Volume 47 — Maryland Reports

James Stratton died in Howard County, in July, 1875, intestate, unmarried and leaving no relations surviving him within the fifth degree, reckoning in the mode prescribed by sec. 136, Art. 93, of the Code. Administration upon his estate was granted to J. Thomas Jones and others. Upon settlement of the estate there .remained in the hands of the administrators a large surplus.

This was an action of trespass, instituted on the 7th day of July, 1875, by Benjamin W. Byers against Geo. W. Horner, to recover damages for an assault and battery committed by Horner on Byers. The declaration alleged that the defendant committed the assault with clubs, sticks, &c., inflicting great bodily damage. The defendant pleaded three pleas : 1st, did not commit the wrong alleged. 2nd and 3rd, that the said assault was committed in defence of his daughter.

On the 10th of March, 1871, John E. Hurst and others, creditors of a certain John S. E. Nutwell, of Anne Arundel County, deceased, filed a creditors’ bill for the sale of the 'realty of the said Nutwell, to pay his debts. The administrators and heirs-at-law of the deceased were made parties defendants- to the suit. A decree for the sale of the realty was passed, and Frank H. Stockett appointed trustee, who made the sale and returned George W. Nutwell as the purchaser.

, Appeal 'from the Circuit Court for Anne Arundel County, in Equity.- In April, 1874, the appellee filed on the equity side of the Circuit Court for Anne Arundel County her bill of complaint, claiming that as administratrix of William R. Goodman she was entitled to the foreclosure of certain mortgages executed by the appellant during the life-time of the deceased. The bill alleged, first — that the appellant being indebted to Wm.

This suit was brought in the Superior Court of Baltimore City, on the 11th day of December, 1815, by George W. Hurtt against John Eschbach, to recover damages for the malicious prosecution of Hurtt by Eschbach. Hurtt was prosecuted on the charges, 1st, of obtaining money under false pretences, and 2nd, for a certain misdemeanor.

On the 4th day of April, IS^, Ernest Remka filed on the equity side of the Circuit Court for Baltimore County, his bill of complaint against Andrew Heck, alleging that the appellee contracted to purchase of appellant 119 acres, 1 rood and 16 perches of land, for the sum of $3000, of which $1000 was paid in cash, and a mortgage given for $2000, payable at the time specified therein.

This was a suit brought on the 10th day of May, lS^h, by the widow and children of a certain John B. Eoy, of Harford County, against the Philadelphia, Wilmington and Baltimore R. R. Go., to recover damages for the killing of the said Foy, by the defendant.

James A. Hooper, a note and bill broker, trading under tbe name of Hooper, Reese & Co., bad large dealings with tbe Citizens’ National Bank of Baltimore. He borrowed from time to time large, sums of' money from said bank, securing the payment thereof' by deposits of collaterals, which the bank used to allow him to withdraw next day on his giving his individual check for the amounts borrowed. Wm.

Thomas H. Bittinger and Christian J. Brennaman set forth to the Commissioner of the Land Office that there was escheat to the State two lots in Garrett County, Md., of the military lands lying… Held: is based on the information derived from his father and mother, a fact that cannot be proved by hearsay testimony. 6th. To the 25th question and answer thereto, because the interrogatory is leading, and the answer is based on information and the belief of the witness. 1th.

On the 10th of June, 1876, Dellone & Bro. sold to Hull, merchandise to the value of $112.65, on a credit of ninety days. On the 7th July following, before the expiration of the period of credit, Dellone & Bro. sued out of the Circuit Court of the county, the writ of attachment against the goods and chattels of Hull, alleging that he, (Hull,) was about to conceal, assign and dispose of his property in order to hinder, delay and defraud his creditors.

The “ Calvert College Educational Society of Carroll County” was incorporated under the general law for the formation of corporations, and after the required amount of capital stock had been taken, it purchased land and incurred obligations upon the faith of the subscriptions made.

Annie C. Schaefer, a member of the Amicable Permanent Land and Loan Company of Baltimore, having received therefrom an advance of six thousand dollars on her fifteen shares of stock, executed to the said company, as security for the payment thereof, a mortgage on her real estate, situated in Baltimore.

In this case the Light Street Bridge Company, and others, creditors of Francis Lawrence, of Anne Arundel County, deceased, filed a bill for the sale of certain real estate to pay the debts of said Lawrence, alleging the insufficiency of his personalty for that purpose.

In this case a petition for a mandamus, was filed by the appellant in the Superior Court of Baltimore City, on the 22nd of December, 1876, to compel the appellee to take charge of a bridge and preserve' the same as a free public highway, in accordance with the Act of 1876, ch. 220, requiring them so to do. The case is stated in the opinion of the Court.

In this case Thomas Larkin brought an action in the Court of Common Pleas of Baltimore City, against the Philadelphia, Wilmington and Baltimore Railroad Company, alleging in the declaration that he had been expelled from defendant’s cars by its agents, illegally and with circumstances of gross and wanton outrage.

A petition was filed by the appellee praying the County Commissioners of Carroll County, to appoint a commission to open for the appellee a road over and through the land of the appellant.

<p>SHERIFF’S SALES.</p> <p>When sheriff’s sales will be set aside — Power of sheriff to complete the execution of a writ of Pi. Pa. after the expiration of his term of office — What constitutes a legal levy — Statute of 20th Geo. 2, eh. 37 — Code, Art. 88, sec. 30.</p> <p>T. recovered a judgment against II. on which there was issued a writ of fi.fa. The sheriff made the levy, but did not sell the property levied upon until after the expiration of his term of office. On the return to the fi.fa. a motion was entered to quash the writ of fi.fa., and the proceedings had under it, and to set aside the sale. Reasons for the motion were filed, denying the power of the sheriff to complete the execution of the writ after the expiration of his term of office, alleging inadequacy of price, no sufficient levy, and collusion between the sheriff and the purchaser. IIhm> :</p> <p>1st. That the sheriff who begins an execution shall end it, though his term of office oxpires in the meantime.</p> <p>2nd. When a sheriff seizes property under a, fi.fa. and returns it “unsold for want of buyers,” and goes out of office, the vendi must be issued to him, and not to his successor.</p> <p>3rd. The vendi confers no new power on the sheriff; it only commands and requires him to do what he could have done under the fi.fa., which is the effective writ.</p> <p>4th. It is not necessary in order to the validity of a levy made under a, fi.fa., that the sheriff should go upon and view the land which he seizes. If he make a schedule of the property seized and give notice thereof to the party, it will be sufficient to constitute a valid seizure of the property described in the schedule.</p> <p>5th. The purchaser is entitled to the benefit of all the judicial proceedings in the case, and if they furnish a description from which the property can be identified, it is sufficient.</p> <p>6th. It would seem that the Act of 20th George 2, ch. 3Í, if it is to be construed as mandatory, has never been in force in Maryland.</p>

Appeals from the Superior Court of Baltimore City. These actions were instituted upon a bond given by the appellants to the appellee, to secure the performance by Siegman and Jones, contractors, of a contract entered into by them for the building of a church for the appellee, and to indemnify the appellee for any lien claims which might be-asserted against the building, by reason of the failure of the contractors to discharge them.

<p>DEMURRER.</p> <p>Liability of stockholders for the debts of the corporation — Act of 1872, ch. 325, sec. 59 — Necessary averments in the declaration in eases where creditors of corporations seek to recover from delinquent stockholders■ — Bills of Particulars — Limitation of Actions — Pleading—Pvidence.</p> <p>The consideration of a demurrer goes back to the first error in the pleadings.</p> <p>By the Act of 1812, ch. 325, sec. 59, all the stockholders of a corporation are severally and individually liable to the creditors of the corporation of which they are stockholders, to an amount equal to any unpaid subscription held by them respectively. .</p> <p>If any one stockholder is required to pay a debt due by the corporation, he is entitled to contribution from all the other stockholders whose subscriptions are unpaid.</p> <p>If any stockholder who has not paid up his subscription claims to be a creditor of the corporation, his unpaid stock is liable for the debt, and he cannot recover from another stockholder the full extent of his claim.</p> <p>Where a stockholder, who is a creditor of the corporation, seeks to recover his debt from another stockholder who has not paid up his subscription, the plaintiff must aver and prove that he has paid up his whole subscription to the stock, and also that the defendant was a stockholder of the corporation at the time the debt was contracted, and that he has not paid up his subscription.</p> <p>In an action against a stockholder of a corporation who lias- not paid up his subscription, to recover a debt due by the corporation, wherein the plaintiff declares on a judgment recovered against the corporation as his cause of action, the defendant is entitled to a bill of particulars, in order that he may be informed whether the debt due by the corporation was contracted at the time the defendant was a stockholder.</p> <p>The judgment is the evidence of the debt due by the corporation, but it does not show when the debt was contracted.</p> <p>The date of the debt incurred is a necessary part of the evidence to fix the liability of the stockholder.</p> <p>A plea of limitations, alleging that the cause of action did not accrue within three years, is inapplicable in its terms to a judgment.</p> <p>Where a judgment is made the basis of an action, record evidence of the judgment is the proper evidence to prove its existence as such.</p> <p>Entries made in a book of a corporation used for the purpose of keeping account of shares of stock issued, in the hand-writing of the president, or of his secret ary by the direction of the president, are admissible evidence in the hands of the president to prove the issue of shares of stock in said corporation.</p>

On the 6th of March, 1876, the appellant filed in the Circuit Court for Allegany County, sitting as a Court of equity, his bill, asking for relief by way of injunction, to restrain the appellee from the further prosecution, in Piedmont, W. Va., of an attachment, by which the latter sought to recover from him the sum of $31.25 due bim as wages in Cumberland, Maryland, by the Baltimore and Ohio Railroad Company.

This was an action of debt brought for the recovery of twice the amount of the interest paid on certain loans or discounts, on the ground that the interest so taken was at a rate exceeding that allowed by the laws of the State of Maryland; and it is grounded on the 30th sec. of the Act of Congress, 1864, Session 1, ch. 106, under which the corporation named as defendant was incorporated.

Samuel J. Rouskulp, of Hagerstown, Washington County, Md., on December 18th, 1869, loaned to the defendant, Kershner, a one thousand dollar 5-20 U. S. Bond, for the return of which he took as security a mortgage from the defendant and his wife, of a fee-simple estate in the City of Baltimore, the same as mentioned and reported as sold by the trustee in these proceedings, as of the leasehold estate of the defendant.

<p>JUDGMENTS.</p> <p>W hen an appeal will lie from an order of the Court striking out a judgment — Power to set aside judgments for fraud a common lato power — Quasi Equitable powers of Courts of Law — Under what circumstances judgments will he stricken out on motion after lapse of time.</p> <p>Where a judgment is stricken out during the term at which it was rendered, no appeal will lie. But where a Court takes such action after the lapse of the term, an appeal does lie.</p> <p>The power to set aside judgments upon motion, for fraud, deceit, surprise or irregularity in obtaining them, is a common law power incident to Courts of record in this State.</p> <p>In deciding such motions after the term is past, the Court acts in the exercise of its quasi equitable powers, and will therefore properly consider all the facts and circumstances of the case, and require that the party making the application shall appear to have acted with good faith and with ordinary diligence.</p> <p>Relief will not be granted when he has knowingly acquiesced in the judgment complained of, or has been guilty of laches or unreasonable delay in seeking his remedy.</p> <p>Where a judgment has been rendered several terms anterior to the motion to strike it out, it would be contrary to a long course of established decisions to disturb it without clear and convincing proof of fraud, surprise or irregularity.</p>

This suit was instituted by the appellees in the Circuit Court for Talbot County, for the recovery of $145.32, with interest thereon, being the amount of tax due to Talbot County, for the year 1876, on $19,638.00, the assessed value of certain legacies bequeathed for the use of the appellant, for life, by the last wills of her deceased father, Edward Lloyd, and her deceased mother, Sally Scott Lloyd.

<p>Appeal from the Circuit Court of Baltimore City.</p> <p>The case is stated in the opinion of the Court.</p>

The case is sufficiently stated in the opinion of the Court. In this case there were several prayers offered on each side, all of which were rejected, and the Court instructed the jury that there was no evidence in the case to entitle the plaintiff to recover, and that their verdict must be for the defendant. The plaintiff excepted to the rejection of his prayers and to the aforesaid instruction given by the Court to the jury, and took this appeal.

On the 27th October, 1873, Jesse J. Cole, of Cecil County, issued an attachment out of the Circuit Court for said County, against Flitcraft & Co., of Philadelphia, Pa., and on the 1st November, 1873, the writ was levied on certain property of the defendants within the county. On the 5th November, the defendants entered their appearance and dissolved the attachment.

On the 28th October, 1862, Charles W. Lee tiled his bill against Priscilla Stump, and John H. Price and Henry W. Archer, her committee, by which .he sought to obtain a decree to sell certain property of said Priscilla, for the payment of two sums of money due to him. On the 11th May, 1863, the decree was passed as prayed.

On the 15tb September, 1874, suit was instituted by F. G. F. Waltemyer, before Thomas J. English, a justice of the peace of Baltimore County, to recover sixty-five dollars damages for the loss of a cow, killed on the road of the appellant. “Judgment of non pros., plaintiff pay the costs,” was rendered by the justice, from which an appeal was taken to the Circuit Court for Baltimore County.

Court for Garrett County, in Equity. In May', 1828, John Templeman conveyed to five trustees of the Union Meeting House Society, of that part of Allegany County now constituting Garrett County, about two acres of land, to be held in trust by them for the said society, and for the sole use and purpose of a meeting house, school house and grave yard.

George Stark and others, shareholders in the Erostburg Building Association of Allegany County, filed in the Circuit Court of the said county their bill of complaint against the said building association, alleging that the directors had grossly and fraudulently mismanaged the affairs of the association and had wilfully and corruptly disregarded its charter and by-laws; that they had permitted the secretary and treasurer to embezzle large sums of money, and had also allowed…

<p>ESTATES BY THE CURTESY.</p> <p>Construction of Wills — Meaning of the words, 11 die tvithout issue;” 11 die without leaving heirs of the body, &eP — Act of 1862, eh. 161 — Code, Art. 93, see. 305 — Estates in fee-tail general — Code, Art. 47, sec. 1 — Common Law Curtesy no longer exists in Maryland — Code, Art. 45, sec. 2 — In what estates of the wife the husband takes a life estate.</p> <p>L. J. by her will, dated January 24th, 1814, devised certain real estate to her son and two daughters, to be equally divided amongst them; providing that in case cither of them should die without an heir of the body lawfully begotten, the share of the one so dying should pass to the survivors; and 1 in case all of them should die without an heir of the body lawfully begotten, the real estate to pass to her grand child, A. L.</p> <p>One of the devisees afterward intermarried with M., and in 1876, died intestate and leaving no issue, the other devisees surviving her. M. claimed a life estate in the land so devised to his deceased wife, of which she had died intestate. It was Held :</p> <p>1st. That at the common law the devise over to the survivors, depending upon the failure of issue of the other devisee or devisees, would be void, it being too remote.</p> <p>2nd. That the Act of 1862, ch. 161, operates to save the limitation over and make it valid and effectual.</p> <p>3rd. At the common law the phrase “failure of the heirs of the body” meant an “indefinite failure of issue.”</p> <p>4th. But by the Act of 1862, ch. 161, this rule of construction has been changed, and now the words, “die without issue;” “die without leaving issue;” “have no issue,” or any other words which may import either a want or failure of issue, of any person in his life-time, or at the time of his death, or any indefinite failure of issue, shall be construed to mean a want or failure of issue in the life-time, or at the time of death of such person, unless a contrary intention appear in the will.</p> <p>5th. The will is to be read as if the limitation to the survivors was by the terms of the will to take effect upon the death of either of the children dying without an heir of the body living at the time of his or her death.</p> <p>By Art. 93, sec. 305, of the Code, words of perpetuity are no longer required in wills, but the interest of the testator will pass to the devisee without such words, unless a different intention appear.</p> <p>By Art. 47, sec. 1, of the Code, estates in fee-tail general descend as fee-simple estates in Maryland.</p> <p>The tenancy by the curtesy, at it was at the common law, no longer exists in Maryland in lands held by a married woman under the provisions of the 45 th Art. of the Code.</p> <p>The real property of the wife in which the husband takes a life estate must be understood to mean such real property as is.devisable by the wife, and does not exist where the wife had not an estate which she could dispose of by will.</p>

<p>dower.</p> <p>In what Estates the Widow may claim her Dower — When the right to Dower attaches and hoto Paramount Mens may be created• — Doctrine of Equitable Substitution — Construction of Contracts creating Charges upon Beal Estate — Bight of Widow to Dower (1) as against heir, (2) as against alienee— Buies regulating the assignment of Dower — Statute of 20 Hen. 3, ch. 1 — When Widow may recover damages for detention of Dower — May proceed in Equity for an Account of Bents and Profits.</p> <p>W. H. and A. H. were married in 1831, and W. H. died in 18Í4. In 1832, W. R. and M. R. his wife, father and mother of A. H. conveyed in fee to W. H. a tract of land called “Sportsman’s Hall.” At the time of conveying this property, W. H. the purchaser, executed under seal an agreement with the grantors, to pay §8 per acre for said land, after deducting such parts as had been sold; to pay the whole purchase money equally among the children of M. R., after her decease and upon arrival at legal age; to retain in right of his wife a child’s share of the purchase money; not to pay interest during the life of M. R., but to apply annually during her life a sum equivalent to such interest to the use of her and her family; also to reserve for the use of M. R. during her life the use of the dwelling house, kitchen, garden, &c., and if W. R. survive M. R. to retain from the purchase money 551000, and apply the interest thereon to his use during- his life; after his death said sum to be distributed as aforesaid; and in case of refusal or neglect to secure to said M. R. and W. R. the money and privileges aforesaid, then to pay to the children at the times specified for the recovery by them of the principal of the purchase money, interest also, and to forfeit the share held by him in right of his wife.</p> <p>The property passed into the possession of W. II. in 1832, and was held by him until it was sold for his debts in 1844. At the date of the deed, 1832, M. R. had five children, one of whom died in 1854, without issue. W. E. one of the grantors in the deed died sometime before 1845, and M. E. the other grantor, died in 1870.</p> <p>In 1837, W. H. made to V. B. a mortgage of the land aforesaid, as indemnity to secure suretyship and to secure his indebtedness to V. B., and in 1844, V. B. became purchaser of the equity of redemption at sheriff’s sale on execution against W. H. V. B. then became possessed of the land, and it remained in possession of him and those claiming under him from that time to the present. The land was divided into several parcels and owned by different parties, among whom were the defendants, and much improved by building, &c. before the death of W. H. ill 1874.</p> <p>A. H. the surviving widow of W. H. claimed dower in the lands aforesaid, and in 1875, brought suits against the defendants for the recovery thereof. Held :</p> <p>1st. On this state of facts there can be no doubt or question as to the demandant’s legal right to dower in the land conveyed by the deed of 1832. There was legal and unconditional seisin in the husband, and that seisin was beneficial and for his sole use. In such case the inchoate right of dower attaches from the vesting of the title in the husband, and becomes consummate on the death of the husband, the wife surviving; and no intermediate conveyance or charge by the husband alone will defeat the wife’s right to dower.</p> <p>2nd. Nor did the contract of W. H., executed at the time of receiving the deed in any way modify or affect his seisin under the deed. The contract created an equitable lien or charge upon the land for the purchase money and also in respect to the privileges reserved for the benefit of'M. R., and such lien or charge was in the nature of an equitable mortgage; but the contract did not, like a legal mortgage, divest the legal title and seisin under the deed.</p> <p>3rd. But the lien or charge thus created, having its inception in the contract of purchase was paramount to the wife’s claim to dower; and as against those claiming the benefit of the lien under the contract, she could only claim her right to dower in the surplus, after the full discharge of the lien.</p> <p>If a subsequent incumbrancer, or purchaser from the vendee, is compelled to discharge the lien of the vendor, he will in like manner be entitled to stand substituted in his place against other claimants under the vendor on >the estate, and to have the assets marshalled in his favor.</p> <p>The doctrine of substitution is of familiar and frequent application in Courts of equity, as a means of doing substantial justice between parties.</p> <p>In the construction of the agreement entered into between W. H. and the grantors in the deed conveying to him the property known as “Sportsman’s Hall,” it was Held:</p> <p>1st. That the land is not liable for that portion of the purchase money which was reserved to W. II., the purchaser, in right of his wife; and though the wife has survived the husband, she has no claim for that portion of the purchase money, or any part of it.</p> <p>2nd. The reservation is to the husband himself alone, and not to the wife; and according to the plain meaning of the terms employed, construed in reference to the law as it then stood, in regard to the marital rights of the husband, it is manifest that no right of survivorship in the wife was contemplated.</p> <p>3rd. If W. H. had retained the land, and on the death of M. R., in 18Y0, had paid the other children their proportion of the purchase money, it could hardly be contended that the portion reserved to himself would still be a charge upon the land, dependent upon the survivorship of the wife.</p> <p>4th. At the death of M. R., the proportion of the purchase money that W. H. was entitled to retain was one-fourth; and as from the death of one of the children, in 1854, without issue, W. H. was personally discharged from that proportion of the principal of the purchase money, the land stood also discharged to that extent.</p> <p>As against the heir, there is no question but that the widow is entitled to dower according to the value of the land at the time of the assignment. But as against an alienee, the rule in this country differs from that established in England by the more modem authorities.</p> <p>In this country the rule is settled by overwhelming authority that as against an alienee, the widow is not to be allowed the benefit of the improvements made by the alienee.</p> <p>The improved value of the land from which the widow is to be excluded, in the assignment of her dower, as against a purchaser from her husband, is that which has arisen from the actual labor and money of the owner, and not from that which has arisen from extrinsic or general causes.</p> <p>To give full effect to this rule, after excluding all the improvements made by the alienee, before demand of assignment, the assignment of the dower should be made according to the value of the land at the time of the assignment.</p> <p>A purchaser under execution occupies the same position in regard to improvements made by him, as if the land had been directly conveyed to him by the husband.</p> <p>At tbe common law, when dower was detained from the widow, and she was compelled to resort to her writ of dower, she could recover no damages for the detention, but was entitled only to the profits of her third part of the land from the time of the judgment recovered.</p> <p>The Statute of Merton, 20 Hen. 3, ch. 1, gave the widow damages equal to her dower from the time of the husband’s death, or by construction, from the time of demand made. But that statute by its express terms only applied where the husband died seized.</p> <p>In equity, however, the widow may have an account of rents and profits against the alienee, or those claiming under him, which accrue after dower demanded; and she may even proceed in equity for such rents and profits after she has recovered dower at law.</p>

On the 22nd October, 1875, Annie Matchett, administratrix, with the will annexed, of the estate of Anne Matchett, represented to the Orphans’ Court of Baltimore City, by petition, that she believed there was an outstanding claim in favor of her testatrix against John W. Woods, and that she and said Woods desired that the matter of said claim in dispute between them should lie referred, under the sanction of said Court, to the arbitrament of William Seemuller, selected by…

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

The appellant sued the appellees, the editors and proprietors of a daily newspaper called “The Baltimore American and Commercial Advertiser,” published in Baltimore City, for the following alleged libel upon him, which appeared in that paper on the 25th of September, 1875, under the heading “ A Ruffian Gaged.” “For several weeks past the police of the North-Western District have been endeavoring to make the arrest of a man named Wm.

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

On the 19th day of March, 1841, Daniel Martin, being seized of certain land in fee, by his deed of that date, in consideration of natural love and affection conveyed the same to James A. Waddell and Emmeline, his wife, who was the daughter of the said Martin, for and during their natural lives and the life of the survivor, the remainder to Daniel James Waddell and William Waddell, his grandchildren and the children of James and Emmeline, as tenants in common during their…

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

In accordance with the requirements' of the inspection laws of the State of Maryland, certain owners of tobacco stored their tobacco in the State Tobacco Warehouses, Nos. 1 and 2, situated in the City of Baltimore. The warehouses and the tobacco therein stored were totally destroyed by fire, January 7th, 1875, and the owners claimed that the State of Maryland was responsible to •them for the loss of such tobacco.

The appellant was indicted under section 179 of the Act of 1866, chapter 66, which repealed and re-enacted with amendments sections 179 and 180 of Article 30, Code Pub. Gen. Laws.

Thomas H. P. Murphy and wife by deed of mortgage conveyed to Martha E. Hudson certain real estate situated in Cecil County, Md. On default of the mortgagors, proceedings were had in the’ Circuit Court of said county for the sale of the said mortgaged real estate, a decree- therefor was passed and James Black Groome was appointed trustee to make the sale.

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

<p>WILLS.</p> <p>Construction of Wills — Declaration of trust operating as a qualification to absolute bequest — Inconsistent provisions in Wills — Devise or bequest of property to u children n without additional description — Who take under such a devise or bequest.</p> <p>L. S. by his will, devised and bequeathed all his property, real and personal, to his son, J. L. S., absolutely.</p> <p>Subsequently the testator, by an instrument in the form of a conveyance or declaration of trust, appointed the said J. L. S. trustee for certain personal property, for the use of the children of said J. L. S., until they should arrive at the age of eighteen years, and then the said property to go to said J. L. S.</p> <p>On the death of the testator, both instruments were admitted to probate in the Orphans’ Court.</p> <p>At the date of the declaration of trust recited and at the death of the testator, J. L. S. had only two children, both infants of tender age.</p> <p>Doubts were suggested as to the construction of the declaration of trust, whether only the children in esse at the time of the testator’s death were meant, or children afterwards bom.</p> <p>A bill was accordingly filed, asking the Court of equity to construe the two testamentary papers, and direct the distribution of the estate. The answer to the hill insisted that the declaration of trust was void for uncertainty. It was Held :</p> <p>1st. That there was no uncertainty or inconsistency in the instrument to affect the validity of the trust declared.</p> <p>2nd. The trust for the benefit of the children must be taken as a qualification of, or an exception to, the preceding absolute bequest to the son of the testator.</p> <p>3rd. It may he regarded as incontrovertibly settled, in the construction of wills or testamentary papers, that an immediate gift to children, simpliciter, without additional description, means a gift to the children in existence at the death of the testator; provided there be children then in existence to take.</p>

Appeals from tlie Circuit Court for Baltimore City. A certain Thomas F. Eigelbernor and Henry 8. Held: owned or negotiated by said Ives Manufacturing Company,” the liability of the property being limited to $20,000, and “in consideration of the premises,” this conveyance is made.

<p>Appeal from the Superior Court of Baltimore City.</p> <p>The case is stated in the opinion of the Court.</p>

This was an action brought by the appellee against the appellants, as partners, to recover money due for lumber sold to them by the appellee. There was no dispute as to the claim sued on, but the defence was rested entirely upon a release executed by the plaintiff in pursuance of the terms of a deed of trust for the benefit of creditors made by one of the defendants.

On the 9th day of April, ÍS^, a certain Elijah Lewis executed his promissory note for $150, with interest from date, at six months, made payable to the appellant.

The last will of H. W. Baxley being offered for probate, his heirs filed a caveat. Pending . the controversy the appellant was, on the 17th March, 1876, appointed administrator pendente lite; was required to and did give a bond for one hundred thousand dollars.

<p>LANDLORD AND TENANT.</p> <p>Covenants to repair — Construction of covenants to repair generally — Covena/nts to lceep old houses in repair — Pleading— Variance — Not necessary to set out contracts in 'totidem verbis — Sufficient if correctly stated according to legal force and effect — Evidence—Custom as affecting written agreements.</p> <p>The appellees were tenants of the appellant of a certain mill with premises and a tract of land belonging thereto.</p> <p>The appellant agreed with the appellees in writing “to keep said mill and machinery, water-power and fencing on said premises in as good repair as they now are, elemental casualties included, in a reasonable time.”</p> <p>The appellees instituted suit against the appellant for alleged breach of the said agreement, and in the narr. the words ‘1 as they now are ’ ’ were omitted.</p> <p>The plaintiffs offered in evidence the aforesaid agreement, but the defendant objected, on the ground that there was a fatal variance between the said agreement and the contract set out in the narr., caused by the omission from the latter of the words “as they now are." It was Held:</p> <p>1st. That the covenant in a lease “to repair” generally or “to keep the premises in repair, ’1 imposes upon the covenantor the legal obligation to keep the premises in as good repair as when the agreement was made.</p> <p>2nd. Where an old house is rented, with the usual covenant to keep the same in repair, the covenantor will not be bound to put it in an improved state, nor to avert the consequences of the elements, but only to keep it in the state in which it was at the time of the demise, by the timely expenditure of money and care.</p> <p>3rd. The covenant stated in the narr. is, in its legal effect, the same as that contained in the agreement.</p> <p>4th. A covenant “to keep in repair," and a covenant "to keep in as good repair as they now are,” are identically the same covenant.</p> <p>-5th. In pleading it is not necessary to set out the contract in totidem verbis; it is sufficient if it be correctly stated according to its legal force and effect.</p> <p>5th. The omitted words being immaterial, in no respect affecting the construction or legal effect of the contract, it was not necessary lo set them out in the declaration.</p> <p>•Evidence was offered by the defendant tending to show that the repairs to the dam, race, &c., were such as were usually made by the millers themselves, and which by the custom of the realm the appellant would not be called upon or expected to make. To the admissibility of this evidence plaintiff objected, and the Court below sustained the objection “so far as the offered evidence tended to show it was the duty of the plaintiffs, by custom or otherwise, to make said repairs.1’ Held :</p> <p>Tst. That though there was a stipulation in the agreement by which the plaintiffs covenanted that they would make all small repairs that they could easily do themselves, without charge, yet this covenant imposed no duty upon them beyond what the law would impose upon them in their character of tenants, and which required of them the ordinary care and attention which is usually required of millers in operating mills.</p> <p>-2nd But if the covenant on the part o f the plaintiffs should be construed as embracing more than what otherwise would be the implied duty of tenants, still it cannot be so construed as to put on them the duty of making such repairs as were required in this case, thereby relieving the appellant of the obligations assumed by the express terms of his contract.</p>

Ferdinand Kerchner and Sydney Kempton were partners-, until the latter part of 1875, when Kerchner filed a bill in the Circuit Court for a dissolution of the firm, and for the appointment of a receiver. The bill charged that Kempton had withdrawn money from the firm and misappropriated it, having invested some of it in a house and furniture, in his wife’s name, and that this had been done to such an extent, that the-firm had been rendered unable to pay its debts.

^Appeal from tbe Circuit Court for Anne Arundel County. The assessors appointed under the General Assessment Law, (Act of 1876, ch. 260,) assessed and returned to the County Commissioners of Anne Arundel County all the property of the appellee, at a valuation of $100,945.