Volume 37 — Maryland Reports

<p>Appeal from the Circuit Court for Allegany County.</p>

This was an action instituted by the appellee to recover for damage done her property by fire, alleged to have been caused by burning coals thrown from the engines of the appellant. The facts of the case are sufficiently presented in the opinion of the Court. An exception was taken-hy the defendant to the rejection by the Court (Hayden, J.) of its fifth, sixth and seventh prayers. The fifth prayer is set out in the opinion of the Court, the others are as follows: Sixth.

This was an appeal from the following orders of the. Court below: The order of the 6th of January, 1864, decreeing the sale of the real estate mentioned in the complainant’s bill, as the residue of the real estate remaining unsold, of the late Thomas B. Dorsey, and appointing James Mackubin trustee to make the sale; the order of the same date, removing John T. B. Dorsey, as trustee of Mrs. Mary A. T. Thompson, and appointing Priscilla M, Dorsey in his stead; the order of the…

The appeal in this case was taken from a decree of the Court below, passed on the 9th of November, 1810, requiring the appellant to pay to the appellee the sum of $719.82, with interest from the date of the decree, and costs By the decree the appellee was allowed for the1 money paid on the purchase, for improvements on the premises, and for the value of certain personal property replevied, except the part that was taken by title paramount to that of the appellee, with…

<p>Motions to re-instate certain cases in pursuance of the Act of 1872, ch. 310.</p>

Appeal -from the Circuit Court for, Cecil County, in Equity.

Mary’s County, in Equity. * Oh the 6th of June, 1870, William H. Dunkinson filed a bill in the Circuit Court for St. Mary’s County, in Equity, against Lucien Birdseye of New York, to enforce an alleged vendor’s lien Upon the Point Lookofit property, by sale of the property. An order of publication was granted, and tire defendant having failed to appear and answer, a decree pro confesso was- passed on' the 8th of December, 1870, for the sale of the property, and B. Gr.

<p>Competency of Stockholders in a Railroad Company, as witnesses for the Company — Act of 1868, chapter 116, section 2.</p> <p>In a suit by the Maryland and Delaware Railroad Company, a corporation . created by the Act of 1854, chapter 2Í4, amended by the Act of 1856, chapter 50, against an executor to recover the amount of an alleged subscription by his testator, to the capital stock of the company, it was Held :</p> <p>That stockholders in the Company were not parties to the contract, or to the suit within the letter or spirit of the second section of the Act of 1868, chapter 116, and were therefore competent witnesses for the plaintiff.</p>

This was an appeal from a decree dissolving the injunction, issued upon the application of the appellant, and dismissing his bill.

County. This was an action brought on the 2nd December, 1871, by the appellant against the appellees to recover damages for the obstruction of an alleged right of way.

The appeal in this case is from an order of the Court below, granting an injunction upon a bill filed by the appellee against the appellant. The allegations of the bill are sufficiently stated in the opinion of this Court. The case was heard in the Court below on the bill and exhibits, and the answer of the appellant was not filed until after the injunction had “been issued.

The declaration averred : For that, whereas, the said plaintiff is a good, honest, true and faithful citizen of the State of Maryland, and as such hath always behaved and conducted herself.

This action was brought against the appellant, in the name of the State, for the use of Mary Fazenbaker and her three infant children, to recover damages for the killing of William Fazenbaker, the husband and father of the equitable plaintiffs, on th'e 26th of March, 1870, by the explosion of one of the company’s locomotives. The plea was “not guilty,” The deceased was a brakeman in the service of the appellant, and his place was in the middle of the train when in motion.

in Equity. The bill of complaint in this case was filed by Addison L. Withers against Henry J. McNamee, Samuel Eckels and Josiah H. Gordon.

<p>Validity of the Act of 1867, chapter 282, amending section 2 of Article 82, of the Code, entitled “Riots ” — Power of the Legislature over the Counties, incorporated Towns and Cities of the State — Retrospective Laws.</p> <p>Ou the 4th of May, 1867, an action was brought under the provisions of Article 82, of the Code, entitled “Riots,” against the Mayor and Council of Hagerstown, a municipal corporation, by a citizen of the town, to recover damages for injury to his hardware store, situated within the corporate limits of the town, and tor the destruction,- injury and taking away of his goods, and other personal property therein deposited, done by riotous and tumultuous assemblages of people on the nights of the 24th, and 25th of May, 1862. Article 82 of the Code fixed no limit of time within which suits under its provisions might bo brought. The defendant, besides “not guilty,” pleaded that the cause of action had not accrued within three years before suit instituted. The plaintiff demurred to the plea of limitations; and joined issue on the ..plea of “not guilty.” Before the institution of the suit, the Act of 1867, chapter 282, Was passed, amending the second section of Article 82, of the Code, by providing that suits might be brought for any cause of action which had theretofore arisen under the first section of the article, within five years from the time of its accrual, and not after. It was urged against the demurrer that the Act of 1867, chapter 282, was invalid, as taking from the defendant the vested right to plead the pre-existing limitation of three years in bar of the suit. Held :</p> <p>1st. That no such vested -right existed in the defendant, and that the Act of 1867, chapter 282, was not invalid because its ultimate effect might be to subject the tax-paying- inhabitants of the municipality to increased taxation.</p> <p>2nd. That the power of the Legislature to impose a liability upon the counties, incorporated towns and cities of the State, for injuries done to property by riotous and tumultuous assemblages, as provided in Article 82 of the Code, carried with it the power to direct and determine the time and manner in whicli such liability should be enforced, and the Act of 1867, chapter 282, was therefore valid.</p> <p>Between private citizens and counties, incorporated towns or cities of the State, there is a wide and substantial distinction with respect to vested rights protected from legislative power. Such public bodies are public corporations created by the Legislature for political purposes, with political powers to be exercised for purposes connected with the public good in the administration of civil government. They are instruments of government subject at all times to the control of the Legislature with respect to their duration, powers, rights and property. It is of the essence of such a corporation that the government has the sole right as trustee of the public interest, at its own good will and pleasure, to inspect, regulate, control and direct the corpora tion, its funds and franchises.</p> <p>The Legislature of this State having the right to pass retrospective laws so far as they relate to civil cases, the retrospective character of the Act of 1867, chapter 282, does not affect its validity.</p>

<p>Power of the City of Baltimore to Condemn the Right af Wharf-age on a Street — Construction of Acts of 1796, chap. 45, 1801, chap. 92, and 1805, chap. 84, and of Ordinance of 1869, No. 7, of Baltimore City — Jurisdiction of Equity where the Street Commissioners of Baltimore assess Excessive Damages or proceed irregularly.</p> <p>The Acts of 1796, chapter 45, 1801, chapter 92, and 1805, chapter 84, authorized the owners of lots binding on Light street, in Baltimoee, to extend wharves into the basin to a certain line, and provided that sixty feet “of said wharves when so made out and extended at the end thereof, parallel w ith the line of Forest street, shall be deemed, taken and considered as a public highway forever thereafter, reserving nevertheless to the proprietors of said wharves the benefit and advantage of the wharfage thereof, under the limitations aforesaid.” The Ordinance of 1826, chapter 12, section 3, declared that it should not ho lawful to encroach upon these wharves with any article landed thereon further than eighteen feet, measuring from the inner edge of the logs or stones of which they are formed; but it did not appear that this Ordinance was ever enforced. By the Ordinance of 1869, No. 7, of the .City Council of Baltimore, the Street Commissioners were directed “to condemn and widen all that part of Light street between Pratt and Lee streets: the said widening to he made twenty feet eastwardly from the eastern side of said street.’ ’ The powers an<j duties of the Street Commissioners are defined in the Ordinance of 1866, chapter 26, the 17th section of which provides that they shall be allowed ninety days to complete any proceedings commenced by them under that, or any future, Ordinance; and, if they cannot so complete the same, they shall report the fact to the Mayor and City Council, and shall suspend all further proceedings until otherwise directed. On a hill for an injunction to restrain the collection of an assessment for the condemnation of the wharfage rights of the proprietors along Light street, made under Ordinance of 1869, No. 7, it was Held :</p> <p>1st. That the Acts of 1796, chapter 45, 1801, chapter 92, and 1805, chapter 84, established an incomplete, limited and qualified highway over the wharves, leaving to the proprietors thereof the right to use as much of it as was necessary for the fair and just enjoyment of the privileges granted and reserved to them by those statutes: and it was competent for the city authorities to condemn the rights still remaining in the proprietors, and to assess the benefits arising from such condemnation on the neighboring proprietors.</p> <p>2nd. That a Court of Equity will not interfere on the ground that the damages allowed and benefits assessed in the condemnation, were excessive — the remedy of parties objecting on this ground being an appeal.</p> <p>3rd. That in determining what was the eastern line of Light street in the phrase “the widening to be made twenty feet eastwardly from the eastern side of said street” occurring in the Ordinance of 1869, No. 1, reference must be had to the state of things existing at the passage of the Ordinance, and not to the highway described in the Acts of 1196 and 1805.</p> <p>4th. That a Court of Equity will not interfere on the ground that the Street Commissioners failed to comply with Ordinance of 1866, chapter 26, section 11, by not completing their work in ninety days, and by completing it afterwards without first obtaining direction from the city authorities — the remedy of parties objecting on this ground being an appeal from the action of the Street Commissioners.</p>

On the 8th of March, 1871, the appellee filed in the Orphans’ Court of Prince George’s County a petition, in which they alleged that a certain John O. Ames, of said county, departed this life some time in the month of January, 1871; that Lizzie M‘.

<p>Practice — Motion for a Non Pros, on the ground of the Defendant’s non-residence.</p> <p>A suit was instituted in the Court of Common Pleas, on the 6th of March, 1871, and the summons made returnable to the second Monday of that month, being one of the return days fixed by law. The defendant was returned “summoned,” and appeared by counsel, and the cause was continued to the May Term, when on the 15th of June, the declaration was filed, and a copy thereof served on the defendant’s attorney on the same day, and a rule entered that he plead within fifteen days thereafter; the service was acknowledged. The cause was then continued till the succeeding September Term, and on the 14th of October, the defendant moved for adjudgment of nonpros. on the ground of his non-residence. Held :</p> <p>That the motion was made too late; the defendant had waived his right to question the jurisdiction of the Court.</p> <p>A notice served on the defendant’s attorney, with a copy of the declaration, that on the day of the filing of the declaration in Court, a rule will be entered requiring the defendant to plead to said declaration within fifteen days thereafter, is to be understood as limiting the time within which a dilatory plea, not going to the merits of the case, should be pleaded.</p> <p>Where a party intends to avail himself of his statutory exemption, by plea or motion for non pros., by reason of non-residence, the purposes of justice require that he should use reasonable diligence in making his defence.</p>

The bill of complaint in this case was filed by the appellees against the appellant, on the 19th of January, 1871. The case which is sufficiently stated in the opinion of this Court was heard on bill, exhibits and answer, and the Circuit Court, (Scott, J.,) ordered the injunction to issue as prayed. From this order the respondent appealed.

Mary’s County. At March Term, 1864, of the Circuit Court for Saint Mary’s County, the appellants recovered a judgment for $1,250, with interest from the 27th of August, 1861, against Henry W. Thomas and others. To revive this judgment, the appellants, on the 3d of March, 1870, sued out a scire facias which was made known to the appellees as terre tenants of the said Henry W. Thomas.

<p> Jurisdiction of the District Courts of the United States, in proceedings in Bankruptcy. </p> <p>The property of a bankrupt in the hands of his assignee, duly appointed under the Bankrupt. Law of the United States, is not liable, at the instance of a creditor of the bankrupt, to attachment under the laws of a State.</p> <p>Under the Act of Congress, entitled “An Act to establish a uniform system of bankruptcy throughout the United States,” approved March 2, 186V, the District Courts of the United States have original, superior and exclusive jurisdiction over a bankrupt, his estate, and all questions connected therewith, from the time proceedings in bankruptcy are begun until the final distribution and settlement of the bankrupt estate.</p>

The facts are fully stated iu the opinion of the Court. The injunction applied for was made' perpetual by the Court helow, (Magruder, J.,) and from this order the appeal was taken.

The statement of the case as contained in the opinion of the Court, together with the arguments of counsel, will suffice to indicate the legal principles involved and the points decided. Two exceptions were taken hy the plaintiff — the first of which is stated in the opinion of the Court. Second Exception. — The plaintiff presented the following prayers: 1.

Iu this case, the property mortgaged to the appellee was, upon default of the mortgagor, sold under a decree of the Court; the sale was ratified, and the auditor stated an account, awarding the entire fund in the hands of the trustee, to the appellee. Prior to the report of the auditor, the appellants filed their petition, claiming an allowance out of the fund in the trustee’s hands to satisfy a judgment in their behalf against the mortgagor.

<p>Appeal from the Circuit Court for Carroll County.</p>

The judgment on which the attachment in this case was issued, was rendered on the 10th of September,-1860, in favor of the appellee, against William H. Cowan, for $670. The attachment for $670, with interest from September 10th, 1860, and costs, was issued on the 5th of April, 1871, and on the 8th of the same month, was laid in the hands of the appellant as garnishee, returnable to the ensuing May Term.

<p>When a motion to amend a Sheriff’s return is not too late — Right of a Sheriff to correct his return to a Fieri Facias — How a Refect in a Sheriff’s schedule -of property may be cured — When a Sheriff will not be allowed to amend his Schedules and Returns— Effect of irregular and defective Schedules and Returns.</p> <p>Upon the return of sundry writs of fieri facias, at October Term, 1869, of the Circuit Court, motions were made by the defendants and others in interest to quash the several writs and the levies thereunder, and to set aside the sale made by the sheriff; pending these motions, at April Term, 1871, the purchaser of the property moved that the sheriff have leave to amend his schedule and return, filed in the several cases. Held :</p> <p>That the application to amend was not made too late.</p> <p>The right of a sheriff to correct his return to a fieri fiadas, so as to make it conform to the truth of the fact, whatever that may be, and to give it effect and legal operation, is not limited to the return term of the writ.</p> <p>Where a sheriff’s schedule of property taken under a fieri facias is imperfect, in not containing a sufficiently definite description of the land seized, such defect is cured by a special return to the writ, in which the land is described as being the same on which the defendant then resided.</p> <p>Certain writs of fieri facias having been issued, were placed by the sheriff in the hands of his deputy, by whom the land was sold, and all the other proceedings taken under the writs. In the schedules and returns it was stated that the levy under the writs had been made “on the lYth day of July, 1868,” when they were not issued until the 30th of that month; and further, that the interest of one of the defendants only had been levied on and sold. Motions were made by the defendants and others in interest, to quash the writs and levies thereunder, and to set aside the sale. The purchaser of the property moved that the sheriff have leave to amend his schedules and returns by substituting in the place “of the lYth day of Jtily, 1868,” the words “after the issuing of the writ and before the return day of the writ,” and by stating that the interest of all the defendants in the land had been levied on and sold. The sheriff had no personal knowledge of what was done in executing the writs, and did not know what interests in the ' land was levied on, or whether in fact any levy was actually made under the writs. The deputy sheriff being dead, there was no one cognizant of the facts, nor was there any memorandum or other data by which the amendments could be made. Held :</p> <p>1st. That the proposed amendments were not allowable.</p> <p>2nd. That the schedules and returns should be quashed as irregular.</p> <p>3rd. That the sale was invalid, it appearing from the schedules and returns that no levy was actually made under the writs.</p>

This was an action brought by the appellees against the appellant, on a promissory note drawn by George W. P. Smith, for $229.39, dated Baltimore, the 4th of October, 1869, and payable six months after date, to the order of James Higgins, the appellant's testator, and by him endorsed. ■ First Exception.

<p> When an Appeal will he dismissed. </p> <p>Where the transcript of the record of proceedings on an appeal from a Court of Equity is not transmitted to the Court of Appeals within six months from the time of the appeal prayed, and it is not made to appear to the Court of Appeals that such delay was occasioned by the neglect, omission or inability of the clerk, the appeal will be dismissed.</p>

<p>Beal Estate Brokers — when entitled to conmissions.</p> <p>D. employed G-., a property agent in Baltimore, at a commission of two and a half per cent, to negotiate for Mm a loan of $10,000, for three years at eight per cent, to be secured by a mortgage on real estate. D. also employed other property agents to effect the same loan on the same terms. G. discovered a person able and willing to make the loan, and notified D. who, declined to accept, stating that he had already perfected a loan of that amount on the same property and at the same rate for one year, through one of the other agents whom he had employed, and had paid him his full commissions. It was a usage among the brokers in Baltimore, that when two or more were employed to negotiate the same transaction, ■ the broker who first succeeded in making such negotiation was entitled to full commissions and the others were not. entitled to any. G. sued D., for Ms commissions, alleging that his right to recover could not be affected by the usage, because the loan made differed from the one which he had been employed to make in being for one year, instead of three; Heed :</p> <p>That the loan accepted was substantially the same as that which G. had been employed to negotiate, and that G. under the recognized custom of brokers, was not entitled to recover.</p>

The facts are sufficiently stated in the opinion of the . Court. Exception. — The plaintiff offered the following prayers : 1. If the jury shall believe from the evidence in the cause that the defendant instituted or caused to be instituted the prosecution under which the plaintiff was arrested, maliciously and without probable cause, and shall further find that said prosecution is terminated, then tlieir verdict must be for the plaintiff. 2.

The ease is stated in the opinion of the Court. Exception. — The plaintiff prayed the Court to instruct the jury: That if they find from the evidence that the carpet and rug, as testified to, were sold and delivered by the plaintiff to the defendant at the prices named, and that the defendant paid on account thereof the sum of $3.59, and in payment of the balance delivered to the plaintiff the promissory note of Brewer & Hoffacker, offered in evidence, dated December 6th,…

<p>Irrelevant question — Liability of an Endorser of a Promissory note as a Maker.</p> <p>In an action on a promissory note, tbe plaintiff having proved by the maker that he signed it, and that before its maturity it was delivered to the testator of the plaintiff, to whose order it was made payable, and that at the time of such delivery, the name of the defendant was endorsed thereon, it was not competent for the defendant to ask the witness on cross-examination “for whose benefit was the note in question given ?’ ’ The question was irrelevant.</p> <p>If a promissory note made payable to the order of a- particular person, be endorsed by a third person at the time, or before it is signed by the maker, and before it is delivered to the payee, such endorser in the absence of any evidence to qualify his liability, is to be regarded as an original promisor, and liable as such.</p>

<p>When a motion to Dismiss an Appeal will be overruled. — Admissibility of Parol testimpny, to Vary or modify a dimple Contract in writing.</p> <p>A motion to dismiss an appeal upon the ground that the bills of exception were not prepared and submitted to the Court below in conformity with one of its rules, during the term at which they were taken, will be overruled, there being nothing in the record to show that they were not submitted at the same term at which the cause was tried.</p> <p>In case of a simple contract in writing, it is competent to prove by parol, a distinct subsequent agreement, waiving, abandoning or modifying the terms of the writing, or an additional, suppletory agreement, supplying something which is not in the written contract.</p> <p>Where in an action of assumpsit to recover for services rendered, the plaintiff offers in evidence, as constituting the contract between himself and the defendant, a letter written by the latter, which per se does not purport to be a full and final contract between them in regard to the matter referred to therein, but a partial agreement as to certain commissions to be allowed the plaintiff, it is competent for the defendant to show by parol testimony that after the writing of the letter, he prepared and read to the plaintiff a contract in writing, which embodied the agreement between them in accordance with their previous understanding, and that he assented to it as correctly embodying the bargain between them, but refused to sign it, because, as he said, he would not bind himself in writing to any body. And such unsigned written agreement may properly be submitted to the jury with the other evidence.</p>

The appellants, as executrices of the last will and testament of Maria Williamson, deceased, filed a petition under oath in the Orphans’ Court of Baltimore City, on the 20th of March, 1872, alleging that under authority conferred by the said will, they sold by public auction, on or about the 9th of June, 1866, to the appellee, a portion of a tract of land called “Lexington,” belonging to their testatrix at the time of her death, at the price of one hundred and seventy-five…

<p> What constitutes a sufficient prima fade ■ Title to maintain Ejectment-Possession of the Ancestor enures to the benefit of the Eeir at law. </p> <p>In an action of ejectment instituted in December, 1871, it was shown on the part of the plaintiffs, that their maternal grandfather, under whom they claimed, was in 1808, in actual, adverse and notorious possession, by enclosure, of a parcel of ground in the City of Baltimore, of which the lot in controversy was a part; that in 1818 he died in possession, leaving a paper writing, purporting to be his last will and testament, signed by two witnesses ; that by this paper he devised the parcel of ground aforesaid to his four sons, and his daughter, the mother of the plaintiffs: that the four sons moved away from the city, returning at intervals, and the daughter continued to live in the house and to possess the premises from the death of her father till 1840, when the house was burned down, and she and her children removed to a house in the neighborhood, off the property, where she resided till her death, in 1855; that during that period she continued to claim the property and exercise acts of ownership so far as asserting to her children that she was owner, constituted such acts, together vrith statements made by her to them, in reference to an application made to her by a person to rebuild her house, and the reasons for not rebuilding; that from the time the house was burned, in 1840, till after the death of the daughter, in 1855, the property was unoccupied; and no one was in the actual possession until within a period less than twenty years before the institution of the ejectment suit; that the four sons and their descendants were all dead, and the plaintiffs were the only heirs at law of their grandfather. The plaintiffs claimed the lot in controversy by possession, and not by a paper title. Held :</p> <p>1st. That the facts in the case showed a prima fade title in the plaintiffs, sufficient to support the action of ejectment.</p> <p>2nd. That the grandfather having held the actual, adverse and notorious possession of the property, by enclosure, from 1808 till his death, in 1818, his possession enured to the benefit of his daughter, who came into possession as his heir at law; and she, having acquired a title by such possession as gives right, continuing for more than twenty years, her legal seizin continued after she removed from the property, and her title descended on her death to the plaintiffs, her heirs at law.</p> <p>3d. That in order to maintain the action it was not necessary that either the mother of the plaintiffs, or they themselves, should have been in the actual occupancy or possession of the property, within twenty years before the institution of the suit.</p>

<p> Goods Exempt from Distress. </p> <p>The goods of a principal in the store of his commission merchant for sale, are not liable to distress for rent due by the latter to the landlord of the premises.</p>

<p>Interest not allowed on Verdict before judgment — Construction of section 15 of Article 29 of the Code.</p> <p>Where, after a verdict for the plaintiff for a sum certain, the defendant moves for a new trial and in arrest of judgment, and these motions are overruled and judgment entered on the verdict, interest will not be allowed on the sum ascertained by the verdict, for the time between the date of the verdict and the entry of the judgment.</p> <p>A verdict does not legally possess the quality of finality.</p> <p>Section 15 of Article 29 of the Code of Public General Laws, providing that “all judgments by confession, on verdict, or by default, shall be so entered as to carry interest from the time they were rendered,” means that the interest accrues from the time the judgments were rendered.</p>

On the 5th of November, 1869, The Prospect Building Association filed a hill in Equity for the sale of the estate and interest of Andrew J. Wilcox, in certain property situate in Baltimore county, which he had mortgaged to the complainant.

The hill in this case was filed by the appellant to set aside a mortgage executed by her, of certain trust property, to the appellees’ intestate, her trustee. The facts are fully stated in the opinion of the Court. The Court below dismissed the appellant’s bill on the ground of “the.death of Mr. Carson four years after the mortgage was executed, and the filing of the bill five years after its execution.”

<p> Separate estate of a Married woman. </p> <p>Under Art. 45, sec. 2, of the Code, a married woman owning a separate real estate, may charge the same with the payment of a debt contracted by herself and husband, by their promissory note, in which they jointly and severally bind themselves, their separate and individual estates; and the only' way to enforce the contract on the part of the wife, is to treat it as constituting an equitable lien or charge upon her separate estate, and upon failure to pay the debt, to decree the sale of the land for its satisfaction.</p> <p>A contract founded upon proper consideration, by which the husband and wife bind themselves to execute a mortgage of. the separate estate of the wife, will be enforced by a Court of Equity, and such estate held liable for the debt intended to bq secured.</p> <p>The separate estate of a married woman, is liable in equity for all the debts, incumbrances, or other engagements which she, together with her husband, may by express terms, or clear implication, charge thereon.</p>

<p>Individual Inability of a Stoclcholder of an Incorporated Company, under Act of 1868, ch. 471, (General Corporation Act.) Effect of failure to pay in the Capital Stock within the prescribed time.</p> <p>Under section 59 of the Act of 1868, ch., 471, (General Corporation Act) the several stockholders of a corporation are individually liable until the whole amount of its capital stock shall have been paid in, for any debts of the corporation contracted before .that time.</p> <p>The failure to pay in the capital stock of a corporation within the time prescribed by law, subjects the corporation to proceedings for a dissolution, but has no application to the defence of an individual stockholder sued for the recovery of a debt of .the corporation.</p> <p>The provisions of section 59 of the Act of 1868, ch. 4T1, are applicable as well to the increased capital stock of a corporation, under section 69, as to the capital fixed in its original charter.</p>

The facts of the case are sufficiently stated in the opinion of the Court, The grounds of the defendants’ demurrer to the bill of complaint were, that the complainant had not stated a proper case for the relief sought, and that he had an adequate remedy at law.

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

On the 5th of June, 1871, the appellants filed their petition and caveat in the Orphans’ Court of Baltimore city, alleging that the codicils of the 12th of April, I860*, and the 15th of January, 1861, to the will of Isaac Tyson, Jr., dated the 7th of January, 1860, were procured by fraud and undue influence practiced by the appellees upon the testator, when his mental powers were enfeebled from age and ill-health.

<p>Costs — A void Fieri Facias— When the Court of Appeals awards Costs to the Appellant, in both Courts— When a Fieri Facias for Costs will be quashed,.</p> <p>An action of Ejectment instituted in the Circuit Court for Baltimore County, was at the instance of the plaintiff's lessors, removed to the Superior Court of Baltimore City, where a suggestion was made by one of the defendants, to remove the ease to another Court for trial. This suggestion was overruled, and upon an appeal from the order overruling the suggestion, the order was reversed. Held :</p> <p>1st. That the only costs to which the appellants were entitled on the reversal, were those that were incident to, and had been occasioned by reason of the appeal, and not those that had previously accrued in the proceedings while pending and were being prosecuted in the inferior Courts.</p> <p>2nd. That a fieri facias for costs, that embraced those that had been incurred by the appellants, both in the Circuit Court for Baltimore County, and in the Superior Court of Baltimore City, previous to the appeal, was to that extent void.</p> <p>It is only where the judgment appealed from “upon the merits of the question between the parties, and not upon the form of proceeding” is reversed, that the Court of Appeals awards costs to the appellant, both in the appellate Court and in the Court below.</p> <p>X fieri facias issued for costs after the lapse of more than three years from the date of a judgment of reversal in the Court of Appeals, will on motion of tlie parties against whom it issued, bo quashed, the judgment not having been revived by scire facias.</p> <p>Where a fieri facias for costs is improperly issued, the cost of the fieri facias itself and all costs incurred under it, must be borne by the party who directed the issuing of the writ.</p>

<p>Easement— Way — Alley—Grant of use of an Alley enures to benefit of Grantee as Proprietor of contiguous ground — Irrelevant Evidence.</p> <p>B.: a feme covert, was the leasehold owner for ninety-nine years, renewable forever, of a lot in Baltimore, extending back to a four foot alley, “with the use thereof in common;” the said alley having been laid off by an original lessor for the common use of four lots of which B’s was the southernmost. S. the owner of the northernmost of the four lots, built a fence across the alley a few inches south of his northernmost line, whereupon B. and her husband brought suit against S., to recover damages for the obstruction. At the trial, S. offered evidence, which was excluded, to show that the husband of B. was the owner, under another lessor, of ground adjoining the' four lots and the alley on the north. Held :</p> <p>1st. That the alley being.a way appendant or easement appurtenant to the estate of B., its use, as such appurtenance, was to be enjoyed in a manner consistent with the use of S. and others claiming under the same lessor, and could be restricted only thereby.</p> <p>2nd. That the grant of the use of the alley extended to the extreme northern line of the four lots, and therefore that the obstruction placed upon it by S. was an invasion of the legal rights of B. for which an action could be maintained.</p> <p>3rd. That in such case the question of damages is exclusively for the jury.</p> <p>4th. That the circumstance that the husband of B. was the owner of the contiguous property at the north-end of the alley,- did not affect the rights of the parties in this suit, and evidence thereof was properly excluded.</p> <p>5th. That the grant of the use of the alley'included the right of entrance to or exit from the north as well as the south-end, if not obstructed by the adjoining proprietor.</p>