Volume 44 — Maryland Reports

This was an action brought on the 18th of November, 1874, in the Circuit Court for Baltimore County, by the appellees against the appellants, to recover damages for injuries sustained by the appellee, Mary E. Baker, on the 29th of April, 1874, while crossing a bridge on a public road in Baltimore County. The case was removed to the Baltimore City Court, and thence to the Circuit Court for Howard County, where it was tried.

This suit was brought in the Superior Court of Baltimore City, by the appellee as surviving partner of the firm of H. Benninghaus & Co. against the appellant, and tried before the Court upon an agreed statement of facts, which will be found sufficiently set out in the opinion of this Court. First Exception. — The plaintiff prayed the Court to find in his favor upon the agreed statement of facts.

This appeal was taken from the decree of the Court below, refusing the injunction prayed for by the complainants, and dismissing their bill. The case is stated in the opinion of this Court.

On the morning of Monday, the 19th of August, 1872, when the officers of The Third National Bank of Baltimore arrived at the bank, it was discovered that since the close of business on Saturday evening, the vault and safe of the b ink had been broken into by burglars, and robbed of a large amount of money and valuable securities.

The bill of complaint in this case, alleged in substance, that the G-eneral Assembly of Maryland had passed the Act of 1870, ch. 314, extending the taxable limits of Frederick City, so as to include and bring within the taxable boundary a large amount of arable and pasture land for the sole purpose of subjecting the same to the burthens of city taxation, and thereby to increase the revenues of the corporation of Frederick; that there was no necessity for such extension; that…

The facts of the case are sufficiently stated in the opinion of the Court. Exception —The plaintiffs offered three prayers, the first and third of which the Court rejected, the second as follows, was granted: 2. If the Court shall find from the evidence that there had been paid to George Forbes, and the administrators of Benjn.

This suit was instituted by the appellants upon a policy of insurance for $2500, issued by the appellee. The facts of the case are sufficiently stated in the opinion of the Court. Exception. — At the trial, the plaintiffs offered three prayers, the first and second of which the Court, (Dobbin, J.,) rejected, the third was granted. The second prayer was as follow.s : 2.

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

The case is stated in the opinion of the Court. The Orphans’ Court had no power to pass the order decreeing the execution of a deed, and the order should he reversed. Art. 93, section 252, of the Code, prohibits the exercise by the Orphans’ Court of any powers not expressly granted. See also Act of 1865, ch. 162, sec. 2. And this Court. has uniformly held the exercise by it of powers not expressly.granted to be void and unauthorized.

This was au action brought by the appellees to recover the damages sustained by them by reason of the injuries done to their carriage and horses through the alleged negligence of the agents or employés of the appellants. The first, second and third exceptions are stated in the opinion of the Court.

Appeals from the Superior Court of Baltimore City. These two suits were instituted by the appellant against the appellee — the one on the 6th of September, 1873, to recover a tax of one-half of one per cent, levied under the Act of 1872, ch. 234, on the gross receipts of the defendant from the 1st of April to the 31st of December, 1872, from that part of its road lying within the State of Maryland, and which formerly belonged to the Baltimore and Susquehanna Bailroad Company…

<p>Construction of a Will — Payment of a Legacy by Contribution from Devisees and specific Legatees — Real estate decreed to be Sold for the payment of a Legacy, in default of its payment by the Devisees and specific Legatees.</p> <p>James L. Addison, late of Prince George’s County, by his will executed on the 9th of December, 1864, and admitted to probate, devised as follows : “I give, devise and bequeath in fee-simple to my brother, Anthony Addison, and to my sisters, Margaretta Addison and Harriet M. Bayne, equally, share and share alike, my farm called 1 Cole Brooke,'on which I reside. * » * But my sister Harriet is not to derive any benefit therefrom during the life-time of my wife, the right of enjoyment of her third part or of participating in the profits thereof, to commence from the day of the death of my wife. I give, devise and bequeath to my wife, Betty, in lieu of her dower in my lands, and all her rights as widow, in my estate, $5000, to bo paid to her within two years, with ten per cent, interest on the said $5000, from the date of my death, absolutely to be held as her own individual property. * * * The share in 1 Cole Brooke,’ which I have devised to my sister, Harriet M. Bayne, to take effect after the death of my wife, I desire shall be equally enjoyed, share and share alike, by my brother Anthony and my sister Margaretta, during the life-time of my wife. « * * All the rest and residue of my real estate, (Texas lands,) I give, devise and bequeath to my brother, Anthony Addison, and Win. Meade Addison, equally, share and share alike. «- * * > ’ Anthony Addison was named as executor, and took upon himself tlxe administration of the estate. The codicil, executed on the same day, bequeathed all the personal property of the testator to his brother, Anthony, and his sister, Margaretta, with the exception of some special bequests.1 On the 20th of August, 18Í0, the interest of Mrs. Bayne under the will, was transferred to Woodbury Wheeler in trust for his wife. The executor died before passing an account. On the 29th of December, 18Í0, during the life of the executor, Wheeler and wife filed their bill of complaint against Anthony, Margaretta, and Mary E. Addison, for an account and settlement of the personal estate of James L. Addison, and to have the real estate sold, if decreed to be liable for debts and legacies, and the proceeds invested for the protection of the eslate thereafter to vest in the complainants. The bill charged that neither the legacy to the widow, nor the interest, nor any part thereof, had been paid; that besides the personal estate left by the testator, there was nothing in the jurisdiction of the Court, except the ‘ Cole Brooke” estate, liable therefor, which estate was annually depreciating in value, and the interest and estate conveyed to Mrs. Wheeler would be lost beyond recovery, and absorbed by the legacy, should it be held liable for its payment, except by the interposition of the Court. Anthony Addison as executor of James, and Anthony and Margaretta Addison devisees of the real estate, by their answer admitted the will and codicil, and that there was no other property of the testator within the jurisdiction of the Court to pay legacies*: they alleged that some small payments had been made to the widow-on account of her legacy; and the executor alleged that lie had passed no account because there were no debts to be paid; that all the personal estate (except a few specific legacies enumerated in the codicil) had been bequeathed to his sister and himself, who were in the joint occupation, possession and enjoyment of the same. They denied that the estate called “Cole Brooke” was deteriorating in value, and alleged that there was no ground for the apprehension that the interests of the complainants would be absorbed by the payment of the legacy, and that the complainants had not offered to pay any part of the said legacy or the interest provided for in the said will. The respondents denied that the personal property was primarily or proportionally liable for the payment of the legacy of $5000. Mrs. II. E. Addison, the widow of the testator, answering, insisted that “Cole Brooke” was responsible for the sum devised to her, and if not a charge on the land, the personal estate was liable therefor; and if neither was chargeable or liable expressly, j-et as she did not renounce the will and claim her dower and thirds she had as widow, a valid claim in equity against the estate of the testator for the sum of $5000, with interest. Anthony Addison, executor, and one of the devisees, having died, his widow and heirs-at-law, and Murray Addison, administrator d. b. n. c. t. a. were made parties. The administrator d. b. n. submitted to account, and the lieirs-at-law relied on the answer of their intestate, Anthony Addison, previously filed. Evidence was taken by complainants and defendants under commissions, and the cause having been submitted the Court passed an order referring the case to the auditor, directing an account to be stated. Subsequently, Mrs M. E. Addison, widow of the testator, filed her petition alleging that there v'as a large sum due her amounting to about $7000, as legatee under the will of her husband, and praying that so much of the real estate lying in Prince George’s County, as might be necessary to pay the amount chargeable on the same, might be sold. Held :</p> <p>1st. That by this petition of the widow, the whole character of the proceedings was changed; from being a question between volunteers, devisees and legatees, as to the fund primarily liable for the payment of i he legacy, it became a question as to the right of a quasi creditor to enforce her lien on the whole estate chargeable therewith.</p> <p>2nd. That thelegacy to the widow tvas “in lieu of her dower” in the lands, “and all her rights as widow” in the estate of her husband, constituting her in equity, a creditor of the deceased to that extent.</p> <p>3rd. That the real and personal estate having been both specially devised, they must contribute pro rata, according to their respective values, to the payment of the legacy.</p> <p>4th. That in default of the payment of the sum found to be due to the widow, by the devisees and specific legatees, the estate called “Cole Brooke ” should be decreed to be sold, and the proceeds thereof; after first paying the costs of sale, commissions, &c., should be applied to the paj-ment of the legacy to the widow', and the residue divided between the devisees; Margaretta Addison, and the heirs of Anthony Addison, to enjoy the interest of Mrs. Bayne’s share during the life of the widow.</p>

The case is stated in the opinion of the Court. Exception. — The plaintiff offered the three following prayers: 1.

The appellees sued the appellant, a corporation, for the breach of a contract the nature of which is stated in the opinion of the Court. A failure having occurred in the execution of the contract on the part of the plaintiffs, the agent of the defendant wrote them the following letter: Baltimore, Sept. 4th, 1873. Mess.

The case is stated in the opinion of the Court. Exception. — At the trial below, the plaintiff offered the three following prayers : 1.

The amended bill of complaint in this case, filed by the appellees, charged that they had theretofore filed their hill of complaint in the Circuit Court for Frederick County, in equity, against a certain Joseph Fulton, Daniel J. Snook and Henry Metcalfe, for the appointment of a trustee in the place and stead of George Harman, deceased, and Christian Harman, who declined to make sale of certain real estate therein specified, as devised and bequeathed by a certain Christian…

This action was instituted in the Court below by the appellee, to recover damages for the breaking up of his business, by the acts of the appellant. The plaintiff was the lessee for a short term of years of a house and lot in the City of Baltimore, where he was conducting a restaurant and public bar, (known as the “Lexington Street Green House,”) at the time of the acts complained of.

The facts are sufficiently stated in the opinion of the Court. Exception. — At the trial below the plaintiff offered the six following prayers : \.

This case was tried before the Court, without the intervention of a jury. The facts are sufficiently stated in the opinion of the Court.

The appeal in this case was taken by the complainant below, from a decree of the Circuit Court of Baltimore City, (Pinkney, J.,) dismissing his hill for an injunction. The facts are sufficiently stated in the opinion of the Court.

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

This is an appeal from a decree of the Court below, adjudging the appellee, the complainant, to he entitled to a lien upon the house of the appellant, Mrs. Heath, for materials furnished by him. The case is stated in the opinion of the Court. The lion was invalid to affect the rights of the appellants, because it was not filed within the time limited by law for the filing oí such claims.

This is an action brought in the name of the State for the use of George W. Barnard against William H. H. Adkisson and the appellant, upon a bond given by Adkisson to the State, conditioned for the performance of his duties as trustee, under a decree of the Circuit Court of Baltimore City, by which decree he was appointed trustee to make sale of certain property owned partly by the equitable plaintiff.

<p> Conclusive effect of a Receipt under Seal. </p> <p>Certain property was sold by a trustee under a decree in equity, and an account distributing the proceeds of'sale was audited and finally ratified. In an action brought on the trustee’s bond by one of the parties, to whom a share of the proceeds of sale had been audited, to recover the balance of such share, ■which the trustee had failed to pay, the security on the bond interposed to the equitable plaintiff’s right to recover his receipt in full under seal, and a note of the trustee to him at six months, for the balance due. The note not being paid at maturity was subsequently returned to the maker, and the receipt returned to the equitable plaintiff. Both papers were afterward destroyed, and secondary evidence of their contents was admitted. Held:</p> <p>That the receipt given by the equitable plaintiff, being under seal, was conclusive, and he could not recover against the surety.</p>

The facts of the case are sufficiently stated in the opinion of the Court. Exception. —The plaintiff offered at the trial helow ten prayers, the third and fourth of which only are noticed by this Court, and are as follows : 3.

The hill of complaint filed in this case on the 28th of July, 1874, hy Henry F; Zollickoffer, executor of John Coates, deceased, alleged that a certain Robert L. Seth, of Baltimore City, departed this life some time in the month of- November, 1866, leaving a will, wherein, among other things, after making certain bequests, he gave all the rest and residue of his estate unto the children of his sister, Caroline Blades, and the children of his brother, Alexander H. Seth ; that…

The appellee sued the appellant in assumpsit • to recover the sum of $1432.12 alleged to he due to the Baltimore Oil Manufacturing Company and payable to the plaintiff as receiver of said company. The defendant’s alleged indebtedness consisted of two items — one of $632.12, charged as his share of the losses by the company, and the other of $800 charged as balance due on his subscription to the stock of the company. The case is further stated in the opinion of the Court.

<p>Jurisdiction in Equity — Insurance Agent — Commissions— Breach of Contract — Recoupment—The averments of Fraud in a Bill being sufficient to vest Jurisdiction, the mere Denial of them will not Oust it — Order from which an Appeal u;ill not lie — Duty of Courts of Equity in respect to Ordering money to be brought into Court.</p> <p>D. from the year 1864, until bis discharge on the 5th of March, 1875, was a general agent of a life insurance company, and had the office of his agency in the city of Baltimore. It was part of his duty as such agent, to collect for a certain commission, and remit to the company from time to time, all premiums on policies issued by the company, and on renewals thereof. In September, 1874, the company directed all its agents to deposit all premiums collected by them, less their proper commissions, in some bank which they should select, in a separate account, showing the deposits to be for the sole use of the company. In compliance with this direction D. selected a bank- in the city of Baltimore as his depository, and made his deposits accordingly. But from the 1st of January, 1875, up to the time of his discharge in March following, he did not so deposit all the money he thus collected for the company, but retained a portion thereof in his own possession, and deposited the same elsewhere. On a bill filed by the company against D for an account, and payment to it of the moneys so retained by him, and charging the same to have been so retained by him with intent to defraud the company and convert said money to his own use ; and asking an order for the payment of the money into Court, or the appointment of a receiver to take charge of the same, under its alleged belief that D. would otherwise make way with it, so that it would be wholly lost to the complainant, it was Held :</p> <p>That the bill made out a case within the jurisdiction of a Court of Equity.</p> <p>D in his answer denied the allegation of fraud, and set up an agreement with the company at the time of his entering into its service, that he should receive a commission on all old and on all new business; and alleged that it was expressly agreed that, he should continue to receive this per centage so long as the premiums should continue to be paid to the company, and that under an apprehension that he was about to be dismissed by the company, and that the company would refuse to allow him commissions after he should cease to be its agent, and in order to protect and indemnify himself against such injustice, and not from any fraudulent intent, he retained and deposited-elsewhere than in the bank, the money in question, but kept the amount so retained largely within the damages to which the breach of the contract by the company would entitle him. Apart from the admissions of D. it also appeared by the proof that all of this money was collected by him before he was discharged from his agency, and that the money retained by him was a balance remaining after deducting all the commissions to which he was entitled upon the premiums actually collected by him On appeal from an order of the Court below directing him to bring the money into Court, it was Held :</p> <p>1st. That when D. as agent, collected money on premiums and took out of it his commissions, he was all the while performing the contract, and receiving all that under the contract ho was entitled to; and it became his duty at once to pay the balance as he received it over to the company, or deposit it in bank, as directed by the orders of his principal.</p> <p>2nd. That he had no right to retain this money in expectation or anticipation that the company would thereafter do some act which would give him a right to sue them in damages for breach of the contract, and deprivation of future commissions.</p> <p>3rd. That his retention of the money being thus wrongful at the time, it could not become lawful by the subsequent, act of the company in dismissing h m and breaking the contract as respects h's future commissions.</p> <p>4th. That there is no authority which would justify the application of the doctrine of recoupment to such a case, and it would be an unwise and dangerous extension of that doctrine for the Courts to allow it to be so applied.</p> <p>5th. That the averments of fraud in the bill being sufficient to vest jurisdiction, the mere denial of them in the answer did not oust it. And the proof then in the cause having been all taken under the order to show cause why the money should not be brought into Court, and no general commissions having-been issued under which testimony in support of the bill and answer had been taken, the Court could not assume that all the proof in support of the allegations of fraud which the complainant might have to adduce, had been offered.</p> <p>6th. That B. must be regarded as a trustee, and the fund in hishands must be considered as so far impressed with a trust as to give a Court of Equity jurisdiction of the case on that ground, if no other,</p> <p>íth. That no appeal would lie from the order to bring the money into Court. Though the practice of ordering money into Court has become, one of the most ordinary methods by which the Court enforces its jurisdiction of preserving property in dispute pending a litigation, tl\ere are certain well defined restrictions and limitations upon it, which Courts of Equity should always be careful to observe.</p>

The case is stated in the opinion of the Court. Exception.- — At the trial below the plaintiffs offered the following prayers : 1.

This was an action upon the common counts, with a special count upon a promissory note, instituted in the name of B. Savins, against S. G. Thanhauser. The case is further stated in the opinion of the Court. The verdict and judgment were for the plaintiff, and the defendant appealed. The rule is that the declaration must set out the Christian and surname of the parties correctly.

First and Second Exceptions stated in the opinion of the Court. .

<p>Construction of the Charter of an incorporated Benevolent Society— What are not Assets — Bowers—Question of the Exercise of a Bower by Will.</p> <p>A testator by his will bequeathed as follows: “After the payment of all my just debts, and funeral expenses by my executor out of my estate, I devise as follows : 1 give and bequeath the entire residue of my estate to my three sisters, E. O. A., H. F. S. and G. R , and my esteemed friend M. V. L., each of them to have and receive a fourth part thereof absolutely.” The testator left neither widow nor children, and at the time of his death was a member in good standing of an incorporated benevolent Society, which by its constitution provided, upon the death of any member, for the payment of a fixed sum 11 to the widow, child, children, or such person or persons to whom tiie deceased may have disposed of the same by will or assignment. If there bo no widow, child or children, or the deceased shall have made no disposition by will or assignment of the sum accruing upon his death, then the board shall appropriate such sum as may be necessary for funeral expenses, and all excess of money accruing from the death of such member, shall go to the permanent fund of the association.” Held :</p> <p>1st. Thai the fund assigned by this charter to the widow and children of the deceased, or his legatee or assignee, was not assets, recoverable by his administrator or executor.</p> <p>2nd. That the jus disponmdi given by the charter was a mere power.</p> <p>3rd. That the will of the testator was not a valid exercise of the power, the intention to exercise it, not being expressed, and it not appearing that there was no other estate upon which it might operate.</p> <p>4th. That in the absence of a valid exercise of the power, there being no widow, child or children, of the deceased, the excess of the fund, after paying funeral expenses, should go to the permanent fund of the association.</p>

The hill in this case was filed on the 6th of July, 1875, by the appellee, to obtain an injunction to prevent the appellants from advertising and selling its property for an unpaid assessment of $2693.75, made by the Commissioners for Opening Streets, as benefits for the opening Lexington street, from Gay street east to Douglas street, and charged that tlie notice of an application to the Mayor and City Council of Baltimore-, to open and condemn Lexington street from the…

<p>A uditor— Equity Frac tice— Eeidence — Mechanics’ Men — Lien claimant not required, under secs, land, 11 of Art. 61, of the Code, to prove an Express contract in respect to the Exact quantity of Work to be dene, &c. — Presumption that Work was done or Materials furnished with reference to an Understanding from the Commencement, &c.— When no such Presumption will arise — Application of Payments — Interest on a Mechanics’ lien claim — Defective notice of am Intention to claim a Mechanics’ lien — Computation of the Time within which a Men claim may be fihd — Sec. 23 of Art. 61 of the Code — Liability of a bond, given by the Contractors for the building of a Church, for Mens for work and materials supplied to the Contractors — Equity Practice — Set-off.</p> <p>A case involving the right of certain lien claimants to enforce their liens against a Church edifice, having been submitted without argument, the Court directed its reference to the auditor, to report the pleadings, facts and his opinion thereon. Under this order of reference the auditor made a statement of the several lien claims filed, and of the facts offered in support thereof; and as to several of the claims he stated his opinion to be that they were not sustained by the proof. Upon objection to the form of the reference and the power of the auditor to examine the claims and declare his opinion as to whether fliey were established or not, it was Held :</p> <p>That in what was done by the auditor, under the order of reference, there was nothing irregular or unwarranted by the practice of the Court.</p> <p>Evidence taken on a re-examination before the auditor, without special order obtained for that purpose, as to the same matters of fact upon which the witnesses had been previously examined, will, upon exception thereto, be excluded from consideration.'</p> <p>' It is notincumbent upon the lien claimant, under secs. 1 and 11 of Art. 61 of the Code, to establish the fact that there was an express antecedent contract made with respect to the exact quantity of work to be done, or materials to be furnished by him. In the absence of evidence of such express contract, the character of the account, the time within which the work was done or the materials were furnished, and the object of the work or materials, may afford proper grounds for the presumption that the work was done or the materials were furnished with reference to an understanding from the commencement, that such work or materials should be done or furnished, if re- ■ quired by the builder; and in such case, it is from the last item in the account that the notice, and the time within which to take the lien, should date.</p> <p>But where the materials are furnished for separate and distinct purposes, or at different times, and at considerable intervals, or under distinct contracts or orders, though to be used by the contractor or builder in executing one and the same contract with the owner, no such presumption will arise, and the right to take the lien must date from the time of furnishing the different parcels of material, and not from the last item of the account.</p> <p>When divers debts are due from a person, and he pays money to his creditor, the debtor may, if he thinks proper, appropriate the payments to the discharge of any one or other of these debts; and if he does not appropriate it, the creditor may make an appropriation ; but if there is no special appropriation by either party, and there is a current account between them, the law makes an appropriation according to the order of the items of the account, the first item on the debit side of the account being the item discharged or reduced by the first item on the credit side.</p> <p>Interest should be allowed on a mechanics’ lien claim from the time of filing the claim for record.</p> <p>The notice of an intention to claim a lien under the Mechanics’ lien law, which states the amount of the claim down to, and inclusive of the items last charged, but fails to state what the claim is for, — whether work or materials, — would seem to be fatally defective.</p> <p>Where the last item in an account of materials furnished the contractors for the building of a Church, is delivered on the 9th of January, 1873, a claim tiled for record on the 9th of July following, is filed before the expiration of the six months within which the claimant is allowed under sec. 23 of Art. 61 of the Code, to file his claim for lieu.</p> <p>The day upon which the last item in the account is charged, being regarded as an entirety, or as a mere point of time, is to be excluded in the computation of the time within which the lien claim may be filed.</p> <p>A contract for the building of a Church signed by the contractors, and the building committee on behalf of the Church corporation, provided, among other things, that the contractors should find, provide and deliver, at their own cost and charge, free from all claims, liens and charges whatsoever, all and every kind of material, and work and labor which might be necessary and proper for the complete execution of the building, &c. It further provided in respect of any changes from the drawings and specifications, that might be made during the progress of the works. On the same day of the execution of the contract, the contractors together with F. and H. Wehr, and two others, as their sureties, executed their joint and several bond to the Church corporation, in the penalty of fifty thousand dollars, for the faithful execution of the contract. The condition of the bond was, that the contractors should well and faithfully fulfill their said contract, and in all respects perform and keep all and singular the stipulations on their part, to be done and performed under the same. The sureties F. and II. Wehr having a claim for bricks which they furnished the contractors, and which were used in the erection of the Church, filed their bill in equity, to enforce the lien, by a decree for the sale of the Church building and ground, upon default of the payment of the claim. The trustees of the Church, in their answer, set up the contract and the bond, by way of defence, and denied the right of the claimants to assert or enforce their lien while they were under an obligation to protect the property from all claims, liens, and charges whatsoever, for and in respect of work done and materials furnished for the 1 erection of the Church. The claimants undertook to relieve themselves of the defence set up by the trustees by showing that there were extensive changes and alterations made in the contract, other than those provided for, without the assent of the sureties, and such as enlarged the liability of the contractors ; and that therefore the sureties were discharged. Held :</p> <p>1st. That unless the bond had been discharged, as contended by the claimants, it stood liable for all the liens that had been claimed and established for work and materials supplied to the contractors for the erection of the Church, and which might not be paid by the contractors, or with the money due them on the contract; and it would be against equity and justice to allow the claimants to proceed with the enforcement of their lien, even to the sale of the Church, regardless and in the face of their bond, that no such lien should exist.</p> <p>2nd. That the bill of the claimants should be returned, giving the Church corporation a reasonable time within which to bring an action on the bond, to have tried and determined the questions, whether the sureties on the bond had been discharged, as contended by them, and if not, to what extent they were liable for the defaults of their principals, the contractors.</p> <p>3rd. That if it should be determined, that the sureties had been discharged, then the lien could be enforced; but if it should be determined otherwise, and there should be a recovery on the bond, that judgment might be made a set-off to the lien claim of the complainants.</p>

<p>Question touching the Testamentary character of a paper — Animus Testandi.</p> <p>A paper was found in a safe at the store of a deceased person, in a pocket book, with some notes and certificates of bank and other stocks. The heading of the paper was, “Hagerstown August 11th 1875 — what I owen isas follows.” Beneath followed a list of his houses and stock, and memoranda of sums to be paid to various persons, out of the sales of certain of his houses, the whole concluding as follows: “I appoint for my administrcatirs H. W. of Curibeirland, Mayland, and E. A. H. of Hagerstown, Maryland,” (Signed) “P. S.” The paper was proven to have been written and signed by the deceased, and there was nothing to show that it was not signed on the day of its date. He died on the 14th of December, 1875, aged about seventy-two years. As regards his mental and bodily condition, there was no proof tending to show that he was prevented by sudden sickness, or anything which the law would pronounce an act of God, from perfecting it, or executing a formal will, for more than three months after the date of the paper. Held :</p> <p>‘1st. That the paper could not be upheld as a will on the ground that its perfection was prevented by the act of God.</p> <p>2nd. That the place of its deposit, and the care with which it was kept, were merely circumstances to be considered and weighed with all the other facts of the case, in solving the question whether the party intended it aS his will or not.</p> <p>3rd. That in the absence of proof to ihe contrary, it must be assumed the paper was written and signed on the day of its date.</p> <p>4th. That the paper in itself contained no indication that the writer intended it should be, and wrote it for his last will and testament, and in the absence of evidence of some acts or declarations clearly showing that he intended the paper as it stood, to be his will, or subsequently recognized or adopted it as such, it could not be admitted to probate.</p> <p>5th. That the evidence in this case disclosed no such intention or subsequent recognition or adoption.</p> <p>6th. That in order to ascertain whether the last clause in the paper was operative as a valid appointment of the persons there named as his executors, it was necessary to look to the entire paper treating it as a whole, and to all the acts and declarations of the writer relating to it.</p> <p>tth. That doing so in this case, there was nothing to warrantthe Court in separating this part of the paper from those parts which preceded it, or to justify the conclusion that the writer wrote this pari with, and the others without the animus testandi.</p>

John W. Dougherty was appointed guardian of John D. Walter by the Orphans’ Court of Somerset County, and gave bond as such guardian, dated ’November 3rd, 1857, with John W. Crisfield and William J. Byrd as his sureties. His guardianship was afterwards revoked, and his surety John W. Crisfield was appointed in his place. Crisfield was also subsequently removed and William Stewart was appointed to succeed him.

On the 3rd of April, 1871, Benjamin V. Bichardson and wife, executed a mortgage of certain property, in Baltimore County, to Caroline E. Bichardson, by whom it was assigned to the appellee, Elijah J. Bond. The mortgage contained a power of sale. The equity of redemption was conveyed to George O. and Daniel G. Stevens.

<p>Jurisdiction of Chancery Courts in eases of Foreclosure of Mortgages — Case where the Notice of Sale of Mortgaged premises, as prescribed in the Mortgage, is impossible.</p> <p>The power to foreclose after default, is one of the ordinary .powers of a Court of Chancery, existing independently of the consent of the mortgagor or the provisions of the mortgage.</p> <p>Art.' 64, sec. 5, of the Code, provides for the insertion in mortgages of an assent by the mortgagor to a sale by the mortgagee, or his attorney, on default being made in any of the conditions of the mortgage. Sec. 7 provides that “in all sales made in pursuance of such authority, there shall be given such notice as may be stated in such mortgage, or if there be no agreement as to notice, then the party offering the same for sale shall give twenty days notice of the time, place and terms thereof by advertisement in some newspaper printed in the county where the mortgaged premises lie, if there be one so published, and if not, in a newspaper having a large circulation in said county, and also by advertisement set up at the court house door of said county.” Sec. 8 provides, that “all such sales shall be reported under oath to the Court having chancery jurisdiction where the sale is made, and there shall be the same proceedings on such report as if the same were made by a trustee under a decree of said Court. A mortgage containing the assent thus authorized, prescribed the terms of sale to be “one-half cash and the balance in six months, with interest, upon giving twenty one days notice of the time, terms and place of sale by advertisemen ts every other day in some newspaper published in Carroll County.” Default having been made by the mortgagor the property was sold by the mortgagee. At the time of the execution of the mortgage, and at the time of the sale, there was no daily newspaper published in Carroll County, but only two weekly newspapers. Held :</p> <p>1st That the mode of notice proscribed in the mortgage being impossible, the spirit of the law, if not its letter, authorized the adoption of the mode and measure of notice prescribed in the seventh section.</p> <p>2nd. That in the cases of sales under powers in mortgages, the trust commences with the filing of his bond by the party making the sale.</p> <p>3rd. That the power of sale given in this case was in the nature of a trust, which a Court of equity would not permit to fail because of the inability of the trustee to execute it “modo etforma.”</p> <p>In the above case notice of the sale was given by advertisement inserted in a weekly paper published in the county once a week, for four successive weeks preceding the sale, and by hand-bills. Held :</p> <p>That there being no evidence that any injury had been done by the non-compliance with the terms prescribed, and the mode of advertisement resorted to being all that was practicable, giving ample and reasonable notice, the sale should be ratified.</p>

Henry Bloomenour of Cumberland, Maryland, being indebted to sundry persons, by deed dated the 11th of February, 1875, in which his wife united, conveyed to “ William M. Price and Samuel T. Little, as trustees, the following property, that is to say : All my stock, in trade consisting of dry-goods, notions, &c., now contained in my store-room on Baltimore street, in Cumberland, together with all our household and kitchen furniture, debts, sums of money, books of account,…

The case is stated in the opinion of the Court. The appellant having been indicted previous to the adoption of the Constitutional amendment, the Court did wrong in refusing his prayer, as he was entitled to the right of removal, secured to him by the Constitution in force at the time when the indictment was found, upon his filing his suggestion with the proper affidavit, whenever his case might he called for trial, otherwise, he would he deprived of a vested right, and the…

The case is stated in the opinion of the Court. Under the pleadings and proof in the cause, the Court below was not authorized to pass either the order of the 23rd of April, 1875, or the final decree of the 16th of July, 1875. The claimants, Mortimer W. and Benjamin F. Turton, should have filed a bill of review, praying a rescission of the orders of the 6th of April, 1855, and the 19th of February, 1856. Gibbs vs. Cunningham, 4 Md. Ch. Dec., 322 ; Dunnock vs. Dunnock, 3 Md.

The hill in this case was filed against both the appellants and appellees, to obtain relief under the following state of facts: Isaac M. Denson and John D. Quincy-were partners in business, under the name of Denson & Quincy. Denson, individually, was the owner of one hundred shares of the stock of the Central Ohio Railroad Company, as re-organized, for which he held three certificates.

The appellee Kennedy sued out an attachment against the appellant, Marvin Eastwood, as a non-resident debtor. The latter on the 12th of October, 1874, pleaded by way of set-off that the plaintiff was indebted to him for money paid the plaintiff on account of usurious interest, and in connection with his plea filed the following account in bar: Charles Kennedy, To Marvin Eastwood. 1871. May 81st. To this sum paid as usurious interest, $60 00 June 2nd. “ - “ “ “ 20 00 1872.

<p>Evidence of a Prior intention, Inadmissible to qualify a Subsequent written Contract — Inadmissibility of Parol evidence to vary a Written contract — How the intention of parties to an Assignment, is to be ascertained — Assignor of overdue Mortgage note, not liable as a Guarantor — Assignment of an Overdue mortgage note, equivalent to an Endorsement.</p> <p>A mortgage was given to L. C. to secure the payment of several promissory-notes, falling due in successive years. The note which matured in January, 1871, was assigned to H. D. by the following written assignment endorsed thereon: “January-8th, 1872. I assign the within note to H. D.” (Signed) “L. C.” The property was afterwards sold under the mortgage, and the proceeds of sale were insufficient to pay the whole mortgage debt. Upon a question as to the proper mode of distributing the fund, it was Held :</p> <p>1st. That letters written nearly six months before the assignment and expressing the purpose of the assignee at that time, could not operate to alter or qualify the effect of the assignment as afterwards actually made.</p> <p>2nd. That what may have been the intention of the mortgagee, or bis understanding of the effect of the assignment, it was immaterial to inquire, there being no allegation that any fraud was practiced upon him to induce him to make it.</p> <p>3rd. That the assignment being in writing, it was not competent to offer parol evidence for the purpose of qualifying or changing its legal operation and effect.</p> <p>4th. That the intention of the parties must be ascertained from the terms of the assignment itself, the same being free from ambiguity.</p> <p>5th. That the assignment did not of itself make the mortgagee liable to his assignee as a guarantor of the note.</p> <p>6th. That the assignment of the note after it became due, was equivalent to an endorsement, and the assignee had not used such diligence in demanding its payment of the mortgagor as would entitle him to hold the mortgagee liable as endorser.</p> <p>íth. That the fund should be distributed between the administratrix of the mortgagee and the assignee of the mortgagee, ratably.</p>

This was an action of ejectment brought by tbe appellee against the appellants, to recover a lot of ground which the appellee under a deed of marriage settlement made in the year 1850, held in trust for Mrs. Rebecca E. Murphy, and which was leased by her under the circumstances set forth in the opinion of the Court.

' The appeal in this case was taken from an order of the Court below, of the 26th of February, 1816, dismissing the appellants’ petition for a mandamus. The facts of the ease are sufficiently disclosed in the opinion of this Court. In most cases the question arises as to when the property Is ‘‘ taken. ’ ’ Most of the judicial decisions heretofore have held that the property is not “taken” until it is actually used for the purpose for which it is condemned.

The plaintiff, a feme covert, by her husband and next friend, sued the defendants upon their promissory note made in her favor. Held: that it is essential to the validity of every parol agreement, whether verbal or written, that it be founded upon a sufficient consideration, otherwise it is considered in law as nudum pactum, and cannot be enforced. Wyman vs. Gray, 7 H. & J., 415 ; Elliott vs. Giese, 7 H. & J., 457 ; Nabb vs. Koontz, 17 Md., 283.

Hardesty, to recover a farm in said county, called “ Wilna,” and obtained judgment 23rd May, 1870. In August, 1870, Richard C. Hardesty filed his bill on the equity side of said Court, against the appellant, a resident of Baltimore City, praying an injunction against the execution of said judgment, and for the specific performance of an alleged contract' by his father, for the conveyance of said land. The injunction was issued as prayed.

James Stratton of Howard County, died on the 9th of August, 1875, intestate, and without leaving any kin, but leaving as it was then supposed, a large personal and some real property in this State.

The hill in this case was filed by the appellees against the appellants and others, for the purpose of vacating an order of the Circuit Court for Caroline County, and a deed made in pursuance thereof, conveying certain real estate to the appellant, Elizabeth A. Plummer, wife of Edgar Plummer the other appellant.