New Mexico (Ter.). Governor.

Report of the governor of New Mexico to the secretary of the interior online

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mMii




HARVARD LAW SCHOOL
LIBRARY



r



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|!|»rgl»u(l §^tptU.



VOLUME XLVI.



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V 9



REPORTS



OF



CASES ARGUED AND DETERMINED



IN THE



(^awti flf appeals 4 ^ttargland.



J. SHAAFF STOCKETT,

8TATB REPOJRTBR.



VOL. XLVI.

Containing Cases in October Term, 1876, and April
Term, 1877.




^nbEs^tb b|i^»^A\§intborttQ.



BALTI|MORE:
Printed by Wm. K. Boyle & Son,

Baltimore and St. Paul Strebtb.

1878.



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Entered according to Act'ot Congress, in the year 1878, by

J. SHAAFP STOCKETT,
In the 0£Sce of the Librarian of Congress, at Washington.






l<f^e . Jld' /^/f'



PRIHTCD BT

WM. K. BOYLE A SOlf,

BALTIMORE.



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NAMES OF THE JUDGES, &c.

During the Period Comprised in this Volume.



OF THE COURT OF APPEALS.

Hon. JAMES LAWRENCE BARTOL, Chief Judge.

Hon. JAMES AUGUSTUS STEWART, Associate Judge.

Hon. JOHN MITCHELL ROBINSON, Associate Judge.

Hon. RICHARD GRASON, Associate Judge.

Hon. RICHARD HENRY ALVEV, Associate Judge.

Hon. OLIVER MILLER, Associate Judge.

Hon. RICHARD JOHNS BOWIE, Associate Judge.

Hon. GEORGE BRENT, Associate Judge.



OF THE CIRCUIT COURTS.

First Judicial Circuit. — Worcetterj Somerset^ Dorchester and Wicomico

Counties.

Hon. JAMES AUGUSTUS STEWART, Chief Judge.
Hon. JOHN R. FRANKLIN, Associate Judge.
Hon. LEVIN T. H. IRVING, Associate Judge.

SiECOKD Judicial Circuit. — Caroline, Talbot, Queen Anne^t, Kent and Cecil

Counties.

Hon. JOHN MITCHELL ROBINSON, Chief Judge.
HoM. JOSEPH A. WICKES, Associate Judge.
Hon. FREDERICK STUMP, Associate Judge.

Third Judioal Circuit. — Baltimore and Harford Counties.

Hon. RICHARD GRASON, Chief Judge.
Hon. GEORGE YELLOTT, Associate Judge.
Hon. JAMES D. WATTERS, Associate Judge,

Fourth Judiclal Circuit. — Allegany, Oarrett and Washington Counties.

Hon. RICHARD HENRY ALVEY, Chief Judge.
Hon. GEORGE A. PEARRE, Associate Judge.
Hon. WILLIAM MOTTER, Associate Judge.



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vi NAMES OF THE JUDGEiS.

Fifth Judicial Circuit. — Carroll, Howard a.ud Anne Arundel Counfies.

Hon. OLIVER MILLER, Chief Judge.

Hon. EDWARD HAMMOND, Associate Judge.

Hon. WILLIAM N. HAYDEX, Associate Judge.

Sixth Judicial Circuit. — Montgomery and Frederick Counties.

Hon. RICHARD JOHNS BOWIE, Chief Judge.
Hon. JOHN A. LYNCH, Associate Judge.
Hon. W. VEIRS BOUIC, Associate Judge.

Seventh Judicial Circuit. — Prince George^ 9^ Charles, Caiverl and St, Mary^s

Counties.

Hon. GEORGE BRENT, Chief Judge.

Hon. ROBERT FORD, Associate Judge.

Hon. DANIEL R. MAGRUDER, Associate Judge.

Eighth Judicial Circuit. — BaUimore City.

' The Supreme Bench of Baltimore Citv.

Hon. GEORGE WILLIAM BROWN, Chief Judge.
Hon. GEORGE W. DOBBIN, Associate Judge.
Hon. henry F. GAREY, Associate Judge.
Hon. CAMPBELL W. PINKNEY, Associate Judge.
Hon. ROBERT GILMOR, Jr., Associate Judge.

The Judges of the Supreme Bench are assigned to the following Courts :

Superior Court.— Hon. GEORGE W. DOBBIN, with Hon. HENRY F.

GAREY, to assist.
Court of Common Pleas.— Hon. HENRY F. GAREY, with Hon. GEORGE

W. DOBBIN, to assist.
City Court.— Hon. CAMPBELL W. PINKNEY, with Hon. GEORGE WII^

LIAM BROWN, to assist.
Circuit Court.— Hon. ROBERT GILMOR, Jr., with Hon. CAMPBELL W.

PINKNEY, to assist.
Criminal Court.— Hon. GEORGE WILLIAM BROWN, with Hon. ROBERT

GILMOR, Jr., to assist.



Attorney General.
CHARLES J. M. GWINN, Ebq.



Clerk.
JAMES S. FRANKLIN, Esq.



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NAMES OF THE CASES

RSPORTBD IN THIS VoLUMB.



Abercrombie, et al., aU. Provost, &c., of Dumfries 1T2

Academy of Music, ats. Scarlett 132

Albert, Sheriff m. Liqdau 334

American Coal CJo. vs. Consolidation Coal Co., et al 15

Barrj k Hoogewerffw. Boninger & Lehr 59

Bergman, aU, Bullock, et al 270

Blake w. Pitcher k Wilson 453

Bond, aU. Deutsch, et al., use of Kanders 164

Boninger k Lehr, aU, Barry k Hoogewerff 69

Boyce w. Trustees, &c., of the M. E. Church 359

Boyd, etal., V8. Kiensle, etal 294

Boyle M. Peabody Heights Co. of Balto. City ' 623

BritUin and Wife w. Carson, etal 186

Brooks and Barton, Trustees, als. McSherry 103

Brotzman, etal., aU. Hayes, Receiver 519

Brown vs. Thomas, etal 636

Bullock, etal., v*. Bergman 270

Butler w. Rahm „ 541

Carey k McColgan v*. Merryman, Bro. k Co 89

Carroll, etal., ato. Maenner 193

Carson, etal., aU, Brittain and Wife 186

Cole 9«. Hynes, etal 181

Consolidation Coal Co., aU. State.. 1

Consolidation Coal Co., et al., aU, American Coal Co 15

County Comm'rs of Balto. Co.^ aU. State, ex rel Holland, et al 621

Deford, etal. vs. Dryden, etal 248

Deutsch, etal., use of Kanders vs. Bond 164

Donohue v«. Shedrick 226

Dryden, et al., ats. Deford, etal 248



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viii INDEX OF CASES.

Diigan, etal., ats. Timanus, et al 402

Duugan, Adni'x vs. Aluiual Benefit Life Ins. Co 469

Edes, etal. va. Garey and Lanahan 24

Engler va. People's Fire lus. Co 322

Farmers' Bank of Maryland, ata. Thomas, et al 43

Flickingqi' i'«. Wagner 580

Forrester, etal. va. Slate, use of Kernan 154

Frick and Colder, Ex'rs, ata. Woollen, Trustee 231

Garey and Lanahan, ata. Edes, etal 24

Gates, ata. Schindel .' 604

Goldsmith va. Kilbourn, Ex'x 289

Graves, et al. t?«. Spedden, etal 527

Hanrathy va. Northern Central Railway Co 280

Hayes, Receiver va. Brotzman, et al ^ 519

Hill va. Reifsnider, et al 555

Hynes, etal , ata. Cole 181

In re Estate of James Stratton 551

Jones, etal., ata. Wilson & Hunting 349

Kearney «». State 422

Keller r». Kunkel 566

Kienzle. etal., ata. Boyd, et al 294

Kilbourn, Ex'x, aU. Goldsmith 289

Kunkel, ata. Keller 665

Laflin and Rand Powder Co. va. Sinsbeimer, et al 315

Latrobe, ata. Warfield 123

Layman, etal , ata. State, use of Fallon 190

hindsLUj ata. Albert, Sheriff 334

Maenner va. Carroll, et al 193

Mayor, &c. of Balto., ata. North. Cen. R. W. Co 425

McGrathr*. State 631

McSherry va. Brooks and Barton, Trustees 103

Merryman, Bro. k Co., ata. Carey & McColgan 89



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INDEX OF CASES. ix

MerrymaD, Trustee, et al. vs. Shipley T9

Mutual Benefit Life Ins Co., att. Dungan, Adm'x 469

Mutual Fire Ins. Co. of Harford Co , ats. Sherlzer 506

Mutual Life Ins. Co. vs. Stibbe 302

North Cen. Railway Co., ais. Hanrathy 280

North. C^n. Railway Co. vs. .Mayor, &c., of Balto 425

Ortwine, aU. Rosenstock, et al 388

Peabody Heights Co. of Balto City, ats. Boyle 623

People's Fire Ins. Co., ats. Engler 322

Pitcher and Wilson, aU. Blake : 453

President, Ac, of Port Deposit, ats. Watts 500

Provost, Ac, of Dumfries vs. Abercrombie, et al 172

IJahm, ate. Butler « 541

Reifsnid^, etal., ats. Hill ; 555

Ridgely, etal., ats. Wilson, et al., Adm'rs 235

Roberts, et al. v». Woven Wire Mattress Co 374

Rosenstock, etal. w. Ortwine 388

Scarlett vs. Academy of Music 132

Schindel i7«. Gates 604

Shaflfer, ate. Smith, etal 573

Shedrick, ats. Donobue 226

Shertzer vs. Mutual Fire Ins. Co. of Harford Co 506

Shipley, ats. Merryman, Trustee, etal *'i9

Sinshcimer, etal., ats. Laflin and Rand Powder Co 315

Skinner, ats. Wear 257

Smith, et al. p». Shaffer 673

Smith, et al. vs. State, use of County Commisioners of Balto. Co 617

Spedden, etal., ats. Graves, et al 527

Sprigg vs. Western Telegraph Co., et al 67

State, ats. Kearney 422

State, a^«. McGrath 631

State, ez rel. Holland, et al. vs. County Commissioners of Balto. Co 621

State, use of County Commissioners of Balto. Co., ats. Smith, et al 617

State, use of Cox, etal., ate. Trippe, etal 512

State, use of Fallon vs Layman, etal 190

State, use of Kernan, ats. Forrester, et al 154



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X INDEX OF CASES.

State vs. CoDsolidation Coal Go * 1

Stibbe, ais. Mutual Life Ins. Co 302

StrattOD, James, In re estate of. 551

Thomas, eiaX.j ats Brown 636

Thomas, etal. vt. Farmers' Bank of Maryland 43

Timanus, etal. ««. Dugan, etal 402

Trippe, etal. v$. State, use of Cox, etal 512

Trustees, Ac, of the M. E. Church, at$. Boyce 359

Wagner, als. Flickinger .-. 580

Warfield r*. Latrobe 123

Watts t>#. President, &c. of Port Deposit 500

Wear r«. Skinner 257

Western Telegraph Co., et al., att, Sprigg « ^ 67

Wilson, etal., Adm'rs w. Ridgely, etal 235

Wilson k Hunting vt, Jones, et al 349

Woollen, Trustee «#. Prick and Colder, Ex'rs 231

Woven Wire Mattress Co., aU. Roberts, etal 374



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CASES

DkCIDKD during THR PBRIOD COMPRJRBD IN THIS VoLUMB, AND DrSIGNATRD BY

THB CooRT "Not to rr Reported. "

Frazier, George H., vt. State of Maryland. The appeal in (his case was
taken to test the constitutionality and validity cf the Act of Assembly of
1874, ch. 21, relating to the meamrement of oysters in the shelly and the
questions presented were raited on demurerr tOj and motion to quash the
indictment. The points raised were decided by this Court in the case of
Patrick Mc Grath vs. State of Maryland^ reported in this Volume^ and for
the reasons assigned tin that case^ the judgment was affirmed. No. l2.
Special Docket, April Terra, 1877. Recorded in Liber J. S. F., No. 2,
folio 35, &c., of "Opinions Unreported."

The Talbot County Agricultural Socibty vs. Levin Woolford, Comp-
troller OP THE Treasury. Mandamus under 2nd sec. of the Act of
1872, ch. 282. To the answer of the Comptroller j the plaintiff replied,
and then a demurrer was entered to this replication. The Court decided
thai the petitioner had failed to show a sufficient compliance with the law to
entitled the Society to the ben^ of the law, and the decision below was
sustained. No. 8, Special Docket, April Term, 1877. Recorded in
Liber J. S. F., No. 2, folio 39, &c., of "Opinions Unreported."

East, Caleb J., vs. John J. Ybllott, Assignee, ko. Appeal from an order
of the Circuit Court for Baltimore County, dissolving an injunction granted
under sees, 15, 16 and 17 cf Art. 64 of Code. The question is one depend-
ing entirely upon the proof and the weight cf the evidence being decidedly
against appellant, the decree was c^rmedfor the reasons assigned by the
Judge below. No. 78, General Docket, to April Term, 1877. Re-
corded in Liber J. S. P., No. 2, folio 36, kc, of " Opinions Unreported."

Samuel J. Lakahan, use of Nibor Frank vs. Walter B. Hellbn and Wil-
liam D. Hellen. The appellant claimed as equitable assignee qf the payee
of a single bill secured by a mortgage, and on the proof in the easCj the
Court decided that the payee had never parted with /tie property in the
single bill. No. 29, General Docket, to April Term, 1877. Recorded
in Liber J. S. F., No. 2, folio 37, &c., of "Opinions UnreiK)rted."



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CORRIGENDA.

Page 3, 6th line, top, ^^exactedy^* for *' executed.'^

Page 43, 13th line, bottom, ^^proieeutingj'* for *' protecting,^'

Page 101, 7th line, top, "i/," between "fAcrf" and *'M<y."

Page 102, 2Dd line, top, '^appdUe,'' for ^^apptUantt:'

Page 104, 2nd line, top, "mhm," for *'ir«r«."

Page 129, 19th line, top, *^ tectums <j^," for "«e<rftVm, and ofP

Page 161, last line, "any," for ''alV

Page 174, alter ''Alvcy;' insert "i?o6tfMon."

Page 180, 2nd line, top, " ire," after "^trf."

Page 184, 16th line, top, "prMcrtfterf," for ^^ presented:*

Page 224, 18th line, top, "toAtcA," after "wpon."

Page 343, 11th line, bottom, ^'created;' for ''credited:'

Page 416, Ist line, top, "toAa<," after "«p<m."

Page 417, 12th line, top, "M<," to be omitted after "«nc/«r."

Page 418, 14th line, top, 'Hken," for "no»."

Page 421, 12th line, top, ^^rtmaindere^'^ for '^remainder:'

Page 471, 12th line, top, "ro," for "6y."

Page 506, 16th line, top, ''taxes,*' for "those:*

Page 505, 3rd line, bottom, "record," for "second:*

Page 508, 6th line, top, "waiving,** for "wavtw^."

Page 633, 2nd line, bottom, "case," for "«e«M."

Page 549, 3rd line, top, rfead "priority,** for "privity:*

Page 650, 11th line, bottom, read "suU,** for "point.**

Page 622, 6th line, bottom, read "on,** instead of "for:*



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MARYLAND REPORTS.



OCTOBER TERM, A. D., 1876.



State of Maryland vs. The Consolidation Coal

Company.

Scire faei(i8 against a Corporation for a forfeit of its Charter —
How the authority to institute such proceeding may be con-
ferred — Constitutional law — Construction of Act of Assem-
bly — Effect of an unconstitutional provision in a Charter
created by Act of Assembly — Question as to the power of a
Corporation to convey its property and franchises by Deed
without express authority to do sOj and whether such author-
ity is contained by implication in a power to purchase con-
ferred upon the grantee under such Deed — The charge of
excesmre tolls by a Corporation^ under a mistaken construe-
ti4)n of its powers^ no ground for a forfeiture of its Cliarter.

While it is clear that proceedings by scire faciati or otherwise, against a cor-
poration for the forfeiture of its charter, cannot be maintained, except by
the sanction and authority of the Legislature, a special Act of Assembly
for this purpose is not required.

Tt is competent for the Legislature, instead of passing a special Act author-
izing such proceedings to be instituted in a particular case, by a general
law to authorize suits for this purpose to be instituted at the instance of
private parties, as was done by the Act of 1818, ch. 177, sec. 4, codified in
Art. 12 of the Code; or to confer the power upon the Governor to cause the
proceeding to be instituted in his discretion, whenever he may consider the

1 V. 46.



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MARYLAND REPORTS.



The Stftte vt. Consolidation Coal Company.



public interests so require; and this power has been conferred by bcc. 176 of
the Act of 1868, ch. 471.

The Act of 1860, ch. 265, incorporating The Consolidation Coal Company, by
its 6th section, conferred on said company the right to construct, locate and
maintain such railroad or railroads as the Directors thereof might deem
necessary for the conyenient transaction of its business, and inyested it
with all the rights of eminent domain in the survey, location and construc-
tion of such railroads, which had been conferred upon the Baltimore and
Ohio Railroad Company, by its Act of incorporation, 1826, ch. 123, or by
any supplement thereto. Upon a proceeding by the State of Maryland to
procure a forfeiture of the charter of said Consolidation Coal Company ;
Hbld:

Ist. That the Act of 1860, ch. 265, must be interpreted in connection with
and in subordination to the prorision contained in the Constitution of 1850,
Art. 3, sec. 46, and also, in the Constitutions of 1864 and 1867, which
declared that the Legislature should enact no law authorizing priyate prop-
erty to be taken for public use, without just compensation being first paid
or tendered ; and the charter of the Baltimore and Ohio Railroad Company
to which it refers, must in this respect be construed as consistent with the
Constitution, its words being clearly susceptible of such construction.

2nd. That if it were otherwise the particular provision would simply be in-
operative, in so far as it might be inconsistent with the Constitution, but
would not render the whole Act void.

The Cumberland and Pennsylvania Railroad Company was chartered by the
Act of 1849, ch. 469. It was authorized to construct a railroad from
Cumberland to some suitable point on the dividing line, between the States
of Maryland and Pennsylvania, and to make lateral roads in any direction
branching from its main line. By tec. 21, full right and privilege was
reserved to citizens and corporations of the State to connect with said rail-
road, and by see 22, the Legislature reserved to iUe{f the right to altera repeal
or annul this Act at pleasure. By its charter it was authorized to charge at
specified rates for freight and passengers. By the Act of 1868, ch. 334,
these rates were reduced. This amendment to the charter was accepted by
the company, and it continued its business operations in accordance there-
with till the spring of 1876, when the Legislature then in session, by the
Act of 1876, ch. 64, amended the charter by a further reduction of the rates
of charge. This Act was approved by the Governor on the 14th of March,
1876; while it was pending, a deed of the company dated March 2nd, 1876,
was executed, conveying to the Consolidation Coal Company its railroad
and all its property of every description, with its privileges and franchises ;



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OCTOBER TERM, 1876. 3

The State vs. Ck)n8o1idation Coal Company.

and the latter company having taken charge and possefision of the said rail-
road and property under the deed, continued to conduct the same as its
own, claiming the right to charge for transportation thereon the rates
allowed by its own charter, which were in excess of the rates allowed by the
Act of 1876, ch. 64; and executed and received rates gpreater than those
allowed by that Act. On a proceeding by the State to procure a for-
feiture of the charter of the Consolidation Coal Company j Held :

Ist. That the Cumberland and Pennsylvania Railroad Company was not
authorized to execute said deed of the .2nd of March, 1876, without the
consent of the Legislature.

2nd. That such consent was not contained in the charter of the Consolidation
Coal Company, (1860, ch. 265, ) by which the latter company was authorized
^^ to purchase, lease, hold and maintain any other railroad or railroads, or
other roads or ways, water-courses or channels of transportation, already
constructed or hereafter to be constructed, with all the rights, powers and
franchises connected therewith."

3rd. That the said Act was not designed, nor can it be properly construed to
be an amendment of the charter granted to the Cumberland and Pennsyl-
vania Railroad Company, which alone must be looked at in order to ascer-
tain what are the powers of the latter company.

4th. That the power to sell and convey all its property and franchises, and
thus escape from its duties and obligations to the public, could only be con-
ferred by the Legislature upon the Cumberland and Pennsylvania Railroad
Company, and could not arise by implication from the provisions contained
in the charter of the Consolidation Coal Company, which have reference
only to the powers of the latter, and do not profess to confer any new
powers upon other companies.

6th. That the deed of March 2nd, 1876, was inoperative and void, and passed
no title to the grantee in the franchises, railroad and other property of ftie
Cumberland and Pennsylvania Railroad Company, and the latter company
continued to hold the same, notwithstanding the deed, and remained subject
to the power of the legislature to alter or amend its charter.

6th. That the Act of 1876, ch. 242, sec. 14, regulating the rates of transporta-
tion on railroads, has no application to the railroad of the Cumberland and
Pennsylvania Railroad Company.

7tb. That the Cumberland and Pennsylvania Railroad Company was still a
subsisting corporation, vested with rights, franchises and property g^nted
by and acquired under its charter, and subject to the power of the Legisla-
ture to regulate the rates to be charged for transportation upon its road.



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4 MARYLAND REPORTS.

The State vs. Consolidation Coal Company.

8th. That this power was exercised by the Act of 1876, eh. 64, and assuming
that Act to be free from constitutional objection, it wonld follow that no
rates in excess of those allowed by that Act could lawfully be charged for
transportation on its road.

9th. That the alleged excessive rates eicacted by the Consolidation Coal Com-
pany, while in charge of and carrying on the road, claiming to be owner
under the deed, could not be construed as a violation of the charter of the
latter, and therefore they furnished no sufficient cause for the forfeiture
thereof.



Appeal from the Circuit Court for Allegany County, in
Equity.

The appellant, by its Attorney General, under author-
ity of the Governor, filed its petition in the Court below,
praying the Court to decree a forfeiture of the charter,
corporate powers and franchises of the appellee, for the
reasons stated in the petition.

The Court below, (Pearre, J.,) gave judgment for the
defendant upon certain demurrers filed by the petitioner
and dismissed the said petition. The petitioner appealed.

The case is sufficiently stated in the opinion of the
Court.

The cause was argued before Bartol, C. J., Stewart,
Grason, Miller, Alvby and Eobinson, J.

Attorney Oeaei^al Gwynn, for the appellant.

J. P. Poe^ J, H. Gordon and Wm. Pinkney WhytCy for
the appellee.

Bartol, C. J., delivered the opinion of the Court.

This proceeding was instituted by the Attorney General
under the authority of the Governor, to forfeit the charter
of the appellee, for certain alleged abuses of its franchises
and corporate powers. The power of the Governor to



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OCTOBER TERM, 1876. 5

The State vt. Consolidation Coal Compaoj.

direct the proceeding is derived from the Act of 1868 ch.
471 sec. 176, known as the General Incorporation Act,
which provides :

"Whenever the Attorney General of the State, or the
State's Attorney for the City of Baltimore, or for any
County in this State, shall be authorized by the Governor
to institute proceedings against any corporation incorpo-
rated under the laws of this State, to ascertain whether
such corporation has been guilty of such misuse, abuse



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