Volume 35 — Maryland Reports

After this case had been remanded for further proceedings, in conformity with the views expressed in the opinion of this Court on a former appeal, (32 Md., 527,) the appellee, the Chesapeake and Ohio Canal company, on the 19th of September, 1871, filed a petition setting forth that in accordance with the aforesaid decision, the company had paid off the whole of its repair bonds, principal and interest, with the exception of about $4,500, which had not then been demanded, but…

The bill in this case, filed by the appellants on the 24th day of March, 1871, states that certain parties were incorporated by the Act of 1870, eh. 438, by the name of “The Citizens’ Railway Company/’ with power to lay and construct passenger railways in the city of Baltimore — that the capital stock was fixed at $300,000, divided into shares of $20 each; that the affairs of said corporation were to be managed by a president and seven directors; that the parties named in…

Cross-Appeals from the Court of Common Pleas. Plaintiff’s Exception: The plaintiff gave evidence, at the trial below, tending to show, that on the night of the 29f.li of November, 1870, between the hours of 8 and 9, the defendant had placed a line of cars, which it had been making up from 5 to 8 o’clock, P. M., extending down Howard street from above Wayne street, to a point below Barre street, so as to obstruct the crossings of said street at Barre and Wayne streets and the…

First Exception — At the trial of this cause, the plaintiff proved by his own testimony that he had been employed since 1852 until 30th June 1869, as assistant superintendent by the defendant, through Samuel M. Shoemaker, the superintendent or general agent of the defendant for the division or district, consisting of Maryland, District of Columbia and a part of Virginia; that he was employed by the year, from January to January, and in 1867 his salary was $4000, and so…

The appellee, a corporation formed under the Act of 1868, ch. 471, and having for one of its objects the advance and loan of money upon any property, real, personal or mixed, loaned to the appellant William, a member of the corporation, $6,000, on his fifteen shares of its stock, to be re-paid in weekly instalments of $33.75, each, which included principal, interest and a premium of twenty-five cents on each share.

This was an action of assumpsit brought by the appellant against the appellee and Edward O. Sandford and Charles Flinders, as co-partners, to recover the sum of $455.94, for groceries and other goods sold by the appellant, and delivered to the “ New Place,” a restaurant in the city of Baltimore, between the 15th of November, 1867, and the 22d of June, 1868. The pleas were the general issue.

The nature of the case is stated in the opinion of the Court. First Exception — The plaintiff, to maintain the issue on his part, offered in evidence the policy of insurance, the eighth condition of which is as follows: “ 8. In case of loss the assured should use their best endeavors in saving and protecting the property from damage at and after the fire; if they shall fail so to do, this company shall not be liable for such damage caused by such failure.

<p>Appeal from the Baltimore City Court.</p> <p>The facts are given in the opinion of the Court.</p>

This was an action of scire facias instituted on the 3d of September, 1870, by the appellants to revive a judgment which had been confessed in their favor on the 3d of August, 1867, by the appellees. The appellees pleaded payment and satisfaction, and issue was joined thereon.

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

At the trial below the appellants offered a plea to the third count in the appellee’s declaration, averring the essential facts in the case, an abstract of which is given in the opinion of the Court. To this plea the ^appellee demurred, and the Court sustaining the demurrer, judgment was entered by consent for the appellee, subject to the decision of the Court of Appeals upon the demurrer. All errors, if any, in the pleadings on both sides were waived.

This Court having decided in Green vs. Drummond, reported in 31 Md., 71, that the present appellee had contributed a sum of money exceeding $3,000, towards the purchase of the property in question, and was entitled to compensation therefor, remanded the cause to the Superior Court of Baltimore City, for a reference to the auditor to ascertain the precise amount, upon proof then in the cause, and other proof to be taken under the Court’s order for that purpose; and for the…

<p>Claim by Lessees for a Covenant in the Lease, exempting them from Liability for Damage by fire to the Premises, resulting from their own Negligence.</p> <p>A receiver appointed to take charge of certain trust property, entered into a written agreement to lease a house and lot, part of the trust estate, for a term of five years, at a specified annual rent — the agreement to be subject to the approval of the Circuit Court of Baltimore city. The receiver tendered a form of lease, containing the usual covenants for repairs on the part of the lessees — together with a covenant on his part to keep the premises insured; the lessees were also to he liable for any injury by fire to the building caused by their own negligence. This form of lease the lessees refused to accept, insisting that inasmuch as the premises were to he insured by the receiver, and they were to pay the extra premium consequent upon having a steam engine on the premises, they were entitled to be exempted from all responsibility for injury by fire to the premises, though occurring by their own negligence or that of their employees; and that in case of the destruction of the building by fire, it should he rebuilt by the lessor without delay, the rent, in case of accidental fire only, to be suspended in the meantime. The Circuit Court passed an order directing a lease in the form suggested by the lessees. On appeal by a cestui que trust, this order was reversed, it being Held :</p> <p>That in the absence of previous express stipulations to that effect, the lessees were not entitled to the covenants demanded by them.</p>

<p>Trover by one Joint owner of a Promissory Note against the other, for its Conversion — Prayer and Instruction.</p> <p>Where two persons are jointly interested in a promissory note, and one of them deposits it with the other for collection, and he without authority surrenders it to the drawer to be cancelled or destroyed, such surrender is a conversion, and trover will lie therefor, by the other joint owner of the note.</p> <p>Where an instruction is asked upon certain facts offered in evidence, the conclusion arrived at in the instruction, must be consistent with the truth of the other facts offered in evidence; for if these latter, while not inconsistent with the truth of the facts upon which the instruction is based, would in conjunction with them establish in law a different theory and a different result, the prayer ought not to he granted.</p>

This suit was brought by the appellant against the appellee, and the summons made returnable at the April return day, 1870, under the Act of 1864, ch. 6, secs. 1 and 2. The appellee was returned summoned. On the return day, which occurred on the 11th of the month, the appellee appeared in his own proper person, and was placed under rule to plead, within fifteen days thereafter.

<p>Conversion of a Legal estate for life, into an Equitable estate — Power of Sale — Power appendant— Power in gross — Right of a Purchaser to have his Title perfected.</p> <p>A testator by the third clause of his will, devised to his wife, for life, a certain house and lot on Mount Vernon Place, in. the City of Baltimore ; and by the fourth clause he gave her full power, at any time, to sell and convoy the samo, with direction that the proceeds of sale should be invested by her, in conjunction with two other trustees named in the twelfth clause of the will, for her sole and separate use, during her life, she to receive the interest and income from the investment, and the purchaser should not be bound to see to the application of the purchase money. By the tenth clause of the will the testator directed that all " property devised to his wife for life, should, after her death, bo equally divided amongst his children. By the twelfth clause the wife, together with the trustees therein named, were empowered to receive the proceeds of the estate, and invest the same in trust, for the use and benefit of the testator’s children, and to sell any part of his estate, as they might deem advantageous, and generally to do all acts and things as should be most conducive to the interest of the children. Sometime after the death of the testator, his widow, for and in consideration of a contemplated marriage, and of one dollar, made and executed in conjunction with her intended husband, a deed of settlement, whereby she conveyed to one of the trustees named in the will of her deceased husband, all the estate to which she was in any manner entitled, certain specific property, other than the house and lot in Baltimore City, excepted ; and the trusts and powers declared were, that the grantor should, during her life, hold and enjoy the property as a feme sole, without its being in any way subject to the control of her intended husband, or liable for his debts, and might sell, convey and assign absolutely all the estate and property conveyed, or any part thereof, for such price or prices, and upon such terms as she might think proper, without the assent or concurrence of her intended husband, or the trustee named in the deed; the proceeds of sale to be invested in other good security, to be held upon the same trusts and subject to the same powers afore-mentioned in reference to the property conveyed. It was also declared that the purchaser should not be bound to see to the disposition of the purchase money. Under the deed of settlement, the proceeds of sale were to be held to the use and enjoyment of the intended husband for life, after the death of the wife, if he should survive her, and from and after his death, or the death of the wife, if she should survive him, to the use and benefit of their children, or their descendants; and in default of such descendants, then to Ihe use and benefit of the children of the wife by the first husband. The contemplated marriage took place, and children were born to the parties ; and subsequent to these events, the wife in the exercise of the power given to her by her former husband’s will, sold the house and lot in Baltimore City to the appellant, in fee simple. This sale she, together with the other trustees named in the will, reported to the Circuit Court for Baltimore County, in Equity, for ratification under the Act of 1870, eh. 870. Upon objections to tho ratification of the sale by the purchaser, it was Hkld :</p> <p>1st. That by the deed of settlement, which operated as a bargain and sale, the legal estate for life of the wife in the house and lot, under the will, was converted into an equitable estate for life, and the legal estate became fixed in the trustee. But in the contemplation of a Court of Equity, the wife was actually seized of the freehold, and was the beneficial and substantial owner; and in the absence of any disability she could alien it, and any legal conveyance by her would have the same operation in equity upon the trust as it would have had at law upon the legal estate.</p> <p>2d. That the power of sale reserved in the deed of settlement had no reference whatever to that existing under the will ; it had reference to and could only operate upon the property actually conveyed by the deed.</p> <p>3d. That tho power of sale given to the wife under the will was partly appendant and partly in gross; it was appendant, as it overreached and affected the life estate of the wife, and in gross as to the estate in remainder or reversion.</p> <p>4th. That the conveyance of the naked legal estate for life, the donee of the power of sale under the will still holding the equitable estate, did not operate either to suspend or extinguish such power as to such life estate.</p> <p>5th. That the purchaser had the right to insist upon a title that was good and defensible in a Court of Law, as well as in a Court of Equity; and before ho could be compelled to accept the title, the outstanding legal estate for life must bo conveyed or extinguished; and to this end the trustee would be required to join in the conveyance to the purchaser.</p>

In 1869, William PI. Emerick and Catherine Y. Emerick, his wife, assigned a policy of life insurance upon the life of the former, for the sole and separate use of the latter, in the Charter Oak Life Insurance Company, to Coakley Brothers, for the purpose of securing to them the payment of certain notes of William IT. Emeriek, given in liquidation of an indebtedness of the firm of which he was a member, and in consideration of an extension of time for the payment of the same.

Sometime in November,- 1868, the appellant appeared at the counter of the Commercial and Farmers’ National Bank in. Baltimore city, and presented .a check on said bank, purporting to have been drawn by Cox & Brown, commission merchants in said city.

<p>Quasi Corporation created by bestowing powers on Boards of School Commissioners — Bights and liabilities of Counties out of which new Counties are formed.</p> <p>The Act of 1868, eh. 407, transferred and vested in Boards of School Commissioners of the several counties and their successors, all the property, money, and funds of every sort existing for the use and benefit of the public schools of the several counties ; and charged them with the duty of administering and supervising the affairs of the public schools in their respective counties; but did not, in terms, incorporate these Boards. Held :</p> <p>That while not incorporated as legal entities in the full sense of the term, these Boards were quasi corporations, with full power to sue and liable to be sued, in respect to all matters within the scope of their duties and obligations.</p> <p>If a part of the territory and inhabitants of a county or town, are separated from it by annexation to another, or by the creation of a new county, the remaining part of the county or town retains all its property, powers, rights and privileges, and remains subject to all its obligations and duties; unless some express provision be made by the Act authorizing the separation.</p> <p>The Legislature of Maryland, by several Acts, (1812, ch. 79; 1813, ch. 122; 1817, chs. 16 and 93,) made provision to raise a fund for school purposes. This fund was subsequently divided among the several counties equally, without reference to inequality of territory or population. (1816, ch. 256; 1817, chs. 16 and 93; Code, Art. 84, see. 6.) After the division, the proportion of each county was controlled by the officers of the county under local laws ; and was recognized as the separate property of the county by the Acts of 1865, 1868, 1870, providing for a general system of education in the State. Article 13 of the Constitution of 1867, erected the county of 'Wicomico out of portions of the counties of Somerset and Worcester, and provided that on the eroation of the new county, “ the inhabitants thereof shall cease to have any claim to, or interest in the county buildings and other public property of every description, belonging to said counties of Somerset and Worcester, respectively.” On a hill filed by the School Commissioners of Wicomico against the School Commissioners of Worcester county, praying an account and a decree for such proportion of the aforesaid fund as was justly due those of the inhabitants of Wicomico county, who were formerly inhabitants of Worcester county, Held:</p> <p>1st. That neither the now county nor that part of it which was formerly part of Worcester county, is entitled to a division of the fund.</p> <p>2d. That a Court of Equity has no power or jurisdiction over the subject-matter, that power being in the Legislature alone.</p>

<p>Estoppel — Extinguishment and abandonment of an Easement — Constructive Notice — Power of. Lessee to bind Reversioner — Construction of Leeds — Appeals — Construction of Article V, Section 23, of the Code of Public Gteneral Laws.</p> <p>Where G having been a party to a chancery suit for the partition of real estate, wherein was included, a certain dominant tenement, afterwards became seized of the servient tenement, it was Held :</p> <p>That G was not estopped, as party to the chancery suit, from maintaining that, either by the true construction of the title deeds creating the easement, or by subsequent agreement of the parties in interest, the easement had been extinguished.</p> <p>An agreement by a lessee for years to abandon an easement cannot bind the reversioner, unless he be a party to it, or it be made with his acquiescence.</p> <p>Where a paper is not entitled by law to be recorded, placing it upon record does not operate as constructive notice.</p> <p>A deed from W to B, made in 1823, conveying a lot on the principal street, in the City of Baltimore, contained a stipulation that notwithstanding a deviation of the existing partition wall from the true dividing line between the lot therein described, and the adjoining lot belonging to W, the said wall should remain undisturbed, “ so long as the said houses shall endure.” The houses then existing, were two-story brick dwellings. In 1870, many radical changes having meantime been made in the condition of the houses, and the house of the party claiming under B having become incapable of safe and beneficial occupation, he sought to build a new wall upon the true dividing line. Upon appeal from an order granting.an injunction against the disturbance of the old wall, the true construction of the clause above quoted being disputed, it was Held :</p> <p>1st. That this provision must be taken most favorably for the grantee.</p> <p>2d. That the evident design of this provision was, that whenever the grantee should find it necessary, either by reason of the decaying condition of his house, or its unfitness for the locality, to erect in its stead a more substantial structure, suitable for the business purposes of that part of the city, his enjoyment of the property according to its true lines should no longer be restricted.</p> <p>After an appeal has been taken from an order granting an injunction, it rests exclusively with the Appellate Court to determine the effect and operation of the order.</p> <p>The effect of an appeal from an order granting an injunction, when an appeal bond has been filed and approved according to law, is to stay the operation of the order.</p>

<p>Appeal from the Circuit Court for Montgomery County, in Equity.</p>

<p>Appeal from the Circuit Court for Baltimore County, in Equity.</p> <p>The facts are given in the opinion of the Court.</p>

The appeal in this case was taken from an order of the Circuit Court for Calvert county, of the 8th of May, 1871, directing the judgment of condemnation entered against the appellee, to be stricken out on his motion. The case is stated in the opinion of this Court.

Writ op Error to the Circuit Court for Harford County. The indictment in this case contains three counts: The first charges the defendant with unlawfully selling spirituous liquors in quantities not less than a pint, viz: One barrel of whiskey, without a license so to do. The second count charges like selling, in quantities not less than a pint, five gallons of whiskey, without a license so to do; and the third count charges a like selling one gallon of wine, without license.

This action tvas instituted in the Superior Court of Baltimore city by the appellees against the appellant, to recover damages for its refusal to issue to them certificates of its stock in lieu of three certificates for certain shares of an unincorporated association out of which the appellant was formed, and which certificates had been assigned to the appellees by a member of the association prior to its becoming a body corporate.

<p>Appeal from the Superior Court of Baltimore City.</p> <p>The facts of the case, so far as necessary, are given in the opinion of the Court.</p>

Apjpeae from the Court of Common Pleas. The nature of the case, together with the first exception taken by the defendant in the Court below, are sufficiently stated in the opinion of this Court. Second Exception. — The testimony on both sides being closed, the plaintiff offered four prayers — the first, third and fourth of which were rejected ; the second was granted. The objection to this prayer was abandoned at the argument.

First Exception — This exception is stated in the opinion of the Court.

<p>Caveat to a Will — Issues transmitted by the Orphans' Court for trial by a Jury — Appointment of an Administrator pendente lite when the validity of a Will is contested — Article 93, section 68, of the Code, construed.</p> <p>A paper purporting to be the last will and testament of M, was admitted to probate in common form without contest, and letters testamentary thereon were granted by the Orphans’ Court to the executors named in the will. Subsequently, two infant children of the testatrix, by their next friend, filed a petition and caveat, alleging that the paper purporting to be the last will and testament of their mother was not in fact and in truth her will, and requiring full and particular proof of the execution thereof. The petition stated specific grounds of caveat, and prayed that the probate might be annulled and set aside, and the letters testamentary revoked. To this petition an answer was filed by one of the executors, admitting the allegations therein, and uniting in the prayer of the petitioners to have the admission of the will to probate again heard and examined, and the order admitting the same to probate, rescinded. The other executor likewise answered, denying that the paper writing was other than the true last will of the testatrix, and averring that it was formally executed by her, as required by law, and that in the presence of a witness she declared that she had read said paper, that she understood it, and that it truly expressed her wishes. The respondent answered the several matters alleged in the petition, and prayed that it might be dismissed, and the will fully executed under the direction of the Orphans’ Court. Shortly afterward the caveators filed their petition, praying that the questions at issue upon their caveat to the will, and the answers thereto, might be transmitted to the Circuit Court for trial, and proposed the following issues :</p> <p>1st. Was the paper writing purporting to be the last will and testament of M, executed and attested in due form as required by law ?</p> <p>2d. Were the contents of said paper writing fully explained'to, or known, or understood by M, before or at the time the same is alleged to have been signed by her ?</p> <p>3d. Was the said alleged will drawn in conformity with the instructions of the said M.</p> <p>The caveatee agreed to the first issue, but objected to the second and third, and suggested, in lieu of the second, the following:</p> <p>“ "Were the contents of said paper writing read to, or hy the said M, or known to her, at or before the time of the alleged execution of said paper writing?”</p> <p>Subsequently, the caveatee submitted to the Orphans’ Court the two following issues :</p> <p>“ What part or parts, if any, of the said paper writing were unknown to or misunderstood by the said M, before or at the time when the same was executed?”</p> <p>“What part or parts, if any, of the said paper writing are contrary to the instructions of the said M ?”</p> <p>The Orphans’ Court refused to send up the issues presented by the caveatee, and directed that the issues presented by the caveators be transmitted for trial to the Circuit Court. Afterwards, the caveatee submitted five issues, embracing those already presented by liim, and prayed that they might be sent to the Circuit Court for trial. The Orphans’ Court refused to send these issues to the Circuit Court, upon the ground that they were substantially the same as those already transmitted. On appeal by the caveatee, Held :</p> <p>1st. That the issues proposed by the caveatee were not substantially the same as those presented by the caveators, and transmitted to the Circuit Court for trial by a jury.</p> <p>2d. That it being conceded that M was of sound mind, capable of making a will, if it appeared that the paper writing purporting to be her last will had been in her possession, read and examined by her before it was executed, or that it had been read to her and approved by her, it was immaterial for the jury to inquire whether its contents and meaning had been fully explained to her, or whether she understood them. Such knowledge and understanding would be presumed and imputed to her by the law.</p> <p>3d. That if the contents of the will were known to the testatrix when she signed it, it would bo immaterial to inquire whetber.it bad been drawn in all respects according to instructions before given to the draftsman ; even if those instructions had been departed from in some particulars, that would not vitiate the will, if the fact were known to and approved by the testatrix when she signed it.</p> <p>4th. That the following were the proper issues between the parties, and those which ought to have been transmitted to the Circuit Court for trial:</p> <p>1. Was the paper writing dated the 26th October, 1869, purporting to be the last will and testament of the said M, executed and attested in due form as required by law ?</p> <p>2. Were the contents of the paper writing, purporting to be the last will and testament of M, read to, or by her, or known' to her, at or before the time of the alleged execution thereof?</p> <p>3. What part or parts, if any, of said paper writing were unknown to, or misunderstood by M,.at the time of the alleged execution thereof?</p> <p>4. What part or parts, if any, of said paper writing are contrary to the instructions of the said M ?</p> <p>5. Is the said paper writing, bearing date the 26th of October, 1869, the last will and testament of M ?</p> <p>Section 68, of Article 93, of the Code, authorizing the Orphans’ Court, ’ when the validity of a will is contested, to appoint an administrator pendente lite, applies to cases where the will has not been admitted to probate, or where letters testamentary have not been granted, or, if granted, have been revoked.</p> <p>Where a will has been admitted to probate, and letters testamentary granted, and the executor has qualified, and his letters remain unrevoked, the Orphans’ Court has no power to appoint an administrator pendente lite.</p> <p>The effect of a caveat to a will, and the sending of issues for trial to the Circuit Court, is not to revoke the probate or suspend the powers of the executor. These remain to await the final action of the Orphans’ Court after the trial and verdict upon the issues.</p>

<p>Appeal — Interlocutory order — Article 75, section 69 of the Code.</p> <p>Upon a caveat to a will certain issues were transmitted by the Orphans’ Court to the Circuit Court for trial by jury. One of the issues presented the question, whether the alleged will was drawn in conformity with the instructions of the testatrix ? It appeared that written instructions for the preparation of the will had been given by the testatrix, and were in the possession of the draftsman of the will or of his counsel. In this state of case, the caveators filed a petition in the Circuit Court, setting forth that the counsel of the draftsman declined to produce said instructions after due application had been made to them to do so. The petition stated that the instructions contained evidence pertinent to the issues in the case, and prayed that the draftsman might be required to produce a copy thereof, certified before a justice of the peace as provided in section 69 of Article 75 of the Code, and that the same might be filed in Court. An order was passed dismissing the petition. Hjsld :</p> <p>That no appeal would lie from such order, it being merely interlocutory and not a final judgment concluding the rights of the parties in the cause.</p> <p>Section 69 of Article 75 of the Code, does not apply to the ease of issues sent from an Orphans’ Court, upon a caveat to a will, to a Court of Law for trial.</p>

An attachment was issued under the Act of 1864, ch. 306, by the appellant against Christian Pasquay, surviving partner of Charles Gemundt and -Pasquay, trading as Pas-quay & Gemundt, and laid in the hands of John M. Frazier, who appeared and entered a plea of non assumpsit in behalf of the defendant, and a plea of nulla bona for the garnishee. Frazier died, and his executors were made parties.

.This was a suit instituted by the appellees to recover a balance claimed to be due for curbing and dimension stone furnished the appellants at sundry times during the year 1869. With the declaration was filed an account verified by affidavit, in accordance with the provisions of the Act of 1864, ch. 6. The defendants pleaded the general issue with an affidavit.

The bill of complaint in this case, filed on the 27th of April, 1864, charged that on the 23d of June, 1831, John Frazier and Mary Ann, his wife, executed a deed, in fee simple, of all that lot of ground in the city of Baltimore, bounded on the north by Baltimore street, on the east by Front street, on the south by Plowman street, and on the west by Jones’ falls, known as the “Washington Hall Property,” (being a portion of the real estate allotted to the said Mary Ann, in…

The facts are stated in the opinion of the Court. ' At the trial below the plaintiffs, Placide & Clark, offered six prayers, the first and second of which were conceded, the fourth was rejected as unnecessary, and the following were granted : 3d. If the jury find that the whole amount of money due the plaintiffs by the defendant, for work and labor performed and materials furnished by them under such contract, as they may find to have been the contract between the parties,…

<p>Practice — Trial of Issues on a Caveat to a will— Inadmissible Evidence.</p> <p>Upon the trial of issues transmitted from an Orphans’ Court, on a caveat to a will, the caveators have the right to' open and conclude the argument before the jury.</p> <p>Upon the trial of issues on a caveat to a paper purporting to be the last will of S, testimony having been given by the caveators implicating G, one of the caveatees, (a son of the alleged testator, and named as his executor,) in the forgery of the signatures of the testator and of the subscribing witnesses, the caveatees could not for the purpose of repelling the inference of the agency of G in procuring such forgeries, give in evidence his declarations made on the day before the funeral of the deceased, in reply to the question, “ whether there was a will of his father’s in existence ? ” nor the declarations of the family that they believed that the deceased had died intestate.</p> <p>Upon the trial of issues transmitted from an Orphans’ Court, on a caveat to a paper purporting to he the last will of S, the caveators having given evidence tending to prove that the signatures of the attesting witnesses were forged, the caveatees gave evidence to show the genuineness of said signatures and of the death of the subscribing witnesses, and then offered to prove that one of said witnesses, a short time before he was taken with his last illness, said “old Mr. S has made a will now,” and that another of the attesting witnesses at the same time remarked “I wrote a will once.” Held :</p> <p>That the declarations, offered as acts of the deceased witnesses tending to prove the genuineness of their signatures, were inadmissable, being too vague and inconclusive to justify any inference from them.</p>

This suit was brought by the appellants for the purpose of setting aside two deeds, the first, from Abraham Groff and Susan, his wife, to Amon Richards, and the other from Amon Richards and wife to Susan Groff, wife of said Abraham Groff.

<p>Power of Sale in a Mortgage — Inadequacy of Price as a ground for vacating a Sale.</p> <p>"Where power is given in a mortgage to the mortgagee, his heirs or assigns, to sell the mortgaged premises on default in the payment of the mortgage debt, or the interest thereon, it is competent for the administrator of the mortgagee to execute the power.</p> <p>The power to sell given to a mortgagee is a power coupled with an interest in the mortgaged premises, and will pass to his assignee.</p> <p>A sale of mortgaged premises will not be vacated on the ground of the inadequacy of the price obtained therefor, it appearing that the land sold for thirty-six dollars an acre, while the proof showed that it was worth from thirty to fifty dollars.</p>

Cross Appeals from the Circuit Court of Baltimore City. Philip Horn died in the year 1834, intestate, leaving a large real and personal property, an undivided ninth part of which descended to his daughter Caroline A., who intermarried with Ephraim Hoffman, in July, 1845, and had a child born alive in the following year.

The bill in this case was filed by the appellees against the appellant, and Richard Wells, the administrator of John Wells. The facts of the case, together with the object of the bill, are sufficiently set out in the opinion of the Court.

<p>Marriage — Evidence inadmissible under the Acts of 1864, ch. 109, and 1868, ch. 116 — Exceptions to the admissibility of Evidence — Practice in the Court of Appeals.</p> <p>A marriage contracted in this Slate merely per verba de prccsenii, or per verba de futuro cum, copula, is not lawful. To constitute a lawfid marriage, so mo religious ceremony mast be super-added to the civil contract.</p> <p>In a controversy between the alleged wife of an intestate and his administrator, involving her right to a distributive share of the intestate’s estate, her testimony is inadmissible under the Act of 1861, ch. 109, as modified by the Act of 1868, ch. 116, to prove her marriage with the deceased.</p> <p>On appeal from an order of the Orphans’ Court, exceptions to the admissibility of evidence or to the competency of testimony, may be taken and insisted on in the Court of Appeals, though not taken in the Court |>elow.</p>

<p> Power -of Courts of Equity to correct mistakes in Peeds, upon Parol Evidence. </p> <p>A Court of Equity will correct mistakes in a deed, upon parol evidence sufficient to satisfy the mind of the Court of the existence of the mistakes ; and will interpose the more readily where the deed is a voluntary settlement, and all the parties interested in it, who are sui juris, are willing that it should be reformed and corrected.</p>

<p>Construction of Act of 1868, ch. 50, incorporating the County Commissioners of Wicomico County— Nuisance — Continuance of Nuisance when erected by another — Powers of Comity Commissioners as to Highways — Practice.</p> <p>If one in possession erect a nuisance, his successor is not liable, unless he either fails, after request, to remove it, or does some act to continue it.</p> <p>To constitute a continuance of a nuisance erected by another, there must be some active participation in the continuance of it, or some positive act evidencing its adoption.</p> <p>There is nothing in the Act (1868, ch. 50,) incorporating the County Commissioners of Wicomico county, which renders them the successors of the Commissioners of Somerset county in any sense which can charge them with liability for tortious acts of the latter.</p> <p>It is the right and duty of County Commissioners in Maryland to make necessary and proper repairs upon the highways, and when such repairs are judiciously and reasonably done, the Commissioners are exempt from liability for consequential damages.</p> <p>It is error to enter a final judgment, after demurrer overruled to a plea, when there are pending issues upon other pleas.</p>

The facts are sufficiently given in the opinion of the Court.

This was an action instituted on the 23d of July, 1869, by the appellees, to recover from the appellant the rents and profits which he had received from a farm called “ Darly’s Addition Enlarged,” since the death of a certain John A. Scott, who died seised and possessed of said estate, sometime in the month of December, 1863. The appellees were the nearest blood relations and heirs-at-law of the deceased, and claimed that he died intestate of said estate.

<p>Appeal from the Superior Court of Baltimore City.</p> <p>The facts are given in the opinion of the Court.</p>

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

This was an action of ejectment brought on the 17th of February, 1866, by the appellants against the appellee.

This action was brought by the appellee in the Circuit Court for Frederick county, to recover from the appellant in damages the sum of $2,000, alleged to have been obtained by false and fraudulent representations made by the appellant, to induce the appellee to take stock in certain Nevada silver mines.

The facts of this case are as follows: The appellee sold his farm to James Wason, for $20,130, on the 8th of January, 1866, agreeing to receive in part payment thereof an undivided one-third interest, valued at $4,000, in the Hagerstown Foundry, and the remainder to be paid as follows, to wit: $1,000 on April 1st, thence following, and the balance, being $15,130, to be paid in five annual payments, with interest.

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

This was an action instituted by the appellant on a single bill, dated 3d June, 1854, executed by the appellee and a certain Joseph Byrne, to Phillip Coons, administrator of Sarah Tillett, deceased, for the sum of $795. Joseph Byrne did not appear and the suit was. proceeded with against the appellee alone. The defendant pleaded as follows: First. That he was not indebted as alleged. Second. Payment. Third.

The bill of complaint in this case filed by Sarah Street, and others, appellees, against the appellant and the other appellee, William Ashton, charged that Richard Ashton died on or about the 1st of November, 1854, possessed of a large real and personal estate, and by his last will which was admitted to probate on the 14th of November, 1854, after devising certain real estate to his son John, devised and bequeathed one-half of the residue of his real estate and all of his…

The case is stated in the opinion of the Court. Exception — The defendants offered five prayers, the first of which was conceded, the third, fourth and fifth were granted, and the second, as follows, was rejected: If the jury shall find that the goods and chattels mentioned and specified in the schedule offered in evidence in this cause by the plaintiff, were at the time of the levy under the attachment issued at the suit of the defendants, actually in the custody, or in the…

The Hagerstown Bank obtained two judgments against Jacob Hollingsworth, on the 14th of April, 1846, each for the sum of §750, in the Court below. The Washington County Bank and John Hanson Thomas, two of the appellees, also obtained judgments in said Court against said Hollingsworth, the former on the 12th of November, 1866, and the latter on the 26th of December, 1861; Thomas’judgment was revived on. scire facias, by fiat, November 25th, 1867.

<p>Testamentary Construction — Family ” construed to include the child of a deceased member of the Family — General and particular intent — Technical words — From what date a Will speaks.</p> <p>A testator, dying without wife or children, "by his will made 10th of August, 1860, devised and bequeathed portions of his estate to all his nephews and nieces, and their descendants. The will contained the following clause : “ Item. — I give, devise and bequeath to my nephew, P. "W, and his heirs, in trust for my nephew H. W, all the lands, &c. And it is my will that my said nephew P. W, hold all the said lands in trust for the use and benefit of my nephew II. "W, during the natural life of the said H. W; and that ho receive the rents, issues and profits thereof, and pay the same for the support of the said II. "W and his family; and upon the death of the said H. W, I give and devise the same lands to his children and their heirs, equally, share and share alike —to he held, however "by my nephew P. "W in trust for their separate use and benefit as aforesaid ; and it is my will, that upon tlio death of my said nephew H. W, leaving his wife J. "W, that she shall have her dower in said lands during widow-hood as if the same had not been left in trust,” &e. Subsequently on the 5th of January, 1864, the testator executed a codicil to his will, not altering however the above clause. Tlio testator died in March, 1866. At the time when the will was executed, H. "W had a wife, J. W and five children. One of the children died in November, 1860, leaving the appellant G. T her only surviving child, then an infant of about one year old. In January, 1868, H. "W died, leaving his widow and the other i'oar children. In construing the foregoing clause, it was Held :</p> <p>1st. That the ratification and confirmation of the will, except so far as altered by the codicil, does not affect its construction in this case.</p> <p>2d. That the word “family,” in the connection in which it stands, indicates that the testator designed his bounty to flow in the broadest stream among tbe descendants of H. "W.</p> <p>3d. That the testator, standing in loco parentis towards his several nephews and nieces and their children, made the dispositions contained in his will in the nature of a family settlement, and that G. T is entitled to the share which her mother would have had, if living at the death of the testator.</p> <p>4th. That the trust terminated with the life of H. W, the cestui que trust for life, and the legal estate in fee vested in the children and grand-child of H. W, subject to the dower of his widow.</p> <p>A will must be construed as a whole, the intention of the testator being gathered from all its provisions developed by the light of surrounding circumstances.</p> <p>Where there is a manifest general intent, the construction should be such as to effectuate it, though, by such construction, the particular intent may be defeated.</p> <p>Where the intention of a testator is plain, it will be allowed to control the legal operation of words, however technical.</p> <p>The rule .that the words of a devise shall be construed as speaking at the death of a testator, is subject to the paramount intention apparent upon the face of the will.</p>

Plaintiffs’ First Exception: The plaintiffs after proving the seisin and possession of Tilghman Waters of the lands mentioned in the declaration, and his death in 1864, and that they and the defendant, Washington Waters, were his heirs-at-law, rested their case.