Volume 41 — Maryland Reports

<p>Distribution of the proceeds of the sale of Mortgaged property.</p> <p>Thore being three mortgages on certain leasehold property, a decree for the sale of the mortgaged premises was obtained by the second mortgagee under sections 782 to 792 inclusive, of Article' 4 of the Code of Public Local Laws, The first mortgagee was appointed trustee to make the sale, and at the sale announced that the property would be sold clear of incumbrances. The sale was made and finally ratified by the Court. The auditor stated an account applying the proceeds of sale to the payment of the first mortgage, and the residue to the second mortgage, leaving a balance unpaid. On exceptions to the ratification of the auditor’s account by tire third mortgagee, it was Held :</p> <p>That the proceeds of sale of the mortgaged premises, ought to have been applied to the payment of the second mortgage, and the balance to the payment of the third mortgage. The first mortgagee had no right to participate in the fund; the property was sold subject to his mortgage.</p>

A statement of the case will be found in the opinion of the Court. Three exceptions were taken in the Court below by the appellants ; the first and second to tbe exclusion of evidence, and the third to the rejection of their prayers and the granting of those of the defendant. The prayers are omitted as the Court’s judgment thereon is based exclusively upon the views expressed in the opinion. The verdict and judgment being for the defendant, the plaintiffs appealed.

The appellants carried on the business of a mercantile agency. On the 8th of August, 1872, the appellee, doing business in Baltimore and Philadelphia, under the name of Arthur P. Baor & Co., signed an instrument of writing, whereby he agreed, in consideration of certain services to be performed by the appellants from the 1st of January, 1878, to the 1st of January, 1874, to pay for those services the sum of $150, in advance on the 1st of January, 1873.

The case is stated in the opinion of the Court. First Exception. — This is stated in the opinion. Second Exception. — The plaintiff offered eight prayers, the fourth and eighth of which as follows, were rejected, the others were granted : 4. That there is no sufficient proof in this cause to establish the fact that S. S. G-aule was agent for Gent, subsequent to the time when he was employed hy Gent upon wages to sell milk for him. 8.

The opinion of this Court, together with the following opinion of Judge Dobbin of the Superior Court, furnish a sufficient statement of the case : This is an application for a mandamus to compel the respondent, as President of the Monumental Fire Insurance Company of Baltimore, to pay to the State Treasurer the State taxes levied upon the capital stock of‘that Company for the years 1870, 1871 and 1872. The application is resisted upon the following grounds: 1.

<p>Re-insurance• — Statute of 19 George II. eh. 37, sec. 4 — Liability under a Policy of re-insurance — Estoppel—When Preliminary proof of loss is dispensed with — Expert.</p> <p>The fourth section of the Statute of 19 George II. cli. 37, which is in force in Maryland and which provides “that it shall not be lawful to make re-assurance unless the assurer shall be insolvent, become bankrupt, or die,” relates exclusively to marine re-insurance.</p> <p>The Fulton Fire Insurance Company insured N. B. & Go. to the amount of 310,000, on their Sugar Refinery, and subsequently re-insured itself against loss or damage by fire on the same property in the office of the appellant to the amount of 3ó000. The property was destroyed by fire while both policies were in force. Suit having been brought against the Fulton Fire Ins. Co. a judgment was rendered against it in favor of N. B. & Co., for 39206,16. Subsequently the Fulton Company was dissolved by legal proceedings, and its assets and effects on being sold by a receiver, paid to its creditors a dividend of only twenty per cent. The claim of the Fulton Company against the appellant was purchased of the receiver at public, auclion by the appellee. The policy of re-insurance contained the clause, “Loss, if any, payable pro rata to them (The Fulton Company) at same time and in the same manner as they pay.” By this policy the loss was made payable within ninety days, and by that of the Fulton Company within sixty, days after due notice and poof of the same. Suit was brought by the appellee against the appellant on its policy of re-insurance. The defendant insisted that the plaintiff could in no event recover more than half the sum paid by the receiver to the parties originally insured by the Fulton Company. Held :</p> <p>That the defendant was responsible for one-half of the amount of the judgment recovered against the Fulton Company, such being the proportion or pro rata between the amount originally insured and the amount re-insured, agreeably to the terms of the policy of re-insurance.</p> <p>Where property is insured, and the insurer re-insures, and it is destroyed by fire, and before the loss is paid, the original insurer becomes bankrupt, and the assured receives but a small dividend out of the bankrupt’s estate, the re-insurer is still liable to pay the whole amount of the re-insurance to the trustee of the original insurer, without deducting the dividend, and the original assured has no claim in respect of the money so paid.</p> <p>Where a policy of insurance containing an acknowledgment of the receipt of the premium, has been issued and delivered to the assured, the insurance company will not be permitted to allege a want of consideration for its promise when sued thereon, after a loss has happened.</p> <p>By a policy of re-insurance, the insurance company stipulated that their insurance of $5000, was part of the “sum or sums insured by the Fulton Fire Ins. Co. of New York as. above, for Newhall, Borie & Co. by their policies Nos. 2335 and 2'7|79, and to be subject to the same risks, valuations, conditions, and mode of settlements as are or may be adopted or assumed by said company.” In an action on the policy, it was Held :</p> <p>That this clause not only dispensed with preliminary proof of loss, but fastened the responsibility of the defendant to the settlement and adjustment made by the original insurer with the original assured, as to the amount of loss.</p> <p>A lawyer, thirty-four years of age, and residing in New York city, is competent to testify whether a receiver in making a sale under the statute law of New York, complied with its requirement as to notice.</p>

This was an action of ejectment brought by the appellee against the appellants, to recover a lot of ground in the City of Baltimore.

Court of Baltimore City. The bill in this case was filed by the appellant, the widow of David M. Sanborn, and Martha P. Hood, his only child, against the appellee residing in New Hampshire. The object of the bill was to have a deed from the deceased tp the appellee, made as expressed upon its face, for good and valuable consideration, and the sum of five dollars, declared fraudulent and void, as against the complainants.

This is an appeal from the decree of the Court below, dismissing the bill of complaint of the appellant. The facts of the case are sufficiently stated in the opinion of this Court.

A writ of scire facias was issued at the instance of Erancis Reale and James H. Luckett, on a judgment recovered by them against James 8. Morsell and William RT. Dorsett, the writ contained a clause of scire facias against the terre-tenants of the defendants, hut not against the defendants themselves.

On the 23rd of April, 1874, the appellant filed his petition, alleging that on the 8th of February, 1871, during the recess of the Senate, he was appointed by the Governor, Adjutant General to fill a vacancy in the office occasioned by the resignation of George H. Bier, was commissioned and duly qualified, and entered upon the discharge of his duties ; that afterwards on the 5th of January ^ 1872, the petitioner was nominated to the Senate by the -Governor and confirmed as…

<p>Real estate Broker — Unlawful commissions— Usage or Oustom Cannot control a well established principle of Law.</p> <p>Where a real estate broker, employed to sell a farm, disposes of it by way of exchange for other real estate, he is not entitled to charge the owner of the latter a commission for effecting the exchange. The law does not permit the broker in such a case to act as agent tor both parties. Even an agreement to pay such commission, could not be enforced by an action thereon.</p> <p>Nor could an action for the recovery of such commission be maintained, although by a custom or usage existing among brokers in the place where the exchange was effected, they were entitled in exchanges of real estate to a commission of two and a half per cent, from each party, on the amount or value of the property exchanged.</p>

A declaration in assumpsit with the common counts was filed by John C. Sullivan and Richard K. Cross, trading as J. C. Sullivan & Co., against Joseph P. Eusting, in the Circuit Court for Baltimore County. The writ was issued on the 20th of February, 1871, and was returned summoned to March Term, 1871, of that Court.

<p>Defaulting Purchaser at an Executor s sale, entitled upon a Resale of the property, to the 'Surplus proceeds of Sale, over and above the Cost and expenses of the Re-sale, the Commissions on the amount of the Proceeds thereof, and the amount of Purchase 1 money due on the former sale.</p> <p>An executor under and by virtue of a power in the will of his testator, sold certain real estate, and the purchaser signed a written memorandum whereby he agreed and bound himself to comply with the terms of sale upon the ratification thereof by the Orphans’ Court. The sale was reported to, and finally ratified by, the Court. The purchaser having made default in complying with the terms of sale, the Court in pursuance of the provisions of the Act of 1870, ch. 82, ordered the property to be re-sold at his risk. The property was accordingly re-sold, and the amount hid at the re-sale exceeded that bid at the first sale. The original purchaser thereupon claimed this excess, or so much thereof as might remain after payment of ail proper expenses, cost and charges for which he was liable by reason of his default. This claim was resisted by the executor. Held :</p> <p>1st. That as the property at the re-sale was sold as that of the first purchaser, and at his risk, he was entitled to whatever balance might remain of the proceeds of the re-sale, after deducting the costs and expenses attending the re-sale, including' a reasonable fee for services of counsel in filing the petition and procuring the necessary orders thereon for the re-sale; the executor’s commissions on the whole amount, of the proceeds of the re-sale, and the amount of the original purchase money with interest thereon from the date of the first sale to the time of the receipt of the purchase money hy the executor from the purchaser at the second sale.</p> <p>2nd. That the right of the original purchaser to this balance, was not in any way affected by the fact that be was without means of payment, and had given no security for the payment of the purchase money, and would have been unable to pay the loss to the estate of the testator, if the property liad sold at the second sale for less than the amount of the original purchase.</p>

This suit was originally instituted on the 12th May, 1870, in the Cireuit Court for Talbot county, by’Samuel T. Hopkins, against the appellants, as executors of James M. Seth, to recover the sum of $10,000 for services alleged to have been rendered to their testator by the plaintiff. After various proceedings, which for the purposes of this appeal need not be stated, John II.

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

<p>Appeal from the Orphans’ Court of Baltimore County.</p> <p>On the 8th of August, 1874, the appellant filed her petition and caveat in the Orphans’ Court of Baltimore county, alleging that she was the aunt and only heir-at-law of William D. Blackistone, who died intestate on or about the 29th of July, 1874, in said county; that a certain paper writing without date, was filed in said Court on the 4th of August, 1874, purporting to be the nuncupative will of the said deceased, and that such was not his last will and testament; that the proof of the same was irregular, defective, informal and not in conformity with the laws of the State; and further that at the time when said pretended nuncupative will was made, the deceased was not of a sound and disposing mind, memory and understanding, and capable of making a valid deed or contract; that said will, if made at all, which the petitioner denied, was obtained by fraud and undue influence; that the petitioner was the only surviving aunt of the deceased, who died, leaving no widow, child, brother or sister, father or mother, grandfather or grandmother, or uncle, grandchild, or great grandchild, and that she was the only heir-at-law of the deceased, and was not present at the time when said pretended nuncupative will was alleged to have been made. The petition prayed a plenary proceeding to test the validity of the alleged will, and that letters of administration upon the personal estate of the deceased might be granted to the petitioner. The paper writing referred to in said caveat, as purporting to be the nuncupative will of William D. Blackistone, deceased, as propounded in Court was as follows:</p> <p>“ I give and devise unto my dear cousin, Mary A. Shanks, my store, and all that is in it, as it stands at this date ; and either the stallion horse or two of the others, as she may prefer — and the store wagon, all the growing crops, and the expenses of saving the crop, she must, pay out of the crop.”</p> <p>“ Anti all of the accounts tine up to this date, all the money on hand, and to administer on my estate as soon as she could, and not to put it off too long, and let the boys have fifty dollars a piece (pointing to M. F. Corns, George Cloman and William Preston,) and wished his above named cousin to‘conduct the store as if lie were alive.”</p> <p>It having been represented to the Court that William J. Blackistone was the only heir-at-law and next of kin of the deceased, the following affidavit was taken in open Court, and by the Court ruled out as evidence:</p> <p>“ On this 4th of August, 1874, came William J. Blackistone, Millard F. Corns, George Cloman and Adaliue M. Anderson, and severally made oath that, on the 29th of July, 1874, William D. Blackistone, late of Baltimore county, deceased, declared to them that the aforegoing paper was his last will and testament, and that the part added since his death, commencing at the words, “And all the accounts,” was spoken by him on the said 29th of July, 1874, in our presence, he the said William D. Blackistone, at the same time bidding us to hear witness, that such was his last will and testament, and that it was made in the time of his last sickness, and in the house of his habitation or dwelling.”</p> <p>A citation was issued to Mary A. Shanks, who appeared and on the 12th of August, 1874, answered the petition and caveat. The answer denied the allegations contained in the petition, and prayed the Court to admit the will to probate, and to order letters testamentary to be granted to the respondent in accordance with the wish of the testator. On the same day, William J. Blackistone, Millard F. Corns, George Cloman and Adaliue M. Anderson, were produced in Court to testify in behalf of the caveatee.</p> <p>William J. Blackistone, testified under oath, as follows: The deceased was my own cousin — he kept a store ; he told me to get some paper; when 1 got the paper I asked him what I should put on it; he told me to' write down that he gave his store as it stood, his hook accounts and every thing in it to my sister Mary A. Shanks — he wanted her to have one or two horses, as she might wish — she might take the stallion ; if she did not take him, she might take two of the others; he gave her the growing crops on the land, and she was to save the crops, and pay for saving them out of .the crops. He stated that he wanted to give to the two Misses Blackistone, who lived in Baltimore, a wagon and two horses, if Mary A. Shanks should take the stallion; in the event of the girls taking two horses, they were to have the big wagon; he wanted to give to the three boys, Millard E. Corns, George Cloman and James Preston, who were present, or were sent for, fifty dollars each ; he gave all the rest of his ¡personal property to Mary A. Shanks — he told the boys to bear witness that that was his will. He wanted Mary A. Shanks to administer on his estate — he repeated that twice — he died the same day— he was speechless soon after speaking these words. I commenced writing the will, and think I wrote two or three paragraphs...</p> <p>Adaline M. Anderson testified to the following: I was ■present at the last sickness of Wm. D. Blackistone; he died on the 29th day of July last; I think it was about half-past nine or ten o’clock A. M., between those hours; I was in his room early, he called me to him to take his directions, he told me in case he should die he wanted me to understand that he desired his cousin, meaning Mary A.' Shanks, to have his store and all that was in it, and .accounts up to date; that she might go on and make her support; he also said that he wished her to have a horse and, wagon and the growing crop, he designated which hors.e at first, and then said she might take her choice, either take one horse or the two, then he wished her to have the administration, there was no one in the room until he commenced telling me, when I called in Millard E. Corns; I cannot remember whether any one was in the room all the time, for my attention was taken up with what Mr. Biackistone was saying to me; I don’t remember whether any one was in the room until Mr. William J. Biackistone began taking down what he said ; Mrs. Shanks might have been coming and going ; I can’t tell who was in the room after it was taken down, this testimony was given to me; he repeated it to Mr. Wm. J. Biackistone; 1 can’t tell any other who was present at this time except Millard F. Corns ; this was a little after light, it may have been between five or six, or between six or seven o’clock, it was before the doctor got there; his mind was as correct as I had over seen it when this disposition was made by him; immediately after making these requests, his voice became choked and cloudy and he could not go on.</p> <p>On cross-examination, the witness stated:</p> <p>Mrs. Shanks is my niece; I have stated all that I understood Biackistone to say, wliat he was addressing to me, he was still talking; I think I have stated all that he addressed to me, that I remember, I don’t think I have forgotten anything ; I did not go to Mr. Blackistone’s house at the same time that Wm. J. Biackistone and Mrs. Shanks went there;-I was on a visit; I had been there about three weeks prior to his death ; I remained there at Mr. Blackistone’s invitation; my visit was principally to my niece, Mrs. Shanks.</p> <p>Millard F. Corns testified as follows :</p> <p>I knew Wm. D. Biackistone, I was in his employ as clerk; he died on the 29th of July last, between nine and ten o’clock in the morning ; I was in his room from about six A. M. until he died ; he did not ask any one to do anything for him, he told us that he wanted Mrs. Shanks to have the store and all that was in it, to have all the accounts that was due him up to date, and have all the money on hand, he wanted her to have one horse and wagon, he said he wanted her to have the, Norman horse, and if she did not like the Norman lorse, she was to have tlie choice of two others, he said Norman was equal to any two horses he had ; I asked him what he wanted done with his crops, he told us he wanted Mrs. Shanks to have the crops and pay for saving the crops out of the crops ; he wanted her to give us hoys fifty dollars each ; he did not speak our names, he just pointed to us ; he pointed to me, George Olomazr and "Williazn Preston, we were all in the room; he wanted Mrs. Shanks to administer on his estate, to do it as quick as possible; I think that is about all I know ; this was about two hours previous to his death, as far as I can remember; he was as fair in mind as ever I had seen him ; I have been there about fifteezr months steady in his employment; about ten months at one time, azid five months another time. Mr. Blackistone always called-Mrs. Shanks cousin, and seemed to he exceedingly fond of her, and seemed to .he so because she came to take care of his affairs ; zro woznan could have taken better care of his affairs than she took care of his. Mrs. Shanks, her father, Mrs. Anderson, George Oloman, Wm. Preston, the children about the house and myself, were in the room at this time; he asked several times if we understood it, if we did not, he would not he satisfied, referring to what he had said.</p> <p>On cross-examination the witness said :</p> <p>Mr. Taylor suggested how he should leave his property about a half or one hour before his death, hut he could not speak so as to he understood, this was after he had mentioned how he wanted his property to go ; it was about two hours before his death that he stated what I have said ; Mr. Blackistone was taken Saturday night, and died Wednesday morning, he had not been confined to his bed before Saturday night,before his death for along time, cazi’t say how long ; he appeared well enough until nizre or tezi o’clock Saturday night, when he was taken with vomiting, he had been taking medicine all along, the doctor trying to cure him of the rheumatism.</p> <p>George 01 oman testified as follows :</p> <p>I lived with Mr. Blackistone; lie died on the 29tli of July, 1874 ; he died about half-past nine in the morning ; I was called about six o'clock to go for Doctor Altervater first, when I came hack I went for Doctor Gittings; I was back and forward in the room all the morning; he called me to witness his will; he called me himself; he said Mrs. Shanks should have the store and all that was in it; all the bills, she could collect them ; she was to have them ; she was to have the hooks in the store, she was to have one horse, Norman, or two others; he said Norman was equal to any two horses he had ; she should have the store wagon, she must have the crops, and save them ; and pay expenses out of them for saving ¿hem ; I "believe that is all I know about the will; no, not quite all, he said the boys must have fifty dollars each; we were standing around him ; he said for Mrs. Shanks to administer on the property as soon as she could; I know Mrs. Shanks very well; I heard Mr. Blackistone say, that if she would come and take care of him, she should have all he liad after his death ; he said this before and after she came ; she was not present at the time ; he seemed to be very fond of Mrs. Shanks, more so than any one else, according to my judgment.</p> <p>Cross-examined.</p> <p>Question. You have said Mr. William D. Blackistone called you in to witness his will, where were you at the time; and state what he saidgive his language or the words he made use of; state all he said at that time ?</p> <p>Answer. He told me to come to him, and stand right along side of him; he told me to rub bis hands with mustard, then he went on about his will; he said to me, Mrs. Shanks was to have the store, and all that is in it; she must have the bills that were out, she must have one horse, Norman, or two others; she must have the store wagon ; she must have the crops, she must save them and pay expenses; she must administer on his property as soon as she could, and that the boys must have fifty dollars each; I believe that was all he said whilst I was present; I was called out at that time, and sent to do something ; Millard E. Corns, Mrs. Anderson, Mrs. Shanks and her father were present; I did not take notice of any others, there might have been more; I have stated all I remember William D. Blackistone stated.</p> <p>Mrs. Mary A. Shanks testified, that she went to live with Wm. D. Blackistone, because he wrote to her after his wife’s death, inviting her to come and live with him, to take care of his house and effects.</p> <p>The caveatee offered the paper writing purporting to be the nuncupative will of Wm. D. Blackistone for probate, and the foregoing testimony. To the admissibility of said paper to probate, and the accompanying evidence, the caveator objected.</p> <p>The Court decided to hear the evidence proposed to be offered by the caveator, and refused to admit the will to probate at that stage of the case.</p> <p>• On the 17th of August, 1874, the Rev. A. T. Pindell, in behalf of the caveator, testified as follows :</p> <p>I am a minister in the Protestant Episcopal Church ; I was called as a minister of the Gospel to visit Mr. Blackistone, at his residence, in his last sickness. I reached there about thirty minutes before he died. I at once approached the bedside of the deceased; am uncertain whether he knew me or not; Col. Benj. E. Taylor seemed to he trying to take down what he wished should be his will. As in my opinion, time was precious from the appearance of near dissolution, I asked Col. Taylor if I would be seriously interfering with his business, if I had prayers with the dying man, he said no, I prayed with him about three minutes, was about to inquire as to his spiritual state, when Col. Taylor asked him what he wished to be done with the rest of his property, the sick man seemed to be unable to comprehend, when Col. Taylor requested me as being the nearest to him, to ask the sick man the following question : What disposition do you wish to make with the remainder of your property? This I asked him in a loud and clear voice; he tried to answer, but his speech was so thick that we could not understand him; Col. Taylor, who was sitting near the foot of the bed, then said to me, I have here written down his wish, that the bulk of his property shall go to Mrs. Shanks, but we do not know yet, what disposition he wishes to be made of the remainder ; ask Mr. Blackistone, to whom he wishes to give it, as there are some poor relatives in town, to whom he wishes to give something. I said to the sick man, you have stated that you wanted Mrs. Shanks to have the bulk of your property, but there is a balance not yet disposed of, to whom do you wish to leave it? His eye was fixed upon me, when I propounded the question, with a rather stupid stare, he kind of shook his hands and made an effort to speak, but had evidently lost the power of plain speech, for different parties put different interpretations on what he said; I think Col. Taylor said he wants to divide it amongst three poor relations in Baltimore; Mrs. Shanks, who was standing nearest to him, said no, that is not it, he means to say that he wants the boys in the store to have fifty dollars apiece ; acting upon these suggestions, I asked him distinctly if he wished certain poor relatives in Baltimore to have it, or if he wished to give it to the boys in the store, he made a struggling motion with his body, and muttered with his lips as if he wanted to say something, but it was all in vain. Being of the opinion that he was not at that moment in a condition to attend to matters, either temporal or spiritual, I gave place to his unwearied nurse, Mrs. Shanks, and retired from the room; his dissolution seemed to be so rapid, that it appeared only loud strong calls could command his attention, and he would relapse in a kind of drowsy state as soon as he was let alone. I left the room, because I thought I could he of no use to him, and gave place to the nurse. I did not hear one intelligible expression from him whilst I was in his room, not one expression that I could comprehend or understand ; I was sent for in a great hurry, went down in a great hurry, entered the house hurriedly, and am of the impression that Ool. BlackistQne held in his hand a paper, which he afterwards told me contained an expression of Mr. William D. Blackistone’s will; I do not know what became of the paper; Ool. Taylor was writing when T got thei’e; when I entered the sick chamber, Ool. Taylor was engaged in writing down what I supposed the sick man had just stated, but I learned afterwards from Col. Taylor, that the reason why I was not interrupting proceedings, by having prayers, was, that the Col. was merely making a copy of what had already been written down as the sick man’s will, so as to go on and add to it a further expression of his wishes, as I have already stated; he was not able to make any of us understand what he wished to be done with the remainder, and hence, the Colonel’s work amounted to.nothing; immediately after Mr. Blackistone’s death, Col. Blackistone met me in the hall, with a folded paper in his hand, and said to me, holding the paper up, I hold here a statement of what’ Mr. Blackistone wishes to be done with his property ; he gives the most of it to my daughter, Mrs. Shanks, who has been here nursing him, when none of his other relatives would come near; I did not examine the paper, or any paper whatever in the house.</p> <p>Col. Benjamin E. Taylor testified as follows:</p> <p>I knew Wm. D. Blackistone; I knew him about fourteen or fifteen years; I reside about a mile from where he died; he married a half-cousin of mine, who died about one or two months before he did; I was sent for on the morning that he died ; I got there, I suppose, about eight o’clock, A, M., I don’t suppose he lived, after I got there, more than an hour, or an hour and a half; I went immediately to his room, and those surrounding his hed, asked if he knew me — I say those, because I mean more than one asked if he knew me ; there were Mrs. Shanks, Millard Corns, and others ; be said that he did — it was Ben Taylor ; where is Jennie — that is, my wife; I told him she would be there as soon as the horse could be hooked up to bring’ her there ; I stayed there a few moments, and went out to make some few inquiries ; I returned, and went out several times, and was back and forward in the room, and found him about the same, during the time since I first came : I found that there was a paper ; Col. Win. J. Blackistone stated there was a paper purporting to be his wishes, and also stated the purport of it; I had a conversation— really I cannot say whether to Herbert Blackistone — about this paper, or he to me ; it was a subject of conversation between us ; I know that Herbert Blackistone asked me to get some further expression of W. B. Blackistone’s wishes ; I did not go immediately — it was a task I did not like to perform, and I asked Hr. Altervater in regard to his condition; he went into the sick room and returned, and stated to me that I might go in and try, that he W. H. Blackistone, had spoken intelligently to him; 1 then went'in, sat upon the bed, asked for pen, ink and paper ; they were furnished ; and for the will that it was said had been made; it was furnished me; it was without date or signature ; I copied it; I don’t know where that copy is now, for I threw it down on the bed ; (paper purporting to be the nuncupative will of W. H. Blackistone, is shown witness ;) that paper, nor any part of it, is in my handwriting ; I would not be willing to swear that that is the identical paper from which I copied ; T have no recollection of that paper, nor any mark by which I could identify it; it was written on a piece of foolscap ; the copy of the paper purporting to be William H. Blackistone’s nuncupative will was copied by me, but I never copied any such thing as that, (laying down the paper purporting to he W. D. Blackistone’s nuncupative will,) there is a portion in those brackets relating to the accounts that I did copy, the rest I have no recollection of copying, I may have heard of those, really my understanding is different, I am in hopes the paper I copied may be found; I copied the entire paper that was shown to me; after copying that paper I stated to Wm. D. Blackistone that I wanted to k^ów what he was going to do with his property, he stated it had all been fixed, that he had left Mary Adaline, meaning Mrs. Shanks, the store, and cannot say whether one or two horses, a wagon, and there his articulation became thick ; it was my impression that he intended to convey to me the wishes of the paper that I had copied ; I told him that he had made a full disposition of his property, and that if there were any other parties that he wanted to leave the balance to I would like to know, I was ready to take it down Avith pen, paper and ink; I mentioned three female orphan cousins in Baltimore to whom I knew he had been formerly attached ; about that time others about the bedside spoke in different ways, whether they should raise him up or give him a little medicine, or something about bodily comfort I could not say ; the Rev. Mr. Pindell and Dr. Grittings came in just about that time, and after I got there I asked Mr. Pindell to question him in reference to the further disposition of his property, and I think he got no articulate answers, at least he did not impart them to me. I really believe he was capable of wishing, but not able to express the wish fully. I only remember this, that before he died I'was by his bedside, that Millard Corns asked him if there was any one he Avished to see, he said his dear wife, this was not a half hour before he died; don’t think it was more than twenty minutes; Mrs. Shanks immediately said, do you know who this is, I was standing immediately before him, he said Benny, and I went out and told the Rev. Mr. Pindell that he was dying ; it was about one or one and a half hours after I got there that he said he wanted to see his dear wife ; on cross-examination the witness testified further :</p> <p>(The paper purporting to he the nuncupative will shown witness.) As I said before, the paper which I copied was without date or signature, it was on foolscap similar to this, and its general purport down to the brackets is similar to the one I copied ; the top of this is similar to the one I copied, the bottom not; Mr. Blackistone said everything had been fixed; I am sure I did read it to him, I heard him express wishes similar to those expressed in this paper, after I had copied this, I asked him what disposition he had made of the balance, he expressed wishes similar to what I copied, I don’t wish you to think I said it was similar to this in every respect, the most important part was similar to this. I do not believe I copied this paper entire, but I really believe I did copy it, down to tbe brackets, in reference to accounts and administration I beard mentioned, but I cannot say whether I wrote that down or not; I have no recollection what was said in reference to accounts or administration, or who said it; I don’t know whether this conversation was carried on in or out of tbe room; there was a general conversation going on; I beard about this account and administration in and out of the room ; I cannot say where I hoard it; I believe I was the most intimate friend of the deceased; never heard him say anything about leaving bis property to Mrs. Shanks, or any one else ; my business kept me from him.</p> <p>Dr. Altervater, testified as follows : I was acquainted with William D. Blackistone for about nine or ten years ; generally I was his family physician; I attended him in his last illness ; he died of cholic ; he was liable to attacks of rheumatism, ever since I have know him, but more freqirent lately; on cross-examination the witness said: I arrived at bis bouse on the morning of bis death — about six o’clock; his mind was clear, and capable of transacting business; his mind was clear to the time he died, but his senses — physical—were impaired by approaching dissolution ; the articulation was good when I first went there, but his voice was husky then ; it became impaired very soon afterwards ; on Monday night, when I saw him, I did not think him dangerously sick; did not until the morning of his death; did not encourage any fears of death to his family or himself; I told him I thought he would get well, until the morning of his death ; he died at his residence about half-past nine o’clock, on the Philadelphia Road, on the 29th of July.</p> <p>It was admitted by the attorneys respectively for the caveator and caveatee, that the personal estate left by Wm. D. Blackstone, deceased, exceeded the sum of $500 in value.</p> <p>The Court on the 26th of August, 1814, passed an order admitting the nuncupative will of Wm. D. Blackistone to probate, and dismissing the petition and caveat of the caveator.</p> <p>From this order the caveator appealed.</p>

<p>When the taking of a Bill or order on a third person in payment of an Antecedent debt, will operate to Extinguish the Debt— Novation— Baches.</p> <p>The taking of a bill or order on a third person in payment of an anteceden t debt, will not per se operate to extinguish the debt unless such be the agreement between the parties; and the burden of proving such agreement rests upon the defendant, the presumption of law in such case being that the bill or order is taken as conditional payment only.</p> <p>It is not required, however, that such agreement should be expressed in terms; it may be established by the 'facts and circumstances attending the transaction, which taken in connection with the language of the parties justify the inference that such was their agreement and intention.</p> <p>The plaintiffs kept a feed store, and the defendant purchased feed from them at. different times, amounting in the whole to $>346.13. Some of the items in the bill were purchased prior to the 1th of July, 1810, and some afterwards. In January, 1813, suit was brought to recover the amount of this bill. On the trial it appeared in evidence that on the 1th of July, 18Í0, the defendant gave to the plaintiffs three orders, amounting in the aggregate to S320.63 on the “Baltimore County Dairy Association.” One of the orders was payable at once, one on the 10th of August, and one on the 10th of September, 1810. The defendant testified that the orders were given for the amount of his bill then due; that one of the plaintiffs said he would take orders on the Association, if its President would accept them; the defendant saw the President and obtained his written acceptance of the. orders: he returned to the plaintiff who said “it was all right, he would take the orders, and would take orders for all the feed the defendant wanted.” By the terms of the acceptance, the President agreed to “charge the orders to the defendant's account with the Association and give the plaintiffs credit for them as they became due.” In accordance with this arrangement the plaintiffs charged the whole amount of the orders in their account current with the Dairy Association, and went on afterwards to supply the defendant with goods as he required. The defendant proyed that he had no notice of the non-payment of the orders, and no demand on him was made by the plaintiffs until some months after the Association broke up ; that in July, 1870, the Dairy Association owed_ him three times the amount of the orders which he has never collected. Une of the plaintiffs testified that at the time the orders were given lie told the defendant that the Association owed the plaintiffs; that he would take the orders and collect them if he could, and pass them to the defendant’s credit, if he got the money; that he never collected a cent of it, and notified the defendant soon after of the non-payment; that there was a distinct understanding with the defendant that he was not to be credited ixnless the orders were paid. It was in evidence that on the 12th of September, 1870, the plaintiffs instituted an action of attachment against the Dairy Association upon an account which was filed as the</p> <p>■ voucher of their claim; one item of which account was for “accepted orders of the defendant, $320.63.” Under the attachment proceeding, certain chattels were seized by the sheriff, and under an order of the Court, passed at the instance of the plaintiffs, were sold, realizing in excess of the expenses and sheriff’s costs $959.74. What disposition was made of this, was not shown; but on the 18th of September, 1873, the attachment was dismissed by order of the plaintiffs’ attorney; and by order of the Court the plaintiffs were allowed to withdraw from the files of the Court the vouchers of their claim. It was further proved that after the 7th of July, the plaintiffs received several sums of money from the Dairy Association, which exceeded the amount of the orders, and which were credited to the Association in their general account current and on the account filed in the attachment suit; by which it appeared that the balance due the plaintiffs from the Association was $959.09, including the amount of the defendant’s orders of the 7th of July. The plaintiffs held on to the orders, merely charged them in their account against the Association, took no steps to collect them until the 12th of September, 1870, when they sued out their attachment. Held:</p> <p>1st. That there was evidence from which the jury could find that the debt of the defendant for goods purchased had been paid and extinguished pro tanto, by. the orders and acceptance of the 7th of July.</p> <p>2nd. That even if the acceptances of the Association, had been taken only as collateral, it was the duty of the plaintiffs to exercise diligence in collecting thepi, and upon failure of the Association to pay them when due, to give the defendant reasonable notice, and having been guilty of laches in this yespect, the defendant was entitled to be credited with the amount of the acceptances.</p>

This suit was brought in the name of the State on the. official bond of the appellee, Tabler, as sheriff, to recover the amount of certain fees which had been placed in his hands for collection by William P. Maulsby, Esq., an attorney. A statement of tlie pleadings, so far as necessary for the purposes of this case, and of the exceptions, will be found in the opinion of the Court.

<p>Effect of the Reversal of an Order of ratification of Sale under a Decree in Equity and of the Auditor s report — Effect of a Decree for a Sale, passed after the cases were Consolidated, on a like Decree passed previously in one of the cases — Practice in Equity in reference to a Sale made under a Decree of the Court— When Purchaser entitled to a Return of the Purchase m,oney advanced, and to an Allowance for Improvements made on the property — Equity Practice ; Volunteer.</p> <p>On the 17th of October, 1867, N, sold to W. certain lots of ground situated in Baltimore County, and subsequently received part of the purchase money. In February, ¡868, W. by a conveyance, in which N. united, assigned a part of this property, and on the 3rd of June, 1869, mortgaged the balance to the Prospect Building Association. On the 5th of November, 1869, the Building Association filed a bill in the Circuit Court for Baltimore County, to procure a sale of this property under their mortgage. On the 16th of May, 1870, N. filed a bill in the same Court for a sale of the same property, to recover the purchase money due and unpaid, making W. and his judgment creditors, and the Building Association, defendants. On the 10th of August, 1870, a decree was passed in the case of the Building Association against W. authorizing a sale of the property and appointing trustees to sell. In pursuance o'f this decree the trustees sold the property at auction to E. and on the 30th of May, 1871, the sale was finally ratified and confirmed. On the following day the widow of W. filed her petition stating that her husband had died about the 15th of November, 1870, intestate, leaving two infant children, for whom she had been appointed guardian, and asking that after payment of the mortgagee’s claim and expenses, the surplus of the proceeds might be paid to her .as such guardian. The judgment creditors also claimed to be allowed their judgments out ol' the proceeds. The cause was referred to the auditor who stated an account applying the proceeds, after payment of costs &c. first, to the payment of ' the mortgage; secondly, to the satisfaction of the judgments and the balance to the guardian of the infant children of W. An order nisi was passed on the 8th of July, 1871, and on the 14th instant the trustees filed their answer to the petition of the guardian alleging that at the passage of the decree appointing them trustees to sell, the bill of N. to enforce his vendor’s lien, was pending; that this lien amounted to more than one-half of the value of the property; and that deeming it their duty to get the best price that could be obtained, and believing it would bring- a price totally inadequate to the satisfaction of the claim of the Building Association, if sold subject to the lien of N. they obtained his consent to sell the whole property, with the understanding that his lien should be first .discharged out of the proceeds of sale, and that when the same was paid, he would unite with the trustees in a deed to the purchaser, conveying to him a fee-simple title clear of all incumbrances;. that the property was sold to E. at a price which was fair and reasonable, and that they had informed him that upon the ratification of the sale, he would obtain a deed of the property clear of incumbrances; that they had been informed by N. that unless his claim was paid he would refuse to convey his interest in the property to the purchaser. After sundry intermediate petitions and orders, the auditor made a report assigning to N. the amount of his lien, and the balance after payment of costs &c. to the Building Association in part payment of their claim, excluding the judgment creditors and the heirs-at-law of W. To this account the judgment creditors and the guardian excepted; the exceptions were overruled and the audit finally ratified. The exceptants appealed. On this appeal the orders of the Circuit Court ratifying the sale and the auditor’s report were reversed and the cause remanded for further proceedings, upon the ground that W. had died after the passage of the decree and before the sale, intestate, leaving a widow and infant children who were his heirs-at-law, and no suggestion had been made of his death on the record, and no order of the Court had been passed directing the execution of the decree. The Court also suggested that the two cases which were pending at the same time, might have been consolidated and thus have secured a more advantageous sale. After the case was remanded, N. proceeded to amend his bill by making the 'infant heirs of W. and the executor of one of the judgment creditors, defendants. The answers of the original and additional defendants were filed, commissions issued and returned, and the case of the Building Association vs. W., et al. was consolidated with the case of N. vs. W., et al. On the 12th of July, 1873, a decree was passed in the latter case authorizing a sale of the property and appointing the same trustees with one other to sell. Pending the proceedings in the case of N. vs. W., et al. and prior to the decree of the 12th of July, 18Í3, petitions wore filed by the original trustees and E. and H. to whom E. had sold the properly in the case of the Building Association vs. W., et al. The trustees stated that their former report was defective in not setting out that they sold the property in fee simple and clear of all incumbrances, and especially of the vendor’s lien held by N.; and that they had agreed with him that his lieu should be first paid out of the proceeds; and they therefore prayed to be allowed to amend their report. The petition of E. stated that he had paid the whole purchase money to the trustees relying on their assertions made in good faith that the sale was valid and clear of incumbrances; that he had sold the property at an advance to H. contracting to give him a general warranty deed, and had suffered him to go into possession, without the slightest notice by any of the parties to the cause that the sale would ever be disputed. He prayed that the sale might be ratified and a deed in fee-simple made to him by the trustees. The petition of H. alleged that relying upon the announcement made at the sale, and the further assurances of the trustees after the final ratification of the sale, he had erected costly buildings and other improvements, and he prayed that N., the Building Association, E. and the heirs of W., might shew cause why the trustees should not be required to make a deed to him in fee-simple. To this last petition the heirs of W. filed their answer alleging that the matters and things respecting the salo and the report thereon, and the action of the trustees in making the sale had been fully adjudicated and determined by the Circuit Court and the Court of Appeals; that H. bought with full knowledge that the title to the premises was in dispute; that he had cancelled his bargain with E. and received "the advance paid by him as part of the purchase money. All the petitions were dismissed by order of the Court on the 12th of July, ISIS. Subsequently H. filed another petition, praying that a rule might be laid requiring N., the Building Association, E. and the infant children of W. to shew cause why the decree should not be amended so that the property might be sold subject to the betterments and improvements put upon it by him, &c. This petition was also dismissed. On the appeal of E. and H. it was Held :</p> <p>1st. That the sale made and reported by the trustees, was not vacated by the action of the Appellate Court in reversing the order ratifying the sale, and the auditor’s report; whatever rights attached in consequence of that act, remained intact until adjudged by a Court of competent jurisdiction.</p> <p>2nd; That the decree in the case of Ad vs. W., et al. although subsequent to the consolidation, did not vacate the former decree, or the proceedings thereunder ; all were subject to the revision and control of the Court in which they originated, until finally ratified or annulled.</p> <p>3rd. That the petition of E. should not have been dismissed; if bis allegations were established to the satisfaction of the Court, the contract of sale made with him by its agents, the trustees, should be revived; and all the intermediate orders and decrees of the Circuit Court so modified as to authorize the trustees appointed by the decree in the consolidated cases, upon payment of the purchase money to them by E. to convey to him in fee-simple the property in question, free, olear and discharged of all claims of the parties thereto, and those claiming under them. Should the allegations of E. not be sustained, he would be entitled to a return of the purchase money advanced by him, with such interest as might have accrued thereon; and in the event of a sale to such allowances to him or his vendee, for improvements on the property, as the market value had been increased by such improvements, after first satisfying the vendor’s lien.</p> <p>4th. That H. was a stranger to the contract of sale made with the Court by its agents, having no privity with the trustees, and quoad hoc a volunteer; he had no right to intervene at that stage of the cause, and his petitions were properly dismissed.</p>

This suit was instituted against the appellant by the appellee to recover damages for the killing of Charles Woodward, the husband of the equitable plaintiff. The facts of the case, together with the exceptions to evidence taken by both sides, are sufficiently stated in the opinion of the Court. Exceptions to Prayers. — The plaintiff offered the following prayers: 1.

This was an appeal from a decree of the Court below, dissolving an injunction which had been previously issued on a bill filed by the appellant, to restrain the appellees from selling or disposing of the property in the proceedings mentioned, and dismissing the bill. The case is further stated in the ojfinion of the Court. •

This suit was brought by the appellees under the provisions of sec. 52 of Art. 26 of the Code, on a bond for §500 issued to them by the Antietam Manufacturing Company of Washington County, to recover of the appellant individually as a stockholder of the company, the amount of said bond.

The nature of the case is stated in the ojoinion of. the Court. The Steamer Massachusetts was purchased in New York for $20,000, from A. J. Richardson hy Samuel J. Pentz, and it was conveyed to him and his brother, the appellant, by bill of sale dated Vth of February, 1863, and recorded at the Baltimore Custom House on the 21st of March, 1865.

On the 23rd of October, 1863, the appellee which then owned a line of railroad, leading from Cumberland by way of Mount Savage and Frostburg, to a point near Lonaconing, purchased for the sum of $250,000 fronf the George's Creek Coal and Iron Company, its railroad, about eight miles long, extending from a point near Lonaconing to Piedmont, in West Virginia.

On the 13th of January, 1874, the appellee filed a petition in the Orphans’ Court of Baltimore City, against the appellant. The petition set forth an order of the Court passed on the 9th of August, 1872, requiring the appellant to deposit all the money belonging to the estate of her intestate, in the Savings’ Bank of Baltimore, in the name of the estate, subject to the order and control of the Court, and to exhibit the book of deposit to the Court.

The bill of complaint in this case was filed by the appellee who claimed to be a judgment creditor of the appellant, Israel Cooke. Its object was to have a deed from the said Israel, and the appellant Arietta, his wife, to the appellant, Adolphus, their son, set aside ; and a deed from Joseph S. Olea velan d and wife, to the said Arietta, declared to be held in trust by her for the use and benefit of the said Israel and his creditors.

This action was instituted in the Circuit Court for Baltimore county, by the appellee against the appellant, to recover damages for the alleged wrongful act of its agents in ejecting the plaintiff from a train of cars on which he was a passenger. The defendant failed to plead to the declaration in time, and a judgment by default for want of a plea was taken by the plaintiff. Afterwards the defendant moved to strike out the judgment.

This suit was instituted on the 9th of May, 1870, by John O. Gallup, the appellant’s intestate, against Nathaniel Leonard and William R. Hughlett, for the recovery of §800, with interest unpaid thereon, due upon their joint single bill to Ann O. Worrell, dated the 28th of August, 1855, and which, after the death of the obligee, was assigned by her executor on the 23rd of April, 1867, to the plaintiff. The defendant, Leonard, suffered a judgment of nil dicit.

This action was brought by the appellee to recover from the appellant a balance due on a contract entered into by them on the 12th of August, 1813, and for additional articles furnished by the former to the latter, as shown hy an account filed with the declaration. The contract is set out in the opinion of the Court. The declaration contained the common counts and a count on the contract.

Ou the 3rd of October, 1867, the appellee applied to the appellant for a loan, on redemption of nine shares of its stock held by him for which he had subscribed, and the Society agreed to redeem or purchase from him at the sum of $2700 ; and in order to secure the payment of the face of said shares, to wit: $3600 (the value of each share being $400,) in weekly instalments of $11.16, together with weekly interest at the rate of six per cent, per annum for a period of ten…

<p>Final Decree in a case of Partition — Practice in the Court of Appeals — Construction of section 22 of Article 5 of the Code— Equity Practice— When return of Commissioners to make Partition will be set aside.</p> <p>In a case of partition, a decree which absolutely confirms the report of the commissioners by which the land was partitioned and allotted by metes and bounds, with an accompanying plot, to the respective parties, complainant and defendant, is final.</p> <p>Upon an appeal from a decree finally ratifying a partition made by commissioners, a previous decree directing the partition to be made, is open for review, though the appeal from such decree which was alleged to have been obtained by surprise and mistake, was not entered within the time required, after the discovery of the mistake.</p> <p>The words uall previous orders” contained in sec. 22 of Art. 5 of the Code, are as comprehensive as the words uall previous orders and decreesemployed in the Acts of 1830, ch. 185 and 1845, ch. 367 — their meaning is the same— the design of the section is, as was that of these Acts from which it was codified, to open, upon an appeal from a final decree, all previous orders and decrees constituting a part of the preliminary proceedings leading to the passage of such final decree.</p> <p>The petition of a defendant asking that a decree of partition may be rescinded, and that he may be permitted to come in and answer the bill of complaint, and setting forth the ground on which the application is made, should be verified by oath; and the absence of such verification is a fatal defect.</p> <p>Where commissioners appointed to make partition of a tract of land, exceed their power, and proceed to divide a tract not embraced in the terms of their commission, their return will be set aside.</p>

On the 1st of March, 1871, Henry Poole and wife, and Naomi Poole, executed to Andrew J. Myers a mortgage to secure the payment of $5000, alleged to be due to the said Myers by the said Henry on his promissory note of the same date, payable three years after date, with interest thereon, to be paid semi-annually. The mortgage contained a power authorizing the mortgagee to sell in default of any of its conditions.

To the statement of the cáse as contained in. the opinion of this Court, it' may be added that after the Court below overruled the demurrer to the defendant’s first plea, the plaintiff replied that the defendant James A. Bramble, never brought the proceeds of sale into Court for distribution, and they were never distributed and applied under the order and direction of the Court, as alleged in the first plea. Issue was joined on the plaintiff’s replication.

<p>When Statutes having the proper Forms of Authentication, may be Impeached — Statute void in part and good in part — Presumption arising from the due Authentication and Publication of a Statute, that it was validly Enacted— When the Court may looh behimd the Printed Statute in determining its Validity:— Parol evidence to Impeach a Statute, duly authenticated, inadmissible— The Journals of the two Souses of the Legislature as evidence of the action of the Legislature on any particular Bill.</p> <p>By the nineteenth section of the Act of 1868, ch. 364, incorporating The Baltimore and Drum Point Railroad Company, it was provided that if the company did not commence the road within six years from the passage of the Act, and should not finish the same in four years from the time of the commencement thereof; then the charter should be null and void. In the preamble to the third section of the Act of 1814, ch. 389, amendatory of the company’s charter, it ivas stated that it was feared the time allowed by the charter for the completion of the road, was insufficient, and that an extension of time therefor was desired. Following this preamble the third section, as published in the printed volume of the laws, provided that if the road were not finished in five years from the 1st of January, 1810, its charter and all its amendments should be null and void, and declared the nineteenth section of the charter to be repealed. Under its original charter, the company having commenced its road in 1813, had until the year 1811, to complete it, but under the third section of the amendatory Act as published, it had •only until the 1st of January, 1815 ; so that instead of obtaining an extension of time, as was designed, the company had in fact been restricted in the time allowed by the original charter. From an examination of the engrossed bill as it was finally acted on by the two Houses of the Legislature, with the endorsements thereon by the proper officers, as to the action of the respective Houses, and the journals of both Houses, it appeared beyond question that the extension of time for the completion of the road as provided in the third section, was for five years from the 1st of January, 1875. Held:</p> <p>1st. That as the third section of the Act of 1874, ch. 389, as that Act was sealed, and approved by the Governor, was materally different from the third section of the Act as it passed the two Houses of the Legislature, said section was null and void,</p> <p>2nd. That as the other portions of the Act of 1874, ch. 389, exclusive of the third section, were regularly passed by the Legislature and approved by the Governor, and were entirely distinct and severable from said third section, they were valid and effective.</p> <p>Where an Act, has been duly authenticated and published as law by authority, the presumption is, that all the Constitutional solemnities aud pro-requisites necessary to its valid enactment, have been complied with: and this presumption exists until the contrary is clearly made to appear. But when it can be made clearly to appear, that the particular bill, or section of a bill, although it may have all the forms of authentication, has never in fact received the legislative assent, the Court is bound to look not only behind the printed statute book, but beyond the forms of authentication of the bill as recorded in the office of the Court of Appeals, and if the evidence be clear and entirely satisfactory to the mind of the Court, to decide accordingly.</p> <p>A statute having the proper forms of authentication cannot be impeached or questioned upon mere parol evidence.</p> <p>The journals of the two Houses of the Legislature, in connection with other competent evidence upon the subject, majr be examined as moans of information to aid in arriving at a correct conclusion as to what was the action of the Legislature on an}' particular bill before it.</p>

<p>Parties incompetent to Testify under the Act of 1868, ch. 116— Imperfect Gift.</p> <p>A bill was filed by an administratrix to obtain possession of a book of deposit, and certain sums of money credited therein, alleged to have been deposited in a Savings’ Bank by her intestate in his life time, to which as his administratrix she claimed to be entitled. The bill charged that a daughter of the intestate together with her husband had been active parties in withholding the book of deposit and resisting the payment by the bank to the complainant, of the money deposited. That they had been as thus charged, the answers and proof in the case abundantly established. The bill prayed that they might be required to answer. Helo :</p> <p>That these defendants were not nominalparties merely, and were therefore incompetent to testify under the Act of 1868, ch. 116.</p> <p>An account was opened in a Savings’ Bank to the credit of “James Cannon, subject to'his order, or tp the order of Mary E. Cannon,” his daughter; • and money from time to time was thus deposited. Upon the death of James Cannon, Mary E. Cannon claimed that her father, in his life time, had given her the book of deposit with the money credited therein, to be held by her in trust for herself, and her brothers and sisters. The only mode in which money could be changed from one person’s account to another’s in the bank was “by a payment of the one account and a new deposit in another " account.” Upon a bill filed by the administratrix of James Cannon claiming the money in bank as belonging to his estate, it was Held :</p> <p>That the deceased had not parted with the legal dominion and control over the'money standing in .his name in the bank, because it was there subject to his order, or the order of his daughter; nor did the delivery of the book of deposit constitute a delivery of the money, and the complainant was therefore entitled to it as of the estate of her intestate.</p>

<p>Pleading and Evidence- — Admissibility of Evidence — Attorney's Appearance Fees.</p> <p>In an action upon a sheriff’s bond to recover an attorney’s fees placed in his hands for collection, one of the pleas alleged that the sheriff did account with and pay over to the attorney the fees due. A deputy of the sheriff testified that he had called at the attorney’s office and said “we are now ready to made a settlement of your appearance fees;” to which the attorney' replied: “It is impossible to attend to it to-day; my business prevents,” and fixed another day for the settlement. Held :</p> <p>That this testimony amounted to only an offer to account and pay over, and under the pleadings was properly rejected.</p> <p>In an action upon a sheriff’s bond to recover an attorney’s appearance fees placed in his hands for collection, one of the pleas was that the sheriff had accounted for and paid over all such fees which he received or collected, or which he ought to have collected. A witness for the defendants testified that he, as one of two joint assignees against whom certain of the fees were charged, had not employed those attorneys in the cases for which such fees had been placed in the sheriff’s hands for collection. Held :</p> <p>1st. That this testimony was admissible, but that, unless followed by additional proof, the Court after the close of the testimony would have granted a prayer that it was legally insufficient.</p> <p>2nd. That under this plea the defendants were entitled to offer proof tending to show that the sheriff could not collect the fees; such as the insolvency or non-residence of a party, or that the fees had been paid, or were not due.</p> <p>The right of an attorney to an appearance fee depends upon a contract either express, or implied, with the party against whom it is charged.</p> <p>In a suit upon a sheriff’s bond, the receipt of the sheriff given for the collection of attorneys’ fees, raises only a presumption against him that they are due and can be collected.</p> <p>In an action upon a sheriff’s bond to recover an attorney’s fees, the defendants proved by a deputy sheriff that he had informed the plaintiff that R., one of the persons against whom fees were charged, had said, when called upon for payment, that the plaintiff owed him for work, whereupon the plaintiff' directed him to consider R's fees as settled in that way. The plaintiff testified that he had no such conversation with the witness, and 1 ‘by way of explanation stated,” that he owed R. nothing al the time referred to, that R. had done some work for him for which he had paid him in full on the spot. Held :</p> <p>That this testimony of the plaintiff, whether as an explanation, or as rebutting evidence, was admissible.</p>

Appeals from the Circuit Court for Anne Arundel County, in Equity. The hill of complaint in this case, filed by tbe appellant on tbe 25th of March, 1872, assailed two deeds of trust from the appellee, Waters Bealmear, to the appellee Oathrine Bealmear, dated respectively on the 3rd of September, 1869, and the 7th of April, 1870.

<p>Construction of a Will — Perpetuity-rule—Pule in Shelley s case— Trust hept open to await a Contingent gift over.</p> <p>A testator who died in October, 1872, by his will devised one half of his estate, real and personal to his wife, and. the other half to his wife in trust for his daughter, H., a married woman, to be invested, and the rents and profits collected by said trustee and paid over to his daughter. The trustee, in her discretion was empowered to use the whole or a part of the income for the daughter, and to invest any surplus for her benefit; and also to use for her benefit the said surplus. She was further authorized to pay over to or use for the daughter any part of the trust property, the daughter’s receipt to be a full discharge therefor; and to sell real estate and dispose of the proceeds as in the will directed; and she was not to be liable for loss arising from any investment. The will further provided: “And in case my said daughter, H., shall die without leaving issue, then I give, devise and bequeath the whole of the estate, hereby given in trust, to my dear wife, in fee-simple. And in case my said daughter shall die, leaving issue, the trust hereby created shall extend to and be executed for said issue, in the same manner as directed for and on behalf of my said daughter. And in case such issue shall die in the life time of my said wife, then I give the whole trust property to my said wife ill fee-simple. * * * * * * * * '* ® K * * And I do order, direct and will, that my said wife may, by will or other instrument of writing, designate and name a proper and suitable person to succeed her in said trust, unless the property shall have become hers, by the happening of the contingencies above mentioned.” The testator left surviving him his widow, and his said daughter and sole heir-at-law, the wife of G. In December, 1812, the daughter died intestate leaving surviving her, her said husband; an infant son born in March,- 18Y1; and an infant daughter, born in November, 1872, who died in October, 18V3. In November, 1813, G. filed a bill in his own right, and as next friend of his son against the widow and trustee, claiming that the above devise was ■ void as creating a perpetuity, and that, there thus being an intestacy as to the property so attempted to be devised, the same descended to his wife as heir-at-law and distributee, and upon her death and that of her infant daughter, vested in her son, subject to the life estate of her husband. The bill prayed for partition of the real estate or a sale for the purpose of partition, and an. account of the rents and profits thereof, and for general relief. Upon appeal from a pro forma decree dismissing the bill, it was Held :</p> <p>1st. That the clause of the will extending' the trust for the benefit of “the issue” of the testator’s daughter, was void as violating the rule against perpetuities. (Referring to Barnum vs. Barnum, 26 Md., 119; Deford vs. Deford, 36 Md., 168.)</p> <p>2nd. That the previous trust for the benefit of the testator’s daughter was valid.</p> <p>3rd. That the daughter took an equitable life estate in the property so devised; an estate-tail by implication being prevented by the operation of the Act of 1862, ch. 1C1; and the rule in Shelley’s case not being applicable.</p> <p>4th. That the trust must continue until the contingency of the death of the issue of the testator’s daughter during the life of his widow, is determined. (Upon authority of Monypenny vs. Dering, 2 DeQ. McN. f G., 145.)</p> <p>5th. That the decree below must be affirmed.</p>

This appeal is taken from the decree of the Court below dismissing the bill of the complainant. The case'is stated in the opinion of this Court.

The questions in this case arise upon exceptions to the ratification of a sale made by a trustee- under a decree for the foreclosure of a mortgage.

This was an action of trespass guare clausum fregit, submitted to the Court below, (Dobbin, J.,) upon a case stated. The facts are stated in the opinion of this Court. Judgment upon the case stated being for the defendant, the plaintiff appealed. .

This is an appeal from an order of the Court helow, continuing an injunction previously granted upon the application of the appellee. The facts of the case are sufficiently stated in the opinion of the Court.

In June, 1858, Wrn. S. Barton, executor of John Metcalfe, obtained judgment on a bond against Henry O. Middleton, in the Circuit Court for the county of Spotsylvania, Ya., for $2,880.00. Middleton afterwards died, leaving real estate in Maryland, which was sold under a decree of the Circuit Court for Anne Arundel county, for the payment of his debts.

On the third Monday in April, 1862, Luke Tiernan recovered in the Circuit Court for Anne Arundel county a judgment against Philip T. A. Hammond, whereon a fieri facias was issued on the 28th of November, 1862, and returned by the sheriff £Csuperseded.” Oil the 29th of December, 1862, there was filed by the clerk of said Court a judgment of supersedeas, purporting to have been acknowledged and confessed on the 23rd of November, 1862, by the said Philip, and also by Mary A.…

<p>Evidence: Declarations of a deceased person — Grantor estopped from impeaching grantee's title — An answer not evidence against a Go-defendant — Specific Performance.</p> <p>B. F. R. sued for the specific performance of an oral contract for the sale of land to him by J. R. After the date of the alleged contract J. R. conveyed all his property by deed to J. E. S., in trust. J. R. being dead, evidence was offered by both parties of declarations made by. him; Held :</p> <p>1st. That the declarations of J. R. made after the deed of trust, impeaching the title of the grantee therein, and favorable to the claim of E. F. R , were inadmissible.</p> <p>2nd. That the declarations of J. R. after the alleged contract and before the deed of trust, adverse to the claims of E. F. R. and made out of his presence, were inadmissible.</p> <p>A grantor is estopped from impeaching the title of his grantee.</p> <p>The answer of one defendant cannot be used as evidence against his co-defendant.</p> <p>In order that an oral contract for the sale of land may be specifically enforced, it must be fair, just, reasonable, bona fide, mutual and certain in all its parís: its existence, its terms and the acts of part performance, must be clearly and satisfactorily proved; and such acts must be in pursuance of the contract.</p>

This suit was instituted by the appellees to recover from the appellant the value of certain real estate sold tinder proceedings to foreclose a mortgage. The facts of the case are sufficiently stated in the opinion of the Court. The plaintiffs offered three prayers; the first and second were refused; the third was granted. The defendant offered two prayers which the Court (Gabby,' J.,) refused. The verdict and judgment being for the plaintiffs, the defendant appealed.

The case is very fully stated in the opinion of the Court. The appeal was taken from the judgment by default, and the extension of the same ; and from the order and opinion of the Court filed 2nd of February, 1874, refusing to strike out the said judgment, and from the opinion and judgment of the Court filed 21st of April, 1874, overruling the motion to strike out the entry to the use of .George H. Dobson.

The facts are stated in the opinion of the Court. The first and second exceptions are sufficiently set forth in the opinion of the Court.

The facts of the case aré sufficiently stated in the opinion of this Court. The Court below, (Dobbin, J.) filed the following opinion : After careful consideration of this case, I am of opinion that the judgment ought to be arrested., the judgment sued upon not being such an one as this .Court can carry into effect by a like judgment to be rendered here.

This case arose out of au attachment on judgment. James H. Graff, on the 10th day of July, 1872, recovered against Thomas Carroll a judgment for $430.47 and costs. On the 13th day of June, 1873, an attachment was issued on this judgment, returnable to the second Monday in September, 1873.

<p>Purchaser from, Becdver relieved against a Mistake, fund being still in Court — Effect of rescission of an order of Court.</p> <p>The receiver of an insolvent mercantile firm, had included in the list of assets certain debts whieh in fact belonged to an old firm of the same name. P., the purchaser of the whole assets unsuccessfully attempted to maintain his claim to these debts, or to hold them as a set off against an indebtedness of the old to the new firm. (40 Md., 415.) A certain sum was retained from distribution'to await tbe result of this contention, hut, before the final decision, an account, was finally ratified in October, 1812, distributing the fund so retained. No action was, however, taken under it, and in March, 1813, the receiver paid the money into Court. On the 18th of October, 1813, a claim was filed by an auctioneer against the fund in Court for services rendered the receiver, and on this petition', the Court ón the 301h of October, ordered that, the matter be referred to the auditor, and that the order of ratification of the account be rescinded. A week before the passage of this order P. filed his petition claiming an abatement of the purchase money on the ground of the above mentioned mistake. Upon appeal from an order dismissing his petition, it was Held :</p> <p>1st. That the term of the order of rescission being unconditional, its operation was absolute and complete for every purpose.</p> <p>2nd. That the purchaser, having presented his claim in due time and in the proper mode, was entitled to the relief prayed.</p> <p>Where an officer of a Court of Equity has made a mistaken representation of the value of property sold by Mm, the inquiry is not whether he knew such statement to be false, but whether the statement made as true, was believed to be true, and therefore, if false, deceived the purchaser. In such case the Court must protect the purchaser.</p>

The tacts are sufficiently stated in the opinion of the Court. The verdict and judgment were for the plaintiffs, and the defendants appealed.

This was an action brought against the appellant on the 3rd of April, 1869, by.the appellee for trespass in breaking and entering his close, being part of a tract called “Last of March,” and cutting down and carrying away hickory and oak. trees. The locus in gw, which was unenclosed woodland, was described in the narr. by metes and hounds, and testimony was offered tending to show that said description was correct.

<p>Deed defectively Acknowledged — Curative Act of 1867, ch. 160— Art. 23 of the Declaration of Rights— Vested Rights — Retroactive Legislation — Row Dower must he Released.</p> <p>On the 29th of November, 1866, T., being seized in fee of a tract of land in F. County, executed a deed in which his wife joined to bar her dower, conveying the tract, in consideration of love and affection, to certain children of his deceased illegitimate son, to whom his wife bore no blood relation. The deed purported to have been executed and acknowledged in F. County, before a justice of the peace for that County, but was in fact executed and acknowledged in O. County, where T. and his wife lived, before a justice for P. County. Such an acknowledgment was invalid by the laws of Maryland, but the Act of 1867, ch. 160, provided that all deeds so executed and acknowledged since November 1st, 1864, should be as valid to all intents and purposes as if properly acknowledged. In December, 18C6, before the passage of this Act, T. died intestate, and soon after his widow filed a bill to have the deed declared a nullity and for assignment of dower. Held ;</p> <p>1st. That as against T. and his heirs, the deed, being a good grant at common law, and executed upon a strong moral consideration, was cured by the statute.</p> <p>2nd. That the deed being without acknowledgment, was utterly null and void as against the wife both at law and equity; that the statute could not impart life to it, as against her, without interfering with her vested rights secured by the Declaration of Rights; and that therefore she was entitled to have dower assigned her in the land conveyed.</p> <p>Retroactive legislation to cure or confirm conveyances or other proceedings defectively acknowledged or executed, is sustainable upon the ground that it operates not upon the deed or contract, by changing it, but upon the mode of proof only.</p> <p>A wife can only be divested of her dower by proper and legal acknowledgment, and a deed not so acknowledged is wholly inoperative as to her, and is to be treated as if she had not been a party to it.</p> <p>[The arguments of counsel, except as to the question of the validity of the deed in controversy, are omitted. — Rep.]</p>