Volume 38 — Maryland Reports

<p>Mortgagee will not be Tnjoined from selling under a power in the Mortgage on the prayer of Trustee claiming under Deed of Trust subsequent to mortgage — Bale for Cash by Mortgagee under a power not specifying Terms of sale, not necessarily inequitable— Mow objection tú such Bale to be made— Usury in a Mortgage— Construction of Bee. 15, Art. 64, of the Code, entitled “ Mortgages."</p> <p>S. deeded all of his property real and persona] to P. and II. in trust, to sell it and pay his (S’s) creditors according to their priorities. J. B., one of these creditors, held a mortgage on a part of the realty. In the mortgage there was a power granted to the mortgagee to sell on default, but the power did not specify whether the sale was 1o be for cash or on credit. P. and H., the trustees, advertised the property mortgaged to J. H. to be sold in accordance with the deed of trust. J. H. also advertised it to be sold on the same day for cash, under the power in the mortgage. Thereupon P. and H. filed a bill in equity, praying an injunction to prevent J. 11. proceeding to sell. The bill alleged that the two sales would throw a cloud on the title to the property, that a sale for cash was not authorized by the power in the mortgage, that a sale on such terms was harsh and inequitable, that in consequence of this cloud and the terms of sale the property would fail to bring its value at the sale, and thus other creditors would suffer loss; that the interest and a part of the principal of the mortgage debt had been paid; and that the interest charged on the mortgage debt was usurious. ‘Hkm> :</p> <p>1st. That the injunction should not be granted on either of these grounds.</p> <p>2nd. That whether or no a sale for cash is inequitable depends on the circumstances of the case; but a party must object to the sale on this ground by filing exceptions to the ratification of the sale, and not by bill for injunction.</p> <p>3rd. The exaction of usurious interest does not invalidate the mortgage or affect the power to sell given in the mortgage; and a party seeking to injoin a sale under the power must pay, or bring into Court to be paid, the principal and legal interest, before he can claim the intervention of a Court of Equity.</p> <p>4th. That the part payment of the principal of the debt, if admitted, or proved satisfactorily, would not entitle the trustees to an injunction to stay the sale entirely, but only “pro tanto.”</p>

<p>Evidence — Inadmissibility of Medical boohs in Evidence to sustain or contradict .the opinion of a Witness — Competency of a Witness as an Expert — When the Opinion of Experts is admissible— What constitutes a sufficient Foundation for the introduction of the Opinion of Experts — Irrelevant question — Inadmissibility in evidence of Rules prescribed by Medical authors — Competency of an Expert to testify — Practice—Circumstances which do not affect the competency of a Witness — Incompetency of an Accessory before the fact to Testify for his Principal — Act of 1864, ch. 109 — Introduction of Evidence to support the general character of a Witness for Veracity — Bills of Exception — Authority of the Judges in the Courts below under the hth Rule of the Court of Appeals, respecting Appeals.</p> <p>On a trial for murder, the physician who examined the wounds on the head of the deceased, and the sink or bin of the mill in which the body was discovered, and also the iron crowbar and adze which were found in or about the mill, and who fitted the crowbar into the depression in the skull caused by the fracture, is competent to testify as to the kind of instrument that, in his opinion, could have inflicted the wounds.</p> <p>A medical witness on cross-examination by the prisoner’s counsel, in a trial for murder, stated that some books on Medical Jurisprudence distinguished between such an examination as he had made of the body of the deceased and autopsy, and designated the former as “an examination of the body;” and in answer to the question, what book so called it? replied “Taylor.” The counsel for the prisoner thereupon handed Taylor to the witness, and asked him to refer to that part of the book in which such an examination was so designated. Held :</p> <p>That the statements in the book could not be thus given to the jury.</p> <p>Medical books are not admissible in evidence, either for the purpose of sustaining or contradicting the opinion of a witness.</p> <p>In a trial for murder, a witness who stated that he had been a practicing physician for eighteen years, and had heard the description of the wounds found on the head of the deceased, as given by the physician who had examined them, and had also heard the description of the sink or bin in which the dead body was found, is competent to testify whether, from the nature of the wound and fracture described by the examining physician as fatal, such wound and fracture could have been, or were likely to have been inflicted by the accidental falling of the deceased into the sink in the condition in which it had been described by the witnesses.</p> <p>Whenever the matter of inquiry is such that inexperienced persons are unlikely to prove capable of forming a correct judgment upon it; or when it so far partakes of the nature of a science or trade, as to require a previous habit or experience or study, in order to the attainment of a knowledge of it, the opinion of experts is admissible; but if the matter of inquiry be not such as to require any peculiar habits or study, in order to qualify a person to understand it, then such evidence is not admissible.</p> <p>On a trial for murder, it was shown that the body of the murdered man was discovered in the sink or bin of his mill, with several wounds on the head, one of whick involved a fracture of the skull, and that a crowbar found in the mill fitted the depression in the skull, caused by the fracture. Held :</p> <p>That these facts were sufficient to lay the foundation for the admissibility of the evidence of medical experts, who from their knowledge and experience in regard to the nature of wounds, were better qualified than ordinary persons to form an opinion as to how and by what means the injuries thus found on the head of the deceased, were inflicted.</p> <p>In a trial for murder, the enquiry being whether the wound and fracture found on the head of the deceased, and described by the examining physician, were occasioned by his accidentally falling into the sink of his mill, a question to a medical expert as to whether leaving out of view such description of the wound and fracture, the part of the skull below the occipital protuberance, would or would not be liable to be fractured by accident, is irrevalent — it tending in no way to enlighten the jury in regard to the enquiry before them.</p> <p>In a trial for murder, the prisoner’s counsel proposed to ask a medical witness whether it would not have been proper, according to the rules stated by medical authors, and more conducive to certainty in respect to description and location of the wounds and fracture found upon the head of the deceased, that one of the examining physicians should have made notes of the examination of the wounds as they were examined? and whether there were any rules prescribed by medical science for conducting an examination of the body or of the skull, for the purpose of ascertaining an accurate description of the wounds in respect to their character and precise location? and also whether according to the rules of medical science, notes of the post mortem examination ought to have been made at the time of the examination? Held :</p> <p>That these questions were inadmissible; the rules prescribed by medical authors could not be offered in evidence.</p> <p>A medical witness in a trial for murder, who hears the physician who examined the bod}' of the deceased fully describe the wounds on the head and the fracture on the slcull, and hears several witnesses describe the construction and condition of the sink in which the body was found, is competent to testify whether such wounds and fracture were likely to have been occasioned by accidentally falling into the sink.</p> <p>And the fact that he does not hear the whole cross-examination of the physician who described the wounds and fracture on the head of the deceased, does not affect his competency.</p> <p>A witness having stated that, according to the description given by the examining physician, of'the wound and fracture on the head of the deceased, he understood the fracture to be partly above and partly below the occipital protuberance, was asked by the prisoner's counsel, “ whether a fracture of that part of the skull below the occipital protuberance could probably be caused by accident, because of its being thinner or weaker than the part of the skull on the occipital protuberance or immediately above it ? ” he replied that “from the description of the fracture as given by the examining physician, the fracture of the thin part of the skull of the deceased below the occipital protuberance could not have been caused by accident.” The prisoner’s counsel thereupon objected to the Court that the answer was not in reply to the question, and claimed that the prisoner was entitled to have the question answered; but the question having been repeatedly put to the witness and the same answer given, and the witness having slated that to be his only answer, the Court overruled the objection, and decided that the answer was proper and the witness should not be further pressed. On appeal, it was Held :</p> <p>That the Court properly interfered in not permitting the question to be further pressed.</p> <p>A medical expert who, in a trial for murder, has heard a full description of the wounds and fractures on the head of the deceased, as given by the examining physician, and of the sink in which the body was found, and has examined the skull of the deceased, and the several fractures thereon, is competent to testify, as to “Whether from the nature and character of such fractures they could have been, or were likely to have been produced or inflicted accidentally hj falling into the sink, in the condition in Which it has been described by the witnesses? ”</p> <p>The fact that prior to the trial of a party charged with murder, the Attorney-General handed to a witness who was examined on the trial as a medical expert, a written description of the wounds found upon the head of the murdered man, prepared by the examining physician, together with a model of the sink in which the body was found, and that upon the examination then made, he had formed the same opinion testified to by him on the trial, in no manner affected his competency as a witness.</p> <p>A physician, who had practiced his profession for many years, being examined as a medical expert on a trial for murder, testified that he had given the sub- ■ ject little thought, had not heard all the evidence describing the wounds of the deceased, and the sink in which the body was found, but had heard occasional parts thereof, had seen the skull of the deceased and examined the fractures thereon, and had seen and examined the model of the sink. Held :</p> <p>That the witness was competent to give an opinion as to whether from the nature and character of the fractures on the skull of the deceased, they could have been, or were likely to have been produced, or inflicted accidentally by, falling into the sink, in the condition in which it had been described by the witnesses.</p> <p>On a trial of the principal for murder, an accessory before the fact, whether jointly or separately indicted, is incompetent, either at common law or under the Act of 1864, ch. 109, to testify for the principal.</p> <p>On a trial for murder, H, a witness in behalf of the prisoner, testified that on the day of the murder, he was at the office of S., and that S. looked at his watch and said it was then one o’clock p. M. The State then, for the purpose of discrediting H. by disproving material facts testified to by him, called S. who testified that H. was not in his office on the day specified while he was there, and that he did not look at his watch and say it was about one o’clock. The prisoner’s 'counsel then .called a witness, and proved by him the general good character of H. for truth and veracity; the State thereupon offered to prove by the same witness, the general good character of S. for truth and veracity — to this the prisoner’s counsel objected. Held:</p> <p>That as the purpose of the State was to discredit the witness H. by disproving material facts testified to by him, it was competent for the prisoner to sustain the witness by proof of Iris general character for veracity; and as the credit of the witnesses H. and S. was fairly put in issue, it was equally competent for the State under such circumstances to support the general character of its witness S. for veracity.</p> <p>Where the prisoner’s counsel, in preparing bills of exception to the rulings of the Court upon questions of evidence, incorporates all the evidence given on the trial according to his view, and asks the Court to sign and seal such exceptions, the Court, if it deem it unnecessary to the full and fair presentation of the several exceptions reserved, that the record should be incumbered with all the evidence, may decline.to sign the exceptions as presented, and may revise and remodel them in accordance with the requirements of the fifth Rule prescribed by the Court of Appeals for governing appeals.</p> <p>[At the instance of the Attorney-General, his argument on other points in the case is omitted. — Rep.]</p>

The mortgage in this case, dated the 26th of August, 1872, was executed by the appellant and his wife, to the appellee, Mary E. Cockey, to secure the payment of certain promissory notes. In case of default in any of the conditions of the mortgage, the mortgagee, her heirs, &c., or the appellee, Edward D. McConkey, her and their duly constituted attorney or agent were authorized and empowered to sell the mortgaged property.

On. the 5th day of May, 1870, the appellant applied to the Commissioner of the Land Office for a special warrant to take about an acre of land, alleged to be vacant, lying in Somerset county, on the west side of Little Annamessex river, opposite Crisfield wharf, and on an island called “James’ Island.” The warrant issued, and the surveyor of Somerset county, on the 21st of February, 1871, returned his certificate of survey, showing that he had surveyed for the appellant a…

On the 6th of February, 1869, in consideration of $8,000, Timothy A. Carroll conveyed a parcel of land lyiug in Baltimore County, to the appellant Charles D. Warfield, in trust for his wife for and during her life or widowhood, and after her death or marriage, whichever should first happen, then in trust for their children, with power to the wife, with the consent and approbation of her husband, to grant and convey said property absolutely at any time, and the proceeds to…

The appellant, on the 17th of December, 1872, filed her petition in the Orphans’ Court of Baltimore City, alleging that she was married to Dr. Thomas J. Redgrave, on the 10th of August, 1856; that he departed this life on or about the 19th of June, 1871, leaving the petitioner, his widow, and one son, De Witt Clinton Redgrave, aged about fifteen years, surviving him; and that letters of administration on the estate of her deceased husband had been granted to his father, the…

The goods, for the taking of -which this action was brought, were seized and removed by the appellant McLaughlin on the 22d of June, 1871. On the day following this suit was instituted. On the 19th of July, next ensuing, the appellant Strasburger, by a written order, directed McLaughlin, the constable, to let Mrs. Barber have the goods.

This action was brought by the appellee against the appellant. The declaration stated that the plaintiff sued the defendant, First. — For that the said defendant, by fraud, imposition and false statements, did induce the plaintiff to enlist in the Army of the United States as a private soldier, to the great loss and injury of the said plaintiff.

<p>Appeal from the Circuit Court of Baltimore City.</p>

<p>Nuisance to Dwelling-houses — Injunction—Smoke from a Factory — Offensive odors — noxious Vapors — Insufficiency of the Allegations of a Bill for an Injunction to restrain a Nuisance— Bill dismissed without prejudice.</p> <p>A Court of Equity will interpose by injunction to restrain an existing or threatened nuisance to a dwelling-house, if the injury be shown to be of such a character as to diminish materially the value of the property as a dwelling, and seriously interfere with the ordinary comfort and enjoyment of it: and if it appear to be a case where substantial damages could be recovered at law.</p> <p>If a party erect a manufacturing establishment in immediate proximity to the dwellings of his neighbors, and in its operation large volumes of smoke, offensive odors and noxious vapors are emitted, thereby materially interfering with the comfort of the occupants of the dwellings, a Court of Equity will interpose by injunction to restrain the continuance of the nnisanco.</p> <p>The appellants filed their bill for an injunction to restrain the appellee from erecting a factory for the manufacture of felt roofing, in the immediate vicinity of certain valuable dwelling-houses, the property of the complainants, which factory, if allowed to be erected and put into operation, would, it was charged, become a nuisance specially injurious to the complainants. The bill alleged that owing to the dirt, odor, smoke and appurtenances of the factory, together with the inflammable nature of the material used in the manufacture of felt roofiing, the property of the complainants would be utterly destroyed as dwellings, and, that one of the complainants would be deprived of the comforts of his home, and the health of his family would be impaired by the nuisance. The bill further alleged that the irreparable and continuing injury to the complainants’ property, and the value thereof, and to their just enjoyment of the same, would result from the erection and carrying on of the said manufacturing business HbIiD :</p> <p>That the allegations of the bill were not sufficiently specific and definite as to the facts and circumstances from which the Court alone could determine whether the nuisance would be of the nature and character supposed- — the simple allegation that particular consequences would follow the erection of the factory, was not sufficient; facts should have been stated so that the Court could see and determine whether the factory when erected, would or would not constitute a nuisance such as would sensibly and materially diminish the value of the complainants’ property and the ordinary comfort and enjoyment of it. That the bill thus failing to disclose all the facts essential to enable the Court to form'an opinion as to the propriety of granting an injunction, the application must be refused, but without prejudice to any new application the complainants might think themselves entitled to make.</p>

Appeax. from the Circuit Court for Caroline County, in Equity. Pending the appeal which was taken by the appellee in this case, and which was disposed of by this Court on the 22nd May, 1872, (Vide Hough vs. Horsey, 36 Md., 381;) affirming the order appealed from and dismissing the bill, the present appellant advertised the mortgaged property referred to in this case, lor sale, and returned himself as the purchaser.

The appellant and Thomas Hollihan were presented and jointly indicted by the grand jury of the city of Baltimore, at the January Term, 1873, of the Criminal Court of Baltimore, for the murder of Mrs. Mary Ann Lampley, on the second day of January, 1873. The indictment was in the usual form of an indictment for murder.

<p>Practice — A party having objected to the Admissibility of Evidence will not be heard to object to its withdrawal from the Jury— Power of the Court as to its Instructions to the Jury — One who has excepted to an Instruction as erroneous, will not be heard to complain of its subsequent revocation — Removal of a Cause— Pleading — Insufficient ground for a Reversal — Right of the Solder of a note to insert his own name as Payee — Practice— Conceded Prayer — Appeal.</p> <p>In the trial of a cause the defendant objected to the admissibility of certain evidence offered by the plaintiff; the Court overruled the objection, and the plaintiff thereupon waived the testimony and proposed to withdraw it from the consideration of the jury, which the Court allowed him to do. The defendant excepted. Held :</p> <p>That the defendant after objecting to the admissibility of the evidence could not be heard to object to its being voluntarily waived, and withrawn from the consideration of the jury.</p> <p>The Court has the power at any time during the trial of a cause, to modify its instructions to the jury, or to revoke them entirely, if upon reflection, it is considered that they have been erroneously given.</p> <p>A party to a cause after excepting to an instruction as erroneous, will not be heard to complain because it was afterwards revoked and withdrawn from the jury.</p> <p>An application for the removal of a cause, made after the trial has commenced, will not be granted; and the amendment of the declaration by leave of the Court, makes no difference in respect to the right of removal.</p> <p>Where a party is sued as the maker of'a promissory note, the non-joinder of others as joint-makers, can be taken advantage of only by plea in abatement.</p> <p>The refusal to grant a prayer furnishes no ground for reversal, if the question which it raised was submitted to the jury by another prayer which was conceded.</p> <p>A note for $1,500, payable at twelve months to the order of--, was signed by H. A. and on the back was written the names of C. A. and H. S. and H. B. Suit was brought against H. S. by H. B. the bolder of tbe note who sought to charge the defendant as maker there’of. At the trial the name of H. B. was inserted by his counsel, in the note as payee. The question whether H. S. signed his name on tbe note as maker, was submitted to tbe jury by tbe instructions granted and conceded. Hisid :</p> <p>That if tbe defendant signed his name as maker, tbe plaintiff as holder of tbe note, acting in good faith had authority to insert his own name as payee.</p> <p>On the second trial of a case, neither party is bound by the legal propositions which he may have conceded at the first trial.</p> <p>No appeal lies from the refusal of tho Court to grant a new trial.</p>

<p>Appeal from the Orphans’ Court of Caroline County.</p>

<p>Administration on the estate of a Married woman dying Intestate— Construction of Art. 45, sec. 2, and Art. 93, sec. 32, of the Code.</p> <p>E. H. and E. T. H., his wife, filed a petition in the Orphans’ Court, stating that F. A. V. had died intestate leaving W S. V., her husband, and three children, one of whom was E. T. H., surviving her. The petition represented that the deceased was possessed of valuable personal estate, and was largely indebted to the petitioners, and prayed the appointment of the petitioners, or some one else to administer. W. S. V., the husband, and W. B., a son, of the deceased answered, but not under oath, denying the indebtedness of the deceased to the petitioners, claiming that the personal estate and choses in action of the deceased devolved, by operation of law, on the surviving husband, and alleging that, if the deceased was indebted to the petitioners, their remedy was in equity. E. H. was examined, on behalf of the petitioners, and deposed that the deceased died possessed of personal estate and debts due her, and was largely indebted to the petitioners. Heed :</p> <p>That the Orphans’ Court properly refused to grant letters of administration.</p>

<p>When Claim of a Widow against the Estate of her deceased E/us-band will not be allowed — Relation of Debtor and Creditor between Husband and Wife ; how established.</p> <p>A claim by a widow against the estafe of her deceased husband for money which she alleged she lent to him during corerture, will not, in the absence of proof of an express promise or agreement on his part to repay it, be ■ allowed.</p> <p>To establish the relation of debtor and creditor between a husband and wife, growing out of the use or appropriation by the husband of the wife’s money, being her separate estate, where the receipt and appropriation are with her knowledge and acquiescence, there must bean agreement on his part to repay it.</p>

The appellant was indicted for perjury in the Circuit Court for Washington County. The indictment which was transmitted to the Circuit Court for Frederick County for trial, was in the following form: State op Maryland, Washington County, to wit: The jurors of the State of Maryland, for the body of Washington County, do on their oaths present, that heretofore, to wit, on the 11th of.

The {'acts and circumstances of the case are set forth in the following extracts from the opinion of the Court below, (Pinkney, J.) “In the first place, as to the conveyance by John Walter to his father, Adam Walter.

John P. Woollet, of Baltimore, having died in June, 1872, intestate, a hill was filed in July following for the sale of his real estate, for the purpose of making distribution among his heirs; a decree was passed on the 6th of August, 1872, directing the sale to be made, and appointing the appellant trustee for that purpose.

This was an action of assumpsit by the ■ appellant against the appellee, to recover freights, alleged to have been exacted by the latter from the former, for the transportation of coal on its railroad, in excess of the rates, charged other parties.

<p>Sale of Mortgaged property — Fee paid to Counsel by Mortgagee, not allowed out of the Proceeds of the Sale of the Mortgaged property — Commissions paid solicitor for collecting Mortgage debt, allowed — Act of 1825, ch. 50 — Art. 64, sec. 2, of the Code.</p> <p>A mortgagor in his deed covenanted to pay not only the mortgage debt, but also the costs of drafting and recording the mortgage, and all counsel fees and costs which the mortgagee might incur in collecting the mortgage debt, or in releasing the mortgage. Upon a bill filed by the mortgagee to foreclose the mortgage, default having been made by the mortgagor, a decree was passed for the sale of the mortgaged premises, and a trustee appointed to make the sale. Subsequently the mortgagor applied for the benefit of the Bankrupt Act, and his assignees applied to the United States District Court in Bankruptcy, to enjoin the mortgagee and flie trustee from selling the mortgaged property. The mortgagee employed counsel to resist this application, and paid him a fee of $200 for such service. The mortgaged property was sold by the trustee; and upon the distribution of the proceeds of sale in the Circuit Court, the aforegoing fee together with the commissions paid by the mortgagee to his solicitor, who was the trustee, for collecting the mortgage debt, were allowed in the audit. Upon exceptions by the assignees in bankruptcy, these claims were disallowed by the Circuit Court. Upon appeal by the mortgagee, it was Held :</p> <p>1st. That he was not entitled to an allowance for the fee paid by him to counsel for resisting tbe application of the assignees in bankruptcy, it not being such an expense as, within the terms of the mortgage, was necessarily incurred in the collection of the mortgage debt.</p> <p>2nd. That he should have been allowed the commissions paid to his solicitor, it being an expense, within the terms of the mortgage, incurred in collecting the mortgage debt, and incurred through the default of the mortgagor in paying the same according to his covenant.</p> <p>There is nothing either in the letter or spirit of the Act of 1825, ch 50, embodied in section 2, of Article 64, of the Code, to prevent a mortgagor from covenanting to pay in addition to the mortgage debt, such costs and charges ’ as the mortgagee may be obliged to incur in the collection of such debt.</p>

Upon the hill filed in this case by the appellee, asking that an injunction might issue to restrain the appellant from committing further waste and damage by cutting down and destroying valuable pine trees upon the premises of the complainant to his irreparable injury, the injunction issued as prayed. The defendant answered claiming title to the land upon which the alleged trespass was committed; and after filing his answer moved to dissolve the injunction.

Appeal frond the Superior Court of Baltimore City. At the trial below, after the plaintiff’s case had been closed, the Court (Dobbin, J.,) in the exercise of its discretion under the 33d Rule for the conduct of business, &c., requested the defendant to submit a prayer involving the plaintiff’s right to recover, and thereupon the defendant prayed the Court to instruct the jury: “That upon the evidence offered by the plaintiff, if believed by the jury, the plaintiff had not,…

<p>Suit on Judgment rendered in another State — Cannot be maintained where the Judgment, after standing twenty years, is revived by Scire facias without Notice to the defendant.</p> <p>A suit cannot be maintained in the Courts of this State, upon a judgment of a Court of another State, rendered upon returns of nihil to two successive writs of scire facias, issued to revive a judgment in the foreign Court, of more than twenty years standing, where the defendant in the original judgment had, for more than twenty years next before the issuing of the writs, resided in this State, out of the jurisdiction of the Court that rendered the judgment, and had no notice of such writs.</p>

<p>Appeal from the Circuit Court of Baltimore City.</p>

<p>Construction of Section 3 of Article 64 of the Code, entitled “Mortgages” — When a Court of Equity will annul a Sale made under its Decree.</p> <p>Section 3 of Article 64 of the Code, which provides that: “Whenever lands are sold and conveyed, and a mortgage is given by the purchaser at the same time, to secure the payment of the purchase money, such mortgage shall be preferred to any previous judgment which may have been obtained against such purchaser,” applies only to vendor and vendee; — to cases where the vendor having conveyed the land,, takes at the same time from the purchaser a mortgage to secure the payment of the purchase money.</p> <p>Where a purchaser, simultaneously with the deed to himself ixom his vendor, executes a mortgage to a third party to secure the payment of money which was applied to the extinguishment of the vendor’s lien, such mortgage will not, under section 3 of Article 64 of the Code, be preferred to previous judgments which had been obtained against the purchaser.</p> <p>A purchaser, at the same time that he received a deed from his vendor, executed a mortgage of the property to a third party, to secure the payment of money which was applied to the extinguishment of the vendor’s lien. The mortgagor having’ made default according- to the terms of the mortgage, a decree, with his consent, was passed by the Circuit Court for the sale of the mortgaged property. The trustee under this decree sold the property and received the cash instalment from the purchaser, and his notes for the deferred payments. An order nisi was passed, and before the time therein prescribed for the final ratification of the sale, the purchaser filed his petition praying that the sale might be set aside and annulled, because since the sale he had ascertained that there were two judgments against the mortgagor, prior in date to the mortgage, which were liens on the property, and the judgment creditors had not been made parties to the proceedings, and the property was not sold subject to said liens, and no provision was made for their payment. He alleged that the net proceeds of sale were insufficient to pay the judgments with the costs and accrued interest, and the trustee was unable to convey to him a clear title to the property. Short copies of the judgments were filed with the petition. The trustee answered the petition, denying that the judgments constituted any incumbrance prior to the mortgage debt, and alleging that even if they were of record prior to the mortgage, they could not affect the interest of the petitioner. The answer averred that there was no sufficient ground for exception to the ratification of the sale set out in the petition, and prayed that the exceptions might be overruled, and the sale ratified. Held :</p> <p>That the objections to the sale were well taken; that the property sold being liable to be resold at the instance of the judgment creditors, their liens being superior to that of the mortgage, the sale should be set aside and annulled, and the cash instalment of the purchase money and the notes for the deferred payments restored to the purchaser.</p>

The Orphans’ Court, from whose order this appeal was taken, decided that the sum of $1065.64, with which the executor of Henry Riael had charged himself, and which was claimed by the appellants under the bequest of personal property made to them by said Riael, was not included in said bequest, nor in any bequest to the other legatees of the testator designated in his will, but having been received as rent accrued after the death of the testator, on that part of his real…

<p>Appeal from the Circuit Court of Baltimore City.</p>

Appeals from the Circuit Court of Baltimore City. The facts of the case in regard to the question of priority are stated in the opinion of the Court.

Gross-Appeals from the Circuit Court for Baltimore County, in Equity.

This was an action on open account, brought on the 12th of June, 1872 by the appellant against the appellee. The defendant on the 31st of October, 1872, pleaded : 1st. Never promised. 2nd. Payment. 3rd. Set-off. The plaintiff joined issue on the first and second pleas; and to the third replied, never promised, never was indebted, and limitations, and issue was joined thereon.

Eliza Jatie Wilson, given as executrix of her deceased husband, William John Philips.

This was an appeal from an order of the Court helow intructing the auditor that the appellees, Amsinck & Co., as assignees of Solomon, were entitled to priority in the distribution of the assets of Johnson & Behr among their creditors. The other facts are stated in the opinion of the Court.

The bill of complaint in this case was filed on the 24th of February, 1872, by the appellee, and prayed for a divorce a vinculo matrimonii, from her husband, the appellant. The parties, who were colored persons, were married in February 1871 ; and the bill charges that in August of that year, the appellant deserted and abandoned the appellee, and cohabited with another woman, with whom he committed frequent acts of adultery.

<p>Equity Pleading — Injunction—-Construction, of Act of 1868, ch. 471, (General Corporation Paw,') in connection with a special Act of incorporation — Repeal by implication.</p> <p>Although a bill may pray for relief by way of injunction, yet if it does not pray for the process of injunction, the process will not be granted. But such prayer need not be included in the prayer for process of subpoena, if it is sufficiently set forth elsewhere in the bill.</p> <p>Where a bill charged that transfers of stock of a corporation had been colorarbly made, for the purpose of fraudulently controlling an election, to certain persons, “as appears from a list of the stockholders furnished” by the President, one of the defendants, and praying an injunction against the voting of said stock, it was Held :</p> <p>1st. That injunction was the appropriate remedy.</p> <p>2nd. That the list was in no way material to the granting of the injunction, and need not be filed as an exhibit to the bill.</p> <p>The B. & L. Turnpike Co. was chartered by the Act of 1860, ch. 274. The 4th section of its charter provides that “at all elections, each stockholder shall bo entitled to one vote for each share of stock held' by him, not exceeding twenty votes in all.” Section 53, of the Act of 1868, ch. 471, (General Corporation Law,) provides that “in all corporations in which there are stockholders, * * * * each stockholder shall be entitled to as many votes as he owns shares of stock.” A question having arisen as to the effect of the latter section upon the 4th section of the charter, it was Held :</p> <p>That under the provisions of section 216 of the General Corporation Law, which subjects all corporations theretofore formed to its regulations, so far as the same be applicable, the two sections in question could stand together, and that the 4th section of the charter was binding upon the stockholders.</p> <p>A law may be repealed by a subsequent law, without any express clause of repeal, where the two provisions are so repugnant that they cannot stand together.</p> <p>“A full and adequate remedy at law,” as a defence in Equity pleading, means such a remedy at law as ousts the jurisdiction of a Court of Equity — a remedy in a Court of Law.</p>

<p>Jurisdiction of the Orphans Court — Construction of Code of Public General Laws, Art. 7, sec. 7, and Art. 93, sec. 5.</p> <p>31. E. B., deceased, left a will devising her estate to L. One of her heirs, B., instituted proceedings to procure his appointment as administrator, and filed a caveat to the will. He entered into an agreement with P. k G., attorneys at law, that they should prosecute to determination the suit or suits to recover the estate of M. E. B. for her next of kin. By the agreement P. k G. were to receive for their services such remuneration as the Orphans’ Court, of Baltimore City should allow: B. was not to dispute the award of said Court; and, in ease he was appointed administrator, he agreed to pay the fee allowed. B. was appointed administrator; and while P. k G. were prosecuting the caveat, he compromised with the caveatees. Thereupon, P. k G. petitioned the Orphans’ Court to make an allowance for their services as provided in the agreement. Hbmd :</p> <p>1st. That the Orphans’ Court had no jurisdiction over the case presented by the petition.</p> <p>2nd. That the claim of P. k G. for contingent fees under the agreement was not within Art. 93, sec. 5, of the Code, which provides that administrators are entitled to an allowance for costs and extraordinary expenses (not personal) which the Court may think proper to allow, laid out in the recovery or security of any part of the estate.</p> <p>Art. 7, sec. 7, of the Code of Public General Laws, conferring on Orphans’ Courts the power, with the consent of the parties, to arbitrate between a claimant and an administrator, refers only to claims against the estaie of the decedent, which are asserted against the administrator in his fiduciary character, and does not apply to such as are contracted by him in his individual character, and which are only binding on him personally.</p>

A statement of the case will be found in the opinion of the Court. At the trial of the cause in the Court below the plaintiffs offered the following prayers, which the Court, (Pbarre, J.,) granted : 1.

This was a suit brought by the appellees against the appellant on a policy of insurance issued by the latter on the Bottle Run Tannery, in Allegany County, Maryland.

John L. Estep, of Prince George’s County, departed this life sometime in the month of June, 1870, leaving a last will and testament which was duly admitted to probate on the 23rd of August, 1870.

The bill of complaint in this case filed by the appellant on the 9th of June, 1871, alleged that Rachel Watson, the mother of Henry Watson the appellees’ testator, died in December, 1834, having made her last will and testament, whereby she constituted Zachariah Woollen, the father of the complainant, her executor and trustee, to execute certain trusts created by the will, and provided for the payment of certain annuities; that before he had settled his accounts as such…

Elizabeth Kirk, a stockholder in the Monumental Permanent Building and Land Society of Baltimore, borrowed therefrom the sum of $2400, upon a redemption of six shares of stock, and with her husband executed a mortgage of certain leasehold property in Baltimore city, as security for the repayment of the loan, with interest, &c., in weekly instalments of $8.77.

This suit was brought by the appellees, surviving partners of the firm of Daniel Miller & Co., against the appellant. The plaintiffs, in addition to the money counts, declared as follows : 6.

The bill in this case filed on the 15th of February, 1871, by the appellant against the appellees, charged that a certain George Isaacs and Morris Kahn,-on the 7th of January, 1869, recovered, in the Superior Court of Baltimore City, a judgment for the sum of $986.80, which was assigned by the plaintiffs therein to the complainant on the 8th of February, 1869 ; that said judgment was superseded for six months on the 15th of January, 1869, by the appellees, and that the clerk…

The nature of the case is fully stated in the opinion of the Court. The following exceptions were taken by the plaintiff. First Exception. — At the trial of this cause the plaintiff offered evidence tending to prove that he was in possession of the land conveyed to him by deed from Thomas Gf.

Gross-Appeals from the Baltimore City Court. Attachment on warrant issued on the 1st of December, 1870, at the instance of the appellants, against the appellee, a non-résident; affidavit, warrant, check and short note filed ; “ attached as per schedule defendant returned non est; copy of short note set up at the Courthouse .door.

<p>Appeal from the Circuit Court of Baltimore City,</p> <p>The hill of complaint in this case was originally filed by the appellee against Emily J. Fardy, for the specific performance of a cotitract in writing, alleged to have been made between them on the 4th of October, 1871. The bill charged that by this contract, the said Emily contracted to lease to the - appellee, her property in the city of Baltimore, known as “ Eardy’s Wharf,” for a term of six years from the first of January, 1872, at an annual rent of $2225, and the payment of the taxes and ground-rent on the property; that the appellee, on his part,, agreed to pay the said rent semi-annually, in July and December of each year, except for the first year, when the rent was to be paid in advance, as follows: $1000 on the first of January, 1872, and $1225 on the first of March, 1872; and it was agreed, that at the expiration of the period of six years aforesaid, the- appellee should be entitled to a further lease for a term of five or ten years, at his option, at an annual rent of $2725, and payment of the ground-rent and taxes, as in the first case, on the payment to the said Emily of a bonus of $3000, and that in case such additional lease should be withheld, then the said bonus should not be payable by the appellee, but the said Emily should pay to him the sum of two thousand dollars as an equivalent for a warehouse, which he proposed to construct on the said property, and in case the appellee should refuse to renew the lease, then he should pay the said Emily the sum of $1500, and deliver to her the possession of the said warehouse, to be erected by him at a cost of not less than $5000; that the said Emily contracted that she would guarantee the appellee against demands for ground-rent to any greater amount than $275, and taxes to any greater amount than $500, and that there should be sufficient depth of water upon the east side of the pier to accommodate a. vessel drawing sixteen feet, so that a vessel drawing sixteen feet or under might be enabled, with convenience, to lie alongside the said east side of the pier; and it was further agreed, that the said Emily should put the wharf in good order and repair, and should deepen the berth along the west side of the pier, so as to accommodate vessels drawing sixteen feet of water, in case the appellee required it, and on the understanding that in case the taxes should be less than $500 per annum, the appellee should apply the difference between the taxes and $500 towards the deepening of said berth, and that the appellee should allow the brick store, on the south-west corner of the property known as ccFardy & Woodhull’s Ship-Chandler’s Store,” to remain, and that there should be an alley-way of two feet in width left between the northern wall of said store and that part of the southern wall of the warehouse opposite to it; that all buildings then on the premises, except the said store and ice-house, should be removed by said Emily by the first of January, 1872, and the ice-house by the 26th of March, 1872; that the said Emily would, on or before the first of November, 1871, execute or cause to be executed, a lease, in accordance with the terms of said contract.</p> <p>The bill further charged, that the lease was not tendered for execution on the said first of November, because negotiations had failed, that the appellee had made arrangements to enter upon possession of the said property and make the necessary arrangements for his business, and for the construction of a warehouse on the property, but that the said Emily had refused to comply with the terms of said agreement, and had notified the appellee, through her agent, that she would repudiate the same — would execute no lease, and would not allow him to enter on the possession of the property — and the appellee had good reason to believe, and therefore charged that the said Emily was about to lease the property to some other person, and to put him in possession thereof; that the appellee was entitled to have a decree for a specific performance of said contract, and he was remediless at law.</p> <p>The bill prayed for a specific performance of the contract, and that meanwhile the said Emily should be enjoined from selling, leasihg or disposing of the said property until the further order of the Court.</p> <p>With the hill was filed the written .agreement, which purported to have heen entered into by Emily J. Fardy, by her agent, Franklin Kone, and John B. Williams, by his agent, James Thruston. It was signed by Franklin Kone, agent, and James Thruston, agent. The injunction issued as prayed.</p> <p>Emily J. Fardy filed an answer to the bill, alleging that she never made the agreement, and t,hat she was not a party thereto, directly or indirectly; that, on the contrary, long previous to the filing of the bill, and prior to -the date named in the said agreement, she had in good faith, rented and leased the property in question, known .as ■“ Fardy’,s Wharf,” to Franklin Kone ; and that at the time of the issuing and service of the injunction, she had no legal control over the property, so far as to rent or lease it*. The answer further stated, that the com-, ■plainant.had not complied with the.terms and conditions of the agreement, and that he had a remedy at law in the matter of . said agreement, and as against the proper party, and prayed that th,e injunction .might be dissolved :and the bill dismissed.</p> <p>After, the filing of this,answer, the appellee filed a supplemental bill, in which he stated that he tendered to the respondent on the-1st. of January, 1872, the sum of $1000, which .by,the agreement, he was Required to pay on,that ■day, as part of the first year’s rent of the .premises,.and at the same time tendered to:her for execution, the draft of ;a lease in exact conformity -to the provisions of the contract, hut .that she (Franklin Kone .being with her at the time,) refused to execute the same, or to. receive the • money. The supplemental hill made,Kone a party, upon the ground that he claimed an outstanding leasehold title in the property, and the same was asserted by the ■ respondent in her answer; the bill, prayed that an injunction might issue.against both.</p> <p>• Kone filed an, answer, in which he admitted that he signed the,-agreement,, hut stated that, he was not,.authorized by Mrs. Fardy to do so as her agent; that at that time lie was the lawful possessor of the property in question, under a prior agreement between Mrs. Fardy and himself; that he inadvertently signed the agreement as her agent, having been her agent in the transaction of other matters ; that the appellee had failed to comply with the terms of the agreement, and that by reason of such neglect and non-compliance and the damage thereby caused him, Kone, he had, prior to the institution of this suit, sub-let and transferred all his right to a portion of the property to other parties, who had no knowledge of the agreement with the appellee, and that it was not then in his, Kone’s power, to specifically perform said agreement.</p> <p>This answer was excepted to, because the respondent failed to disclose to whom lie had sub-let part of the property. The exceptions were sustained, and Kone filed an amended answer, in which he stated that he signed his name to the agreement as agent at the request of Thruston, and through his own mistake and inadvertence; that he leased the property kftown as “Fardy’s Wharf,” from Mrs. Fardy on the 1st of April, 1868; that he entered into the agreement with the appellee in good faith, on the 4th of October, 1871, and that he tendered himself ready on the 1st of November, 1871, the time named in the agreement, to execute the lease, but Thruston declined to execute it, and stated at the time that the appellee said that he could not sign any paper whatever until he knew what the building would cost ; that the architects had fooled him in the price, and that he did not know when he could be ready ; the answer further stated that previous to the service of the injunction upon him, he, Kone, about the latter part of December, 1871, or the first part of January, 1872, leased to Jacob Frederick & Son, ice dealers, about forty feet front of the said wharf in question, with the ice-house thereon, for three years, with the privilege of three years more; that during the year 1871, lie obtained from Mrs. Fardy, the privilege to have and retain said property for six years from the 1st of April, 1872.</p> <p>By agreement, the answer of Mrs. Fardy to the original bill was accepted as her answer to the supplemental bill. A commission was issued, and much testimony taken, which, from the conclusion reached by this Court, it is deemed unnecessary to state.</p> <p>The Circuit Court, (Pinkney, J.,) held that a specific performance of the agreement for a lease, should be enforced and so decreed; and the injunction previously issued, was made perpetual.</p> <p>From this decree, the respondents appealed.</p>

<p>Appeal from-'the'Superior Court of Baltimore City.</p> <p>The facts are stated in the opinion of the Court, which also set's forth so much of the prayers of the appellant and appellee as is necessary to the understanding of the points involved in the decision.</p>

Cross-Appeals from the Circuit Court of Baltimore City. The principal facts are stated in the opinion of the Court. The amount of indebtedness secured by the deed of trust of the 18th of February, 1867, from Ilusgen to Homer was about $24,000, of which about $20,000 was due to Homer, aud the remainder to other parties, most of whom were foreigners.

<p>Construction of the Act o/1872, oh. 270— Hot Retrospective in its operation — Husband and Wife,</p> <p>The Act of 1872, ch. 270, provides, that “any married woman may be sued jointly with her husband in any of the Courts of this State, or before any justice of the peace, on any note, bill of exchange, single bill, bond, contract or agreement, which she may have executed jointly with her husband and may employ counsel and defend such action or suit, separately or jointly with her husband, and judgments recovered in such cases, shall be liens on the property of defendants, and may be collected by execution or attachment, in the same manner as if the defendants were not husband and wife.” Hum:</p> <p>That this Act is not retrospective in its operation, and does not authorized suit at law against a husband and wife, upon their joint note, executed prior to the passage of the Act.</p>

- The facts of the case are sufficiently stated in the opinion of the Court, as also the purport of the petition of the appellee, and the nature of the decree from which this appeal was taken. The appellants in their answer to the petition of the appellee, resisted his claim, requiring full proof of the alleged indebtedness of his wife at the time of their marriage.

•Appeal from the Superior Court of Baltimore City. .On the 20th of December, 1871, an attachment on warrant was sued out hy the appellee against Milton A. Jones, a non-resident, and laid in the hands of George H. Williams, trustee in the case of Jones, et al. vs. Stoclcett, et al., pending in the Circuit Court of Baltimore City.

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

This suit was instituted in the Court of Common Pleas by the appellant to recover damages from the appellee, for an injury alleged to have been occasioned by the negligence of its agents. On the suggestion and affidavit of the defendant the case was removed to the Circuit Court for Howard County, for trial. The facts showing how the plaintiff was injured, are sufficiently set out in the opinion of the Court.