Volume 46 — Maryland Reports

<p>Scire facias against a Corporation for a forfeit of its Charter— How the authority to institute such proceeding may be conferred — Constitutional law — Construction of Act of Assembly — Effect of an unconstitutional provision in a Charter created by Act of Assembly — Question as to the power of a Corporation to convey its property and franchises by Heed without express authority to do so, and whether such authority is contained by implication in a power to purchase conferred upon the grantee under such Heed — The charge of excessive tolls by a Corporation, tinder a mistaken construction of its powers, no ground for a forfeiture of its Charter.</p> <p>While it is clear that proceedings by scire facias, or otherwise, against a corporation for the forfeiture of its charter, cannot be maintained, except by the sanction and authority of the Legislature, a special Act of Assembly for this purpose is not required.</p> <p>It is competent for the Legislature, instead of passing a special Act authorizing such proceedings to be instituted in a particular case, by a general law to authorize suits for this purpose to be instituted at the instance of private parties, as was done by the Act of 1818, ch. ITT, sec. 4, codified in Art. 12 of the Code; or to confer the power upon the Governor to cause the proceeding to be instituted in his discretion, whenever he may consider the public interests so require; and this power has been conferred by sec. 116 of the Act of 1868, ch. 411.</p> <p>The Act of 1860, ch. 265, incorporating The Consolidation Coal Company, by its 6th section, conferred on said company the right to construct, locate and maintain such railroad or railroads as the Directors thereof might deem necessary for the convenient transaction of its business, and invested it with all the rights of eminent domain in the survey, location and construction of such railroads, which had been conferred upon the Baltimore and Ohio Railroad Company, by its Act of incorporation, 1826, ch. 123, or by any supplement thereto. Upon a proceeding by the State of Maryland to procure a forfeiture of the charter of said Consolidation Coal Company; Held :</p> <p>1st. That the Act of 1860, ch. 265, must be interpreted in connection with and in subordination to the provision contained in the Constitution of 1850, Art. 3, sec. 46, and also, in the Constitutions of 1864 and 1861, which declared that the Legislature should enact no law authorizing private property to be taken for public use, without just compensation being first paid or tendered; and the charter of the Baltimore and Ohio Railroad Company to which it refers, must in this respect be construed as consistent with the Constitution, its words being clearly susceptible of such construction.</p> <p>2nd. That if it were otherwise the particular provision would simply be inoperative, in so far as it might be inconsistent with the Constitution, but • would not render the whole Act void.</p> <p>The Cumberland and Pennsylvania Railroad Company was chartered by the Act of 1849, ch. 469. It was authorized to construct a railroad from Cumberland to some suitable point on the dividing line, between the States of Maryland and Pennsylvania, and to make lateral roads in any direction branching from its main line. By sec. 21, full right and privilege was reserved to citizens and corporations of the State to connect with said railroad, and by sec 22, the Legislature reserved to itself the right to alter, repeal or annul this Act at pleasure. By its charter it was authorized to charge at specified rates for freight and passengers. By the Act of 1868, ch. 334, these rates were reduced. This amendment to the charter was accepted by the company, and it continued its business operations in accordance therewith till the spring of 1816, when the Legislature then in session, by the Act of 1816, ch. 64, amended the charter by a further reduction of the rates of charge. This Act was approved by the Governor on the 14th of March, 1816; while it was pending, a deed of the company dated March 2nd, 1816, was executed, conveying to the Consolidation Coal Company its railroad and all its property of every description, with its privileges and franchises; and the latter company having taken charge and possession of the said railroad and property under the deed, .continued to 'conduct the same as its own, claiming the right to charge for transportation thereon the rates allowed by its own charter, which were in excess of the rates allowed by the Act of 1876, cli. 64; and executed and received rates greater than those allowed by that Act. On a proceeding by the State' to procure a forfeiture of the charter of the Consolidation Coal Company; Held :</p> <p>1st. That the Cumberland and Pennsylvania Railroad Company was 'not authorized to execute said deed of the 2nd of March, 1876, without the consent of the Legislature.</p> <p>2nd. That such consent was not contained in the charter of the Consolidation Coal Company, (1860, ch. 265,) by which the latter company was authorized “topurchase, lease, hold and maintain any other railroad or railroads, or other roads or ways, water-courses or channels of transportation, already constructed or hereafter to be constructed, with all the rights, powers and franchises connected therewith.”</p> <p>3rd. That the said Act was not designed, nor can it be properly construed to be an amendment of the charter granted to the Cumberland and Pennsylvania Railroad Company, which alone must be looked at in order to ascertain what are the powers of the latter company.</p> <p>4th. That the power to sell and convey all its property and franchises, and thus escape from its duties and obligations to the public, could only be conferred by the Legislature upon the Cumberland and Pennsylvania Railroad Company, and could not arise by implication from the provisions contained in the charter of the Consolidation Coal Company, which have reference only to the powers of the latter, and do not profess to confer any new powers upon other companies.</p> <p>5th. That the deed of March 2nd, 1876, was inoperative and void, and passed no title to the grantee in the franchises, railroad and other property of the Cumberland and Pennsylvania Railroad Company, and the latter company continued to hold the same, notwithstanding the deed, and remained subject to the power of the Legislature to alter or amend its charter.</p> <p>6th. That the Act of 1876, ch. 242, sec. 14, regulating the rates of transports tion on railroads, has no application to the railroad of the Cumberland and Pennsylvania Railroad Company.</p> <p>7th. That the Cumberland and Pennsylvania Railroad Company was still a subsisting corporation, vested with rights, franchises and property granted by and acquired under its charter, and subject to the power of the Legislature to regulate-the rates to be charged for transportation upon its road.</p> <p>8th. That this power was exercised by the Act of lStS, ch. 64, and assuming that Act to be free from constitutional objection, it would follow that no rates in excess of those allowed by that Act could lawfully be charged for transportation on its road.</p> <p>9th. That the alleged excessive rates exacted by the Consolidation Coal Company, while in charge of and carrying on the road, claiming to be owner under the deed, could not be construed as a violation of the charter of the latter, and therefore they furnished no sufficient cause for the forfeiture thereof.</p>

<p>Corporation — Constitutional law — Question as to the right of the Legislature to reduce the tolls authorized to he charged hy a Railroad Company under a charter containing a reservation of the right to alter, repeal or annul — Injunction to restrain the charge of excessive tolls.</p> <p>Where in the original charter of a Railroad Company the Legislature expressly reserved the power to alter, repeal or annul the charter at pleasure, the question whether a proposed amendment of the charter is wise or consistent with the public interests and with the prosperity of the company, is one which by the charter is made to depend upon the wisdom and discretion of the Legislature, and is not a question to be determined by the Courts.</p> <p>This construction of the terms of the charter is part of the contract, and all parties dealing with the company, acquire and hold their rights, subject to the reserved power of the Legislature, to alter, repeal or annul the charter at its pleasure.</p> <p>And the Court cannot presume that the power will be exercised by the Legislature arbitrarily or unjustly.</p> <p>In the original charter of the Cumberland and Pennsylvania Railroad Company, the Legislature expressly reserved the power to alter, repeal or annul the charter at pleasure. By the Act of 1876, ch. 64, modified by the Act of 1876, ch. 80, the rates of toll authorized to be charged by said company were reduced. Held :</p> <p>That the Act of míe, ch. 64, was a constitutional and valid law, and that the railroad company could not lawfully exact or receive higher rates for transportation than that Act provides. And that the Act of ÍSÍG, ch. 80, was also free from constitutional objections.</p> <p>On a bill filed by the American Coal Company against said railroad company, for an injunction, prohibiting the latter from demanding or receiving from the complainant higher rates for transporting coal over the road of the defendant, than were fixed and prescribed by the said Act of 1816, ch. 64, it appeared that the complainant, which was a coal mining company, with its tram-road connecting with the railroad of the defendant, and depending entirely upon the latter for the means of transporting its coal to market, was specially damaged by the illegal exactions by. the defendant of excessive freights. Held :</p> <p>That the complainant was entitled to an injunction as prayed.</p> <p>(Other points were discussed at length on both sides, hut are omitted, the same not having been passed upon in this case. — Reporter. )</p>

The nature of the hill in this case is sufficiently stated in the opinion of the Court; see also, the cases of Pairo vs. Vickery, 37 Md., 467, and Carson vs. Phelps, Trustee, 40 Md., 73.

Mary’s County. The case is stated in the opinion of the Court. The Act of Congress creating the National Banks was a valid exercise of power; they derive all their rights from the National Legislature, and the State Legislatures can neither add to nor subtract from these rights. Farmers’ Natl. Bank vs. Dealing, 91 S. G. Rep., 29. We must, therefore, look exclusively to the Acts of Congress establishing National Banks, to ascertain their rights, powers and privileges.

This action was brought by the appellees against the appellants to recover a sum of money claimed by the appellees to be due them by the appellants, and retained by the latter under a supposed claim, the nature of which is stated in the opinion of the Court.

The Western Telegraph Company was created hy special Act of the Legislature of Maryland, 1846, ch. 39, to continue for a period of thirty years. Held: that “this Act of the Legislature of Indiana, was permissive and not mandatory. That in conferring the authority to consolidate, the Legislature never intended to compel a dissenting stockholder to transfer his interest, because a majority of the stockholders consented to the consolidation.

hy a certain indenture then and there made between the said William Robinson of the one part, and one William W. Grlenn, (of whom the said John Merryman is assignee or successor,) and the said Thomas Dye Cockey and Sally, his wife, of the other parts, first and secondly respectively, the counter part of which said deed, sealed with the seal of the said William Robinson, the said plaintiffs now bring here into Court, the date whereof is the day and year aforesaid, the said…

This was an action of assumpsit upon the usual money counts, brought by the appellees against the appellants.

The case is stated in the opinion of the Court. Exception. — At the trial the plaintiffs offered the following prayer: The plaintiffs asked the Court to instruct the jury, that if they find that the defendant executed the five promissory notes sued on, and delivered them to Shurtz, the payee, and that said notes were endorsed for value by said Shurtz to the commercial firm of Kirkland, Chase & Co., before its failure, and that the plaintiffs are the assignees in bankruptcy…

The case is stated in the opinion of the Court. The Superior Court of Baltimore City, is a Court of general jurisdiction, is one of the highest common law Courts of record and original jurisdiction within this State, has full common law powers and jurisdiction in all civil cases, within the City of Baltimore, (except where by law the jurisdiction has been taken away, or conferred upon auother tribunal,) and all the additional powers and jurisdiction given by the Constitution…

The nature of this case and of the first, second and third exceptions is stated in the opinion of the Court.

The case is sufficiently stated in the opinion of the Court. The jury rendered a verdict for the .plaintiff, and judgment was entered accordingly. The defendant appealed. The hondsmen at least-, are not liable in this action. Because the guardian of Kernan, while he was a minor, and himself, after he became of age, authorized and permitted Forrester to invest the money due Kernan.

The case is stated in the opinion of the Court. Exception. — At the trial the plaintiffs offered the following prayer: 1. If the jury shall believe from the evidence, that the contract in writing offered and admitted in evidence between Deutseh & Co. and George W. Simpson, was performed in accordance with the various provisions therein contained as testified to by plaintiffs’ witness, Wm.

The case is stated in the opinion of the Court. This being a novel case, no authorities directly in point can be adduced. But this is by no means surprising, in view of the fact that the States of Maryland and Virginia, and possibly one or two others, wherein the doctrine of charitable uses is rejected, are the only jurisdictions in which any question could be raised upon such a bequest.

The case is stated in the opinion of the Court. By the 14th section of Article 51, Maryland Code, it is declared: “But no justice of the peace shall have jurisdiction in actions where the title to land is involved.” The very nature of the cause of action in this case, shows that the title to land is “involved.” The action is for the purchase money of land sold hy the appellees to the appellant.

<p>Construction of Will — Question as to xoJiether certain legatees took per stirpes or per capita.</p> <p>The mil of a testator contained the following clause: “It is my will that the rest, residue and remainder of my estate, together with all my right and interest in and to the estate and property of my deceased wife H. R. shall be equally divided between my said daughter A. J. B. and the children of V. 0.” The testator left surviving him, his daughter A. J. B. and two grand-' children, the children of his deceased daughter V. O. There was nothing to be gathered from the other parts of the will showing an intention on the part of the testator, that his- grandchildren were to be regarded in the distribution of the residue of his estate as a class taking by representation. Held :</p> <p>That the said legatees by force of the language used took equally, and that the distribution between them was to be per capita.</p>

This suit was brought by the State of Maryland, for the use of Michael Fallon, against the appellees, on a sheriff’s bond.

The case is sufficiently stated in the opinion of the Court.. jFirst Exception. — After the testimony had closed, the plaintiff offered the following thirteen prayers. 1.

The appeal in this case is taken by the defendant below from the rulings of the Court below, (Carey, J.,) upon several bills of exceptions, the nature of each of which is stated in the opinion of the Court. The jury rendered a verdict for the plaintiff, and judgment was entered accordingly. The defendant appealed.

<p> Question as to allowances to the Executors of a deceased trustee for expenditures made by the latter under an order of Court. </p> <p>H. W. as life-tenant and trustee for certain cestuis que trust in remainder, filed a petition for, and obtained an order allowing him to apply a certain sum, part of the trust fund in his hands, for permanent improvements of a farm, provided no cause to the contrary was shown by a day named in the order. The order was duly served on the cestuis que trust, and no cause to the contrary was shown by them. The improvements were made, but no account thereof was presented to the Court, the trustee having died before a report was filed by him. On a bill filed by a new trustee against the executors of H. W., it was Held :</p> <p>That it was too late to object to the authority of the Court to pass the order, as such objection ought to have been made when notice of the order was served upon the cestuis que trust. Or they ought to have appealed from the order within the time prescribed by law.</p> <p>The order did not require the trustee to report the nature and character of the expenditures before they were made, but required that after making the improvements he should report the same to the Court, in order that the Court might see whether they had been made in conformity with its order. Held:</p> <p>That the failure of H. W. to report his proceedings under the order presented no ground for disallowing his executors such sum as they could show to have been properly expended by him under the order.</p>

The case is stated in the opinion of the Court. Under the circumstances of this case Wilson was clearly entitled to an assignment of the judgment, and to execution by attachment, or otherwise, for the amount paid by him. The judgment was fully paid to the State. Nothing remained due — one-half having been paid by Wilson and the other half by Sasscer’s estate.

The case is stated in the opinion of the Court. The following are the prayers of the respective parties, to which special reference is made by the Court.

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

The case is stated in the opinion of the Court. The following statement is the one referred to in the opinion of the Court, as ‘ ‘ the paper made out by the witness Navy.” Bespondent’s Exhibit G. W. N. — (Filed with Commission.) Total profit to Deer. 1st, 1878, after deducting full amount charged to profit and loss........ $7,999 37 Of which amount D. Grlanding was entitled to one-third, say........................................ $2,666 45 Less amount drawn by…

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

The case is stated in the opinion of the Court. First Exception. — John Young, a competent witness, • testified: I was a clerk in the office of the Clerk of the Court of Common Pleas, at the time the suits were brought by Sibrey against Jacob Green and John Street, and am a clerk there now. Witness produced in Court the docket entries in both cases, and all other the original papers in the case of Edward Sibrey vs. Jacob Green. .

The plaintiffs below sued the defendants jointly on their obligation under seal, the nature of which is stated in the opinion of the Court. Some of the defendants appeared and pleaded, “ never indebted,”, and nonest factum. Exception. — The plaintiffs offered three prayers, which are omitted, as they were not considered by this Court.

The case is stated in the opinion of the Court. First Exception. — Stated in the opinion of the Court.

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

This was an action brought by the appellee against John Siebrecht, as principal, and August Engler and Adolph Engler as sureties, on a bond given for the faithful performance by John Siebrecht, of the duties of the office of secretary of the appellee.

The case is stated in the opinion of the Court. Exception.- — At the trial the plaintiff offered the three following prayers. 1. The plaintiff prays the Court to instruct the jury, that if they believe from the evidence before them, that on May 26th, 1870, the plaintiff sold to a certain Wm.

The case is stated in the opinion of tbe Court. Held: pages 119 and 120, “ that the statute forbidding the encumbrancing, &c., &c., of the wife’s property without the concurrence of the husband, had relation to such acts of conveyance, encumbrance, &c., &c., as previously required the signature of the husband; and that a married woman had the right on general principles to bind her…

This was an action of assumpsit brought by the appellant against the appellee. Held: that the fact that a corporation has entered into a contract does not estop it from denying its competency to do so, in an action brought against it founded upon such contract. JSIo corporation has any power which is not either directly conferred hy its charter, or necessarily incident to some power which is conferred.

This was an action brought hy the appellee against the appellants as executors of Henry T. Roberts, deceased.

This was an action brought by the appellee to recover from the appellants money claimed to he due him under their acceptance, or an order drawn upon them in his favor. The case is stated in the opinion of the' Court. First Exception. — At the trial the plaintiff offered the two following prayers : 1.

This was an action of ejectment instituted in the year 1875 by the appellees against the appellants, in the Circuit Court for Baltimore County and thence removed to the Court of Common Pleas.

. The appellant was indicted in the Court helow, for receiving United States five-twenty bonds knowing them to have been stolen. A demurrer to the indictment was overruled by the Court, (G-ilmor, J.,) and the case proceeded to a trial, and resulted in a verdict of guilty. Before any judgment was rendered the traverser appealed.

Appeals from the Baltimore City Court. The cases are stated in the opinion of the Court.

First and Second Exceptions — stated iu the opinion of the Court. Third Exception. — The plaintiffs, to sustain the issues joined on their part, offered evidence tending to prove the hypothesis of fact set out in their prayer; and the defendants to maintain the issues joined on their part, offered evidence tending to prove the hypothesis of fact set out in their prayers; and thereupon the plaintiffs offered the following prayer : 1.

The case is stated in the opinion of the Court. There never was a legal foreclosure of the equity of redemption in the mortgaged property, nor such a sale as divested the mortgagor of her right to redeem. 1 Code, Art. 64, sections 1, 5, 6, 7, 8, 9,10,11,12,13 ; Schouler’s Pers. Prop., 554, 5, 6, 7, 8; Clark vs. Levering, 1 Md. Ch., 178, 9; Sheckell vs. Hopkins, 2 Md.

<p>Mandamus — Appeal—Municipal Corporations — Effect of a change of name during the pendency of an action against— Effect of Amendment and re-enactment of the sections in the Code — Construction of the Act of 1876, ch. 367, relating to the levy by taxation of sums to pay judgments against Municipal Corporations.</p> <p>Applications for mandamus and the proceedings therein, are conducted upon the law side of the Court and not in equity.</p> <p>To warrant an appeal there must therefore be a final judgment in favor of the petitioner, granting the writ, or a final judgment in favor of the defendant, and dismissing the petition.</p> <p>By sec. 141 of the Code of Public Local Laws, Art. 8, it is declared, that "the Citizens of the Tillage of Port Deposit in Cecil County, are a body politic by the name of The President, and Commissioners of the Tillage of Port Deposit, and as such may sue and be sued,”'&c.; then follow a number of sections defining the powers and duties of said municipal corporation. By the Act of 1812, ch. 34Í, these sections are amended and re-enacted, and by said amendment, it is provided that "the inhabitants of the Town of Port Deposit in Cecil County, are a Corporation by the name of President and Commissioners of Port Deposit, and by that name shall have perpetual succession, sue and be sued,” &c. This Act contained no clause expressly repealing the sections of the Code above referred to. Held :</p> <p>That the Act of 1812, effected no change in the corporate existence of the municipality, and that a judgment rendered in December, 1814, in a suit instituted against it prior to said Act by its old name was a valid judgment.</p> <p>The Act of 1812, after conferring powers upon the said corporation to carry out which would render taxation necessary provides, that the President and Commissioners “shall have power to levy and collect taxes in said town, not exceeding in any one year thirty cents in the one hundred dollars on the assessable property of said town.” The Act of 1816, ch. 361, provides that “any municipal corporation in this State against which there is a judgment in any Court of law in this State, shall have power to levy a sum of money upon the assessable property of such municipality sufficient to pay such judgments.” Held:</p> <p>1st. That the said Act of 1876, applies to the corporation and judgment above mentioned.</p> <p>2nd. That the power given by the original charter and by the Act of 1872, to levy a tax not exceeding thirty cents in the hundred dollars, was a power of taxation for the general purposes intended to be provided for by those laws, and was not inconsistent with a special authority conferred by the subsequent Act to levy more when required for a particular occasion.</p>

The case is stated in the opinion of the Court. The defendant was estopped by its consent to the removal, from setting it up as a defence to the action. The Md. Fire Ins. Co. vs. Gusdorf, 43 Md., 506; The Natl. Fire Ins. Co. vs. Crane, 16 Md., 260; Wilkinson’s Case, 13 Wallace, 222. On demurrer, the Court goes hack to the first error in pleading. State, use of Buckey, vs. Culler, 18 Md., 418.

This was an action instituted on a guardian’s bond in the year 1860. The case is stated in the opinion of the Court. The proceedings do not seem to have been very expeditious, but they were quite irregular. No attempt seems to have been made to collect from the principal the amount alleged to he due. He lived nearly five years after the suit was brought, and no steps were taken in the case ; not even a narr. was filed.

' The South-Ann Street Savings Association of Baltimore ■ City was incorporated under the provisions of the Act of 1868, ch. 4X1.

The case is stated in the opinion of the Court. It is a presumption of law that the gifts to the appellees were advancements; and it is incumbent on them to repel this presumption by competent and credible proof. Clarke vs. Willson, 27 Md., 693. The evidence offered to repel this legal presumption consisted entirely of declarations attributed to the deceased, which were not made at the time of the gifts. This evidence was incompetent, and was excepted to. Clarke vs. .

<p>Various questions arising under a Mortgage by a Railroad, Company; touching among other things, its construction, validity and effect — Assignee of judgment affected by same equities as the assignor — Priority of mortgage over judgment recovered before its registration — Injunction—Sale of hypothecated bonds without previous notice of sale — Rquitable Mortgage.</p> <p>Case where mortgage bonds of a railroad company, dated on the 1st of October, 1811, were held to be embraced in a deed of mortgage, dated October 25th, 1811, the bonds being in other respects clearly described in the deed, and there being nothing in the terms of the deed inconsistent with the fact that they had been before executed.</p> <p>In the same case, it was held, also, that if any doubt or ambiguity could arise on this subject, it was removed by parol evidence that no other bonds were executed or issued by the company except those dated on the 1st of October, 1811.</p> <p>The real consideration for the mortgage being a security for the payment of said bonds, issued in conformity with a resolution of the company, it was Held :</p> <p>1st. That such consideration was sufficient.</p> <p>2nd. That there could be no possible objection to the deed being made to third persons as trustees for the benefit of the bondholders.</p> <p>3rd. That such deed being in effect a contract between the company and all persons who might become holders of the bonds thereby secured, they were entitled to the same benefit as if they were parties to the deed.</p> <p>The charter authorized the company to pledge “its property and profits.” The deed of mortgage conveyed “all the present and future to be acquired property of the company, and all its estates and franchises, that is to say’ and then followed an enumeration of the property and rights intended to be conveyed. Held:</p> <p>1st. That this enumeration limited and explained the previous words, and brought the terms of the deed within the limits of the legislative authority.</p> <p>2nd. That if it were construed otherwise as intending to convey the franchise to be a corporation, while in that respect it would be inoperative, it would not for that reason be entirely void, but would operate to convey the property of the company.</p> <p>The deed contained the following provision, “but nothing herein contained shall prevent the said company before default in the payment of any of the said bonds or the interest due thereon, from selling, hypothecating or otherwise disposing of any of their said property, real or personal, not necessary in their judgment for the use of the said road, nor from collecting and applying any money due to the said company from any source whatever, provided said application shall not be to the prejudice of any holder of any of the said bonds.” Held:</p> <p>1st. That however suspicious the power here given might be in the case of a mortgage of ordinary goods, the very nature of its business, the means and power necessary to keep it up, the wear and tear of its iron, ties, and rolling stock, the constant necessity of replacing injured or worn-out appurtenances with new, forbade the inference of a fraudulent purpose which might arise from such a provision under other circumstances.</p> <p>2nd. That while it is well settled that a party cannot convey subsequently to be acquired goods, so as to give the mortgagee a legal title thereto, or a legal right of action against a party seizing them, yet such a conveyance creates in equity a valid lien upon property subsequently acquired.</p> <p>After the mortgage was executed, but before it was recorded in Somerset County, a judgment was recovered in the Circuit Court of that County against the mortgagor by the N. I. Company, which had notice of the mortgage as soon as it was executed. This judgment was afterwards assigned to B., who caused execution to be issued upon it. On a bill filed by the holder of some of the mortgage bonds against the assignee of the judgment for an injunction to restrain the execution, it was Held :</p> <p>1st. That B. claiming as assignee of the judgment acquired only the rights held by the N. I. Company.</p> <p>2nd. That as the N. I. Company had notice of the mortgage when the debt was contracted, and before the judgment was recovered, it must be postponed to the mortgage creditors, and it was immaterial that the mortgage was not recorded in Somerset County before the judgment was recovered.</p> <p>3rd. That B. as assignee took subject to all the equities affecting the original plaintiff in the judgment.</p> <p>When the original bill was filed and the injunction issued, the complainants’ title to the bonds rested only on the allegation in the bill, that he ‘1 had come into possession of them, and now holds and owns the same.” Held :</p> <p>That the Court might with propriety have refused to grant the injunction, for ■ the want of sufficient proof to support the same. But this objection could not be urged in support of a motion to dissolve, the requisite proof having been supplied meanwhile by the production of five of the bonds and all of the overdue coupons.</p> <p>The bonds in question had been hypothecated by the N. I. Co. as collateral security for the payment of certain discounted notes. The bonds were afterwards sold at public auction under the direction of the pledgee, default having been made in paying the notes; and the purchaser sold them to the complainant. The officers of the N. I. Co. were present at the sale, and no objection to the sale was made by that company, or by the railroad company. Held :</p> <p>1st. That the defendant claiming only under the N. I. Co. could not be heard to object to the validity of the sale on the ground of no previous notice having been given to the N. I. Co.</p> <p>2nd. That in the absence of evidence to the contrary, the proceedings under which the bonds were sold would be presumed to have been regular.</p> <p>3rd. That the possession of the bonds and coupons by the complainant, and their production in the cause was sufficient to give him a standing in Court and entitle him to relief.</p> <p>4th. That it was not a valid objection that some of the bonds had been pledged by Mm to other persons as collateral security; he not having lost thereby his title as owner, and being entitled to maintain the suit for himself and all others having an interest as bondholders.</p> <p>5th. That the complainant being a bondholder entitled to priority over the judgment creditor, was entitled to a continuance of the injunction.</p>

<p>Appeal of I. Thomas Jones, one of the administrators, from order of the Orphans’ Court of Howard County.</p> <p>The case is stated in the opinion of the Court.</p>

The original bill in this case was filed by the appellant, John T. Hill against Charles T. Reifsnider, for an injunction to restrain the executor of a judgment confessed by the former id favor of the latter, and by him subsequently assigned to the appellees, Fritchey & Thomas. It having been decided by this Court (Hill vs. Reifsnider, 39 Md., 129,) that Fritchey & Thomas were necessary parties.

<p>Statute of Frauds — Parol Evidence — Resulting Trust.</p> <p>An agreement in relation to lands, and tending to create a trust in relation thereto, cannot be proven by parol evidence, because it would be contrary to the Í th section of the Statute of Frauds.</p> <p>A resulting trust arises when one person buys an estate and pays the purchase money, but takes the deed in the name of the other person, in which case the trust results by construction in favor of the person who paid the money.</p> <p>The bill alleged that the complainant bought of H. and others, as trustees, at public auction, a tract of land. That not having the money to pay for it, he borrowed the amount of the defendant upon certain collateral securities; which having been paid or advanced by the defendant for him, he caused the deed for certain other considerations to be made to the defendant instead of himself. Held :</p> <p>1st. That here all the conditions necessary to raise a resulting trust concurred.</p> <p>2nd. That if these facts were proved by parol, as they might be, a trust resulted by implication of law in favor of the person purchasing and paying.</p> <p>The evidence showed that the purchase money paid to the trustee was loaned to the complainant by the defendant, and was paid by the defendant as agent for the complainant and for his use. Held :</p> <p>That the purchase money being thus advanced by the complainant through the defendant, the latter was a trustee of the former of the premises conveyed to him.</p>

The hill in this case was filed by the appellee to enforce a mechanics’ lien, for lumber furnished in the construction of a house. The parties made defendants were the owner of the property and her husband, and the contractor for the erection of the building, and the mortgagee under three several mortgages, one of which was prior to the lien of the complainants, and the others subsequent, to it. No answer 'was filed by the mortgagee.

This is an action for malicious prosecution brought by the appellant against the appellee, the nature of which is stated in the opinion of the Court. First Exception.- — Stated in the opinion of the Court.

<p>Principal and Surety — Statute of Limitations.</p> <p>The payment by the principal, year by year, of the interest on a joint and several promissory note, will prevent the Statute of Limitations from attaching to the note in favor of the surety.</p> <p>The rule on this subject, laid down in Ellicott vs. Nicols, 7 Gill, 86, has been the accepted law of this State for nearly thirty years, and in the absence of legislation to the contrary, it is not to be questioned.</p>

<p>Principal and Surety■ — Motion to quash an execution on a judgment against sureties upon the ground of the release of a co-surety.</p> <p>Any valid contract or agreement between the creditor and the principal; or between the creditor and a surety without the concurrence of co-sureties, whereby the latter are subjected to an increased risk, operates as a discharge of such sureties.</p> <p>The release of one or more sureties without the assent of the co-sureties will operate at law to discharge the latter.</p> <p>In equity, however, the rule is different, and the release of one or more sureties will not be construed to have this effect, unless it subjects the co-sureties to an increased risk or liability.</p> <p>As between themselves the sureties are liable only for their proportion of the debt, and the right of contribution does not exist unless they have paid an amount exceeding this proportion.</p> <p>A judgment was recovered against several sureties and the executrix of P. a deceased surety. The rateable proportion due by each defendant in the judgment was afterwards ascertained, and the amount due by P. was paid, and the judgment entered satisfied as against his executrix. Execution having been issued on the judgment as against the other sureties, on a motion to quash the execution, it was Held :</p> <p>1st. That the payment of P’s proportion of the judgment, and the subsequent entry of satisfaction as against his executrix, could not in any manner affect the rights of the co-sureties, or subject them to an increased liability.</p> <p>2nd. That the effect of such entry, so far as they were concerned was to release them from the payment of P’s proportion of the judgment, and, should any of the co-sureties prove insolvent, to release the others from the paymeni of P’s proportion of the loss arising from such insolvency.</p> <p>3rd. That in summary motions of this kind Courts always exercise a quasi equitable jurisdiction, and will not therefore order an execution to be quashed if it appear, and upon a consideration of all the facts and circumstances of the case it would be against well settled principles of equity.</p>

<p>Mandamus — Case where a mandamus was refused because the parties had a full and adequate remedy by appeal.</p> <p>By the Act of 1816, ch. 101, certain persons therein named were appointed a board of examiners, and empowered to make assessments upon owners of land lying on or near Wilkins avenue, for the purpose of constructing and completing said avenue. The commissioners were directed to make a report of their proceedings to the Commissioners of Baltimore County, for their , ratification, amendment or rejection; and the Act further provides, that any person interested in the proceedings might appeal from the final order of ratification or rejection of the report of the examiners to the Circuit Court for Baltimore County. The examiners having made the assessments according to the provisions of the Act reported the same to the commissioners, and the latter being of the opinion that the Act of 1816, was unconstitutional, rejected the report, and passed an order quashing all the proceedings thereunder. Held :</p> <p>That a mandamus would not lie to compel the commissioners to carry out the provisions of the Act of 18Í6, as by the express terms of that Act the parties had a full and adequate remedy by an appeal to ■ the Circuit Court for Baltimore County.</p>

The case is stated in the opinion of the Court. Covenants are frequently inserted -in leases where the landlord agrees to execute a new lease at some designated period. “ Under this covenant (to renew) the lessor is bound to make another lease, either to the lessee or Ms assignee; and if the terms of such covenant are express and unequivocal, the performance of it will be duly enforced by a Court of equity.” Taylor on Landlord and Tenant, (3rd Ed.,) 224 ; section 332 of…

The case is stated in the opinion of the Court. First Exception. — The only evidence as to the disposition of the oysters was, that after they were measured they were taken from the vessel where they were measured, into the oyster packing house.of Parren & Co., and dumped down on the floor or into the opening boxes.

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