee. 1st Exception: At the trial the defendant, to show title in himself, offered in evidence the proceedings in certain attachment cases, comprising the judgments therein rendered by justices ef the peace, the writs of fieri facias issued thereon, the levy and sale by the constable, the order, of ratification passed by the Circuit Court, and the deed from the constable to the said defendant. The plaintiff objected to the admissibility of these proceedings, but the Court overruled the objection and allowed them to bo given in evidence to'the jury; to this ruling the plaintiff excepted. 2d Exception: The plaintiff to rebut the testimony offered on the part of the defendant, proved by the clerk of the Court, that he had examined the minutes of the Court for the March Term, 1863, as also the dockets, and there was no entry showing any motion in reference to the papers offered in evidence by the defendant, or order thereon. The plaintiff thereupon prayed the Court to instruct the jury as follows : Firstly. That the papers offered in evidence by the defendant are insufficient to show title in him, because it does not appear, that the property therein mentioned, as levied upon by the constable, is the same property mentioned in the declaration. Secondly. That the papers offered in evidence by the defendant, are insufficient to show title in him, because it does not appear, that any motion was made to the Court for a ratification of said sale, or any notice ordered by the Court touching the same. Thirdly. That the papers offered in evidence by the defendant, are insufficient to show title in him. The Court refused to grant these instructions; and to this refusal the plaintiff excepted, and the verdict and judgment being against him, he appealed.

Published

Court of Appeals of Maryland

Court of Appeals of Maryland

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Maryland, MD

Robinson

mears-v-moulton

Mears

Mears v. Moulton

Edward A. F. Mears, Maria Mears, his Wife, and others v. Araminta M. Moulton, Treasurer of the Southern Orphans' Association of Baltimore, and others

H. S. Mathews, for the appellants., A. IL Handy and Wm. Jessop Ward, for the appellees.

<p>An Association of Individuals, entitled to Sue.</p> <p>The members of a voluntary unincorporated association are entitled, as individuals having a common interest, to sue in regard to matters pertaining to or affecting their interests.</p>

Appeal from the Superior Court of Baltimore City, in Equity. On the 14th of September, 1866, an account was opened in the Chesapeake Bank in the name of Mrs. E. A. E. Mears, Treasurer, and various sums were deposited from day to day until the 22d of December, when that account was closed, and a new one opened in the name of the “Southern Orphan Relief Fund,” and beneath this entry on the books of the bank there were also written the ■ words “ Mrs. E. A. F. Mears, Treasurer.” On the 17th January, 1867, the amount on deposit to the credit of the fund was $ 1,662.68. Subsequently notice was given to the bank of claims adverse to Mrs. Mears, and a denial -of her right to withdraw any portion of the funds from its custody. A bill of interpleader was filed by the bank, to protect itself against the responsibility of determining to whom, between conflicting claimants, the money deposited with it should be paid. Mrs. Araminta M. Moulton and her associates answered, claiming the fund as belonging to the “ Southern Orphans’ Association of Baltimore,” by whom it was raised, and as whose property it was deposited in the bank by Mrs. Mears, then acting as treasurer of that association, and alleging that on the 4th of February, 1867, Mrs. Mears had been removed from her office as treasurer and the respondent, Mrs. Moulton elected or appointed in her stead, and the bank was notified to hold the amount then remaining on deposit therein, subject to the order of the newly selected and authorized treasurer; on the other hand Mrs. Mears answered claiming the fund as belonging to another association called “ The Southern Orphan Association,” incorporated by the Legislature of Virginia, after the money was deposited with the bank, which incorporation she alleged, was obtained by the authority and sanction of the original association. She further alleged that under this. act, a new society was formed and organized, of which she was elected treasurer; by reason of which the fund became the property of the new society, and she as the treasurer thereof had the right to control it, all claim of the original association being at an end. After the answers were filed the usual decree of interpleader was passed; a commission was then issued, testimony taken thereunder and after hearing upon the pleadings, &c., the Court (DorisiN, J.) delivered the following opinion: “ It is admitted, on all hands, that the money in question was originally owned and deposited by a voluntary association of ladies, under the name of “ The Southern Orphans’ Association of Baltimore,” of which Mrs. Ann M. Polk was president, and Mrs. Maria Mears was the treasurer; and this association claims that its right thereto has never been assigned or abandoned. “ The other claimant is a society incorporated by the State of Virginia, under the name of * The Southern Orphan Association,’ composed of some of the same ladies who were members of the voluntary association first above named, and of some others, not members, who claim that this incorporation was obtained at the instance of the voluntary association, and that after the procurement of the charter, the voluntary association was resolved, by its own act, into this incorporated institution. “The original title to the money having been, as is admitted, in the voluntary society, — it is obvious that it must remain there till divested by clear and° conclusive proof of some act sufficient to have that effect. “ This proof the record fails to show. The evidence bearing upon it is conflicting, but the preponderance is against that conclusion; if it were sufficient to establish the allegation that the charter was applied for, and obtained from Virginia, at the instance of the voluntary association, there would still be no obligation on that association to accept it after it was obtained. It would still require a clear and unequivocal acceptance of it by the voluntary association, meeting as such, and determining in that character to assign its property to the new1 incorporation; of such an act there is not even a pretence. There is proof that after the charter was passed, there was held a meeting of the trustees of the corporation, composed in part of some members of the voluntary association, who were also trustees of the association, and met as such, at which meeting it was resolved to organize the corporation, which they then did; but this was not the act of the voluntary society, and could have no efficacy to transfer its property. In the absence of such vital proof I must decree that the title to the fund remains in the original owners of it: ‘ The Southern Orphans’ Association of Baltimore,’ of which Mrs. Ann M. Polk is president, and Mrs. Araminta M. Moulton, by substitution for Mrs. Mears, is treasurer. “ It was earnestly contended in the argument of this case, by the solicitors of the voluntary association, that the whole cost of this proceeding should be decreed against those of the defendants who represent the Virginia incorporation. This could only be done on the ground that the resistance by the latter has been needlessly vexatious and unrighteous; none of these parties have a personal pecuniary interest in this fund, and I am unwilling to believe that the promoters of so benevolent an enterprize, on either side, can have acted in this contest from any other motive than a conviction of duty, I shall therefore order the costs to be paid out of the fund. In accordance with this opinion, the Court, on the 20th of April, 1868, decreed that the fund in controversy should be paid to Araminta M. Moulton, treasurer of “ The Southern Orphans’ Association of Baltimore,” she having been duly appointed (as appeared from the testimony) to that office in lieu of Mrs. Mears, the former treasurer; and further that the costs of the proceedings should be paid by Mrs. Moulton out of the fund. From this decree both parties appealed— Mrs. Mears and others from that part of the decree awarding the fund to Mrs. Moulton, and Mrs. Moulton and others from that part awarding the costs in the case to be paid out of the fund. [A motion was made to dismiss the latter appeal and the Court sustained the motion upon the ground that in equity the awarding of costs is a matter resting in the sound discretion of the Court, from the exercise of which no appeal will lie.] The cause was argued before Bartol, C. J., Stewart, BeeNT, GrasoN, Miller, Alvey and RobiNSON, J. •

Published

Court of Appeals of Maryland

Court of Appeals of Maryland

S

Maryland, MD

Doster, Ellis, Johnston, Pollock

stewart-v-thomas

Stewart

Stewart v. Thomas

Martin Stewart v. Fidelia B. Thomas

Thos. J. White, for plaintiffs in error., F. D. Mills, for defendants in error.

<p>SYLLABUS BY THE COURT.</p> <p>Estates in Entirety — Act of 1891. By chapter 203, Laws of 1891 (Gen. Stat. 1901, § 2534), estates in entirety, as recognized in Baker v. Stewart, 40 Kan. 442,19 Pac. 904,2 L. R. A. 434,10 Am. St. Rep. 213, were abolished.</p>

Error from court of appeals, northern department; John H. Mahan, Abijah Wells, and Sam’l W. McElroy, judges.

Reversed.

Published

Supreme Court of Kansas

Supreme Court of Kansas

S

Kansas, KS

Miller

schull-v-murray

Schull

Schull v. Murray

George Schull, (a Lunatic,) By George Huppman, his Committee v. John P. Murray, of Margaret Ludeking

Julian I. Alexander and T. A. Linthicum, for the appellants., Robert C. Barry and John C. King, for the appellee.

<p>Power of the Orphans’ Courts as to the Probate of Wills — Capacity of a Married woman to malee a Will, without the consent of her Husband — Competency of an Executor as a Witness.</p> <p>The Orphans’ Courts have power to take probate of wills, but not to adjudicate questions of title dependent upon their operation and effect, or to decide upon the right of -disposition. When probate is granted, authority to determine what passes under the will is devolved upon the Courts of Law and Equity.</p> <p>By the law of this State, a married woman is competent to dispose, by a will made without her husband’s assent, of property which she was entitled to receive and hold to her sole and separate use, whether before or since the Code, if the instrument creating the separate estate be silent as to the mode of disposition; and she has also the power of devising, as if she were a feme sole, all the property, real and personal, which belonged to her at the time of marriage, if that took place since the „ adoption of the Code, and all the property which she may have acquired or received since that period, by purchase, gift, grant, devise, bequest, or in course of distribution.</p> <p>The will of a feme covert, professing to dispose of her property, must be admitted to probate in the same manner as that of any other person, capable in law of making a will; and the jurisdiction of the Orphans’ Court is limited to inquiries which relate to probate alone, such as testamentary capacity, fraud, Undue influence, and the due execution of the instrument.</p> <p>Upon a caveat to a will, the executor, not a party to the proceeding in the capacity of executor, is competent to testify upon his own offer, and in his own behalf, as caveatee.</p>

Appeal from the Orphans’ Court of Baltimore City. This appeal was taken from an order of the Orphans’ Court of Baltimore city, dismissing the caveat of George Schull, a lunatic, by his committee, to the probate of two papers purporting to be last wills of his mother, Margaret Ludeking, executed the one on the 15th of July, 1863, the other on the 25th of April, 1864. By the first will the testatrix’s brother, George ‘Huppman, and her nephew, Nicholas A. Huppman, were appointed executors; by the second or last will, which contained a clause revoking all former wills, the'appellee, John P. Murray, was appointed executor; the sole devisee under this will was George Schull, the son and only child of the testatrix. This will was admitted to probate by the Orphans’ Court. The caveat alleged the following grounds of objection to the wills: 1st. That the property which passed under the wills being property which had belonged to Mrs. Ludeking before the adoption of the Code, and her husband being alive at the time of the execution of such wills, and not consenting thereto, and they not having been republished after his death, were void. 2d. That Mrs. Ludeking was not of sound and disposing mind at the time of their respective execution. 3d and 4th. That she was urged to make the wills by improper importunities, w'hich she was too weak to resist. 5th. That she was not capable of knowing the contents of tiie papers, the manner in which they disposed of her estate, and of withholding her assent from the same. The answer of John P. Murray to the caveat alleged, 1st. That the husband of Mrs. Ludeking was insane at the date of the execution of the last will, and that she was not, at the time of her death — having survived her husband — sxféme covert, and incapable of making a will. 2d. That the property which passed under the will was obtained by Mrs. Ludeking in April, 1863, subsequently to the adoption of the Code. 3d. That Mrs. Ludeking was of sound mind at the time of making this last will, and subsequently to the death of her husband. 4th and 5th. Traversed the latter averments of the caveat. On these averments of the answer the caveator joined issue, and testimony was taken thereon.

Published

Court of Appeals of Maryland

Court of Appeals of Maryland

S

Maryland, MD

Been, Burch, Counsel, Dostek

national-bank-of-america-v-home-security-co

National Bank of America v. Home Security Co.

The National Bank of America v. The Home Security Company

David Ritchie, for plaintiff in error., C. W. Burch, for defendants in error.

<p>SYLLABUS BY THE COURT.</p> <p>Judgment— Collateral Attack — Presumption of Appearance. The answer of a defendant to an action in the district court averred that one not then a party to the suit had an interest in the subject of the litigation, setting forth the nature of the interest. The journal entry of judgment recited an appearance by such outside person and the making of an order as to his interest responsive to the allegations of the answer mentioned. The record did not show any pleadings filed by him in the case, or that he was named as a party in any of the pleadings filed by others, or that he was admitted or ordered to be made a party, or that notice or process of any kind was served on him. Held, under the rule of presumptions in favor of the rightfulness of proceedings of courts of general jurisdiction, that, as against a collateral attack on the judgment, a voluntary appearance by the party will be presumed.</p>

Error from Saline district court; R. F. Thompson, judge.

Affirmed.

Published

Supreme Court of Kansas

Supreme Court of Kansas

S

Kansas, KS

Alvey, Bartol, Miller, Rason, Stewart

cumberland-coal-iron-co-v-parish

Parish

Cumberland Coal & Iron Co. v. Parish

The Cumberland Coal and Iron Company, and The Consolidated Coal Company v. Ann Parish

John P. Poe and I. Nevett Steele, for the appellants., S. A. Cox and William Walsh, for the appellees.

<p>Trustee and Gestui que trust — Principal and Agent — Corporations— Transactions between a Corporation and its Directors governed by the Rule applicable to transactions between Principal and Agent, <&c. — Burden of Proof as to a transaction between Parties, where one bears a Fiduciary relation to the other — An Assignee of a Mortgage stands in no different position from that of his Assignor.</p> <p>As between trustee and cestui que trust, or agent and principal, the rule is inflexible that the trustee or agent cannot take the benefit of a transaction entered into in violation of his duty; or where the benefit claimed and the duty to be performed, are inconsistent.</p> <p>Directors and managers of corporations and other companies are within the rule which governs the dealings of trustee and cestui que trust, and agent and principal; such directors and managers are in fact trustees and agents of the bodies represented by them.</p> <p>In the case of directors of a corporation, there is an inherent obligation, implied in the acceptance of such trust, not only that they will use their best efforts to promote the interest of the shareholders, but that they will in no manner use their positions to advance their individual interest as distinguished from that of the corporation, or acquire interests that may conflict with the fair and proper discharge of their duty.</p> <p>The burden of proof is upon a party holding a confidential or fiduciary relation to establish the perfect fairness, adequacy and equity, of a transaction with the party with whom beholds such relation; and that too by proof entirely independent of the instrument under which he may claim.</p> <p>S. being a director of a company and also its financial agent, was one of three trustees named in a deed of trust, executed by the company on the 30th of September, 1857, and recorded, conveying certain of its property to secure the claims of' certain creditors, among which was scheduled one of S. for the sum of $16,585.75. In 1871, P. sought to enforce a mortgage for $15,000, upon part of the same property, executed to S. by the company on the 23rd of September, IBS'?, but to which the affidavit of bona flies by the mortgagee was not made until May, 1861, and which was not recorded until June, 18G1. This mortgage was assigned io P. by S. in October, 1863. Tile company alleged in defence that the indebtedness secured by the mortgage was the same as that secured by the deed of trust which had been paid. The evidence of S. and others, offered by P., to show that it was not the same debt being inconclusive, and it appearing that in the sworn answer of S. to a bill filed against him by the company in 1858, he had stated the sum of $434.90, to bo the true balance due by him to the company upon a final adjustment of accounts, it was Held :</p> <p>That this mortgage could not be enforced against the company.</p> <p>The assignee of a mortgage does not stand in the position of a purchaser without notice, as against the mortgagor and those claiming under him, notwithstanding the assignment may have been taken without notice of any defences against the enforcement of the mortgage.</p> <p>Where an assignment of a mortgage is made by the mortgagee without the concurrence of the mortgagor, the assignee stands in no different position from that of his assignor.</p> <p>[The arguments of counsel relating to the questions of proof of the mortgage debt, limitations and laches, and as to whether the Consolidation Company was a purchaser for value without notice, are omitted, those questions not having been passed upon by the Court. — Rbp.]</p>

Appeal from the Circuit Court for Allegany County, in Equity. The hill in this case was filed by the appellee on the 13th of January, 1811, to procure payment of a mortgage alleged to have been made by the Cumberland Coal and Iron Company to Allen M. Sherman, of certain real estate in Cumberland, to which the Consolidation Coal Company had become entitled by transfer (lorn the Cumberland Coal and Iron Company. This mortgage came into possession of the appellee by assignment from Sherman, dated 6th October, 1863, and recorded 15th of October, 1863, the consideration thereof being recited as $21,000. The title of the Consolidation Coal Company accrued before this assignment. The further facts in the case, so far as necessary, will be found in the opinion of this Court. The Court below (Mottkr, J.,) passed a decree for the sale of the mortgaged premises, from which decree the defendants took this appeal. As to the burden of proof, ordinarily in the case of a bill filed to enforce a mortgage, the production of the mortgage, and proof of its execution and delivery by the mortgagor, create a sufficient prima facie case for the mortgagee. He may rest upon the recitals in the mortgage, and, in the absence of fraud or mistake, need offer no additional evidence of his claim — nor fear the admissibility of parol evidence to vary or contradict it. If the mortgagor denies that the mortgage debt ever-existed, his denial will not be considered effectual unless accompanied by allegations of fraud, accident or mistake in the execution and delivery of the mortgage, and, even if thus accompanied, the burden rests upon him to sustain by competent and sufficient proof these allegations. If he fails to meet this requirement, .the mortgage will be upheld and enforced. So, if he claims that the mortgage debt has been paid and satisfied, he must prove it to the satisfaction of the Court, and if his defence be that the mortgage itself was released, discharged or superseded by another instrument, he must, in like manner, affirmatively establish these defences. Undoubtedly these are the general principles in ordinary mortgage cases, but their application to this case is the fundamental error of the Court below. The learned Judge proceeded upon the idea that it was incumbent upon the appellants to sustain the defences set up in their answer “by proof, clear, certain and entirely satisfactory to the Court;” that the production of the mortgage and the assignment was all that was required of the appellee, and that the mortgage, when produced, established proprio vigore■ alone the whole case of the appellee, until that case was rebutted and clearly overthrown by the proof on behalf of the appellants. This view of the Court, proper enough in an ordinary case, is wholly erroneous here. The mortgagee, Allen M. Sherman, at the date of the mortgage, was a prominent, active and influential director of the company. Moreover he was a controlling member of the executive committee of the company, by which all its affairs of every description were administered — its policy shaped and carried out — its debts contracted and paid — its assets managed, and its very existence attempted to be destroyed by a fraudulent combination, which has twice been condemned and annulled by this Court, upon the distinct grounds that his position as director and member of the executive committee disabled him from contracting for his own benefit with the company, whose affairs he controlled, and made all such contracts, if not absolutely void, at least prima facie fraudulent in law and in fact. 16Md., 456; 20 Md., 117. During the whole time of these transactions he occupied towards the company a fiduciary relation of the most marked and distinctive character, and is, therefore, to be held to that degree of legal accountability which springs out of such relation. In asserting any pecuniary claims upon his cestui que trust, or its property which he had in his hands or under his control, he must especially come prepared to sustain his claim by a measure and amount of proof not demanded from parties differently situated. The law upon this subject is now well settled, and nowhere more clearly than in Maryland. Pairo vs. Vickery, 37 Md., 484, see also 16 Md., 506; 20 Md., 117, and the cases there cited. Under these decisions the burden is upon Sherman to prove the validity and bona jides of the mortgage — the making of the alleged advances — the agreement to secure them by the mortgage, evidenced by some valid corporate act — the existence of this mortgage debt independently of and in addition to the debt to him, specified in the schedule annexed to the deed of trust — the authority to the president and secretary to execute this mortgage, and, in a word, all the circumstances and conditions necessary to give the instrument complete validity; and this, moreover, must be done by satisfactory evidence, aliunde, the mortgage itself. - The mortgage in such a case as this does.not prove itself and mate a prima facie case for the trustee-mort.gagee, but he must sustain its fairness and validity by competent and independent testimony. To hold otherwise would necessarily render the principle which casts the burden of proof upon the mortgagee, practically of no value. In the opinion of the Court below this controlling principle is altogether ignored. Does the appellee stand in a better position than her assignor Sherman ? The learned Judge below seems to lay some stress upon the supposed fact that she was a bona fide purchaser for value, and that as such she had higher rights than her brother-in-law, Sherman, the original mortgagee. At most, the assignment being given only on account of an alleged pre-existing indebtedness, would not make the appellee a bona fide holder for value without notice. Ratcliffe vs. Sangston, 18 Md., 390, 391. But if the appellee had in reality paid in cash the consideration, of $21,000 as claimed, still her title would be precisely that of Sherman, neither more nor less. If the alleged mortgage debt had really never existed, or if it had in fact been paid before the assignment, then the appellee, under her assignment, bought nothing but a fraudulent, or an extinguished chose in action. The purchaser of a mortgage always buys subject to the equities between the original parties, no matter what consideration he gives, and his title depends upon the true state of facts between them. The mortgagee whose rights have been extinguished cannot transfer a better title than he has. The appellee’s case therefore, is precisely that of Sherman’s, whether she be or be not a bona fide purchaser for value. No principle is better established than this. Jones vs. Hardesty, 10 G. & J., 420; (Coote on Mortgages, 315-320; Matthews vs. Wallwyn, 4 Vesey, 118; Chambers vs. Goldioin, 9 Vesey, 264; Schafer vs. Reilly, 50 New York, 61; Bush vs. Lathrop, 22 New York, 535; 1 Hilliard on Mortgages, 571-582. Sherman was one of the directors at the date of the mortgage. But this did not disable him from lending needed money to the corporation, or disable the president and directors (he not acting in the matter) from borrowing the money and securing it. It is an every day matter lor a director of a Company to make such loans, and take such securities. Some of the directors are often the largest stockholders and most interested in the success of the enterprise. There is no law forbidding the friends of the corporation to aid it with loans, and compelling it in its distress to seek relief from its enemies or strangers; no law confiscating the money so loaned, and making the loan carry all the evidences of a crime. There is a very wide difference between the case of one of a numerous body of directors loaning money or securities to the Company, which it gets the benefit of, and the case where a sole trustee, with title and control of the property in himself, appropriates it all to pay himself the worthless debt of the insolvent husband, of his feme covert cestui que trust. Such a transaction as the latter shocks the bluntest sense of justice. The cestui que trust not sui juris —the whole property taken — no benefit to her. Such was 37 Md., 467. Surely this case is not like that. Can one director of a Company loan money to the corporation and receive security for it? The Company has power to borrow money, and badly needs the money, and one of the ten or dozen directors has the money, and is willing to lend it to help the corporation, if he gets a mortgage security. The president and a majority of the directors constitute the" contracting and managing power of the corporation. The. president is the whole of one integral part of the corporation. A majority of the directors form the other integral part. The president and majority of the directors are in fact the corporation. The trust is not absorbed in one director. It is no fraud upon the corporation to loan it money. If the trustee, in 37 Md., 467, had loaned needed money to his cestui que trust, a mortgage to secure it would have been good, and the property could not have been released without paying it. Where the benefit is conferred upon the cestui que trust, no law condemns it. Bell, et al. vs. Webb, 2 Gill, 170. It is considered unnecessary to dwell upon the assignment of the mortgage to the appellee. Any equities growing out of the mortgage itself might be available against the assignee, but not set-off on other matters extraneous to the mortgage transaction itself.

Published

Court of Appeals of Maryland

Court of Appeals of Maryland

S

Maryland, MD

Mason

mcglinchy-v-bowles

McGlinchy

McGlinchy v. Bowles

John McGlinchy v. Thomas Bowles

N. L. Bowman, for plaintiff in error. •, J. Q. Johnson, for defendant in error.

<p>SYLLABUS BY THE COURT.'</p> <p>Corporations — Liability of Stockholders — Limitation of Action. A corporation having suspended business for more than a-year, and a judgment having been rendered against it, the running of the statute of limitations against a proceeding to enforce' the j udgment by execution against a stockholder is not affected by~ the pendency of an action brought prior to an execution on the judgment, against all the stockholders, seeking to charge them with the payment of the judgment.</p>

Error from Anderson district court; C. A. Smaet,. judge.

Reversed.

Published

Supreme Court of Kansas

Supreme Court of Kansas

S

Kansas, KS

Alvey, Bartol, Bowie, Brent, Grason, Miller

maenner-v-carroll

Maenner

Maenner v. Carroll

J. H. Henry Maenner v. James Carroll of Charles, and others

Henry C. Kennard and John H. Handy, for the appellant., J. Alexander Preston and R. J. Gittings, for the defendants.

<p>Questions arising in an action for damages sustained by falling into an excavation for a street, on a private lot over which the public were in the habit of passing — Bight of way— License by implication — Nuisance—Dedication—Province of Court and Jury — Pleadings—Bejected prayers.</p> <p>In an action of damages for a personal injury, it was alleged in one of the counts, that the defendants were owners of a certain open and unenclosed lot of ground, within the limits of the City of Baltimore, and that persons were in the habit of passing over the same; and that the defendants cut on such lot in a dangerous and exposed portion thereof, a deep excavation, and left the same in a dangerous condition, and liable to injure persons passing over the said lot; and that the plaintiff while passing over said lot on a certain night, being ignorant of the excavation, fell therein and was injured. On demurrer, it was Held :</p> <p>1st. That said count entirely fails to state a sufficient cause of action.</p> <p>2nd. That the fact that persons were in the habit of passing over the lot gave the plaintiff no right to do so; and unless there was such right, there was no breach of duty on the part of the defendants in cutting and leaving open the excavation.</p> <p>3rd. That a party has the right to use his land as he pleases, except as he may be restrained by duty to the public or to private individuals.</p> <p>4th. That any individual who complains of the manner in which a defendant may have used his own land, should show with certainty and precision both ■the right of the plaintiff, and the duty of the defendant, and in what manner such right and duty have been violated.</p> <p>5th. That having no right to be on the lot according to the facts alleged in the count, the injury which the plaintiff suffered by falling into the excavation must be attributed exclusively to his own fault.</p> <p>In other counts of the declaration, after alleging that there was a public highway across said lot, it was further alleged, — not that the defendants cut the excavation, and left it in a condition dangerous to persons passing along the highway, — but that they permitted others to do so. On demurrer to these counts, it was Heud :</p> <p>1st. That said counts were defective in not stating definitely how the defendants “permitted” the act complained of.</p> <p>2nd. That where there is want of certainty in the allegation of a pleading, the general rule is, that the sense of an averment is to he taken most strongly against the pleader.</p> <p>3rd. That it did not follow, that because the defendants were the owners of the lot, they were liable for all the nuisances that may be created thereon, no matter by whom.</p> <p>In another count it was alleged that the defendants were the owners of a certain lot of ground, over which for many years they had permitted all persons to cross and recross at pleasure, without hindrance or interruption; and that under and by virtue of this permission, leave and license, the public generally were in the habit of crossing and recrossing said lot at pleasure, and that the defendants, with the knowledge of this general user by the public, and without notice or warning, and without revoking the permission or license, cut a deep trench through said lot and across the usual road or pathway, on which persons were in the habit of crossing said lot, and left open and unguarded said trench or excavation, &c. On demurrer, it was Hem :</p> <p>1st. That there was nothing here alleged to constitute a public nuisance.</p> <p>2nd. That the allegation that the defendants permitted all persons to cross and recross the lot at pleasure, without let, hindrance or interruption, and that the public generally were in the habit of so crossing and recrossing the same, under and by virtue of said permission, leave and license, was not sufficient to show in the plaintiff a positive right, and without such right the action could not be maintained.</p> <p>3rd. That there was no doubt however of the general proposition, that an obstruction or excavation made on a party’s own land, and lawfully made, may give rise to an action upon proof that such obstruction or excavation was concealed, and the plaintiff was invited or induced by the act or conduct of the defendant, to pass over or near such obstruction in ignorance of its existence, whereby injury resulted.</p> <p>At the trial it was proved that a contractor for grading, curbing and paving streets, made the excavation in question, under a contract with the defendants, for making the excavations in Cole street, which crossed the premises of the defendants; but there was no evidence that any of the defendants ever exercised any control or supervision over the work, except as they were owners of the lot, and had contracted with a competent workman to grade the street, as laid out and defined on the city map, according to the gradient established by the municipal authorities. Held :</p> <p>1st. That the contracting for the work was a lawful act, and the making of the excavation, which was necessary in the execution of the work, was equally so; and in order to render the defendants liable, there must be shown a breach of duty by them to the plaintiff in respect to some right of his to pass and repass over the lot.</p> <p>2nd. That the question of the existence of a public highway or thoroughfare, having been settled by the jury adversely to the plaintiff, even if it be conceded that people were in the habit of passing over the lot without hindrance or objection from the defendants, the presumption would be in the absence of authority for such user, that they were trespassers.</p> <p>3rd. If, however, it could be concluded from the evidence, that there was an implied license to the plaintiff to pass and repass over the lot at pleasure, until such license was revoked by some positive act or declaration of the defendants, such license or permission conferred no such right upon the plaintiff as to enable him to sue the defendants for obstructing the way, unless there was some concealed trap or excavation made in the way, which the plaintiff could not have discovered by the use of ordinary and proper diligence while in the use of the license.</p> <p>The jury are not the tribunal to determine what would constitute a legal dedication of a way to public use. They are competent to find the existence of facts to fulfil the definition of what would constitute such a dedication, but not to determine the definition itself.</p> <p>The jury have nothing to do with rejected prayers, and counsel should not be allowed to refer to them for the purpose of influencing the conclusions of the jury in regard to the facts before them.</p>

Appeal from the Superior Court of Baltimore City. The case is sufficiently stated in the opinion of the Court.. jFirst Exception. — After the testimony had closed, the plaintiff offered the following thirteen prayers. 1. If the jury shall find from the evidence, that the defendants were, on the 14th day of May, 1815, and for a long time theretofore had been, the owners of the lot or tract of land mentioned in the — counts of the declaration in this cause, and shall further find that there was over and across said lot or parcel of land, a certain roadway leading from Ramsey and Eulton streets to Baltimore and Ohio Railroad, at a point at or near the Mount Clare station, or to the Washington road, which had been used by the public a period of more than twenty years prior to May 14th, 1814, under a claim of right to use the same, and that said user of said roadway had been generally peaceable, uninterrupted and adverse during the whole of said period, and shall further find that the defendants cut, or caused to be cut, over or across said roadway, a deep trench or excavation, and left the same in an unprotected and unguarded condition, without any warning or notice to the public of danger in passing over said roadway ; and shall further find that the plaintiff, on the night of the 14th of May, 1814, while passing over said roadway and exercising ordinary care, fell into said trencli or excavation and was injured thereby, then the plaintiff is entitled to recover in this action. 2. If the jury shall believe from the evidence, that the defendants were, on the 14th day of May, 1814, and for a long time theretofore had been, the owners of the.,lot or tract of land mentioned in the — count of the declaration in this cause. And shall further find that there was a roadway across said lot or parcel of ground, which had been used by the public generally for a long time, and that the defendants were aware of such user, acquiesced in the same, and that on the line of said roadway there was a bridge over a depression in the same road, for the purpose of allowing foot passengers, persons on horseback and vehicles to pass over said depression, and that said roadway passed over a railroad track, and when it crossed said railroad track a space was left open between the cars, wide enough and for the purpose of allowing all persons and vehicles desiring to pass over the same, to cross said railroad track, and further that there was at said place of crossing said railroad track, (if they shall find there was such a place,) a notice put up, warning such persons to “Beware of Locomotives,” and that a flagman was placed at such crossing, (if there was one,) to warn all such persons against danger in crossing said railroad track, then they are at liberty to find a dedication of the said roadway by the defendants as a public highway, and shall further find that the defendants cut, or caused to he cut, over said lot and across said roadway, a deep trench or excavation, dangerous and liable to injure persons desiring to pass and repass over said roadway. And shall find further that the plaintiff, on the night of the 14th of May, 1874, while passing over said roadway, without warning, or knowledge, or notice of said excavation, and without any guard or protection to keep persons passing as aforesaid over said roadway, from falling into the same, while in the exercise of due care, fell into said excavation and was injured thereby, then the plaintiff is entitled to recover in this action, even if they should find that said excavation was cut across said roadway by an independent contractor, provided they further find that said contractor so cut the same across said roadway, under a contract with the defendants, and that in so cutting it, he did no act in contravention of the terms of the said contract. 3. If the jury believe from the evidence, that the defendants were, on the 14th of May, 1874, and for a long time theretofore had been, the owners of the lot or parcel of ground, mentioned in the different counts in the declaration in this cause, and shall find that there was over and across said lot a roadway, which had heen in general use hy the public for a long period of time, with the acquiescence of defendants, and that said roadway was the usual and only safe approach on the north side to the Western Schuetzen Park, a place of public entertainment, and shall further find that the defendants cut, or caused to be cut, on said lot and across said roadway, a deep excavation or trench, and left the same open and unenclosed, without warning or notice to the public of its dangerous character, and further that the plaintiff, on the night of the 14th of May, 1814, while passing over said roadway, and while ignorant of said excavation, and in the exercise of ordinary care, fell into said excavation or trench and was injured, then the plaintiff is entitled to recover in this action. 4. If the jury believe from the evidence, that the defendants were, on the 14th of May, 1814, the owners of the lot or parcel of ground mentioned in the different counts of the declaration in this cause, and that there was running across said lot, from the south end of Pulton street in Baltimore City, a roadway in general use hy the public, and which had heen in such general use for more than twenty years, leading up to a house which had heen used for a long time as a place of public entertainment, and that said road was the regular and only safe approach to said house, for all persons coming from the direction of Pulton street, and shall further find that the defendants, or an independent contractor employed hy them for that purpose, cut over said lot and across said roadway a deep trench or excavation, thereby rendering said roadway dangerous and impassable to those desiring to pass over the same, and shall further find that the plaintiff, while passing over said roadway, exercising ordinary care, and in returning from said house, to which he had heen on business, or as member of the club occupying said house, if they find he had been to said house on business, or as such member of a club occupying said house, when returning therefrom, without warning, notice or protection of any kind against accidents, fell into said excavation, and was injured thereby, then the plaintiff is entitled to recover in this cause. 5. If the jury believe the matters and things set forth in the first prayer, and shall further find that the excavation spoken of had been cut across the road or "pathway in said prayer specified, for two or three weeks previously, and that the said excavation was dangerous, and likely to injure those persons desiring to pass and repass over the same, and that the defendant took no pains to guard or protect the same, so as to prevent injury to those likely to pass and repass over the same, and that the plaintiff while passing over said road, without warning or notice, and while using due care, fell into said excavation and was injured, then the plaintiff is entitled to recover, whether said excavation was made by an independent contractor, or by the defendants themselves. 6. If the jury shall believe from the evidence in the cause, that the defendants were, on the 14th day of May, 1874, and for a long time theretofore had been, the owners of the lot or parcel of ground mentioned in the — count of the declaration in this cause, and shall further find that there was a regular fixed roadway or path over and across said lot or parcel of ground, and that the said road had been dedicated to public use; and if they shall further find that the defendants dug, or caused to be dug over said lot and across said highway, a deep trench or excavation, dangerous to persons passing over the same, and that the plaintiff, on the night of the 14th of May, 1874, while passing over said highway, without any notice or warning or guard to protect persons passing over the same, and while exercising ordinary care, fell into said trench or excavation, and was injured, then the plaintiff is entitled to recover, regardless of the question of whether said roadway was across an inclosed lot or not. 7. If the jury believe from the evidence, that the defendants were the owners of the tract, or parcel of land mentioned in the ninth count of the declaration in this cause, and if they further believe that over and across the said lot or tract of land all persons desiring so to do were permitted, without hindrance from the defendants, or any of them, to pass and repass at pleasure, upon a certain pathway or road, and that all .such persons were, for a long time, in the habit of passing and repassing with safety over the same, on foot, on horseback, or in vehicles of different kinds, with the acquiescence of the defendants, and shall further find that defendants, with notice of the fact that persons were likely to cross and recross the same, in and upon the path or road leading across the same, between Mount and Pulton streets, and without any effort to warn such persons of danger in so crossing, and without taking any measure to guard against accident to such persons so crossing and recrossing the same, did cut a deep trench or excavation over said parcel or tract of land, and across said pathway or road, rendering the crossing of said lot or parcel of land in the usual place or places of crossing the same, dangerous to persons likely to cross over said lot or parcel of ground, and likely to approach said trench or excavation, and shall further find that the defendants did not forbid persons from passing and repassing across said lot or parcel of ground ; and if they shall further find that the defendants were indifferent to the injuries which might happen to such persons passing and repassing over said lot or parcel of ground by reason of cutting such trench or excavation, and shall further find that the plaintiff, on the night of the 14th of May, 1874, without notice or knowledge that the said excavation or trench was cut across the pathway or road usually travelled by persons passing from the corner of Fulton and Ramsey streets, over said lot to Baltimore and Ohio Railroad, and while exercising ordinary care in passing over the same, fell into said trench or excavation, and was injured- thereby, then they may find for the plaintiff, notwithstanding that they may find that said lot or parcel of ground was unenclosed, and that there was more than one pathway or road across said lot, and their said finding shall not be affected by their finding that said trench or excavation was cut by an independent contractor, if they shall further find that said contractor was employed by the defendants to cut the same, and did only what he was employed to do by the said defendants. 8. If the jury shall find from the evidence, that the defendants, and those under whom they claim, owned the lot of ground mentioned in the ninth count of the case, and for twenty years prior to the 14th May, 1874, the said lot was unenclosed, and there were one or more road tracks and pathways for vehicles and foot passengers crossing the same, and converging at the Baltimore and Ohio Railroad track, in and upon which all persons so desiring had, during all that time, been in the habit of using and travel-ling, in going to and from the said railroad track, without any interference, let, hindrance or objection from the said defendants, or those under whom they claim, and hy their acquiescence and permission, may be inferred from such long uninterrupted use in passing to and fro across the same, without any objection upon the part of the defendants, or those under whom they claim ; and shall further find that the said license, if they shall find the same was not revoked by the defendants prior to said date, and no notice given to the public, and especially to the plaintiff, that the surface of the lot aforesaid, was about to be rendered impassable for vehicles and dangerous for foot passengers, by cutting a street through the same, and further find that the defendants themselves, or by their servants and agents, cut a deep and wide trench across the point on the said lot crossed by said roads and paths, rendering the passage across the said lot impassable for vehicles, and dangerous to those who might pass over the same, without notice or knowledge thereof, and further find that defendants had good reason to expect that persons would cross the said lot at said points by said road and paths, and took no means to warn such persons of the danger caused by said cut, or to prevent such persons from being injured by the said change made in the surface of said lot, and shall further find that on the night of the 14th of May, 1814, when it was dark, the plaintiff, in ignorance of the fact that the said trench had been cut across the said roads and paths, and pursuing the ordinary way of crossing said lot under said license, and with ordinary care, did fall into said trench, and was thereby injured, then the jury may find for the plaintiff. 9. If the jury find from the evidence that the defendant permitted the plaintiff, in common with the public generally, to enter upon and pass over their lot of ground mentioned in the ninth count of the narr., and in the evidence, for a long time before the year 1814, and to use such ways or tracks across the same as they might then find had been in use, and which they might desire to travel, in order to go to and from points on the north and south of the said lot, and never notified him or the public to desist from so travelling over the same, and the plaintiff and the public generally, in pursuance of such permission for many years prior to 1814, had been in the habit of crossing the said lot on foot, and with horses and vehicles, and driving cattle and hogs across the same, upon such roads or paths as. they might then find had been used, running from Ramsey street towards and to the Baltimore and Ohio Railroad track and West Baltimore Schuetzen Park, if they shall find any such roads existed and had been in use, aud shall further find, that the defendants, without giving any notice of their intention to change the surface of said lot and render the travel across it in the said accustomed places, (if they find there were such accustomed places,) impracticable and dangerous, and with good reason to believe that persons who had been in the habit of crossing said lot as aforesaid, would he likely to continue to cross the same, unless warned of the danger of so doing, did cut a trench across the said lot and said accustomed road and paths, if they find any such roads and paths,-feet wide, and from nine to ten feet deep, on such part and in such position upon said lot as to he visible to persons crossing the lot on said roads only when in very close proximity to the same, in consequence of the physical formation of the lot, and equally dangerous along the whole extent of the cut aforesaid, and placed no guard to protect such persons from falling into the same, or any lights to enable such persons on dark nights to observe the dangerous excavation and avoid it, and the plaintiff in crossing the said lot on his way from the said park to the Frederick road on business, upon the night of the 14th of May, 1874, whilst walking across the said lot on one of the crossing places usually used by those crossing the same, and exercising ordinary care and ignorant of the existence of the said trench, fell into the same and was injured, then their verdict may be for the plaintiff, though they find that the said lot was unenclosed, and that there is no other evidence of said permission of defendants to cross the said lot except passive acquiescence upon the part of the defendants. 10. If they shall find from the evidence, that plaintiff had a license from the defendants to cross the lot mentioned in the pleadings, and that defendants were owners thereof, and without revoking said license or giving any notice or warning to plaintiff, either actual or constructive, of their intention to cut a trench across the said lot, and across the usual place of passing the same by the plaintiff under said license, and with good reason to believe that the plaintiff would pass as usual unless warned of the change that had been made in the surface of the lot, and without any guard to protect him and others from falling into the same, and the plaintiff whilst crossing said lot in pursuance of said license, and in the usual place for crossing, and whilst exercising ordinary care, fell into said excavation and was injured, then they may find for the plaintiff, though they find the lot was unenclosed, and that the defendants had the right to cut the trench across the said lot. 11. The fact that the excavation spoken of in all of the preceding prayers of the plaintiff, was cut by an independent contractor employed by the defendants, (if the jury find it was so cut,) cannot affect the plaintiff’s right to recover in this action unless the jury find that said contractor in cutting the same, was not doing what he was employed by the defendants to do, but that said cutting was in violation of his contract. 12. In estimating the damages to which the plaintiff is entitled in this cause, the jury are at liberty to take into consideration all the circumstances of the case, the effect upon the plaintiff’s business, his mental and bodily suffering, the permanent character of his injury, if they find that his business was affected by said accident, that he did suffer mental and bodily pain therefrom, and that hi's injury was of a permanent character. 13. If the jury believe that the defendants were guilty of wanton and reckless negligence in cutting the excavation mentioned in the preceding prayers, then in addition to the compensation for actual pecuniary loss, mental and bódily suffering, and the permanent character of the plaintiff’s injury, they are at liberty to impose upon the defen- . dants punitive or exemplary damages in their discretion. And the defendants offered the eight following prayers : 1. That there is no sufficient evidence in the cause of negligence on the part of the defendants, to entitle the plaintiff to recover for the injuries complained of in the declaration. 2. That there is no sufficient evidence in the cause of a public highway across the lands of the defendants, as alleged in the plaintiff’s declaration. 3. That the jury shall find from the evidence, that the plaintiff, by the exercise of ordinary care, might have avoided falling into the excavation in evidence, that then the plaintiff is not entitled to recover. 4. That if the jury shall find from the evidence, that the plaintiff received the injuries complained of in the declaration, by falling into an excavation; and shall further find that said excavation was made on the property of the defendants, and that there was no public highway or foot-path at the spot where said accident occurred or immediately contiguous thereto, that then the plaintiff is not entitled to recover. 5. That if the jury shall find that the plat testified to by Simon J. Martenet, correctly delineates the streets of Baltimore City, as laid out by Commissioners under the Act of Assembly of the State of Maryland, in the year 1817, chapter 148, section 12, as shown by Poppleton’s Plat, and if they further find that Fulton street, as shown on said plat, was graded, paved and curbed to the building line of Cole street in 1854, and that Ramsey street, between Fulton and Mount streets, was graded, paved and curbed in 1857, and that the lot of ground bounded on the west by Fulton street, on the north by Ramsey street, on the east by Mount street, and extending south beyond Cole street, was, in 1873, and for a long time before, an open vacant common, owned by the defendants, and that the grade of Cole street had been established by the official authorities of Baltimore City, and that defendants, desiring to improve said property, made the contract with Francis Hay, in evidence, dated 4th day of November, 1873 ; and if they further find that said Hay was a competent and skillful person, and that said Hay, under said contract, in November, 1873, ploughed up the entire surface of the hed of Cole street, between Mount and Fulton streets, and that said Hay proceeded to make the excavations necessary to grade said Cole street, according to the grade so established by the city authorities, and that in May, 1874, whilst said Hay was still performing said contract, the plaintiff, while crossing the said lot upon his own business, or for his own pleasure, fell into the excavation so made by said Hay, and was injured thereby, that then the defendants are not liable for said injuries. 6. That to constitute a public highway by prescription, it is necessary to show an adverse, continuous and exclusive use by the public for twenty years ; and even if the jury find that the public were in the habit of passing over the land of the defendants, in going from the Frederick road to the Washington road, yet if the jury believe this use was exercised by permission of the owners, or if the passage was interrupted by any obstruction incumbent with the use of it as a public highway within twenty years then such use by the public cannot make said road a public highway. 7. That there is no evidence in the case of any public highway across said land of the defendants by dedication. 8. That there is no evidence in the cause, that the defendants either directly or by implication, induced the plaintiff to enter upon or pass over their land, in said declaration described, and therefore the plaintiff is not. entitled to recover under the ninth and tenth counts of the declaration. The Court, (Gaeey, J.,) granted the first, fifth, eleventh' and twelfth prayers of the plaintiff, and the third, fourth, sixth, seventh and eighth prayers of the defendants, but refused to grant the second, third, fourth, sixth, seventh, eighth, ninth, tenth, and thirteenth prayers of the plaintiff. The plaintiff excepted. Second Exception. — Stated in the opinion of the Court. The jury rendered a verdict for the defendant, and judgment was entered accordingly. The plaintiff appealed. An implied license may arise in various ways — as when a man opens a road to his dwelling, there is an implied license for persons to go by that road to his dwelling for any legitimate purpose; or in case of ways of necessity, when a man sells a piece of land, entirely surrounded by other land, there is an implied license to the purchaser to pass over this other land to get to his purchase; so, where there is a road-way in regular use by the public over a man’s land, and such user is, and has, for a long time been uninterrupted, there is an implied license to the public to pass over it. 1 Addison on Torts, (Wood’s Ed.,) sec. 229; 2 Waterman on Trespass, pp. 94-5-6, 182-3, (sec. 781-2,) pp. 207-8, and notes at bottom of last two pages; Corby vs. Hill, 4 C. B., (N. S.,) 556 ; Gallagher vs. Humphrey, 10 W. R., 664, (6 Law T. R. N. S., 684;) Shearman & Redfield on Neg., sec. 498. It is conceded that a licensor is not bound to keep a way in good repair for a licensee. But, it is equally clear, he has no right to render the way dangerous, without notice to the licensee. In this case the averment is distinct, that they did render the way very much more dangerous, whilst they neither revoked the license nor notified the licensee, nor took any precaution to avert the results of their act. The licensee is lulled into a fancied security, by the fact, that the license is not revoked. Notice is necessary to an implied licensee. 2 Waterman on Tres., p. 183, sec. 781; Shearman & Red. on Neg., sec. 499. And notice is necessary, even as against a trespasser. Shearman & Red. on Neg., 43, n. 38, and cases cited; Ibid, secs. 499, 508, 509, 510; 1 Waterman on Trespass, pp. 90, 145, 146, sec. 166; 1 Addison on Torts, (Wood’s Edition,) sec. 229 ; Daley vs. Nor. R. R. Co., 26 Conn., 591 ; Birge vs. Gardiner, 19 Conn., 507; Brown vs. Lynn, 31 Pa. St., 510 ; Loomis vs. Terry, 17 Wend., 496; Sawyer vs. Jackson, 5 N. Y. Leg. Obs., 380 ; Bird vs. Holbrook, 4 Bingham, 628, (15 E. C. L., 91;) Lynch vs. Nurdin, 1 Adolp. & Ellis, N. S., 29, (41 E. C. L., 422 ;) R. R. Co. vs. Stout, 17 Wallace, 657; Davies vs. Mann, 10 Mees. & Wels., 548 ; State vs. Moore, 31 Gonn., 479 ; Robinson vs. Cone, 22 Vermt., 213 ; Caswell vs. Worth, 5 E. & B., 85 (E. C. L., 848.) While it is decided that traps, spring-guns, and other dangerous instruments, may he lawfully placed on private grounds, for the purpose of deterring trespassers or catching strange animals doing damage, yet, one who uses such instruments, must give public notice of the fact, in such way, as to bring it to the knowledge of every one who uses reasonable care in approaching the land. And this applies with such force, that it is decided unlawful to place them upon land not fenced in. And in the absence of proper notice, the owner is liable even to a trespasser. And the same doctrine is equally applicable to dangerous excavations as to dangerous instruments, the true principle being that no man has a right recklessly to endanger human life. Shearman & Redfield on Negligence, p. 571, sec. 509. A person who is the owner or occupant of real property, and quietly acquiesces in its use by others, while under no obligation to keep it fit for such use, is responsible for any injuries which may happen to those so using it, by reason of any increased danger resulting from the acts of such owner or occupant. The same principle which makes the owner responsible for excavations too close to the public highway, applies to all cases where a party has good reason to believe that injury may happen to others from his acts, viz., that in all such cases-he must give notice or warning, must exercise proper precautions to prevent such injury. And if injury should happen from his neglect to give such notice or exercise such precautions, he is liable to the .party so injured, and it is no reply to an action by the injured party to say that he was a trespasser. Shearman & Redfield on Neg., secs. 499-500-508; Sweeny vs. Old Colony R. Co., 10 Allen, 368; Zoebisch vs. Tarbell, 10 Allen, 385. To charge the owner of waste or vacant land with an obligation to protect those who may think proper to pass over it against an excavation made under his authority, it is not enough to show that all persons having occasion to cross such waste land have been accustomed to go upon and across the same without interruption from the owners, and with their license and permission. Hounsell vs. Smyth, 7 C. B., N. S., 731; Gautrat vs. Egerton, L. R., 2 C. P., 371; Bolch vs. Smith, 7 H. & N., 736; Smith vs. Loudon & St. Katharine Docks Co., L. R., 3 C. P., 332, 333, 334 ; Indermaur vs. Dames, L. R., 1 C. P., 287, 288, L. R., 2 C. P., 312; Stone vs. Jackson, 32 Eng. Law & Eg., 349; Kohn vs. Lovett, 44 Ga., 251; Howland vs. Vincent, 10 Met., 371; Knight vs. Abert, 6 Penn. St., 472 ; Hardcastle vs. So. Yorks Ry. Co., 4 Hy. N., 67 ; Whart. Negligence, secs. 351, 824, note. Such sufferance and tolerance, or even express permission of passage over vacant land, may preclude the owner from treating those who have availed of it as trespassers, but raise no duty to guard them against the consequences of so availing of it, nor do they limit his right as owner to make any lawful use of his property. Were the law otherwise, the owners of open lands never could be safe in using it. The same man who in the dark walks into a pit excavated in its midst, might have sustained equal injury by stumbling against a farmer's harrow, or a. plough standing in the furrow. To sustain an action like this, it is therefore necessary to go further, and show facts which made it legally obligatory upon the owner to fence off the excavation. Here the excavation of the street-bed was not only lawful, but reasonably to be expected. The condition of the property necessarily required that it should be done at some time, and it is not denied that the proper time had, in fact, arrived. A duty to fence an excavation may arise from the fact that the excavation is immediately adjacent to a public highway, so as to make the ordinary use of the highway dangerous. It may also arise from an invitation or allurement held out by the owner, as where he is a tradesman, mechanic or innkeeper, and the common access to his shop or inn, is over the route which the excavation, subsequently made, obstructs or renders insecure. Under some circumstances, the holding out of a path even to a private dwelling, may impose an obligation upon the owner against those lawfully visiting him, and invited to take the path so visibly indicated and held out. It is needless to say that no such special circumstances exist, or are alleged to exist here. This is the simple case of a piece of land left open and unfenced in a city, and surrounded by paved streets, constituting the only proper highways of the city, It is clear, therefore, that the third, fourth, fifth, sixth, seventh and eighth counts, which allege no legal duty which has been violated, do not set forth any cause of action, and the demurrers were properly sustained. There was no evidence legally sufficient to show a public way by dedication along the course taken by the plaintiff. The instructions given to the jury, as to the existence of a public highway at the place in question, were even more favorable to the plaintiff than he was entitled to. The Court might well have held that there was no evidence at all of such a highway as was claimed, but the question whether or not a public way did exist there, was left to the jury by the granting of the plaintiff’s first prayer. Day vs. Allender, 22 Md., 511; Pue vs. Pue, 4 Md. Ch. Dec., 386; Washburn on Easements, 132, 188; Robinson, et al. vs. Webb, 11 Bush, (Kentucky,) 464, 479. There was no error in the instructions regarding contributory negligence. It was negligence, under the circumstances, to cross the field at night, in the manner shown by the evidence. The Court properly refused to permit a rejected prayer to be read to the jury. The use the plaintiff’s counsel sought to make of the fact of the rejection of the defendants’ second prayer, was especially objectionable, as they wanted the jury to infer from it, that the Judge entertained an opinion upon the question of fact, which he had allowed to go to the jury, namely, whether or not a highway had been proved to exist, adverse to the defendants. Although, owing to the manner in which the case was left to the jury, the question arising in consequence of the fact that the excavation was made by an independent contractor, has become immaterial, it may well be contended that, as the excavation of the street was made according to a grade established by the municipal authorities, and was a thing right and proper to be done, and not in itself injurious, no responsibility attached to the owners of the ground, for any want of proper precautions in doing it, even if the contractor could be' held liable, under the circumstances of this case. De Ford vs. The State, 30 Md., 179 ; Ellis vs. Sheffield Gas Consumers’ Co., 2 El. & Bl., 767.

Published

Court of Appeals of Maryland

Court of Appeals of Maryland

S

Maryland, MD

Alvey

boyd-v-snyder

Boyd

Boyd v. Snyder

John Boyd and John Boyd Ricketts v. John Snyder John Snyder v. John Boyd and John Boyd Ricketts

George Raiolcins Williams, for the plaintiffs, appellants., Albert Ritchie and Samuel Snowden, for the defendant, appellant.

<p> Construction of Contracts—Contracts of Guaranty—Analogy of Contracts of Guaranty to General Letters of Credit—Extent of Guarantor’s liability among several Creditors on faith of the Guaranty—How Compromise of one Creditor’s claim affects another—Wotiee of extent of Credit given on faith of the Guaranty unnecessary. </p> <p>John Snyder, with the other directors of the Baltimore County Brewing Company, signed a bond whereby he agreed to be individually responsible in the sum of $2500, for malt and hops sold to the agent of said company for the nse thereof, during the space of one year from the date of said bond, provided dealers in malt and hops would sell to the company’s agent on the faith of said bond. The bond was signed by twelve directors, each binding himself in the sum of $2500, making the aggregate liability on said bond $30,000. The bond when executed was placed in the hands of the Messrs. Strauss, malsters, with whom the company had large dealings, and who sold the company $55,000 worth of malt and hops during the year for which the bond was made, and previous to any sales to said company by the plaintiffs Boyd and Ricketts, who afterwards sold said company $5,667 worth of malt and hops. Previous to the suit of the plaintiffs in this case, the Messrs. Strauss had brought suit against said Snyder on the said guaranty, and by adjustment agreed to accept and afterwards did actually accept $2000, in full satisfaction and discharge of the defendant’s liability on the guaranty. The plaintiffs in this case claimed that under the contract of guaranty each obligor was liable in the sum of $2500 to each vendor of malt and hops to the company on the faith of said guaranty. The defendants claimed that because the guaranty had never been seen by the plaintiffs, and because btrauss had sold malt and hops to the company to an amount in excess of the aggregate liability of the obligors in the guaranty before the plaintiffs had sold it any, and because the plaintiffs gave the obligors no notice of the extent of the credit given by them on the faith of said guaranty, that therefore no action could be maintained by them in this case. Held :</p> <p>1st. That acccording to the express terms of the contract, and the true intent of the parties signing it, the liability of each signer is limited to $2500, irrespective of the number of persons with whom the agent may have dealt.</p> <p>2nd. That the guaranty sued on in this case, though under seal and in special form, was analogous to a general letter of credit, which authorizes any person to whom it is presented to act upon the proposition therein contained. Any person of the class and business therein described is authorized to act on the faith of the guaranty, and when he does so act, a contract at once arises between him and the maker of the instrument.</p> <p>3rd. That the fact that the guaranty was in the hands of Strauss, and was never seen by the plaintiffs, made no difference. If the plaintiffs were aware of the existence of the guaranty, and furnished malt and hops to the agent of this company upon the faith of that guaranty, they were entitled to have the benefit of the security, so far as it had not been exhausted by payments on other contracts within the guaranty.</p> <p>4th. That the compromise of the claim of Strauss against the defendant, though that claim was for an amount greater than the liability of the defendant under the guaranty, by accepting $2000 in full satisfaction thereof, did not release the defendant from his liability under the guaranty to other creditors, except to the extent of the $2000 so paid.</p> <p>5th. That the bond in this case was not an offer to guarantee, but an absolute, unqualified undertaking to those furnishing malt or hops on the faith of it, and the obligation attached upon the completion of the contract with the agent authorized to act for the company, and no notice of the extent of the credit given on the faith of the guaranty was necessary to bind the defendant.</p>

Cross Appeals from the Superior Court of Baltimore City. The directors of the Baltimore County Brewery, Malting and Distilling Company, of whom John Snyder was one,' employed a certain Peter Schneider as their agent with power and authority to purchase the malt and hops for the brewery, and each director of the company, by a bond executed December 22nd, 18^3, agreed to become individually responsible in the sum of $2500, “ for the malt and hops which the said manager shall purchase for the use of the said brewery, during the space of one year from the date hereof.” This recital was followed by a stipulation whereby, in consideration that said Schneider would undertake the employment, and that dealers in hops and malt would sell to him on the faith of the obligation, they bound themselves severally in the sum of $2500, making a total of $30,000, for the payment of the debts incurred by said agent in the purchase of hops and malts as aforesaid. After the execution of the said bond by the directors, it was placed in the hands of the firm of S. & W. Strauss, malsters, with whom the brewery had large dealings, and they kept possession of it until the trial below. The plaintiffs below, Boyd and Ricketts, had sold to the agent Schneider, between May 1st and Sept. 30th, 1874, $5667.50 worth of malt and hops upon the faith of the guaranty by the directors, and the Messrs. Strauss within the year from the date of the guaranty had sold to said agent $70,000 worth of malt and hops, $55,000 worth of which sales were previous to May 1st, 1874. The Messrs. Strauss had brought suit on the guaranty against the defendant in this case, and by adjustment they had agreed upon and did actually accept $2000 in full satisfaction and discharge of the defendant’s liability on the contract of guaranty. On the 2nd May, 1877, the plaintiffs below, Boyd and Ricketts, sued the said John Snyder, one of the directors of the said Baltimore County Brewery, Malting and Distilling Company, claiming that under the contract of guaranty each of the obligors on the bond was individually responsible to each creditor of the agent on the faith of said guaranty, in the sum of $2500. And the defendant claimed that because the contract of guaranty was placed in the hands of the Messrs. Strauss and there remained all the time, and was never seen by the plaintiffs, and because the said Messrs. Strauss furnished on contracts malt amounting to greatly more than the aggregate limit of the obligation given by the directors, that the plaintiffs could maintain no action on the guaranty. And the defendant further claimed that no liability arose upon the guaranty in the absence of notice from the plaintiffs of the extent of the credit given on the faith of the instruments. Both plaintiffs and defendant took exceptions to the rulings of the Court below, and both appealed. Plaintiffs’ Exception.—After the evidence was closed, the plaintiffs offered the following prayers: 1. If the jury shall find from the evidence, that the plaintiffs sold malt to Peter Schneider, named in the bond given in evidence, to the amount of $5600, and the said amount is due and unpaid, and that it was sold upon the faith and credit of this bond, then the plaintiffs are entitled to recover the sum of $2500, as against the defendant herein, if they find that he was one of the signers thereof. 2. And that if the jury shall find as stated in the aforegoing prayer, then the plaintiffs are entitled to recover to such extent, even though they shall find that said defendant has heretofore paid on account of said bond to other vendors of malt to said Brewery Company, the sum of $2000 on accouut of his liability on said bond. 3. That in any event, if the jury shall find as stated in the aforegoiug prayers, the plaintiffs are entitled to recover against defendant any sum, the difference between the whole amount of $2500, the amount of said defendant’s liability, and such amount as they may find said defendant has paid on account thereof. 4. The plaintiffs pray the Court to exclude from the jury all such parts of the evidence of Solomon Strauss as states any reason or object and purpose of Schneider’s leaving the bond with them, or any evidence relating to any amount of sales by him to said Brewery Company of malt between any special dates, this not to he understood as excluding the testimony that he held Snyder on this bond for goods furnished within its terms accepted or satisfied of any claim upon him and his $2000, and giving him receipt in full. The Court rejected the first and second, and granted the third and fourth prayers of the plaintiffs; hut to the rejection of their first and second prayers the plaintiffs excepted. Defendant’s First and Second Exceptions are sufficiently stated in the opinion of the Court. Defendant’s Third Exception.—-The defendant asked the witness Strauss to state the circumstances under which the bond sued upon in this case was executed and delivered to his firm: to which question the plaintiffs objected. The counsel for the defendant then stated that they proposed to show that the bond sued upon was executed at the request and demand of S. & W. Strauss, to he delivered to them as collateral security for malt to he sold by them to Peter Schneider, the agent of the Brewing Company, for the use of said company, and that it was left with them for that purpose. But the Court sustained the objection, and refused to allow the offered testimony to go to the jury; to which ruling of the Court the defendant excepted. Defendant’s Fourth Exception.—The defendant then offered to prove by the same witness that there was money still due and owing to the Messrs. Strauss by Peter Schneider, for malt sold to him for the use of the Brewing Company, within the year for which the bond was executed, and prior to the date of the first sales made by the plaintiffs as sued for in this case; to which offer the plaintiffs objected, and the Court sustained the objection and refused to allow the evidence to go to the jury, and the defendant excepted. Defendant’s Fifth Exception.—The defendant offered the following prayers: 1. By the true construction of the obligation sued upon in this case, the liability of each of the signers thereto is limited to twenty-five hundred dollars, and if the jury shall find from the evidence, that before the delivery of any of the goods sued for in this case, the plaintiffs were informed hy Peter Schneider that he held a bond, such as is declared upon in this case, and that the same was in possession of Messrs. Strauss Bros., malsters, as stated in the evidence; and if they shall further find, that at and before the delivery of any of said goods hy the plaintiffs, the said Strauss Bros, had sold and delivered to said Peter Schneider, (the said bond continuing in their possession,) for the use of the Baltimore County Brewing, Malting and Distilling Company, malt on the faith of said obligation, to an amount equal to twenty-five hundred dollars for each of the signers to said bond, and that the claim of said Strauss for malt sold on the faith of said bond, after its execution, and before the first day of May, 1874, is still due and owing to the amount of $2500, less any payment the jury may find to have been made by said Snyder, then the said bond was exhausted before the sales made hy said plaintiffs, and they are not entitled to recover in this case. 2. - That although the jury may find from the evidence that the goods referred to were sold on the faith of the bond offered in evidence, the plaintiffs are not entitled to recover, unless they further find that before or within a reasonable time after their sale of any part of said goods, they gave notice to defendant of the fact that they intended to sell or had sold on the faith of said bond, or that defendant had knowledge that plaintiffs had so sold or intended to sell. 3. That if the jury believe from the evidence that the goods sued for in this case were sold by the plaintiffs on the faith of the obligation declared upon in this case, without due caution and inquiry, such as an ordinarily prudent man would exercise in a business transaction, and that in the meantime the firm of S. & W. Strauss had sold to the amount of $2500, on the faith of said obligation, upon which $2000 has been paid by the defendant, and the balance of $500 is still due to S. &. W. Strauss for goods sold to Peter Schneider for the use of the Brewing Company, on the faith of said obligation, then the plaintiffs are not entitled to recover in this case. 4. That if they find that the bond offered in evidence was within two or three days after execution placed by Peter Schneider in the hands of S. & W. Strauss, as collateral security for such malt as they might sell to the brewery named, and that the said bond has remained ever since in the possession of said S. & W. Strauss, and that before the sale of any part of the goods referred to by plaintiffs the said S. & W. Strauss had sold to the amount of about $55,000, on the faith of said bond, all of which wras due and owing at the date of the sale of the first goods mentioned in plaintiffs’ account, and that the sum of over $30,000 still remains due and unpaid to said S. & W. Strauss for malt sold on the faith of said bond, then the plaintiffs are not entitled to recover. 5. That if the jury find the facts stated in the fourth prayer, and also find that before institution of this suit the defendant paid to S. & W. Strauss, for goods sold on the faith of said bond, the sum of $2000, by way of compromise, on their claim for $2500 under said bond, receiving from them the receipt offered in evidence, the plaintiffs are not entitled to recover. 6. That if the jury find from the evidence that the plaintiffs did not sell the goods referred to.on the faith of the bond offered in evidence, they are not entitled to recover, that if the jury find from the evidence that the goods referred to were not sold to defendant or to his agent, but to Peter Schneider, as manager of the Bayview Brewer-y, the plaintiffs are not entitled to recover. The Court granted the defendant’s sixth prayer, but rejected all the rest. To the rejection of his first, second, third, fourth and fifth prayers, and to the granting of the plaintiffs’ third and fourth prayers, the defendant excepted. Upon these instructions of the Court to the jury, they rendered a verdict for the plaintiffs for five hundred dollars, and from the judgment of the Court upon said verdict entered hoth sides appealed.

Published

Court of Appeals of Maryland

Court of Appeals of Maryland

S

Maryland, MD

Miller

first-national-bank-v-weckler

Weckler

First National Bank v. Weckler

The First National Bank of Hagerstown, Garnishee of John D. Newcomer v. Susan Weckler The First National Bank of Hagerstown, Garnishee of John D. Newcomer v. Susan Weckler Susan Weckler v. The First National Bank of Hagerstown, Garnishee of John D. Newcomer

Albert Small and George Schley for the garnishee., H. H. Keedy for Mrs. Wecker, the plaintiff.

<p>Attachment on Judgment—Clerical error—Amendment of writ by order of Cov,rt.—Nul tiel record—Practice in Court of Appeals—When clause of Scire Facias in writ of Attachment and notice to defendant in the Judgment, unnecessary—When an Appeal ivill not lie—Construction of the Aet of 1874, ch. 45, relating to Attachments—Employer as garnishee—What does not constitute a variance.</p> <p>The recital in an attachment on judgment issued out of the same Court in which the judgment was recovered and remained of record, that the judgment had been recovered at a Court begun and held on the second Monday of March instead of the second Monday of February, is a mere clerical error which it is the duty of the Court to correct by ordering the writ to be amended.</p> <p>If a party intend to have the decision of the Court below on a plea of nul tiel record, reviewed in the Court of Appeals, he must tender a bill of exceptions setting forth the record offered in evidence under the plea, the ruling of the Court with respect to it, and the exception thereto.</p> <p>When an attachment by way of execution is issued within three years from the date of the judgment, a clause of scire facias in the writ as to the defendant in the judgment, and notice to him are not necessary.</p> <p>No appeal lies from a judgment refusing to quash an attachment.</p> <p>Under the Act of 1874 ch. 45, if an employs contract a debt exceeding one hundred dollars, or has a judgment recovered against him for more than that sum exclusive of costs, his creditor may issue an attachment upon it, and that attachment may be laid in the hands of his employer, and if his wages or salary due at the time or that may accrue due before the trial, are in excess of one hundred dollars, then such excess shall be affected by the attachment, and shall be liable to condemnation. And if an employer as garnishee disregards such an attachment, and after it is laid in his hands and before trial, pays over the accruing wages or salary in excess of one hundred dollars to the employé, he does so at his peril.</p> <p>The record of a judgment on which an attachment _ was issued, showed that the verdict was rendered at November Term, 1875, and that a motion for a new trial was immediately made before the judgment was entered on the verdict. This motion was not disposed of until the following February Term, when it was overruled and judgment on the verdict was then rendered. The writ of attachment recited that the judgment was recovered at the February Term. Held:</p> <p>That no judgment could properly have been rendered until the motion for a new trial had been disposed, of, and there was consequently no variance between the writ of attachment and the judgment.</p>

Appeals from the Circuit Court for Washington County. The cases are stated in the opinions of the Court.

Published

Court of Appeals of Maryland

Court of Appeals of Maryland

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Maryland, MD

Burch

snyder-v-miller

Snyder

Snyder v. Miller

W. E. Snyder v. Charles N. Miller

Garver & Larimer, and E. C. Sweet, for plaintiff in error., Thompson & King for defendants in error.

<p>SYLLABUS BY THE COURT.</p> <p>1. Mortgages — Default—Limitation—Suspension—Estoppel. A mortgage securing a series of notes due at intervals of one year provided that non-payment of any one of them together with non-payment of taxes due on the mortgaged premises should mature the entire debt. None of the notes was paid at maturity. At the date of the maturity of the first note taxes on the land were due and unpaid, and such default continued until after all the notes were due. A purchaser of the land from the mortgagor, who did not assume payment of the mortgage, then paid the taxes. Subsequently to the payment of the taxes, and more than five years from the date of the default upon the first note and taxes, the mortgagee brought suit to foreclose the mortgage. Held: (a) The statute of limitations commenced to run at the date of the default upon the first note, and taxes; (b) the running of the statute of limitations was not suspended by the payment of taxes; (c) by paying the taxes the landowner did not waive the right to plead the statute of limitations, or estop himself from so doing.</p> <p>2. - Cases Followed, and Criticized. The case of National Bank v. Peck, 8 Kan. 660, approved and followed, and the case of Douthitt v. Farrell, 60 Kan. 195, 56 Pae. 9, criticized.</p>

Error from Ottawa district court; F. D. Boyce, judge pro tern.

Affirmed.

Published

Supreme Court of Kansas

Supreme Court of Kansas

S

Kansas, KS

Irving

clark-v-carroll

Carroll

Clark v. Carroll

William Clark v. Albert H. Carroll

William Grason, John Grason, and John T. Ensor, for the appellant., Arthur W. Machen, for the appellee.

<p>Personal action—Death of defendant after Appeal—Abatement of Suit—Act of 1861, ch. 44.</p> <p>Where in an action for malicious prosecution, the plaintiff appeals from a judgment in favor of the defendant, and after the appeal taken the defendant dies, the suit will abate. Such action is not within the contemplation and meaning of the Act of 1861 j ch. 44, amending Article 98, of the Code of Public General Laws.</p>

Appeal from the Circuit Court for Baltimore County.

Published

Court of Appeals of Maryland

Court of Appeals of Maryland

S

Maryland, MD

Miller

northern-central-railway-co-v-mills

Mills

Northern Central Railway Co. v. Mills

The Northern Central Railway Company v. Alfred W. Mills and Margaret E. Mills

Bernard Barter, for the appellant., John T. McGlone, and Richard M. Venable, for theappellees.

<p>Personal injuries to Wife — Husband and Wife — Pleading— Misjoinder — Motion in Arrest of Judgment.</p> <p>Action was brought on the 8 th of April, 1883, by A. W. M. and M. his wife, against a railroad company, to recover damages for personal injuries sustained by the wife. The declaration contained but one count, in which, after detailing the injuries sustained by the wife, it was alleged, “ and also thereby the said plaintiffs were forced and obliged to, and did pay, lay out and expend a large sum of money in and'about endeavoring to cure the said M. of the bruises ” &c., “ occasioned as aforesaid.” After verdict for the plaintiffs, a motion in arrest of judgment was made on the ground that the declaration included a cause of action for which the husband should sue alone. The motion was overruled. On appeal it was Held :</p> <p>1st. That it was error to include in the claim of damages money expended to effect the wife’s cure, the right of action for money thus expended, being in the husband alone.</p> <p>3nd. That if the two causes of action were contained in two separate counts of the declaration, the error could be availed of on a motion in arrest of judgment; but where the declaration contained but one count, the motion would not be allowed.</p> <p>3rd. That the action of the Court below in overruling the motion in arrest of judgment, was affirmed upon the distinct ground that -after verdict it must be intended that at the trial the evidence was. confined to the personal injury and suffering of the wife, and that none was offered as to the expenditure of money in curing her, or if offered, that it was rejected by the Court and excluded from the consideration of the jury.</p>

4th. That in determining as to the motion in arrest, the Court was. confined strictly to the record proper of the case itself, and could take no notice of the docket entries or instructions to the jury-contained in the diminution record. This case distinguished from that of Stirling, et ad. vs. Gm'Htee, 18 Md.,. 468. Appeal from the Superior Court of Baltimore City. The case is stated in the opinion of the Court. The-record first sent to the Court of Appeals, contained only the pleadings, and the verdict, the motion in arrest,, and the action of the Court thereon; the entry of judgment, and the order for an appeal; and an entry showing that the appellant had filed an appeal bond which was. approved, and an affidavit that the appeal was not taken for delay. The appellant procured a writ of .diminution under which there were sent up from the Court below short copies of the ■ docket entries in this case, and in a case brought by the husband alone against- the same defendant,, and an instruction given in each case.

Published

Court of Appeals of Maryland

Court of Appeals of Maryland

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Maryland, MD

Alvey, Bryan, Irvins, Miller, Robinson, Stone

alberger-v-mayor-of-baltimore

Alberger

Alberger v. Mayor of Baltimore

John Alberger, John S. Berry, John F. Batzler, and others v. The Mayor and City Council of Baltimore, and Edward Higgins, City Collector

Samuel Snoxoden, for the appellant., Bernard Carter, City Solicitor, for the appellee.

<p>Construction of ordinance ATo. 6, of 1883, for liepaving a street in the City of Baltimore — Constitutional law.</p> <p>By section 1 of ordinance No. 6 of 1883, of the Mayor and City Council of Baltimore, the City Commissioner was “authorized and directed to have all that part of Baltimore street, from the east side of Greene street to the west side of Gilmor street, repaved with Belgian block pavement, and recurbed with six inch curbing, and regraded where the same may be necessary,” &c.; one-third of the cost to be paid by the city, “and the other two-thirds thereof to be assessed, as provided in Article 47, of the City Code, title ‘ Streets and City Commissioner,’ sub-title 1 Grades, Grading, Paving,’&c.; upon the owners of the property binding on said portion of Baltimore street, in proportion to the number of front feet owned by them respectively, on the portion of said street hereby directed to be repaved, regraded, and recurbed whore necessary.” And by section 2 it was provided, “that all the proceedings under this ordinance shall be the same as under Article 47, of the City Code, title 1 Streets and City Commissioner,’ sub-title ‘ Grades, Grading, Paving,’ &c.; so far as the provisions, of said Article are applicable thereto, except that the City Commissioner shall be required to advertise for proposals for furnishing the stone only, and that the work of laying the same shall bo done under the direction and supervision of said City Commissioner, by labor employed by the day, and paid for as other day labor employed in said City Commissioner’s Department is paid.” After the passage of this ordinance, the City Commissioner advertised for proposals to furnish one million of granite paving blocks, tlnat number being required for various improvements on hand, including that provided for by the ordinance recited. Contracts were duly made for the same with the lowest responsible bidders; and in like manner, proposals for curb stones and gutter stones were advertised for, for Such amounts as would be required for the year, and contracts therefor were awarded to the lowest responsible bidders. The City Commissioner then proceeded to repave and recurb the part of the street _ described; and after its completion assessed the abutting owners on the street with the proportion of the cost of the improvement as directed by the ordinance. On a bill to have enjoined the collection of said assessments, filed by certain of the assessed parties, against the Mayor and City Council of Baltimore and the City Collector, it was Held :</p> <p>1st. That the special ordinance in question having provided only for advertisement for proposals to furnish the material for the work, and having required the work to be done, under the direction of the City Commissioner, by the employment of labor by the day, no assessment could be made until after the work was completed and the cost ascertained.</p> <p>2nd. That this however was a matter that rested exclusively in the discretion of the legislative branch of the city government, and ■ was not within the control of the Courts.</p> <p>3rd. That under the power delegated by the Act of 1874, ch. 218, the discretion exercised by the City Council, in regard to the propriety or necessity of the improvement provided for by the ordinance, could not be controlled by the Courts. And it was only where the power was exceeded, or fraud was charged and shown to exist, or where there had been a manifest invasion of private rights, that the remedial and corrective power of the Courts could be successfully invoked.</p> <p>4th. That whether there was a real necessity, or a good reason, for the removal of the old pavement, and replacing it with Belgian blocks, was a matter entirely within the discretion of the City Council, and over the exercise of that discretion the Courts had no power of review.</p> <p>5th. That the special ordinance in question was not so repugnant or inconsistent in its provisions as to render it inoperative and void.</p> <p>6th. That the fact that the City Commissioner had to determine for himself, at the risk of being in error, as to what was consistent or inconsistent as between the provisions of the special ordinance and those of Article 47, of the City Code, constituted no valid objection to the assessments made, nor to the validity of the ordinance that rendered it necessary that he should so decide.</p> <p>7th. That the proceedings of the City Commissioner under the ordinance were not rendered illegal by the fact that the advertisement for proposals to furnish the Belgian blocks, and the curb and gutter stones, was not separately and specially made with reference to contracts authorized to be made under that ordinance, but were made for more materials than were required for the particular work; it not being pretended that proposals were offered for more maierial of any kind than was actually needed for street improvements of the city, then commenced or about to be commenced; and it not being shown that the complainants were in any manner prejudiced by the mode in which the proposals were made.</p> <p>8th. That the ordinance was not rendered unconstitutional and invalid on the ground that it neither provided for notice nor opjiortunity to the property owner to be heard before the assessment was made and enforced against his property, and therefore the property of the citizen was attempted to be appropriated without due process of law.</p>

Appeal from the Circuit Court of Baltimore City. This was an appeal from a decree refusing the injunction prayed for in the bill of complaint, and dismissing the bill. The case is stated in the opinion of the Court.

Published

Court of Appeals of Maryland

Court of Appeals of Maryland

S

Maryland, MD

Greene

wilson-v-peoples-gas-co

Wilson

Wilson v. People's Gas Co.

Richard L. Wilson et ux. v. The People's Gas Company

Joseph P. Rossiter, and T. J. Hanlon, for plaintiffs in error., Eugene Mackey, John J. Jones, and Zeigler & Dana, for defendants in error.

<p>SYLLABUS BY THE £OURT.</p> <p>1. Homestead — Lease—Change in Manner of Paying Rentals— Oral Agreement — Consent of Wife. An agreement changing the terms and manner of paying rentals of a gas-and-oil lease on a homestead from cash to a royalty of one-tenth of the product does not enlarge or diminish the leasehold estate and need not be in writing or consented to by the wife of the lessor.</p> <p>2. Landlord and Tenant — Modification of Lease — Parol Evidence. A written lease may be subsequently modified or-changed with respect to the manner and terms of paying rent by an oral agreement, and such agreement may be admitted in evidence.</p>

Error from Montgomery district court; THOMAS J. Flannelly, judge.

Affirmed.

Published

Supreme Court of Kansas

Supreme Court of Kansas

S

Kansas, KS

Graves

greenwalt-v-keller

Greenwalt

Greenwalt v. Keller

Mary Greenwalt v. N. E. Keller et ux.

Webb McNall, for plaintiff in error., L. C. Uhl & Son, for defendants in error.

<p>syllabus BY the court.</p> <p>Wills — Estate Demised. A will contained the following clause: “First, I wish my wife, Eliza Bunt, to have all my property of every kind that I may own at my death, to have for her own use and benefit while she may live. And at her death all property that may be left by her” — then follows a disposition thereof. Held, that the widow took a life-estate, with power of disposal in fee.</p>

Error from Smith district court; Richard M. Pick-ler, judge. STATEMENT. William Bunt at the time of his death was the owner of the real estate in controversy. He left a widow, Eliza Bunt, and a daughter, Mary Greenwalt, and other heirs. His last will and testament reads: “Be it known that I, William Bunt, have this 4th day of June, 1895, made this, my last will, as follows: “First. I wish my wife, Eliza Bunt, to have all my property of every kind that I may own at my death, to have for her own use and benefit while she may live. And at her death all 'property that may be left by her, first I want Mary Greenwalt or her heirs to have what I owe her. “Second. To John Bunt’s heirs by his first wife and Susan Sleeper and Joseph Bunt, and Henry Bunt and Mary Stinson and Mandy Hays, my children, to be divided to each one as to their amount that they may due for my wife while she lives. • “Given under my hand, this 4th day of June, 1895.” After the death of her husband the widow lived with, and was supported by, her daughter, Mary Greenwalt. •Immediately after the testator’s death Eliza Bunt took possession of the property in controversy, and about three years afterward she conveyed it by warranty deed to Mary Greenwalt. The debt due from the estate of William Bunt to Mary Greenwalt, mentioned in'the will, was $300. After Eliza Bunt made the conveyance referred to Mary Greenwalt went into, and has ever since held, possession of the property. N. E. Keller and wife claim to own an interest in the premises, and have removed improvements therefrom. Eliza Bunt died about three years after she made the conveyance to Mary Greenwalt.

Reversed.

Published

Supreme Court of Kansas

Supreme Court of Kansas

S

Kansas, KS

Bryan, Miller, Stone, Yellott

baltimore-ohio-railroad-v-leapley

Leapley

Baltimore & Ohio Railroad v. Leapley

The Baltimore and Ohio Railroad Company v. Peter F. Leapley, and Grace B. Leapley

W. Irvine Gross, for the appellant., Frederick J. Nelson, for the appellees.

<p>Carrier — Contributory negligence — Passenger jumping from Train by order of Conductor.</p> <p>A largo woman, some five months advanced in pregnancy, having with her two children aged respectively two and five years, and several bundles, was a passenger on a railway train. On arriving at her destination, which was a regular stopping place, with the ordinary platform for the use of passengers, the train only slacked, and the conductor told her to “ get off; ” and upon her asking how, he replied “jump,” and thereupon she did jump with the youngest child in her arms, and was injured. In an action against the railroad company to rccovei'damages for the injury sustained, it was Held :</p> <p>That the plaintiff was not gnilty of contributory negligence, and was entitled to recover.</p>

Appeal from the Circuit Court for Washington County. This suit was brought by the appellees against the appellant to recover damages for injury sustained by the female appellee who was a passenger on the road of the defendant. The case is stated in the opinion of the Court. Exception. — The plaintiffs offered the two following prayers: 1. If the jury find that the plaintiff was a woman about four months advanced in pregnancy, and was, on the 16th day of February, 1884, travelling as a passenger on the train of the defendant from Washington to Tuscarora Station, with two children, one of them two years of age and the other about six years old, and a lot of packages, and had purchased a ticket for transportation to said station," and had been received as a passenger on a train which regularly stopped at said station, and had delivered up her ticket to the conductor upon demand, and when the train reached said station, sufficient time was not allowed her to get off of the train on the platform or place provided for the safe exit of passengers, but was. carried on said train beyond the platform, and the train was stopped at a place where no platform or other means were provided for the exit of passengers, and the plaintiff was then and there told by the conductor or agent in the management of the train to get off, and did get off as directed, but as .carefully and prudently as her then mental and physical condition enabled her to do, and in getting off was injured, then the plaintiff is entitled to recover, and in ascertaining the amount of damages to which the plaintiff is entitled, the jury are to consider the health and condition of the plaintiff before the injury as compared with her present condition, and the probable duration of her injury, and also the mental and physical suffering to which she was and is subjected by reason of the injury, and to allow such sum as will be a fair and just compensation for these. 2. That if the jury believe from the evidence in the cause that the plaintiff, on the 16th day of February, 1884, purchased of the defendant’s agent in Washington, D. C., a ticket which entitled her to be carried in one of the defendant’s passenger cars on its railroad from Washington, D. 0., to Tuscarora, a station on the Metropolitan Branch of said railroad in Frederick County, Maryland,, and that the defendant had provided a platform at said station of Tuscarora for the safety of its passengers in alighting from its cars, that when the train upon which the said plaintiff was a passenger approached the said station of Tuscarora it slackened its speed, and nearly stopped at said station, but that the said plaintiff was not allowed sufficient time and opportunity to get off said train on to said platform, and before giving the said plaintiff sufficient time to get off said train on to said platform, the said train moved on and went beyond said platform, and stopped at a point where the said defendant, had provided no platform, or other means for the said plaintiff to safely alight from its said cars, and that the defendant’s conductor or agent told the said plaintiff to get off said cars at said point, and at the same time defendant’s said conductor or agent used harsh and profane language in the presence and hearing of said plaintiff, and that the plaintiff was excited and alarmed by the use of said languag-e, and upon being told by said conductor or agent to get off said train, the plaintiff ashed him “how,” and that the said conductor in answer thereto, replied “jump,” and that laboring under said excitement and alarm, the plaintiff did then and there get off said train, and in so getting off was thereby injured in one of her limbs, that then tbe plaintiff is entitled to.recover in tbis action; and in assessing the damages to be allowed the plaintiff, the jury are to consider the health and condition of the plaintiff before the injury complained of as compared with her present health and condition in consequence of said injury, and whether said injury is in its nature permanent, and also the mental and physical suffering to which she was and is subjected by reason of said injury, and to allow such damages as in their opinion will be a fair and just compensation for the injury which the plaintiff has sustained. The defendant ashed the following instructions: 1. That if the jury find that the defendant’s cars passed the platform of the station where the plaintiff, Grace B. Leapley, a passenger, was to have gotten off, and stopped some distance beyond said platform, and the said plaintiff then and there voluntarily, and without any direction or command of any of the persons in charge of said train, got off the ear with the assistance of the conductor and brakeman, and was not injured in thus getting off, the plaintiffs are not entitled to recover. 2. That if the jury find that the plaintiff, Grace B. Leapley, was a passenger, with two children and five packages, on the train of the defendant from Washington to Tuscarora, on February 16th, 1884, and that said train did not stop at Tuscarora, a regular station for said train, but did stop some distance from said station, and that she being a large woman, weighing from 175 to 200 pounds, and in a state of pregnancy for the period of about five months, (if the jury so find,) did leap or jump from said train with a child two years old and two packages in her arms, a distance of about three feet, unaided by any one, or without requesting any one to aid her, and in consequence of said leap or jump was injured, then such act was negligence on her part, and she is not entitled to recover in this action, although the jury may find that she was told to jump by the conductor of said train. 3. That if the jury find that the plaintiff, Grace B. Leapley, did, by her own negligence and want of care, contribute to the injury she received in getting off the train, and for which this suit is brought, (if the jury find that she was injured in getting off,) then she is not entitled to recover in this action, and their verdict must be for the defendant. 4. That if the jury find from the evidence that the plaintiff, Grace B. Leapley, was a passenger on the train of the defendant, on the 16th day of February, 1884, from Washington City, to a station called “ Tuscarora,” of which Eugene Hagan was the conductor; that when said train arrived at said station called “Tuscarora,” it stopped, but before the said plaintiff had sufficient time with her children and packages to get off the car in which she was riding, the said train started, and was again stopped about one hundred feet or thereabout from the platform at said station, when she appeared upon the platform of the car for the purpose of getting off the car then and there, and without being brought back to the platform .of the station, if the jury so find, and that the said conductor and the brake man of said train, at her instance, did assist her off the said car, and in doing so used all proper care and dilligence, then the plaintiffs are not entitled to recover, although the jury may find that she was injured in getting off. The Court, (Full Bench,) granted the prayers of the plaintiffs, and the first prayer of the defendant which was conceded, and rejected its other prayers. The defendant excepted. The jury rendered a verdict for the plaintiffs, for $8500, and judgment was entered accordingly. The defendant appealed.

Published

Court of Appeals of Maryland

Court of Appeals of Maryland

S

Maryland, MD

McSherry

young-v-omohundro

Young

Young v. Omohundro

James M. T. Young v. Kate McC. Omohundro, Administratrix, and others

Frank. H. Stockett, for the appellant., William Stanley, for the appellees.

<p>Equity practice—Recall of Witness—Waiver of Right to Object to Evidence—Art. 5, sec. 2G, of the Code—Act of 1861, ch. 33—Appeal from a Court of Equity—Objection to Evidence—Mortgage— Covenant to pay Taxes—Payment by Assignee of Mortgage—Mortgagee in Possession—Rents and Profits—Exception to Auditor’s report—Vagueness of Exception.</p> <p>A witness in a proceeding in equity, having once testified, can only be recalled in behalf of the same party, after permission for that purpose has been obtained upon proper application to the Court. But where a witness who has already testified, is recalled and re-examined without leave of the Court first had and obtained, objection to such testimony on the ground that it- was irregularly taken, will not be heard from a party to an agreement referring the case to the auditor to state an account upon the evidence then in the case, and upon such other evidence as might be taken.</p> <p>Under section 26 of Article 5, as amended by the Act of 1861, ch. 33, on an appeal from a Court of equity, no objection to the competency of a witness, or the admissibility of evidence can be made, unless it shall appear by the record that such objection was made by exceptions, filed in the Court from which the appeal was taken.</p> <p>To enable a party to avail in the Court of Appeals of an objection to the competency of a witness, or the admissibility of evidence, he must file in the lower Court proper exceptions, plainly indieating the witness and the evidence objected to. The mere noting of an exception by the examiner is not sufficient.</p> <p>"Where a mortgage in express terms provides that the mortgagors shall pay the taxes on the mortgaged property, an assignee of the mortgage who pays the taxes for a series of years to prevent a sale of the property, is entitled to have the amount reimbursed to him.</p> <p>Where a mortgagee, whose wife was one of the owners of the mortgaged property, occupied it for several mouths in each year from 1881, to 1886, employing at his own expense, during every winter between these years, a person to protect, and take care of, the property; receiving no rents from the estate, and it not being shown that he was guilty of wilful default in not collecting them, he is not accountable to the mortgagors for rents and profits during such period.</p> <p>An exception to an auditor’s report “for other and various reasons apparent on the face of said report,” is too general and indefinite, to allow' any objection raised under it to he considered by the Court of Appeals. It is just as necessary that specific exceptions should he filed to an-, auditor’s report as to the admissibility of evidence, or to the competency of a witness.</p>

Appeal from the Circuit Court for Prince George’s County, in Equity.

Published

Court of Appeals of Maryland

Court of Appeals of Maryland

S

Maryland, MD

Robinson

perkins-v-gaither

Perkins

Perkins v. Gaither

James T. Perkins, Trustee v. Thomas H. Gaither

F. Snoioden Hill, for the appellant., George B. Gaither, Jr., for the appellee.

<p>Act of 1874, ch. 4S3, secs. fi3 and 82 — Judicial sale — Plea of Limitations to the Payment of Taxes.</p> <p>Section 63 of the Act of 1874, ch. 483, that provides, that “Whenever a sale of either real or personal property shall he made by any ministerial officer, under judicial process or otherwise, all sums due and in arrear for taxes from the party whose property is sold, shall he first paid,” does not prevent one, who has a lien on property sold by trustees appointed by the Court, from pleading, on the distribution of the proceeds of-the sale of such property, section 82 of the same Act, in bar of the payment of taxes levied more than four years before the appointment of trustees to sell the property.</p>

Appeal from the Circuit Court for Prince George’s County, in Equity. Certain real estate was sold hy trustees appointed hy the Circuit Court for Prince George’s County. The sale was reported to the Court, and the case was referred to the auditor to state an account distributing the proceeds, and ascertaining the amount due Thomas EL Gaither hy virtue of a lien he held on the property. The auditor stated an account showing the amount due Thomas EL Gaither and distributing the proceeds of sale. In his account he allowed James T. Perkins, trustee, for State and County taxes for some twelve years — from 1874 to 1885 inclusive — which with interest amounted to $1917.93. To this allowance Thomas EL Gaither excepted, and among the reasons filed he charged that the claim of said Perkins included taxes levied hy Prince George’s County more than four years before the decree was passed appointing the trustees to take charge of the property, and he therefore pleaded section 82 of the Act of 1874, chap. 483 in bar of any recovery of such taxes. The Court (Brooke, J.,) passed an order remanding the case to the auditor with instructions to discriminate in his account between the taxes due and in arrear to the State, and those due and in arrear to the County; to allow all taxes due and in arrear to the State ; and to allow all county taxes due and in arrear within four years prior to the date of the passage of the decree in the cause. The auditor stated an account in conformity with the opinion and order of the Court. This account was filially ratified and confirmed. From the order of ratification in so far as it disallowed a part of the claim of James T. Perkins, trustee, this appeal-was taken.

Published

Court of Appeals of Maryland

Court of Appeals of Maryland

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Maryland, MD

Stone

bowland-v-wilson-palmer-co

Bowland

Bowland v. Wilson, Palmer & Co.

Levin E. P. Bowland v. Wilson, Palmer & Co., and others

Thomas S. Hodson, for the ajipellant., Robert F. Brattan, James U. Dennis, Joshua W. Miles, and Henry Page, for the appellees.

<p>Proceedings in Involuntary insolvency — Framing issues— Practice in Appellate Court — Sufficiency of Verdict to Support judgment.</p> <p>In all cases of proceedings of involuntary insolvency, formal issues should he framed, which should clearly present the facts in dispute; and it is the right of either the petitioner or the defendant to demand such issues.</p> <p>It is also the duty of the Court, upon such demand being made, to see that the proper issues are made and submitted; and it is a good ground for exception if the Court refuses to do so.</p> <p>But, if the parties elect to go to trial upon the petition and answer, they cannot afterwards complain of the want of formal issues.</p> <p>Where it does not appear from the record that any demand was made by either party for issues before the jury were sworn, or any exception taken because they were refused, that objection cannot be considered on appeal.</p> <p>In a petition filed for the purpose of throwing a defendant into involuntary insolvency, if the petition contains a statement of facts which, if true, would authorize him to be adjudged an insolvent, and the parties elect to go to trial upon the petition and answer, a verdict “for the petitioners” can only mean that the jury find the facts stated in the petition to be true, and will be sufficient to support a judgment.</p>

Appeal from the Circuit Court for Somerset County. The case is stated in the opinion of the Court.

Published

Court of Appeals of Maryland

Court of Appeals of Maryland

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Maryland, MD

inman-v-mears

Inman

Inman v. Mears

Olney T. Inman v. E. T. Mears R. Haines Passmore v. E. T. Mears

Archie D. Neale, for plaintiffs in error., J. B. Ziegler, for defendant in error.

Error from Montgomery district court; Thomas J. Flannelly, judge.

Reversed.

Published

Supreme Court of Kansas

Supreme Court of Kansas

S

Kansas, KS

state-ex-rel-herrick-v-nelson

State ex rel. Herrick v. Nelson

The State of Kansas, ex rel. J. T. Herrick, as County Attorney, etc. v. Henry H. Nelson

J. T. Herrick, for The State; Ed T. Hackney, of counsel., Lawrence & Ferguson, for defendants in error.

<p>Constitutional Law — Special Act — General Law Applicable. An act disorganizing and consolidating certain school districts held invalid, the act being special and the subject being one to which a general law could be made applicable.</p>

Error from Sumner district court; Carroll L. Swarts, judge.

Reversed.

Published

Supreme Court of Kansas

Supreme Court of Kansas

S

Kansas, KS

Fowler

milligan-v-pleasants

Milligan

Milligan v. Pleasants

John J. Milligan v. Richard H. Pleasants, Trustee Sophia C. Milligan v. Richard H. Pleasants, Trustee

J. Hemsley Johnson, for the appellant, John J. Milligan., Richard H. Pleasants, Jr., for the appellant, Sophia C. Milligan., No appeax-ance for the appellee.

<p>Reformation of Written instrument — Mistake—Construction of Declaration of Trust.</p> <p>If a mistake lias been made in a written instrument, a Court of equity has ample power to correct it, provided such mistake is shown by the clearest and most satisfactory evidence, and the real intention is established in the same manner.</p> <p>But where the opinion of witnesses, that a declaration of trust does not fully express the wishes of the declarant, is not sufficiently satisfactory to establish that fact, a Court of equity will not interfere to reform the declaration of trust.</p> <p>By the terms of a declaration of trust, P. the trustee, was required to keep the trust funds invested in interest bearing securities, and accumulate the income on the same until J. M. should attain the age of twenty-two years, or at his option apply the income to “the maintenance and education of said J. M. for such portion of said period as may be deemed best,” and when the said J. M. attained the age of twenty-two years, the trustee was directed to apply the trust fund “to the purchase of a suitable farm, and the necessary implements, stock, and furniture for the same, and cause the farm to be conveyed to said P. his heirs, assigns, and successors, in trust to suffer and permit the said J. M. to use and occupy the same, and take the profits to his own use, or to collect and receive the rents and profits of the same to his own use, for the term of his natural life, ***** and further in trust that the said P. or his successor, shall deliver the said implements, stock, and furniture to the said ,T. M. and the same shall then become his own property, free from any trust or limitations. ***** And also that the said P. of his successor or successors, at'his or their discretion, may, at any time, make sale of said farm and convey the same to the purchaser thereof. ***** and invest the proceeds of sales in any other real estate or real estate securities to be held upon the trusts herein-before stated with respect to the said farm, and with like power to make further changes in the investments from time to time thereafter.” J. M. after attaining the age of twenty-two years, having declared his determination neither to live upon a farm nor to engage in the occupation of farming, it was Held :</p> <p>1st. That the trustee should not be required to invest the trust' funds in the purchase of a farm; but might be authorized by a Court of equity in his discretion, to invest the same in other real estate securities.</p> <p>2nd. That the said J. M. was only entitled to the income of the trust funds, from the time when he attained the age of twenty-two years.</p> <p>3rd. That in the absence of the purchase of a farm, the said J. M. ^ was not entitled to have paid to him out of the trust funds a sum equivalent to the cash value of implements, stock, and fur- ■ niture necessary for a farm.</p>

Appeals from the Circuit Court of Baltimore City. The'"case is stated in the opinion of the Court. The declaration of trust referred to in the opinion of the Court is as follows: “Whereas, the said Richard H. Pleasants hath this day received from J. Dickinson Logan, M. D., of Baltimore City, five bonds of one thousand dollars each, of the Gas Light Company of Baltimore, upon certain trusts to be executed by him, and he is desirous to execute a declaration of trust to the end that the same may the more certainly and permanently appeal-, now, in consideration of the premises, the said Richard H. Pleas-ants doth hereby declare that he hath received said bonds in order to hold the same upon the trusts hereinafter stated, and he covenants with the said Logan and his personal representatives, that he will hold the same upon the trusts hereinafter stated, that is to say, in trust and confidence that he, the said Pleasants, his personal representatives and successors in the trust will keep the funds invested without responsibility for mistakes or errors of judgment in some interest bearing-securities. with full liberty to change securities from time to time, without any obligation on the purchaser to see to the application of the purchase money, and will accumulate the income on the same until John Milligan, the son of George B. Milligan, of Baltimore County, shall attain to the age of twenty-two years, or at the option of the said Pleasants, or his successors, will apply the income to the maintenance and education of said John Milligan, for such portion of said period as may be deemed best. And in further trust, that when the said John Milligan shall attain to the age of twenty-two years, the said Pleasants, or his successors, shall apply the trust fund to the purchase of' a suitable farm, and the necessary implements, stock and furniture for the same, and cause the said farm to be conveyed to said Pleasants, his heirs and assigns and successors, in trust to suffer and permit the said John Milligan to use and occupy the same and take the profits to his own use, or to collect and receive the rents and profits of the same to his own use for the term of his natural life, upon paying meanwhile all taxes and public dues upon the same, and from and after the death of the said John Milligan, to hold the same to the use of the children and descendants of said John Milligan per stirpes in fee simple; subject, however, to an estate and interest therein in favor of his widow, if he shall leave any, precisely the same as she woxxld have taken as her dower if said John Milligan'had been seized in fee of said farm.x Aixd if the said John Milligan shall die withoub issue living at his death, then for the xxse of his sister, Sophia Milligan, her heirs and assigns, subject to an estate as above mentioned in his widow, if there be any, equivalent to dower. “And further in trust that the said Pleasants, or his successor, shall’deliver the said implements, stock and furniture to the said John Milligan, and the same shall then become his own property free from any trusts or limitations. And it is understood that if said Pleasants shall deem be§t to purchase the said farm at any time prior to the period before mentioned, reserving an amount of the trust fund sufficient to purchase implements, stock and furniture at his discretion, he shall he at liberty to purchase such farm before the lapse of said time. And also that the said Pleasants, or his successor or successors, at his or their discretion, may, at any time, make sale of said farm and convey the same to the purchaser thereof, without any obligation on the purchaser as to the application of the purchase money, and invest the proceeds of sales in any other real estate ox-real estate securities to be held upon the trusts herein-before stated with respect to the said farm, and with like power to make further changes in the investments from time to time thereafter.” The cause was argued before Alvey, C. J., Miller, Robinson, Irving, Bryan, Fowler, McSherry, and Briscoe, J.

Published

Court of Appeals of Maryland

Court of Appeals of Maryland

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Maryland, MD

Smith

kinne-v-phares

Kinne

Kinne v. Phares

Julia E. Kinne v. John W. Phares

Herman Long, for plaintiff in error., W. E. Saum, for defendant in error.

<p>SYLLABUS BY THE COURT.</p> <p>Wills—Void Devise—Descents and Distributions. An interest in real estate, attempted to be- conveyed by a void devise in a will, descends to the person or persons who would have been entitled to such interest had no will been made.</p>

Error from Trego district court; JACOB C. Ruppenthal, judge. STATEMENT. ' The owner of a section of land in Trego county, Kansas, died in Los Angeles, Cal., in 1897, having theretofore made a will by which he attempted to give all of his personal property to his widow, as well as a life-estate in his real property, the remainder to go, one-half to his heirs and one-half to three different charities in Evanston (there being no description as to what Evanston was intended). The will was duly probated in California, and a copy recorded and probated in Trego county, Kansas. The deceased had no surviving parent, and no children. His heirs consisted of brothers, sisters, nephews and nieces. The plaintiff in error is entitled to one-fifth of whatever interest passed by devise to his heirs. The widow ignored the will and undertook to deed the entire section of land to the defendant in error, Phares. The plaintiff in error brought this action in ejectment to recover an undivided one-tenth interest in the land from Phares. The case was tried to the court without a jury. The court held, in substance, that the widow, in neglecting to take under the will, elected to take under the law without affirmative action; that the bequest to, the charities in Evanston was void for indefiniteness; that the will conveyed a one-fourth interest in the land to the heirs, or one-twentieth to the plaintiff in error, and that the widow took the remaining three-fourths under the law; in short, the bequest to the charities failing, that the portion attempted to be devised remained a part of the estate undisposed of and fell to the widow. The plaintiff in error contends that the testator had a right to, and did, legally devise to his heirs a one-half interest in the land, and that she is entitled to one-fifth of the one-half interest. This is the only question in the case—whether the plaintiff in error is entitled to a one-tenth or a one-twentieth interest in the land.

Affirmed.

Published

Supreme Court of Kansas

Supreme Court of Kansas

S

Kansas, KS

Robinson

safe-deposit-trust-co-v-sutro

Sutro

Safe Deposit & Trust Co. v. Sutro

The Safe Deposit and Trust Company of Baltimore, Trustee, and Henry M. Walker, &c. v. Otto Sutro

Edgar S. Qans, (with whom was B. Soioard Saman, on the brief,) for the appellants., Frank P. Clark, for the appellee.

<p>Construction of Will — Trustee—Discretionary power of Sale — Exercise of Discretion by Substituted trustee.</p> <p>A testator, after various pecuniary and specific legacies, devised all his property to two trustees, and the survivor of them, in trust to make certain dispositions of the income until the youngest of the children of the son of the testator, should attain the age of twenty-one years, when the whole estate was to be divided between said children. The will contained a power of sale in the following words : “Thirteenth. I direct that my trustees hereinafter named shall have and exercise full discretion and authority to lease, sell, or dispose of any and all property of which I may die seized or possessed, either real or personal, as in their judgment may he deemed for the best interest of the trust estate in their hands, save and except,” &c. “It is my will, and I hereby direct, that the discretion and authority vested in the trustees herein named, in and by the thirteenth item of this will, shall be possessed and exercised by the survivor of them, and the heirs, executors, and administrators of the survivor.” Under proceedings in equity the trustees named in the will were removed, and a new trustee appointed in their place. The new trustee made sale of certain real property, constituting part of the trust estate, and reported the sale to the Court for its ratification. Upon exceptions filed to said sale, it was Held:</p> <p>That the discretionary power to sell and lease the property, constituting the trust estate, was a power annexed to the office of trustee and to be exercised by the trustees named in the will, and by the survivor, and the heirs, executors and administrators of the survivor ; and if they should renounce the trust or be removed, then to be exercised by any one who might be appointed in their place.</p>

Appeal from the Circuit Court, No. 2, of Baltimore City. * This appeal was taken from a proforma decree of the Court below sustaining the exceptions of the appellee, as purchaser of certain real property in the proceedings mentioned, the ground of the exceptions being that the trustee could not give a good and valid title to the property sold. The case is stated in the.opinion of' the Court.

Published

Court of Appeals of Maryland

Court of Appeals of Maryland

S

Maryland, MD

Alvey

robertson-v-parks

Robertson

Robertson v. Parks

John Robertson v. James T. Parks, Matthew P. Hubbard, John Mauldin, and James L. Mauldin

Alexander Preston, and John F. Preston, for the appellant., J. W. Bryant, and Benjamin Kurtz, for the appellees.

<p>Action for Deceit — What will Give a Right of Action in such Case — Statement of Opinion — Failure to Comply with the Law — Res judicata— Conspiracy.</p> <p>If a defendant knowingly tells a falsehood, or makes a positive representation of a fact as true, when he does not know it to be true, and has no reasonable grounds for believing in its truth, with an intent to induce and does thereby induce the plaintiff to enter into a contract or incur liability which but for such misrepresentation he would not have entered into or incurred, and the plaintiff is thereby damnified, a case of fraudulent deceit is established.</p> <p>It is not necessary in all cases to show that the defendant knew at the time that the representation made by him was false in fact. It is sufficient if the statement be made for a fraudulent purpose, and without a bona fide belief in its truth by the defendant, with the intention of inducing the plaintiff' to do an act, and that act is done, in reliance upon the truth of the representation, which turns out to be false, to the damage of the plaintiff. In such case an action for the damage sustained can be maintained.</p> <p>The representation, to be material, must be in respect to ascertainable facts as distinguished fro.m mere matters of opinion or speculation. A representation which merely amounts to a statement of opinion, judgment, probability or expectation, or is vague and indefinite in its nature and terms, or is merely a loose conjectural or exaggerated statement, goes for naught, though it may not be true; for a party is not justified in placing reliance on such statement or representation.</p> <p>Such an indefinite or speculative representation should put the person to whom it is made upon inquiry; and if he chooses to put faith in such a statement and abstains from inquiry he can have no ground of complaint.</p> <p>A representation that the stock of a corporation would pay twenty per cent, dividends, furnishes no ground for an action for misrepresentation and deceit.</p> <p>In an action for misrepresentation and deceit on the part of the defendants in procuring .the subscription to shares of stock in a corporation, the plaintiff offered at the trial certain prayers which proceeded on the theory, that because of non-compliance by the corporation with certain provisions of the Code (Article 23. sections 61, 62, 73, and 294) in'regard to receiving property for subscriptions to stock, and the making up and recording of certain semi-annual statements of the affairs of the company, and the agreement of the corporation to pay preferred dividends on stock, the plaintiff may have been misled to his prejudice. On appeal it was Held :</p> <p>That said prayers wore properly rejected, because they were not within the pleadings in the cause, and, these omissions or neglects, if they existed, formed no substantial ground of recovery in said action for misrepresentation and deceit.</p> <p>Prior to the institution of said action the affairs of the corporation had been placed in the hands of a receiver, and in the course of settlement an account was stated by the auditor, distributing the surplus fund, after payment of debts among those claiming to be stockholders of the company, and distribution being made by the auditor to the present defendants in respect to their shares of stock, exceptions were taken by the plaintiff' and others to such distribution, upon the specific grounds that the issue of stock to those parties was fraudulent and void, and that no distribution should be made to such stock, in prejudice of the rights of other stockholders. These exceptions were answered, and testimony was taken on both sides of the issue thus formed; and after hearing upon the facts the exceptions were overruled and the account was finally ratified. Held :</p> <p>That the plaintiff' having thus raised the question as to the formation of the corporation, and the validity of the issue of the shares of stock thereof to the defendants in this case, and litigated the matter in the equity proceeding, where the question was properly presented as to the right of the defendants to receive distribution to their shares from the corporate funds, and the decision being against him, he was precluded from again raising the question in this case of the validity of such shares of stock issued to the defendants.</p> <p>A conspiracy cannot be made the subject of a civil action, unless something is done which, without the conspiracy, would give a right of action. The damage done is the gist of the action, not the conspiracy.</p> <p>When the mischief contemplated is accomplished, the party wronged may look beyond the actual participants in committing the injury, and join with them as defendants all who conspired to accomplish it, and the fact of conspiracy may aggravate the wrong; but the simple act of conspiracy does not furnish a substantial ground of action.</p>

Appeal from the Baltimore City Court. The case is stated in the opinion of the Court. Exception. — At the trial the plaintiff offered the six following prayers : 1. That if the jury find from the evidence that the plaintiff paid the sum of $5000 to the Parks Guano Company for certain shares of stock in said company, and shall find that the said plaintiff was induced to purchase said shares of stock in said company by the false representations and statements of the defendant, or any of them, 'to the effect that the said shares of stock in said company were a safe and sure investment, and would pay a high rate of interest, and shall further find that such representations and statements were false and fraudulent, and known to be false and fraudulent to said defendants, and that the plaintiff relied upon these said false and fraudulent representations and statements, and was thereby induced to purchase said shares of stock, the plaintiff is entitled to recover if the jury further find that the said plaintiff suffered loss and damage by reason of said false and fraudulent representations and statements. 2. That if the jury believe from the evidence that the defendants in making sale to the plaintiff of the shares of stock in the Parks Guano Company in the declaration mentioned, represented to said plaintiff that said stock was a safe and sure investment, or that the said stock would pay high interest, or words to that effect, to induce the plaintiff 'to purchase said shares; and if the jury find such statement or statements were falsely and knowingly made by the defendants, or recklessly and carelessly made, and that the plaintiff acted thereupon and purchased such shares and paid for them, the plaintiff is entitled to recover for such false representation. 3. That if the defendants made any statements that were false, or made any statement so carelessly and recklessly, and which they knew or might have known to be false, with a view to induce the plaintiff to alter his condition, and thereby altering it, then such statements are a fraud in law. 4. That if the jury find a verdict for the plaintiff, then the measure of damages is the difference between the sum originally invested by the plaintiff and the amount he has received from the receiver, with interest in the discretion of the jury. 5. If the jury believe from the evidence that the defendants, who were incorporators of the company, and president, and treasurer and directors of the company, neglected to comply with the provisions of the Code, requiring them to enter upon the books of the company a detailed statement and minute schedule of the assets and liabilities in the first week of July and January of every year, that then the plaintiff is entitled to recover, provided the jury believe that if the defendants had complied with the statute by entering upon the hooks of the company said statement, that said plaintiff might have been able to have discovered from said statement the true condition of the corporation at the time he purchased his stock. 6. That if the jury believe from the evidence that the defendants, as officers and directors of this company, neglected to comply with their duty under the laws of Maryland, in acknowledging and recording the agreement to pay John Mauldin preferred interest on his stock, and if they further believe that John Robertson would not have invested in the stock of the company if he had known of this agreement for preferred dividend to Mauldin, that then the plaintiff is entitled to recover. The defendants offered the following seven prayers, and motion: 1. That as a matter of law., his Honor, Judge Dennis, in overruling the exceptions filed by the plaintiff and others to the ratification of the auditor’s report and account, passed in the Ex parte trust estate of the Parks Guano Company, pending in the Circuit Court of Baltimore City, and offered in evidence, determined that the Parks Guano Company was a corporation duly and legally incorporated under the laws of the State of Maryland, and that the certificates of stock therein held by the defendants were issued to them bona fide and for a valuable consideration, and the jury therefore, are not entitled to consider the formation of said corporation or the issue of said stock to the defendants as aforesaid, as any evidence whatever tending to prove the charges made by the plaintiff in the declaration filed in this case. 2. That there is no legally sufficient evidence in the cause to show that defendants, in the formation or incorporation of the Parks Guano Company and the issue of certificates of stock thereof to the defendants, John Mauldin, Matthew P. Hubbard and James T. Parks, upon a valuation of their interest in the assets of Parks and Company, as mentioned in the evidence conspired together to deceive or defraud the plaintiff, as charged in the declaration in this case, and the jury are, therefore, not entitled to consider said action or proceedings on the part of the defendants as any evidence whatever tending to prove or sustain said charges. 3. That in order to entitle the plaintiff to recover in this case, the jury must find from the evidence that the defendants, with a view to induce the plaintiff to subscribe to or purchase the stock in the Parks Guano Company, made representations to him with respect to the value of their assets and extent of their business, which were false in fact when made, and that the defendants had no reasonable ground to believe the same to be substantially correct when made, and also that the same were made with the fraudulent intent to cheat and deceive the plaintiff, and that the plaintiff had not at hand the means of verifying the truth of such representations, and that in subscribing to or purchasing said stock, the plaintiff relied on such representation and would not have made such purchase except upon the faith of the same, and that in consequence thereof he was misled and injured. 4. That the plaintiff is not entitled to recover on account of any representations they may find the defendants, or either of them, may have made to the plaintiff, that the stock of the Parks Guano Company would pay as much as twenty per cent, dividend, or for any other expression of opinion concerning the future value and profitableness of the business they were carrying on, and the jury must exclude such representations as constituting a basis of recovery in this action. 5. If the jury believe from the evidence that in the year 1881, the defendants, James T. Parks and Matthew P. Hubbard, formed a copartnership in the City of Baltimore, under the name of Parks and Company, for the purpose of carrying on the fertilizing business, and that thereafter James G. Floyd became a member of said firm and contributed to the capital thereof $500 for a one-third interest therein, and that thereafter said Floyd retired from said firm, and the defendant, John Mauldin, on or about the 1st of January, 1885, became a member thereof, and contributed the sum of $4,000 in cash for a-one-third interest therein, and that thereafter the said firm of Parks and Company dissolved for the purpose of continuing said business under the management of a company, and to that end, on the 1st day of July, 1887, the defendants, together with Robert H. Shipley, formed a copartnership known as “'The Parks Guano Company,” under the General Incorporation Law of the State, for the object and purpose contained in the certificate of incorporation and the prospectus of said company offered in evidence, and that after the organization of said company and the issue of stock to the defendants, Mauldin, Hubbard and Parks, as mentioned in the evidence, the directors of said company inserted in the “Baltimore Sun,” on the — day of November, 1887, the advertisement offered in evidence, soliciting subscriptions to the stock of said company and inviting an investigation of its affairs, as therein mentioned, and that the plaintiff, in response to said advertisement, and with a view of purchasing stock therein, made inquiry into the extent and development of the fertilizing business in the City of Baltimore, and also as to the financial responsibility and standing of the defendants, and thereafter visited the office of said corporation’ on Light street, and at his request the defendants placed at his disposal all the ledgers, books of accounts, collection books, and other records containing the transactions of said Parks and Company and the Parks Guano Company, for the purpose of making examination of the same; and shall further find that the plaintiff is an expert bookkeeper or accountant, and that lie devoted two or three weeks to an examination of said hooks and records; and shall further find thaj; James L. Mauldin, the former bookkeeper of said Parks and Company, offered to the plaintiff any assistance or information which he might need in the examination or understanding of said hooks or records, and that the plaintiff declined said offer and preferred to make said examination without the assistance of the defendants; and shall further find that after finishing the examination of s*iid hooks and records the plaintiff subscribed to fifty shares of the stock of said company; and shall further find that said hooks and records showed the assets and liabilities of said Parks and Company, and also what part of said assets consisted of open accounts and bills receivable, overdue, and placed in the hands of attorneys or collection agents for collection, then the plaintiff is not entitled to recover in this action with respect to any representations made by the defendants, or any of them, as to the character, consideration, or value of said assets, accounts, or hills so overdue and in course of collection as aforesaid. 6. That fraud is odious in contemplation of law, and not to he presumed, and the burthen of proof is on the plaintiff to overcome such legal presumption by evidence satisfactory to the jury. 7. That if the jury find from the evidence that the defendants acted in their dealing with the plaintiff openly and in good faith, and the plaintiff purchased fifty shares of stock in the Parks Guano Company, a corporation in which the defendants were officers; and further find that loss and damage resulted to the plaintiff by reason of said purchase of stock, the plaintiff cannot recover in this suit even should the jury believe from the evidence that, said loss and damage was the direct result of the subsequent management of said corporation by the defendants. The defendants moved the Court to strike out from the consideration of the jury all evidence offered by plaintiff as to the formation and incorporation of the Parks Guano Company, and the issue of stock therein to John Mauldin, James T. Parks and Matthew P. Hubbard, for the purpose of showing that said comany was not duly incorporated and for a lawful purpose, and that said stock so issued was not issued bona fide and for a valuable consideration. The Court (Phelps, J.) granted the plaintiff's first, third and fourth prayers, (the first prayer being granted in connection with the defendants’ third prayer,) and rejected his second, fifth and sixth prayers; and granted all the prayers, and the motion of the defendants. The plaintiff excepted, and the verdict and judgment being against him, he appealed.

Published

Court of Appeals of Maryland

Court of Appeals of Maryland

S

Maryland, MD

lendland-v-long

Lendland

Lendland v. Long

Severt B. Lendland v. Wesley L. Long

John B. Ennis, for the plaintiff in error., R. V. Chambers, and Burch & Litowitch, for the defendant in error.

Error from Gove district court; JACOB C. Ruppentpial, judge.

Affirmed.

Published

Supreme Court of Kansas

Supreme Court of Kansas

S

Kansas, KS

Ante, Benson, Burch, Johnston, Stated, Towle

first-national-bank-v-carter

Carter

First National Bank v. Carter

The First National Bank of Hays City, Kansas v. Mrs. James (Candas) Carter

A. D. Gilkeson, for the appellant.

<p>SYLLABUS BY THE COURT.</p> <p>Homesteads — Forced Sale — Adult Child’s Share — Partition. A widow occupying a homestead, the title to which descended to her and her children, can not complain of the forced sale of an adult son’s share, and after the minor children have all arrived at the age of majority the purchaser of such share is entitled to partition.</p>

Appeal from Ellis district court; Jacob C. Ruppenthal, judge.

Reversed.

Published

Supreme Court of Kansas

Supreme Court of Kansas

S

Kansas, KS

Graves

allison-v-whitaker

Allison

Allison v. Whitaker

Flora F. Allison v. John M. Whitaker

W. R. Hopkins, and Richard J. Hopkins, for the appellant., H. O. Trinkle, for the appellee.

<p>SYLLABUS BY THE COURT.</p> <p>Judgments — Validity—Publication Service — Misdescription of Land in Affidavit and Notice. In an action to .quiet title the land was properly described in the petition as the southwest quarter of section 25, in township 21 south, of range 37 west. The defendant was summoned by publication. In the affidavit and published notice the land was erroneously described as the southwest quarter of section 24, in township 21 south, of range 37 west. The defendant did not appear. A decree was entered as prayed for. More than three years afterward a purchaser from the defendant filed a motion to vacate and set aside the judgment as void. The sole ground of the motion was the error in the description of the land. The motion was sustained. Held, error.</p>

Appeal from Kearny district court; William H. Thompson, judge.

Reversed.

Published

Supreme Court of Kansas

Supreme Court of Kansas

S

Kansas, KS

Graves

hotham-v-berry

Hotham

Hotham v. Berry

J. C. Hotham v. E. H. Berry

James W. Orr, W. P. Waggener, and J. M. Challiss, for the appellant., J. L. Berry, for the appellee.

<p>SYLLABUS BY THE COURT.</p> <p>1. Suretyship — Contribution—Payment of Debt Before Maturity. Where two persons become sureties upon a promissory note, and one of them pays the note two days before maturity, the principal having been for some time and being then and for some time afterward unable to pay, such premature payment will not of itself relieve the other surety from contribution.</p> <p>2. --- Payment by Another — Money Furnished by Plaintiff. In such a case, where one of the sureties furnishes the money to pay the note and intrusts it to another, to be used for that purpose, and such other for his own purposes obtains the check of a third person in exchange for the money received from the surety, and with such check pays the note, such payment will not, because made in that manner, release the other surety from contribution.</p>