Volume 45 — Maryland Reports

Court for Wicomico County. This was an action brought on the 26th of September, 1814, by the appellant, on the bond of the appellee as her guardian, to recover the sum of $3094.10, alleged to he due upon a settlement of his account,, upon the 10th of April, 1866. The bond was dated the 12th of April, .1854, and an additional bond was given on the 11th of March, 1856.

The original declaration consisting of two counts, was ruled had on demurrer by the defendant, and an amended narr. was filed ; to this amended narr. the defendant also demurred, but the demurrer was overruled. After the overruling of the demurrer, the defendant filed eight pleas — the «first being simply the general issue, and the others special pleas.

<p>Question as to Regularity of proceedings in Attachment — Soto process is to be served on a Corporation — The attorney of a Corporation not am, a officer ” on whom a Writ of Attachment may be served — Practice.</p> <p>The mode provided by the Code, Art. 75, see. 99, and the Act of 1868, ch. 47, sec. 212, for serving process on a corporation is, that it shall be served on “the president, or any director, or manager, or other officer of the corporation.” Under proceedings in attachment in which the sheriff’s return stated that he laid the attachment “in the hands of the Northern Central R. R. Co , and summoned company as garnishee,” it was Held :</p> <p>That the law having designated the character of agents on whom process shall be served, it ought to appear affirmatively by the sheriff’s return upon what person or persons the writ was served, so that the Court could determine whether the service was upon the company.</p> <p>The sheriff also stated in his return “service admitted by counsel,” and appended thereto was the memorandum “May 30th, 1874, service admitted for the Northern Central R. R. Co., garnishee,” signed “B. C. attorney for N. C. R. R. Co.” On the first day of the Term of the Court to which the attachment was made returnable, a judgment of “ condemnation nisi” was entered against the garnishee, and at the following Term an order was passed by the Court, reciting the order of condemnation nisi and making the same final, there being as stated in the order “no appearance of counsel and no pleas having been filed.” Upon a motion by the garnishee at the succeeding Term to strike out the judgment of condemnation, it was Held :</p> <p>1st. That the attorney of the company was not one of its officers within the meaning of the Code.</p> <p>2nd.. That a service on the attorney would not have the effect of bringing the corporation into Court so as to give the Court jurisdiction over it.</p> <p>3rd. That the admission of service by the attorney could not have a greater effect than the actual service on him.</p> <p>4th. That the admission or memorandum signed by the attorney and returned with the writ must be construed as a waiver of service on the company, and a consent by the attorney to appear voluntarily in the cause for the garnishee.</p> <p>5th. That the authority of the attorney to waive service and give such consent will be presumed.</p> <p>6th. That it was proper therefore at the return of the writ, that the appearance of the attorney for the garnishee should have been entered, and the case must be considered as if the appearance bad been so entered.</p> <p>7th. That under the Code Art 10, sec. 13, if the garnishee appears at the return of the attachment, judgment of condemnation cannot lawfully be then entered.</p> <p>8th. That in this case the judgment was prematurely entered and the subsequent order of the 2nd of January, 1875, founded thereon, was erroneous.</p> <p>The order of the Circuit Court refusing to strike out the judgment being reversed by this Court, the case was remanded to the end that the judgment might be stricken out and the regular continuances entered, and the garnishee be allowed! to plead, and that such further steps might he taken, as might be necessary to a trial of the cause upon its merits.</p>

<p>Indictment for selling Whiskey without License, where the Law ivas sought to be Evaded by giving a drink of Whiskey to each person who purchased a Cigarette — Admissibility of Evidence.</p> <p>A. was indicted for selling one-half pint of whiskey without a license. The traverser kept cigarettes for sale, and invited purchasers of them to drink whiskey with him. Held :</p> <p>1st. That if the price asked for the. cigarettes was intended to cover the price of the whiskey, which was; afterwards nominally given to the purchaser, the transaction was a sale of the whiskey, as well as of the cigarettes.</p> <p>2nd. That testimony tending to show the real character of the transaction was admissible for the purpose of establishing the offence for which the traverser was indicted.</p> <p>On the part of the State a witness testified that he went to the traverser’s place of business and paid him forty cents and got four cigarettes. He was then asked what those four cigarettes were worth, and replied that he did not know. He was then asked what was his opinion or judgment as to the value of them. On objection to the question, it was Held :</p> <p>That it was important to the issue, and admissible to show the actual value of these articles as compared with what the witness paid for them; and as he was evidently a reluctant witness, it was proper, after his previous answer, to press him with the question objected to.</p> <p>The witness then stated that the cigarettes might be worth a quarter to a half cent each, but he was not a judge of tobacco. He was then asked, whether there was anything in the previous acts or declarations of the traverser which induced him to believe that if he called for cigarettes, or paid him at the rate of ten cents a piece for them, he would get in return anything besides the cigarettes for the same money, and if so, to state what had occurred to induce him so to think. The witness answered in the negative. On objection to the question, it was Held :</p> <p>1st. That the question was proper to be put to the witness.</p> <p>2nd. That even if it were improperly put, the witness having answered in the negative, no harm was done to the traverser.</p> <p>The witness having detailed the circumstances touching his purchasing the cigarettes and getting the drinks, stated on cross-examination that he had never bought whiskey from the traverser, and had never had any understanding or agreement with him under which he was to get whiskey if he bought cigarettes or anything else. Upon re-examination in chief, he was asked whether from anything which had already occurred between him and the traverser, or in the presence of the latter, he expected to get whiskey for the money he paid, and if so, why he expected it; on objection to the question, it was Held :</p> <p>That in view of what the witness had stated on his cross-examination, this question was proper to be asked him.</p> <p>The witness in reply to the question stated that the action of others at the traverser’s place of business induced him to think that he could get whiskey if he bought cigarettes as they had done; so he went to the traverser’s and bought cigarettes as he had seen them do, and got whiskey also. Held :</p> <p>1st. That this evidence was admissible.</p> <p>2nd. That it was for the jury to determine from all the evidence whether the traverser was guilty of selling whiskey to the witness, and the fact that he did not sell it to him was not conclusively established by the mere declaration of the witness that he did not buy it.</p> <p>After further evidence tending to establish the charge against the traverser, the latter offered evidence the purport of which was, that upon other occasions, and with other parties he did not violate the law, and in other instances sold in good faith and at their full value, articles which he had a license to sell. Held :</p> <p>That this evidence had no tendency to rebut, control or explain any of the testimony offered on the part of the State, and was clearly inadmissible.</p> <p>On the trial of another indictment against the same traverser on a similar charge, it was Held :</p> <p>That evidence was admissible on the part of the prosecution to show that on other occasions than that charged in the indictment, and about the same time the prosecuting witness and others had bought cigarettes in the traverser’s shop for ten cents each, and that on each occasion each one who got a cigarette got also a drink of whiskey by invitation from the traverser.</p>

The appeal in this case was taken hy the plaintiffs from the action of the Court helow overruling their demurrer to the defendant’s plea and quashing the writ. The case is stated in the opinion of this Court.

At October Term, 1815, of the Circuit Court for Anne Arundel County, James Smith was tried under the Act of 1861, ch. 390, sec. 55, for having sold wine in the City of Annapolis, to a midshipman, under the age of twenty-one years, attached to the United States’ Uaval Academy, and found guilty. At the trial an exception was taken by the traverser to the refusal of the Court to permit a question to be answered by a witness.

<p>Question of liability under a Policy of Fire insurance for loss by fire occasioned by sparlcs from a Steam Threshing Machine— Fffect of a Resolution passed by the Company but not Communicated to the Insurer.</p> <p>The plaintiff sued an insurance company upon a policy of fire insurance issued by the latter, to recover for the loss of a barn, and sheds, and corn house, destroyed by fire caused by sparks from a steam threshing machine used by the plaintiff’s tenant in threshing wheat. The policy was issued in 1859, and kept up by renewals till July, 1874, when the fire occurred. At the time it was issued, as well as at the times of the several renewals, the defendant knew the buildings were in the possession and occupancy of a tenant. By the policy it was provided, that “the company shall not be liable to pay for any loss or damage by fire happening in consequence of an invasion, civil commotion, ® * * * * * * * or from any locomotive engine or engines.” And also that “incase of any material increase of risk to the property insured, such increase of risk must be notified to the company and written permission therefor obtained. All material alterations and additions to buildings, a change of ownership, change of business, or occupant, or the act of renting or vacating the property occupied by the owner when insured shall vitiate the policy issued on the same, unless such alteration or change shall be first notified to the board of directors in writing.’ ’ The case was tried upon an agreement of facts in which it was admitted that “on the 18th of July, 1814, the said barn, and sheds, and corn house were destroyed by fire which was communicated to the said buildings by sparks from a steam threshing machine used on the premises by a tenant for the purpose of threshing out a crop of wheat.” Held :</p> <p>That there was no evidence of a violation of any condition of the policy by the assured, as the agreement of facts contained no statement that the assured himself used the engine either in or near to the insured buildings, or even authorized or assented to such use of it, or even that the tenant introduced the engine into the barn or corn house or under the sheds, and used it there for the purpose of threshing his wheat.</p> <p>"Whether a different result would follow if the statement of facts showed that the tenant had actually introduced this steam engine into the insured buildings and there used it, Qucere?</p> <p>A resolution of the board of directors of the insurance company prohibiting the use of such machines within two hundred yards of insured property upon certain qualifications, passed subsequent to the issuance of the policy to the plaintiff, not communicated to him, and of which he had no notice or knowledge, could not affect his rights under the policy.</p>

This action was brought on the 8th of November, 18*73, by the appellant in the Court of Common Pleas against the appellees as joint tort-feasors. The plaintiff and the defendant Mrs. Lee were owners of adjoining improved lots on Lexington street, in the City of Baltimore. The latter desiring to put other improvements on her lot employed her co-defendants, to pull down her old house, to make the necessary excavations, and to erect a new building.

The appellant in this case was indicted in the Circuit Court for Frederick County, for being the father of an illegitimate child. The proceedings were originated at the instance of the mother who appeared before a justice of the peace of said county on the 15th of April, 1815, and made oath that she was delivered of a female child on the 1th of September last past, and that the appellant was the father of said child.

The will of James Murray deceased made in the year 1851, contained the following clause: “I give and bequeath unto my beloved wife, Julia Murray, my house in Salisbury street, between Exeter and Lloyd streets, during her life-time, she to reside in said house and to occupy — with Yictorine Murray, my adopted daughter, and after the death of my wife, it is my will and desire that the house be sold by my executor, and the proceeds to he held by bim for the benefit of my said…

<p>Appeals from the Circuit Court for Frederick County, in Equity.</p>

<p>JError in the Sentence of a Prisoner — Power of the Court of Appeals.</p> <p>Where a sentence not authorized by law has been imposed upon a prisoner, the Court of Appeals can only reverse the judgment; it has no power to impose the proper sentence, or to remand the case to the Court of original jurisdiction for that purpose.</p>

The case is stated in the opinion of the Court. Exception. — Before the trial, the defendant filed a suggestion in writing, supported hy affidavit, that he could not have a fair and impartial trial in the Criminal Court of Baltimore City, and prayed the Court to order and direct the removal of the record of proceedings in his case, to the Court of some adjoining Circuit for trial; this prayer the Court (Gtlmor, J.,) refused, and the defendant excepted and took this appeal.

The appellee was, for some years prior to 1861, the owner of certain coupon bonds of the Chesapeake and Ohio Canal Company, commonly known as Preferred Bonds. In the early part of the late war being necessarily separated from his wife, Judeth C. Blair, he committed these bonds to her for safe-keeping. The interest on them was regularly collected from the State of Virginia, as guarantor, up to January, 1865.

The appellee sued the appellant to recover the amount paid by her for three shares of the stock of the latter, less $100 paid her on account thereof. The claim being based upon the provisions of the charter of the defendant relating to the withdrawal of members.

On the 14th of September, 1864, William C. Conine agreed to sell to the appellant, his heirs and assigns, within ten years from said date, certain lots of ground in the City of Baltimore, for the sums specified in the agreement, in gold or its equivalent in currency.

' Defendant’s First Exception. — The plaintiff offered in evidence to prove his title to the race in question, sundry deeds, and then proved by Levi Price, the plaintiff, that he owned the distillery mentioned in the nar.; that the race runs through the land of the defendant nearly the whole length of the race, and is from two to four feet wide at bottom, and from five to six feet wide at top, and is about 600 feet long ; that it has no dam except a few logs put across the…

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

This case arises upon the following issues sent from the Orphans’ Court of Baltimore City, to the Superior Court for trial: First. — Is Henry Jones, one of the respondents to the petition in this cause, a lawful child of Andrew D. Jones, the intestate, whose estate is for distribution in the cause ? Second. — Did the said intestate leave a widow ? If yea, who?

The case is stated in the opinion.of the Court. The defendant, among other pleas, filed the following, which is the only portion of the pleadings necessary to he set out at length, the other pleadings being sufficiently stated in the opinion of the Court: 4th.

This was an action for rent brought by the appellee against the appellant.

The case is stated in the opinion of-the Court. First Exception. — Omitted, being unimportant. Second Exception. —The plaintiff offered the following prayers: 1.

<p>Lease for Ninety-nine years, Renewable for ever — Equity toill relieve the Owner of the Leasehold interest who has failed to obtain a Renewal within the Term, &e. — Effect of Gross Laches on the part of the Owner of the Leasehold interest.</p> <p>Where the original term of a lease for ninety-nine years, renewable forever, has expired, and the owner of the leasehold interest has failed to obtain a renewal within the term, according to the literal wording of the covenant for renewal, equity will relieve him, and compel the owner of the reversion to execute a new lease, provided the application be made in a reasonable time, and all arrearages of ground rent and the renewal fine be first paid.</p> <p>But gross laches on the part of the owner of the leasehold interest in making his demand for a new lease after the term has expired, and in seeking his remedy, will, as in other cases, be an insuperable bar to relief in equity.</p>

This suit was brought by Henry Swartz against William K. Grove and George Grove on their single hill. The case was referred under a rule of Court to Joseph M. Parke, who returned his award on the 11th of June, 1875, finding due to the plaintiff the sum of $263.62. The award was signed hut not sealed. Exceptions to the award were filed by thé defendants, which were overruled, and on the 22nd of December, 1875, judgment was entered for the plaintiff.

This suit was instituted in the Circuit Court for Allegany County. Upon the suggestion and affidavit of Mary Hogan, one of the equitable plaintiffs, the record of proceedings was transmitted to the Circuit Court for Howard County, where the case was tried. Exception. — The plaintiff to support the issue on its part proved the death of Thomas Hogan, by the explosion of engine No. 22, of which he was the engineer,, and that he left a widow and one child.

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

<p>Jurisdiction of the Orphans' Court under sec. 230 of Art. 93 of the Code — Advancement—Admissibility of Parol Evidence to Explain a Written statement.</p> <p>Sec. 230 of Art. 93 of the Code confers full power on the Orphans’ Court to take probate of wills, grant letters testamentary and of administration, direct the conduct and settling of the accounts of executors and administrators, superintend the distribution of the estates of intestates, secure the rights of orphans and legatees, and to administer justice in all matters relative to the affairs of deceased persons.</p> <p>Under sec. 230 of Art. 93 of the Code, the Orphans’ Court has the authority to determine what is to be distributed; and this necessarily involves the questions as to what are assets, and when there is a will, who are the legatees, and what is given to them by the will.</p> <p>Having jurisdiction over these matters, the Orphans’ Court has the right to hear and receive evidence in relation thereto; and, if the evidence consist of written instruments, to examine and construe them, in order that it may properly apply it to the case before it.</p> <p>A testatrix, by a paper dated 3rd March, 1866, gave certain sums of money to her children therein named, and declared that the sums of .money thereby given were “ absolute gifts; and in any distribution to be made at my death of my real and personal estate, in case I should die intestate, must be taken and considered as absolute gifts and not advancements, and must not be abated or deducted out of the shares of my said respective children above mentioned in the distribution of my real 'and personal estate.” After the execution of this paper, the testatrix gave certain sums of money to several of her children as advancements. She afterwards made her will, disposing of her property, and directed that all her children should be charged interest on all money advanced to them, from the time they received it up to the time of her death, in order that all might be made equal. On application by one of the daughters of the testatrix to have the sums given by the paper of March 3rd, 1866, treated as advancements, and taken into account in the distribution of the estate, it was Held :</p> <p>1st. That the question of advancement can only arise in cases of total intestacy.</p> <p>2nd. That the intent of the paper of March 3rd, 1866, was to declare the sums mentioned in it absolute gifts and not advancements.</p> <p>3rd. That a memorandum of calculations made by her before executing the paper, and the evidence of witnesses, offered to prove this intention, were admissible for that purpose.</p> <p>4th. That the clause in the will by which interest was to be charged upon advancements, must be held to apply to advancements made by the testatrix after she executed the declaration of March 3rd, 1866.</p>

<p>Exceptions to an Auditors account — Interest on arrears of Rower — Assignment of Rower — Costs.</p> <p>Where exceptions to allowances in an auditor’s account are not sufficiently specific, either as to the items of the account, or the evidence to prove or disprove them, they cannot be considered by the Court.</p> <p>The right of a widow to claim interest on arrears of dower, depends upon the same principies-as her right to damages at law.</p> <p>Where the claim is against the alienees of her husband, who were in possession by virtue of a good prima facie title, interest will not be allowed.</p> <p>In an equity proceeding by a widow for an assignment of dower, the question of costs depends entirely upon the character of the complainant’s claim, and the nature of the defence; and it is competent for the Court to allow or disallow them.</p> <p>By a decree finally ratifying the return of the commissioners for the assignment of her dower, the defendants were ordered to pay the costs; and the account for arrears of dower, provided for in a previous order, was reserved for the further order and determination of the Court. In subsequently passing upon the auditor’s account, the Court directed the costs to be paid out of the general fund, and declared the former order, allowing costs to the complainant, to have been inadvertently passed. On appeal, it was Held :</p> <p>1st. That the former order, although final in its character as a ratification of the commissioners’ return, was in other respects interlocutory, and expressly reserved the consideration of the accounts to be stated in which the allowance of costs was finally adjudicated.</p> <p>2nd. That the question of costs having been passed upon without argument, sub silentio, it was proper the Court below should adjust them upon principle and authority.</p> <p>3rd. That under the circumstances of the case they were judiciously disposed of.</p> <p>On appeal from the action of the Court below upon exception to an auditor’s account, this Court cannot, in the absence of proof that the appellant has been injured by the omission of specific subjects of charge, assume that the auditor has omitted to include any item given in evidence, and which should have been included.</p> <p>The presumption is, that the accounts were made up to the date when they were filed.</p>

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

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

This suit was instituted to recover from the appellant a sum of money alleged to he due by Jacob S. Bohn to the appellee.

This suit was instituted by the appellee against the appellant to recover a sum of money due by Jacob S. Bohn, which, it was alleged, the appellant promised- to pay, in consideration that the appellee would forbear to institute proceedings against the said Bohn.

Appeals from the Circuit Court of Baltimore City. On the bill of complaint of the appellees, the Circuit Court of Baltimore City on the 28th of June, 1815, passed an order directing a prelimináry injunction to be issued restraining the Mayor and City Council of Baltimore from paying, and certain corporations and associations (including the appellants) from demanding certain sums of money appropriated for the benefit of the latter by the city ordinance, approved on the 12th…

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

By the Act of Assembly of 1860, ch. 259, the appellant, a Turnpike Company, which had then been a long time in operation, was authorized to lay down on its road a railway for passenger cars, and by the fourth section of that Act, the company was authorized to demand “not more than twenty-five cents fare or toll for the whole distance between the (Baltimore) city boundary and Towsontown, and not more than five cents for each mile or fraction thereof, for each way-passenger.”…

The appellant was indicted in the Circuit Court for Aune Arundel County, for a violation of the Act of 1874, ch. 181, relating to Oysters. The indictment contained six counts; the first, second, third and fourth were abandoned by the State, the fifth and sixth were as follows: 5.

Appeals from the Superior Court of Baltimore City. These two suits were brought by the appellant to recover from the appellee a tax of one-half of one per cent, on its gross receipts, in the one case, from the 1st of April,T872, to the 31st of December, 1872, and in the other case from the 31st of December, 1872, to the 31st of December, 1873.

Appeals from tibe Circuit Court for Baltimore County, in Equity. The hill of complaint in this case was filed hy Kelly and Martin, for the enforcement of a mechanics’ lien claim against certain houses and lots of ground in Baltimore County, fronting on Boundary or North Avenue.

<p>Appeal from the Circuit Court for Baltimore County, in Equity.</p> <p>The appeal in this case was taken from an order of the Court helow, passed on the 3rd of January, 1876, finally ratifying a sale of certain real estate, situated in Baltimore County, made by Thomas M. Lanahan, trustee, by virtue of the following deed:</p> <p>This indenture, made this 17th day of November, 1874, between Edwin Walters and Virginia Caroline Walters, his wife, of the City of Baltimore and State of Maryland, of the one part, and Thomas M. Lanahan of the same place, trustee, as hereinafter stated, of the other part, witnesseth, whereas the said Edwin Walters stands justly indebted unto sundry persons in various sums and amounts of money which he is at this time unable to pay; and whereas, he has asked an extension of his creditors of their several claims of nine, twelve, fifteen and eighteen months, with interest from the day of the date of the execution of these presents ; and whereas, said request has been granted to said Walters, upon the condition that he shall execute these presents for the purpose of securing the payment of their respective claims, in the manner, upon the conditions and with the priorities hereinafter provided, as the same shall fall due and mature.</p> <p>Now for the purpose of securing the payment of his said creditors their respective claims as above set forth, these presents are executed.</p> <p>Now in consideration of the premises, together with the sum of five dollars in hand paid by the party of the second part to the parties of the first part, the receipt whereof is hereby acknowledged, the said Edwin Walters and Virginia Caroline Walters, his wife, do hereby bargain and sell, assign, transfer, make over and convey to the said Thomas M. Lanahan, his heirs, executors, administrators and assigns, all and singular, their right, title, interest and estate, both at law and in equity, jointly and severally, in and to all and singular, those several pieces or parcels of land and improvements, situated in Baltimore County, in the State of Maryland, and likewise in the Parishes of St. Martin and St. Mary, in the State of Louisiana, and severally described as follows: [Here followed a description of the property.]</p> <p>Together with all the buildings and improvements situated upon each and all of the above described tracts of land situated in Maryland and Louisiana, and all the rights, privileges and appurtenances thereunto belonging, and together with all and singular the personal property of every kind and description now upon the premises above described, in the States of Maryland and Louisiana.</p> <p>To have and to hold all of the above described property real and personal, situated as aforesaid, in the States of Maryland and Louisiana, unto the said Thomas M. Lanahan, his heirs and assigns forever. In trust and confidence nevertheless, and for the purposes following, that is to say: That if the said Edwin Walters shall pay each and all of his said creditors, having claims against him, on the day of the date of these presents, the amounts due and owing to them, with interest, as the same shall fall due and mature, as above set forth and provided for, in nine, twelve, fifteen and eighteen months, then' this deed of trust shall be void, and the said Thomas M. Lanahan, trustee as aforesaid, shall reconvey the above described property to the said Edwin Walters, his heirs or assigns. But in case the said Edwin Walters shall fail to pay at maturity any one or more of his said creditors any instalment or portion of their respective claims or demands against him as the same shall mature, then it shall be lawful for the said Thomas M. Lanahan, trustee as aforesaid, to at once take possession of all of the above described property, and to sell the same in his discretion at public or private sale, and for the most money that can be realized therefor, and upon such terms as to the credit payments as be shall think best calculated to promote the interests of all parties concerned in this trust, and the proceeds of all such sales shall be applied and appropriated by the said trustee as follows, that is to say:</p> <p>First. To the payment of the expenses incurred in the creation and execution of this trust, including such commissions to the said trustee for his trouble and responsibility in the premises, as is usually paid to receivers for like services by Courts of Equity in the State of Maryland.</p> <p>Secondly. To the payment of Thomas M. Lanahan, of Baltimore city, his personal representative or assigns, the full amount of a judgment recovered by said Lanahan against said Edwin Walters, in the Circuit Court for Baltimore County, in the State of Maryland, on the 21st day of' August, 1874, for thirty thousand dollars, with interest until paid, and costs.</p> <p>Thirdly. The balance remaining in the hands of the said trustee is then to be applied to the payment of all the other creditors of the said Edwin Walters, to whom he is indebted on the day of the date of the execution of these presents, in full, if sufficient therefor, and if not sufficient, then ratably and proportionably, and if then there shall remain a balance in the hands of the said trustee, the same shall be paid over to the said Edwin Walters or his assigns. It is distinctly understood and agreed that until default be made by the said Edwin Walters, in payment of some one or more of his said creditors, existing at the time of the execution of these presents, it shall be lawful for the said Edwin Walters to retain the possession and use of . the property hereinbefore described, provided he shall keep said property sufficiently insured in the meantime, with a provision in the policies of insurance that jf any loss is sustained by fire, the insurance money is to he paid over to the said trustee for the benefit of the creditors of said Walters as provided for in this instrument. But if said Walters shall fail to keep said property insured as aforesaid, then it shall be lawful for said trustee to take possession of the same and sell it for the benefit of the creditors as above provided. It is also agreed, that it shall be lawful for the said trustee, if he shall deem it advisable and for the interest of the creditors, at any time after the execution of these presents, and before the maturity of' any of the payments due by said Walters to his said creditors, and before any default made by said Walters in the premises, to make sale and conveyance of any or all of the above described property, provided the said Edwin Walters shall give his assent in writing to such sale, and when said sale shall be thus made, the trustee shall appropriate the proceeds to the payment of the creditors of said Walters as above provided. And the said Edwin Walters and Virginia Caroline Walters, his wife, covenant to execute such further assurances as may be necessary to confirm these presents.</p> <p>The deed was duly acknowledged, and the grantee made affidavit that the consideration was true and bona fide as therein set forth.</p> <p>Walters having made default in the payment of the first instalment due and owing, as. provided in the deed, the trustee proceeded to sell certain property mentioned in the deed, located at Canton, in Baltimore county. The notice of sale was advertised in the Baltimore Sun and Baltimore American, two newspapers published in Baltimore city, and was sold on the 2nd day of November, 1875, at the Exchange Sales Rooms in said city for the sum of $31,500. The Bauk of Commerce, the holder and owner of four promissory notes for $2000 each, made and signed by Edwin Walters, payable to the order of Edward McCann, and by him endorsed to the Bank, filed exceptions on the 13th of November, 1875, to the ratification of the sale. These exceptions are set out in the opinion of the Court. The. four promissory notes held by the exceptant, constituted a part of the indebtedness intended to be secured by the aforegoing deed of trust. McCann was one of the creditors of Walters who united in the agreement for extension, and recommended the ratification of the sale. A commission issued, under which evidence was taken and returned. The exceptions were overruled, and the sale was finally ratified.</p>

<p>What is necessary to entitle a party to an, Inf motion, to restrain the Execution of a Judgment rendered against him — An irregularity not to be taken advantage of by the party at whose instance it was done.</p> <p>To entitle a party to the aid of a Court of equity to restrain, by injunction, the execution of a judgment rendered against him, it is incumbent upon him to allege in his bill, and plainly show in proof, that it is against equity and good conscience that the judgment should be enforced. He must not only show that there is injustice in the rendition or enforcement of the judgment, but he must also show that his own conduct and dealings with the matter have been in all respects fair and consistent with equity. If he have been negligent and inattentive to the case while pending before the Justice, and by his own conduct brought about the state of things of which he complains, a Court of equity can afford no relief.</p> <p>A party will not be relieved as against a judgment at law, whether recovered in a Court of superior jurisdiction, or before a justice of the peace, unless he can impeach the justice of such judgment by facts, or on grounds of which he could not have availed himself at law, or was prevented from so doing, by fraud or accident, or the act of the opposite party, unmixed with fault or negligence on his part, or that of his agent.</p> <p>An adjournment or postponement by a justice of the peace, for a longer time than that fixed by statute, cannot be objected to as erroneous by the party at whose instance it was granted.</p>

The hill in this case was filed hy the appellees, children of Thomas C. Garrison, and grand-children of the testator Nehemiah Garrison, against the appellant, daughter of thertestator. The object of the hill was to recover on the part of the complainant Charles, his portion of a pecuniary legacy bequeathed hy the testator, and interest on such portion- from the date of the testator’s death; and on the part of the complainant.

This case was tried before a jury upon the following issues, sent for trial from the Orphans’ Court of Cecil County, at the instance of the appellant under a caveat by him to the will of Eliza A. Taylor: 1st. Was the paper-writing, bearing date the 20th day of April, 1868, and purporting to be the last will and testament of the said Eliza A. Taylor, executed and attested in due form as required by law ? 2nd.

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

The case is stated in the opinion of the Court. Exception. — At the trial the plaintiff offered the following prayer: That if the jury believe from the evidence in this cause, that prior to the sale and purchase of the horse, the price of which is sued for in this action, a partnership existed between Henry Rowland and John E. Zeigler for the purchase of horses, and that no notice of the dissolution of said partnership was given to the public by publication or otherwise, or…

The bill in this case was filed by the appellant against the appellees as judgment creditors, to restrain by injunction, their proceeding with the further execution of said judgment. The injunction was issued as prayed. The facts of the case are sufficiently stated in the opinion of this Court. The Court below, (Pinkney, J.,)upon motion to dissolve, passed an order dissolving the injunction; and from this order the complainant appealed.

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

Exception. — The appellant was indicted for an assault with intent to murder one Patrick Winn. The State offered evidence tending to prove that the appellant committed, without any provocation, a violent assault upon Patrick Winn, and cut him with a knife upon the head and face.

<p>When an Appeal will not lie — Motion in Arrest.</p> <p>In criminal, as well as in civil cases, no appeal will lie from the overruling of amotion for a hew trial; the granting or refusing of such motion being entirely within the discretion of the Court.</p> <p>Where the record transmitted to the Court of Appeals, does not disclose the ground relied on upon a motion in arrest of judgment, the ruling of the Court below thereon will be affirmed.</p>

The case is stated in the opinion of the Court. Account 14 referred to in the opinion, awarded Jóhn T. Sasscer’s distributive share of the proceeds of the re-sale, to his mortgagee, the appellant. The Circuit Court passed an order rejecting Account 14, and affirming Accounts L and M, and dismissing the petition of Joseph Q. E. Early, guardian, &c., filed on the 23rd of April, 1875. Prom this order the present appeal was taken.

The hill of complaint of the Franklin Coal Company represented that on the 13th of June, 1854, it was duly incorporated under the Act of 1852, ch. 322, of the Legislature of Maryland; that each and every year since its incorporation, it had been regularly assessed upon the tax books of Allegany county, for county and State taxes upon its capital stock, and the taxes so assessed had been annually paid to the collector of county and State taxes for said county, and for which…

This suit was brought by the appellee against the appellant in the Court of Common Pleas,' to recover damages for the alleged continuation of a nuisance, in building over and closing-up an alley in the rear of the property of the plaintiff, which he had a right to use in common with others, whereby the light and air were excluded from his house. The defendant pleaded in bar a former recovery for the same subject-matter. A rule was laid upon the plaintiff to reply.

<p>Bill of sale absolute on its face treated as a Mortgage — Appropriation of payments — Jurisdiction—Injunction.</p> <p>Although a bill of sale purports on its face to be made for a money consideration and without condition, it may be shown to be a mortgage.</p> <p>A bill of sale was given to secure the payment of two notes. By subsequent transactions the mortgagor became indebted to the mortgagee in a further sum. Payments were made by the debtor amounting to more than the mortgage debt. Afterwards there was an adjustment of accounts, the mortgage notes were given up and two new notes were given by the debtor to the creditor, exceeding in amount the amount of the mortgage notes No application of the payments was made by the debtor. Held :</p> <p>That by these transactions the mortgage debt was paid.</p> <p>If a debtor be indebted on mortgage and on simple contract, and neglects when he makes a payment to apply it, the law will apply it to the mortgage.</p> <p>A bill of complaint charged that an instrument in the form of an absolute bill of sale for a nominal money consideration, was executed by the complainant S. L. to secure the payment of two notes given by him to J. L. That these notes had heen afterwards paid, notwithstanding which, J. L. had seized and carried away the goods with intent to sell them. And prayed that the hill of sale might be declared a mortgage and delivered up to be cancelled, and an account stated between the parties, and for an injunction restraining J. L. from selling the goods. Held :</p> <p>1st. That after a final decree in favor of the complainant and perpetuating the injunction, an objection in the Court of Appeals on the ground that there was no case made by the bill that entitled the complainant to an injunction, if intended as an exception to the jurisdiction of the Court below, came too late.</p> <p>2nd. That an injunction was not the primary object of the bill, but ancillary to the relief sought by the prayer for an account and for the cancellation of the bill of sale, and that the allegations of the bill were ample to give jurisdiction on those accounts and to authorize an injunction as an auxiliary remedy.</p>

<p> Question as to the right of a person acting in the Twofold capacity of Bxecutor and Trustee, to double Commissions. </p> <p>P. by the codicil to his will, appointed S. his trustee and executrix. The will authorized the trustee to make sale of his farm called the “Highlands,” but made no provision for any compensation for the service as trustee. As executrix, power was giveu to S. under the will to sell all or any portion of the testator’s real or personal estate, not before disposed of, for the purpose of carrying into effect the provisions of the will. Representing herself both as executrix and trustee, S. reported a sale of the “Highlands” to the Orphans’ Court, and was there allowed a commission of per cent, upon the proceeds of the sale Application was also made by her to the Circuit Court, as a Court of equity, under the Act of ÍSTO, ch. 3Í0, for confirmation of the sale and distribution of the fund. And a claim was made by her in that Court to be allowed a further commission as trustee. Held :</p> <p>1st. That said sale of the “Highlands” was made by S. as trustee.</p> <p>2nd. That the fact of the sale having been reported by her to the Orphans’ Court, and also to the Circuit Court, and by both Courts confirmed, did not entitle her to "commissions both as executrix and trustee from the proceeds of the sale.</p> <p>3rd. That the commission allowed her must be treated as compensation for the sale, accounting for, and distribution of the proceeds thereof, and there . was no legal or equitable foundation for the allowance of additional compensation.</p>

The appellant was sued by the appellee to recover damages sustained by the loss of his cow, which was run over and killed by the cars of the defendant. It was admitted that the cow when struck was unattended by any one. Exception. — At the trial the plaintiff offered the three following prayers: 1.

The hill in this' case was filed by the appellees against the appellant and John W. Powell for the specific performance of a contract for the sale to the complainants of a parcel of land, which John ,W- Powell, in the division of his father’s estate, had elected to take at the valuation of the commissioners, and which he had afterwards sold to the complainants, he, the said John W. Powell, having subsequently failed to comply with the terms of his election, whereby the…

The case is stated in the opinion of the Court. The appeal was taken from the decision of the Court below, overruling the motion in arrest of judgment, from the judgment of the Court upon the plea of nul tiel record, and from the judgment of fiat entered upon the verdict.

Appeals from the Baltimore City Court. In the matter of opening Washington street, north of Monument street, the Commissioners for Opening Streets, allowed the appellants only nominal damages for the hed of the street proposed to he opened.

The bill in this case was filed by the appellant on the 10th of August, 1875, praying an injunction to restrain the sale of certain real estate of the appellant, advertised to be made in virtue of a deed of trust or mortgage, executed by him and his wife to the appellee, Joseph J. Stewart, on the 29th of June, 1872, to secure to the Freedman’s Savings and Trust Company, the payment of a promissory note of the same date for $25,000, payable one year after date, with ten per…

<p>Election under Art. 47 of the Code — Effect of the death of party Electing, before the terms of his Election are complied with — Jurisdiction of Courts of law in such cases— Mutation of Realty into Personalty — Partition.</p> <p>Under proceedings at law to divide the real estate of an intestate under Art. 41 of the Code, a commission was issued and returned, and the return of the commissioners was ratified by the Court. Four of the heirs including R. S. elected in their order of priority to take four of the five lots into which the estate was divided, at the valuation of the commissioners. The Court passed an order confirming their election and referred the case to the auditor of the Court to ascertain the respective proportions of said valuations due to the several heirs. After the auditor’s report was filed, but before it was finally ratified, R. S. died intestate without issue, and before having paicl or secured the sums ascertained by the auditor to be due by him to the other heirs, and leaving T. S., a brother of the whole blood, and several brothers and sisters of the half blood. Held :</p> <p>1st. That the inchoate title of R. S. derived under his election, descended to T. S. as his heir-at-law, by whom the same could be perfected.</p> <p>2nd. That the Court in which the petition to divide had been filed had jurisdiction to perfect said title on the petition of the heir, filed in the partition proceedings.</p> <p>3rd. That this was not a case of the mutation of realty into personalty.</p> <p>4th. That the heir-at-law of R. S., in the capacity of his administrator, had no standing in Court to maintain a petition for the perfection of said title.</p> <p>Where the general authority is given to a Court to make partition, all the powers necessary to execute that authority must be implied.</p>

The appellants made a mortgage to the appellee, to secure the repayment of a loan. Default being made, a decree was passed for the sale of the mortgaged premises. The mortgagee afterwards filed a statement of its mortgage claim which was contested by the mortgagors.

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

<p>Indictment for Larceny — Hearsay and irrelevant Evidence— Bias of Witness against a Prisoner may be shown; but the Causes of such Bias cannot be inquired into — Inadmissible evidence.</p> <p>Case where irrelevant testimony was excluded, the counsel offering it declining to explain its purpose.</p> <p>In the trial of an indictment for larceny the main facts upon which the defence rested, were that the first time the prisoner ever saw the stolen property it was in the possession of O. E. T., who showed it to the prisoner, putting it on a horse for that purpose. Held :</p> <p>1st. That the declarations of G. E. T. made at the time, as to his ownership of the property and that he had bought it from a negro, (G. E. T. not having been called to contradict the testimony in regard to the possession of the property by him,) were hearsay and inadmissible.</p> <p>2nd. That the testimony of the prisoner himself (in reply to a question by his counsel,) as to certain statements made to him by G. E. T. at the time he showed him the stolen property, and as to the remarks of certain by-standers was properly excluded by the Court, upon the statement of the counsel for the prosecution that he had not heard or understood the witness’ reply to his counsel’s question.</p> <p>3rd. That evidence offered by the prisoner as to the house of G. T. having been searched by the owner of the stolen property was properly excluded, the witness not undertaking to testify to the fact from his own knowledge, but from what he said had been told him by the members of G. T’s family.</p> <p>The prisoner having testified that two of the prosecuting witnesses had a grudge against him, was asked by his counsel “tosíate the grounds of that grudge; ” on objection, it was Held :</p> <p>That the question was inadmissible.</p> <p>While it is competent to prove that a witness for the State has a bias or ill-will against a prisoner, so that the jury may know what weight- is to be given to his testimony, it is altogether inadmissible to go into any inquiry as to the causes or circumstances which have created such bias.</p> <p>In a criminal prosecution it is not competent or admissible to prove that one of the State’s witnesses had made threats against the prisoner’s brother which were not connected with threats against the prisoner.</p> <p>In the course of the examination of the prisoner as a witness, he was asked by his counsel “if the father of J. T. and G. E. T. had made any threats against the prisoner’s father’s family.” G. E. T. had not been examined as a witness, and there was no proof to show that J. T. had any knowledge of such threats at the time he gave his testimony. On objection to the question, it was Held :</p> <p>That it was inadmissible.</p> <p>The prisoner proved by two of the State’s witnesses upon their cross-examination, that they had expressed to L. their willingness, for a bribe, to leave the State and not appear as a witness against the prisoner. Upon the subsequent examination of L. on behalf of the prisoner touching his negotiations with said witnesses in regard to the matter of the bribery, it was Held :</p> <p>That his motives and purposes in the transaction were not admissible in evidence.</p>

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

This was an appeal from the order of the Court helow, overruling exceptions to the confirmation of the inquisition of the jury, and confirming said inquisition. The case is stated in the opinion of this Court.

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

Appeals from, the Circuit Court for Howard County. The cases are stated in the opinion of the Court.

This was an action of assumpsit brought by the appellee to recover from the appellant a paving tax, assessed on certain lots belonging to him, fronting on McCulloh street, between Wilson street and North Avenue. The case was tried before the Court, without the intervention of a jury. The verdict and judgment were for the plaintiff, and the defendant appealed. The case is further stated in the opinion of the Court.

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