Volume 42 — Maryland Reports

This suit was instituted in the Circuit Court for Harford County by the appellee against the appellants, to recover damages for discharging him from their employment without cause before the expiration of the term of service agreed on. The case was subsequently removed for trial to the Circuit Court for Cecil County. The declaration contained the common counts in assumpsit and the following special count: 6th.

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

The facts are sufficiently stated in the opinion of the Court. The verdict and judgment were for the defendant, and the plaintiff appealed.

The case is stated in the opinion of the Court. The decree of the Court below, (Pinkney, J.,) upon the amended bill was, “that the mortgage filed with the original bill of complaint, marted ‘ Exhibit A/ be so reformed°that the lien or claim of the defendant, James Fryer, for the unpaid purchase money, shall be limited to the furniture supplied by said Fryer to the defendants, Joseph H. Maddox and Laura, his wife.

The plaintiff’s second prayer, which the Circuit Court granted, prescribing the measure of damages, was as follows : “If the jury shall find a verdict for the plaintiff, they are at liberty to take into consideration all the circumstances of the case, and award such damages as will not only compensate the plaintiff for the -wrong and indignity he has sustained in consequence of the defendant’s wrongful act; hut may also award exemplary or punitive damages as a punishment to…

<p>Validity of Agreements between Husband and Wife — Standard of proof in such cases. Burden of proof — Invalid Gift from Husband to Wife — Question which the Jury is incompetent to decide.</p> <p>Where articles of household furniture were purchased by a husband in pursuance of an antecedent agreement with his wife, that he should advance the money, and she would reimburse him, which she afterwards did, it was. Held : '</p> <p>1st. That agreements of this kind between husband and wife, when the latter has a separate estate, are valid and binding upon both parties; and if bona fide, and consummated, the property purchased by such agency becomes the goods of the wife. , ,</p> <p>2nd. That no higher standard of proof of such agreements is required than in other civil cases; a preponderance of evidence being all that is necessary.</p> <p>3rd. That in an action by the wife,to recover damages for the illegal seizure and sale of said articles of furniture, under ;an. execution against her husband, the burden- of • proof was on her. to-show that they were her separate property when so seized and sold.</p> <p>A gift from a husband, who is insolvent, to his Wife, is in prejudice of the rights of his subsisting creditors, and the wife can acquire no valid title to the same.</p> <p>What is a “legal transfer” of-property is a question of law which a jury is incompetent to decide. • ■ ■ ■. -</p>

The case is stated in the opinion of the Court. The Act of 1874, ch. 453, is null and void, being in violation of the Constitution. 1. Held: or if the vote had been the other way. The provisions are so dependent, one on the other, that the Act is not divisible, hut good or had in loto. State vs. Swisher, 17 Texas, 441; Geebrick vs. State, 5 Iowa, 498; Sauto vs. State, 2 Iowa, 165; Cooley on Const. Lim., 177, 178, 179. 6.

The facts of the case are sufficiently stated in ■ the opinion of the Court, The first exception was taken hy the defendants to the granting by the Court below, of the second, third and fourth prayers of the plaintiff. The second exception was taken hy the defendants to the refusal by the Court to grant their third and fifth prayers. The verdict and judgment being for the plaintiff, the defendants appealed.

This was a bill of interpleader, filed by the National Life Insurance Company of the United States of America, chartered by Act of Congress, to have determined the respective rights of Rosalie C. Barry and Horatio L. Whit-ridge, trustee of William H. Bruñe, to the proceeds of a policy of insurance effected on the life of John S. Barry, husband of said Rosalie. The policy was made at Washington, I).

The questions in this case arise upon exceptions to the auditor’s report distributing the proceeds of the sale of the real and personal estate of John H. Drury, of H., sold by trustees to whom he had conveyed it, for the benefit of his creditors. One of the claims, the rejection of which is excepted to by the appellants, is that of Mary R. Drury, the wife of said John H. Drury, of H., upon two judgments against him entered to her use.

• The facts of this case are sufficiently stated in the opinion of the Court. At the trial the plaintiff offered the three following prayers: 1.

This was an action brought by the appellant in the Court of Common Pleas against the appellee for maliciously charging the plaintiff with theft, and procuring a search warrant against him. The case was subsequently removed to the Circuit Court for Howard County, where it was tried.

<p>Tender — Interest— Costs.</p> <p>When the mortgage money really due is actually and properly tendered by a person having a right to make the tender, the mortgagee is bound to accept it; and if there be a refusal to receive the money so tendered, interest from the time of the tender will cease to run.</p> <p>If the party refusing, subsequently agrees to accept, and demands payment of the money previously tendered, and the party who made the tender is not then ready to pay it, interest must run on as if no tender had been made, until the money is paid or brought into Court.</p> <p>Though an appeal will not .lie from the determination of amere question of costs, yet if the order appealed from be reversed upon other grounds, the question of costs is necessarily opened to be disposed of by final order.</p> <p>The general rule is that if a specific tender be made before the commencement of the suit, of the amount due, or after its commencement of tke amount due and costs already incurred, proof of such tender and of its refusal, will throw on the party refusing, the burden of all subsequent costs; and even where no tender can in strictness be made, yet if a defendant has offered terms which would have rendered the suit unnecessary, the plaintiff though in strictness entitled to a decree, may he refused costs.</p> <p>The particular circumstances of the case, however, must in a great degree determine the question as to the proper party to hear the costs.</p>

<p>Tax Sales — Conflict between General and Local Laws — Acts of 1872, ch. 384, and 1874, ch. 483, construed as affecting Tax Sales in the City of Baltimore.</p> <p>Sections 814, 815, 816 and 878, of Article 4 of the Public Local Laws relating to taxes in the City of Baltimore are not repealed by the Act of 1812, ch. 384, nor by the Act of 1814, ch. 483.</p> <p>Although it may be well always in the notice of sales for taxes, to state the time within which the debtor may redeem, there is nothing in the law which requires it, and the omission to insert it, or if inserted, a misstatement of the time would not affect the validity of the sale.</p> <p>The Local Code applicable to the City of Baltimore, does not direct where sales for taxes shall take place. A notice which states that the sale will take place at the Oourt House door, “or at such other place as may hereafter be ■ designated” is fatally defective.</p> <p>In the notice of sale both time and place of sale should be certain and fixed.</p> <p>Section 63 of the Act of 1812, ch. 384, requiring reports of sale to be made to the Court by the collector of taxes, provides that the Judge shall examine the proceedings, and if they appear to be regular shall order notice to be give by advertisement, &c.; and if no cause be shown against the ratification the sale shall be ratified and confirmed, “but if good cause in the judgment of said Court be shown in the premises the said sale shall be set aside.” Held:</p> <p>That the judge may set aside such sale without said notice by advertisement, if he finds upon the preliminary examination that the proceedings are not regular and in conformity with law.</p>

The appellees by their petition, filed on the 15th of June, 1874, represented that they were the corporate officers of the City of Annapolis, a city incorporated in 1708 — that the charter of the… Held: not only that they would set aside an Act of Parliament contrary to natural right and justice, but that they would consult other evidences than the printed Act to ascertain what law, if any, had been passed by Parliament.

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

The appelLees sued the appellant in the Circuit Court for Baltimore County, to recover the sum of $1000, as the consideration for the privilege given to him of purchasing a certain distillery and premises, within a time specified ; and also the sum of $125 per month rent for the same property. The case, on the suggestion and affidavit of the defendant was removed to the Court of Common Pleas, where his pleas were filed.

Appeals from the Circuit Court of Baltimore City. David Barnum died in the City of Baltimore on the 10th of May, 1844, leaving the following last will and testament, together with a codicil, which were duly admitted to probate: 1, David Barnum, of the City of Baltimore, do make and ordain this my last will and testament. I desire and dispose as to all my estate, as follows: First.

On the 2nd of October, 1852, William Key Howard mortgaged a lot of ground on Lombard Street, in the City of Baltimore, to George Carey, as trustee under the will of Nathan P. Tyson, for the children of Alexander H. Tyson, and to Mrs. Rebecca A. Tyson, the mother and guardian of said children, they being infants. The mortgage was to secure the payment of 84500.00 to said trustee, and $4000.00 to said guardian.

The facts of the case are fully set forth in the following opinion delivered by the Court below, (Eranklin and Irving, J.): ■ “The complainants, by their /bill, allege that they are the owners in fee simple of a tract of land in Somerset County, on the Little Annamessex River, called c Honesty,’ which was granted to Hance Lawson and Michael Somers by the State of Maryland, on or about the 13th of June, 1858, the title to which, by mesne conveyances, has become vested in them.

The appellee leased in writing his woollen factory and farm lying on Mill Run, in Garrett County, to Valentine Boettner, for the period of five years, commencing on the 1st of April, 1869, upon terms specifically set out in the lease. Possession of the leased premises was delivered to Boettner by the appellee.

<p>Construction of the Act of 1864, ch. 322, as affected by Rule 10 of the Rules and Regulations respecting Appeals adopted by the Court of Appeals — Habere facias possessionem.</p> <p>By the Act of 1864, ch. 322, the Circuit Court from which an appeal is taken, is authorized to strike out the entry of the appeal, if through the negligence or omission of the appellant, the record shall not be sent up to the Court within nine months after the appeal is entered, and the Act further provides, “that thereafter no other appeal or writ of error shall be allowed.” Held :</p> <p>1st. That this Act is modified by number 10 of the “Rules and Regulations respecting Appeals,” by which transcripts in appeals from Courts of Equity are required to be transmitted within six months after the appeal is prayed.</p> <p>2nd. That the 9th of said Rules which prescribes nine months as the time within which appeals may be entered, does not allow another appeal embracing the same subject-matter, where the entry of the first appeal has been stricken out by the Circuit Court, even though the second appeal be entered within the nine months allowed by said Rule.</p> <p>On the application of the purchaser at a trustee’s sale, the Circuit Court for Prince George’s County, on the 12th day of June, 1873, passed an order directing a writ of habere facias possessionem to issue. The execution of this order was stayed by an appeal from the order of said Court ratifying the sale under which the purchaser claimed. Afterwards through some inadvertence, that appeal not having been actually dismissed or stricken out, the Circuit Court on the 20th of December, 1873, ordered the writ of habere to be issued, and the purchaser was put into possession under it on the 22nd of December, 1873. On the 23rd of January, 1874, the appeal was stricken out by the Circuit Court. Prior to the order striking out the appeal applications had been made to the Court to vacate the proceedings under the writ of habere facias possessionem, and for an injunction restraining the purchaser from proceeding further under the said writ, and prohibiting him from going to or remaining in possession of the property. These applications being heard after the appeal had been stricken out were both refused. On appeal, it was Held :</p> <p>That there was no error in the action of the Circuit Court, as the effect of the order striking out the appeal was to leave the order ratifying the sale in full force. And although the writ of habere facias possessionem had been irregularly issued, it had been actually executed and the purchaser was entitled to the possession he had received under-it.</p>

The facts of the case are stated in the opinion of the Court. Held: was regular stock, and if both parties were in fault — the loss should have been allowed to remain where it had fallen, viz : — upon the Insurance Company, as Mr. Denson had a right to demand of them new certificates in case of the loss or destruction of his old ones.

<p>Equity Pleadings — Effect of overruling demurrer to a Bill— Right of an Assignee in Bankruptcy to continue by Supplemental bill proceedings in Equity instituted by the Conventional Trustee of a debtor who is declared a Bankrupt during thependency of the proceedings.</p> <p>In August, 1813, the C. S. Bank, made a loan upon the hypothecation of certificates of stock owned by J. M. D. of the firm of D. & Q. Subsequently JO. & Q. conveyed their individual and co-partnership assets by deed of trust to R. F. for the benefit of their creditors. R. F. as such trustee instituted proceedings in Equity to recover the hypothecated stock upon the ground that the signatures of J. II. I). indorsed thereon were not genuino, or authorized by him. Pending the proceedings D. & Q. were adjudicated bankrupts, and the suit was entered to the use of their assignee in bankruptcy, who, upon leave obtained for that purpose, filed a supplemental bill against the original defendants praying the same relief sought by the original bill. On general demurrer to the supplemental bill, the Court below overruled the demurrer, and ordered the demurrant to pay the costs of the demurrer and to file an answer within twenty days. On appeal, it was Hhm> :</p> <p>1st. That the supplemental bill was the proper course of proceeding on the part of the assignee.</p> <p>2nd. That the form of the order overruling the demurrer and requiring the defendant to answer, wa in accordance with the practice and usage in this State.</p>

<p>Writ or Error to the Circuit Court for Washington County.</p> <p>The case- is stated in the opinion of the Court.</p>

Appeals from the Circuit Court for Allegany County, in Equity. The appeal of Davis Brothers was taken from the order of the Circuit Court, (Motter, J.,) dated the 14th of February, 1813, rejecting their claim, which was allowed its distributive share out of the trust fund in the cause, by the auditor’s first account; and from the order of said Court of the 6th of November, 1813, finally ratifying the auditor’s second account which disallowed said claim.

<p>Life Insurance — Suicide of the Insured; his Insanity at the time — Proviso in Policy making it Void, if the Insured died by his own act.</p> <p>A life insurance policy contained a proviso, that in case the insured should “die by his own hand or act, the policy should! be void.” The insured committed suicide by hanging. In an action on the policy, it was Held :</p> <p>1st. That this proviso would not prevent a recovery if the insured killed himself in a fit of insanity which overpowered his consciousness, reason and will.</p> <p>2nd. That it was incumbent upon the plaintiff to show that the insured was insane when the act of self-destruction was committed — proof merely that he was insane at times, would not be sufficient.</p> <p>3rd. That insanity could not be inferred from the fact that the insured ■ destroyed his own life.</p>

The facts of the case are sufficiently stated in the opinion of the Court. The Orphans’ Court erred in revoking the letters of administration granted to Arthur J. Willis upon the estate of Mary E. Jones, deceased: 1st. Because at the time of the death of Mrs. Mary E. Jones, her husband was a non-resident of the State of Maryland, and so remained until after the granting of administration upon her estate. Code, Art. 93, sec. 33. 2nd.

The facts are sufficiently stated in the opinion of the Court. The bill of complaint is multifarious, because it seeks to join the separate remedies against Wm. II. Trego, Ann J. Trego and Ogden A. Kirkland, in the one bill. O. A. Kirkland has no connection with the complainants’ alleged case against Wm.

The case is stated in the opinion of the Court. In considering the language of the devise — what effect is to be given to the words, “ about sixty-two feet front, with a depth of about sixty feet ’’ ? It is clear, that because of their uncertainty they cannot control the intent of the testator, otherwise apparent from the context of the devise. The will was executed a short time before the testator’s death. He left a large estate, including many houses and lots of ground.

<p>Sights of Piparían Proprietors — Case of the introduction of an Artificial supply of Water into a stream running through the land of another — Jurisdiction in Equity — Injunction.</p> <p>The right of every riparian owner to the enjoyment of a stream of running water in its natural state, in flow, quantity and quality, is incident and appurtenant to the ownership of the land itself; and being a common right, it follows that every proprietor is bound so to use the common right, as not to interfere with an equally beneficial enjoyment of it by others.</p> <p>As such owner he has the right to insist that the stream shall continue to run, as it was accustomed to run, that it shall continue to flow through his land in its usual quantity, at its natural place, and at its usual height.</p> <p>Bui there must be allowed to all a reasonable use of that which is common ; and such a use, although it may to some extent diminish the quantity, or affect in a measure the flow of the stream, is perfectly consistent with the common right.</p> <p>It is impossible to lay down a precise rule defining the limits which separate the lawful from the unlawful use of a stream, to cover all cases; and the question must be determined in each case by taking into consideration the size of the stream, the velocity of the current, the nature of the banks, the character of the soil, and a variety of other facts: the true test being whether the use is of such a character as to affect materially the equally beneficial use of the stream by others.</p> <p>An attempt to empty into a stream an artificial supply of wafer to the extent of 10,000,000 gallons in every twenty-four hours, is a user inconsistent with the common enjoyment of the stream by all other riparian owners.</p> <p>And being an unreasonable and unauthorized use of the stream an action will lie by the party whose rights are so invaded, even though he may not have suffered any actual damage.</p> <p>The jurisdiction of Courts of Equity in cases affecting the rights of riparian owners, is well established both in this Country and in England; and rests upon the necessity of granting relief to prevent permanent and lasting injury, or where full and adequate relief cannot be had at law, or where it is necessary to prevent a multiplicity of suits, and vexatious litigation.</p> <p>The complainant’s bill for an injunction to prevent the introduction of an artificial supply of water into a stream flowing through his land, alleged, that he was credibly informed and verily believed that the introduction of the proposed additional quantity of water would cause the stream- to overflow its banks, render valueless his land, and cause great, continual and irreparable damages, &c.; Harm:</p> <p>1st. That the averment that “he was credibly informed and verily believed,” together with the statement of facts upon which his belief was founded, was sufficient.</p> <p>2nd. That he was not obliged to wait until actual damage was sustained, nor was he bound to obtain the opinion of scientific persons as to the probable consequences resulting from this artificial addition of water.</p> <p>3rd. That it would not be enough that the injunction should merely enjoin the introduction of the proposed additional supply of water in such a way, or to such an extent, as would cause the stream to overflow its banks, or would interfere with the ordinary use of the stream by the complainant.</p>

<p>Remedy for violation of Contract — Jurisdiction.</p> <p>The defendant agreed with a theatrical company to give them his services as an actor for a specified time, and agreed not to give his services elsewhere without their written permission. The agreement contained a stipulation to the effect that if he should break his engagement, he obligated himself to pay to the company a conventional fine of $200, to be forfeited by any violation of the contract; and then provides as follows: “This sum of two hundred dollars is already forfeited by any violation of the contract, and requires no particular legal proceedings for its execution.” On a bill for an injunction, filed by the company against the defendant to restrain him from performing at another theatre, it was Held :</p> <p>That the complainants having fixed by their own estimate the extent of injury they would suffer from a non-observance of this condition in the contract, and having indicated that the only form in which they could seek redress, and recover the stipulated penalty or forfeiture, was a Court of Law, were precluded from resorting to a Court of Equity for relief by way of injunction, on the ground that a violation of this part of the contract would result in irreparable damage and injury to them.</p>

Appelas from the Circuit Court of Baltimore City. On the 5th of August, 1872, Alexander Gould, Jr., Benjamin F. Gould, and William W. Gould, trustees under the will of their father, the late Alexander Gould, sold at private sale a parcel of ground belonging to the testator’s estate, lying on the west side of Light street, in the City of Baltimore, containing about twenty acres, at $2500 an acre, to Philip S. Chappell.

<p>Foreclosure of Mortgage for non-payment of Interest as stipulated in the Mortgage — Insufficient reasons for failure to pay the Interest when due — Right of Husband under Art. 93, sec. 32, of the Code, to the Choses in Action of his deceased wife, without administration — Compound interest disallowed.</p> <p>A deed of mortgage dated 3rd of June. 1871, intended to secure the payment of a sum named, in four equal annual instalments, counting from the 1st of May, 1873, with interest thereon annually from the date of the mortgage, contained the following stipulation: “And in default of payment of any of said instalments, or the annually accruing interest, the whole sum to become due and payable, and payment to be enforced as hereinafter provided,” Held:</p> <p>That this was a legal and valid stipulation, and was not in the nature of a penalty or forfeiture.</p> <p>The mortgagee who was a feme covert, died on the 25th of May, 1872, her husband surviving her. The first instalment of interest fell due on the 3rd of June, 1872, and not being paid, proceedings for a foreclosure were instituted on the 1st of November, 1872, by the surviving husband of the mortgagee, against the mortgagors and the grantee of their equity of redemption. The latter after the institution of the suit paid into Court the amount of interest then due. Held :</p> <p>1st. That motives or feelings of delicacy afforded no legal excuse for the nonpayment of the money to the husband, it appearing that the mortgagee died eight days before the interest fell due, and that the defendant made no offer or attempt to pay the money, and in fact paid no attention to the matter until some weeks had elapsed, when payment of the money was demanded of him. ■</p> <p>2nd. That it was the duty of the defendant to make inquiry within a reasonable time after the death of the mortgagee whether she had died intestate, and when informed of that fact to have offered to pay the interest.</p> <p>3rd. That under Art. 93, sec. 32, of the Code the husband had the right, upon the death of his wife intestate, to collect the mortgage debt without admintration.</p> <p>4th. That the fact that there were ante-nuptial debts due by the wife did not in any manner impair or affect his right to collect the mortgage debt.</p> <p>5th. That the payment of the interest into Court after the suit was instituted, was too late, and afforded no ground of defence.</p> <p>6th. That by the terms of the mortgage the whole debt had become due, and the complainant was entitled to a decree for the sale of the mortgaged property, unless the whole amount of the debt was, by a day named, brought into Court or paid to him.</p> <p>The decree of the Court below was passed on the the 27th of January, 1874, and the defendant was allowed until the 27th day of February ensuing, to pay the money. On appeal, it was Held :</p> <p>That the time so allowed to the defendant was not too short.</p> <p>The Court below ascertained the amount of principal and interest to the date of the decree, and decreed that interest should be paid on the sum so ascertained from the date of the decree. On appeal, it was Held :</p> <p>That in this respect the decree was erroneous, and should be reversed, as the defendant ought not to be compelled to pay compound interest, but interest only upon the original mortgage debt.</p>

<p>Demurrer — Art. 59, of the Code, entitled “Mandamus” — Construction of Art. 81, secs. 93 and 105, of the Code, in connection with the Acts of 1866, ch. 157, 1868, ch. 371, 1870, ch. 422, 1872, ch. 419 — Payment of State Taxes upon the Capital stock of a Corporation enforced by Mandamus.</p> <p>Under the practice in this State, a demurrer will lie to an answer to a petition for a mandamus</p> <p>The Act of 1868, ch. 371, which re-enacted the provisions of Art. 81, secs. 93 and 105, of the Code, (Emory vs. The State, 41 Md., 38,) also repealed the Act of 1866, ch. 157, so far as it conflicted with the latter.</p> <p>The State taxes upon the capital stock of corporations, are payable directly to the State Treasurer, by the proper officer of the corporation, and their payment may be enforced by a writ of mandamus at the instance of the State!</p>

The hill of'complaint in this case was filed hy the appellants against the appellees, seeking to have the benefit of a deed of trust which, was made and afterwards destroyed under tlie circumstances set forth in the opinion of this Court. The Court below (Pinkney, J.,) hy the agreement of the parties passed a pro forma decree dismissing the hill, and the appeal is taken from this decree.

<p>Construction of a Contract or Bill of Lading — Liability of Common Carriers limited by Special contract.</p> <p>However terms may be understood in their ordinary sense, if the parties have attached other, or unusual, or arbitrary meaning to them to be derived from their fair interpretation in the contract, they have the right so to employ them. But to accomplish such purpose and to vary the common understanding, the meaning ought to be plain and free from reasonable doubt.</p> <p>The plaintiffs sued the defendants, who were common carriers, for damages sustained by the alleged negligence of the defendants in transporting a cargo of corn, consigned to the plaintiffs, from Chicago to Baltimore. The bill of lading was a printed form with the blanks filled up, in which was stated “Received !? * of * ® the following packages (contents unknown,) in apparent good condition: Marks * * * * * Articles: 25,000 bu. Twenty-five thousand bus. No. 2, Corn. Pro. Philadelphia. Marked and numbered as per margin, to be transported by the Anchor Line, * * on the following terms and conditions, viz: * * * * * ® It 1S further agreed that the Anchor Line, and the steamboats, railroads, and forwarding lines, with which it connects shall not be held accountable for any damage or deficiency in packages, after the same shall have been receipted for in good order by consignees, or their agents, at or by the next carrier beyond the point to which, this bill of lading contracts. ® ® * * ®. It is further stipulated and agreed that in case of any loss, detriment or damage done to, or sustained by, any of the property herein receipted for, during such transportation, 'whereby any legal liability or responsibility shall or may be incurred, that company alone shall be held answerable therefor in whose actual custody the same may be at the time of the happening of such loss, detriment or damage,s *- * ®. And it is further agreed, that the amount of the loss or damage so accruing, so far as it shall fall upon the carriers above described, shall be computed at the value or cost of said goods or property, at the place and time of shipment under this bill of lading,” &c. &c. &c. Evidence was offered at the trial tending to show that the corn was receipted for, “in good order” by the consignees’ agents at Baltimore. Held :</p> <p>1st. That it was intended by the exemption clause in the bill of lading, to protect the defendant from any damage or deficiency in any package where the contents were unknown, after the same had been receipted for in good order; but that it was not intended to be applied to the “Corn” in question, and did not admit of such meaning.</p> <p>2nd. That common carriers may by special contract limit their liability as recognized by the common law, where there seems to be reason and justice to sustain their exemption. But where such is the case it ought to be by clear and distinct terms.</p> <p>3rd. That if it were the design of the defendant that said clause of exemption should apply to 11 corn ’ ’ it was not expressed with sufficient clearness to preclude the plaintiffs from a recovery.</p> <p>4th. That under the clause in the bill of lading — which was the written contract between the parties, — prescribing the mode of estimating any loss or damage which the plaintiffs were entitled to recover by reason of the nonperformance of the contract by the defendant,. — there was no occasion to resort to parol explanation, or to any course of dealing between the parties to enable the jury to ascertain the extent of the damage.</p>

<p> When a Judgment by Default will be Stricken out. </p> <p>In a suit upon a promissory note the defendants were returned summoned, and at the next succeeding Term of the Court, judgment by default was entered against them and subsequently extended. During the same Term, . the appellant, one of the defendants, moved that the judgment against him be stricken out, alleging, inter alia, that he was never summoned and had no knowledge that a suit had been instituted against him until after the rendition of the judgment. At the same time he filed an affidavit, in which he swore that no summons was served upon him, and that he had a good defence to the action. An affidavit of the deputy sheriff was also filed, in which he stated that he received the writ of summons and served it upon the other defendants, but did not serve it upon the appellant; that the writ was returned “Sd.” in pencil mark opposite each name, and the return “Sd.” opposite the name of the appellant was made through mistake. Held :</p> <p>That under such circumstances the judgment against the appellant should be stricken out.</p>

The bill of complaint in this case was filed by the appellee on the 23rd of June, 181?!, against the appellant. The opinions in the case, together with the argument of the appellant’s counsel, furnish, it is thought, a statement of the case sufficient to illustrate the points decided by the Court.

The caso is stated in the opinion of the Court. The prayer offered by the counsel for the appellant, referred to in the opinion of the Court, was as follows: “That if the jury find from the evidence that the traverser was, for the time named in the indictment, the proprietor and keeper of the Westminster Hotel, in Westminster, and that cards were played in rooms of his hotel, at various times within said period, the jury ought not to render a verdict of guilty in this case,…

The case is stated in the opinion of the Court. The Legislature has no power to prohibit legitimate trade, or deprive our citizens of the right to use and dispose of their property, except within the scope of bona fide sanitary or police regulations. And the law under which the appellant is deprived of his right to deal in spirituous liquors, &c., is not in any just sense a sanitary or police law, or a regulation of traffic.

The case is stated in the opinion of the Court. The verdict and judgment being for the defendant, the jilaintiff appealed: This is an action for deceit. Whether an action of this kind can he maintained against a private corporation is no longer an open question. Tome vs. Parkersburg Branch R. R. Co., 39 Md., 70; Merchants’ Bank vs. State Bank, 10 Wallace, 644; Barwick vs. Eng.

The hill in this case was filed by the appellee on the 13th of January, 1811, to procure payment of a mortgage alleged to have been made by the Cumberland Coal and Iron Company to Allen M. Sherman, of certain real estate in Cumberland, to which the Consolidation Coal Company had become entitled by transfer (lorn the Cumberland Coal and Iron Company.

<p>Removal of Cases — Extension of Judgment and issuing of Execu~ tion while an Appeal is Pending.</p> <p>A case cannot be removed after judgment by default has been entered.</p> <p>During the pending of an appeal, from an order, passed after judgment by default, refusing to remove a case, the Court can extend the judgment and issue execution thereon.</p>

Action of covenant to recover damages for the breach of a covenant, to convey certain lands to the plaintiffs. Held: that these provisions are clear and intelligible, and authorize amendments which do not change the substance of the issues. And also held, “ that the amendments did not change the issues mined.” See also Adams Express Co. vs. Trego, 85 Md., 61.

The present appeal was taken from the order of the Circuit Court overruling the exceptions of the appellant to the auditor’s report and account. The case is stated in the opinion of the Court. The trust was completed in the life-time of John Miller, and the surplus was personalty. By a proper interpretation of the clause in the deed, the term “ balance” applied only to the real property remaining unsold in the hands of the trustees.