Volume 48 — Maryland Reports

The following is added to the case as stated in the opinion of the Court: First Exception — The plaintiff having proved the signature of the auditor to his report and account, offered to read said report and'account in evidence to the jury. To this reading in evidence of the report and account, the defendant objected, upon the ground that it was not competent evidence to prove the plaintiff’s cause of action.

This case was before the Court on- a previous occasion, (46 Md., 422,) when the appeal was dismissed. Subsequently judgment was pronounced in the Criminal Court against the traverser. Shortly thereafter he filed his petition assigning errors which it is not deemed necessary to set out, and praying that a copy of the record in the proceedings might be transmitted to this Court to he examined and reviewed, as upon writ of error.

<p>Attorney at Law — Act of 1876, ch. 261, see. 3, relating to the admission of Attorneys to practice in the State Courts— Construction of the Fourteenth Amendment of the Constitution of the United States — Power to regulate the Admission of Attorneys in the Courts of a State.</p> <p>Under section 3, of the Act of 18T6, ch. 264, the privilege of admission as an attorney in the Courts of this State, is limited to white male citizens above the age of twenty-one years.</p> <p>The limitation to the privilege of admission as an attorney in the Courts of this State, as provided by section 3 of the Act of 1816, ch. 264, is not repugnant to the fourteenth amendment of the Constitution of the United . States.</p> <p>The privilege of admission to the office of an attorney is not a right or immunity belonging to the citizen within the meaning of the fourteenth amendment of the Constitution of the United States, but is governed and regulated by the Legislature, who may prescribe the qualifications required and designate the class of persons who may be admitted.</p> <p>The power of regulating the admission of attorneys in the Courts of a State, is one belonging to-the State and not to the Federal Government.</p>

This is an appeal from an order of the Court below, passed on the 23rd of May, 1877, upon the petition of the Sisters of Charity of St. Joseph, determining that certain property of said corporation, situated in Frederick County, was not subject to assessment and valuation, and directing the County Commissioners of said County to strike the same from the list of property valued to said corporation. The case is further stated in the opinion of the Court.

This suit was brought by the appellee to recover from the appellant on an open account.

This was au action of debt brought on the 9th of September, 1876, by the appellant to recover from the appellee, the State tax of one-half of one per cent, levied under the Act of 1872, ch. 234, on the gross receipts of the defendant from all sources, (except from its Washington Branch,) from the 1st of April, 1872, to the 31st December, 1873, inclusive.

This appeal was taken from the order of the Court below, dismissing the petition of the appellant and directing the fund in question to he paid to the appellee. The case is stated in the opinion of the Court.

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

<p>Motion for a New trial — Action thereon not reviewable on Appeal — When an Appeal will not lie — Practice in the Appellate Court on an Appeal from the Judgment of a Justice of the Peace.</p> <p>The motion for a new trial being addressed to the discretion of the Court, its. action thereon cannot be reviewed on appeal.</p> <p>The decision of the Baltimore City Court on an appeal from the judgment of a Justice of the Peace, in a matter within his jurisdiction, is final, and no appeal will lie therefrom to the Court of Appeals.</p> <p>On an appeal to the Baltimore City Court from the judgment of a Justice of the Peace by the defendant in the case, the City Court has jurisdiction to render a judgment in favor of the plaintiff for a larger sum than he had recovered before the Justice.</p> <p>On an appeal from the judgment of a Justice of the Peace, the ease is tried de novo in the appellate Court, and decided as if no judgment had been rendered, and without regard to the question by whom the appeal may-have been prosecuted.</p>

<p>Act of 1876, eh. 260, providing for the general Valuation and, assessment of Property in this State — Exemption of the property of a Battle from Taxation, when its Capital Stoclc is Taxed — Double Taxation — State left free under the Revised, Statutes of the United States, to Tax either the Real property of a Rational JBanlc or its Capital Stoclc.</p> <p>Under the Constitution and laws of this State, it is not competent to assess for the purposes of taxation, both the shares of the capital stock and the property of a bank.</p> <p>To tax the property of a hank and its capital stock at the same time, would be double taxation, which is forbidden by the organic law of the State.</p> <p>Under the Revised Statutes of the United States, the State is left free to exercise the power of taxation of National Banks, assessing the same upon the real property of the Bank, or upon the shares of its capital stock, at the election of the State, in accordance with the Constitution and laws of the State, and only in conformity with the rules applicable to the citizens and corporations of the State.</p>

A bill of interpleader was filed by the appellee, George W. Boulden, against the administrators of Laura L. Biddle, deceased, a legatee under the will of Richard Biddle, deceased, and the legatees in remainder named in said will, for the purpose of having it determined as between said parties who were entitled to a money legacy bequeathed to said Laura by said will. The defendants answered.

<p>Attachment on Judgment to affect wages — Wages not due at the date of the Attachment, and ten dollars of wages actually due, exempted — 36th see. of Art. 10 of the Code — Act of 1874, ch. 45 — Its object only to increase the amount of the Exemption.</p> <p>Section 36, of Art. 10 of the Code, embodies the substance of the Acts of 1852, ch. 340, and of 1854, ch. 23, by exempting from attachment all wages not .actually due, and of the wages actually due, the sum of ten dollars.</p> <p>The object of the Act of 1814, ch. 45, as it appears from its title, was only to increase the amount of the exemption. ' The section to be amended, and the amendment are to be read together, being in “pari materia." The proviso does not enlarge the class of wages, or salary subject to attachment, by extending the effect of the attachment to wages not yet due, but as to those debts existing prior to the Act of 1874, ch. 45, it limits the exemption to $10, as under the original Acts, or Article in the Code.</p>

<p>Suit on Testamentary bond to recover a Legacy charged ufon the Residue of the Estate devised and bequeathed — Bond not liable — Art. 93, sec. 10, of the Code — Art. 16, sec. 138, of the Code.</p> <p>A testator devised and bequeathed all the rest, residue and remainder of his estate to J. W. H. in fee, who was also named the executor, upon the condition that he should pay to J. Q. H. the sum of $5000, upon the arrival of the latter at the age of twenty-five years, and the will declared that said sum should be a lien or charge on the residue of the estate so given. The testamentary bond was executed on the 14th day of December, 1864, and on the 18th day of January, 1866, the executor passed his final account, by which it appeared that there remained in his hands the sum of $16,426.34 in money, the residue of the personal estate, after the payment of all debts and charges, which by said account was passed over to and held by him as residuary legatee. J. Q. H. attained the age of twenty-five years on the 26th day of June, 1876, and on the 8th of July, 1876, brought suit on the said bond, to recover said legacy. On demurrer to the declaration it was Held :</p> <p>1st. That the bond so given by the executor was not responsible for his failure to invest a sufficient sum out of the residue of the personal estate remaining . in his hands, to secure the payment of said legacy to J. Q. H. on his reaching the age of twenty-five years. ,</p> <p>2nd. That sec. 10 of Art. 93 of the Code, had no application to a case like the present; for the will did not direct that the residue or any part of it should remain in the hands of the executor. On the contrary, it was expressly devised and bequeathed to J. W. H. absolutely, subject only to the proviso or condition that he the devisee should pay $5000 to J. Q. H. when the latter should reach the age of twenty-five years.</p> <p>3rd. That when the residue was ascertained, the said J. W. H. became entitled thereto as residuary legatee, and when the same was passed over and retained by him in that character, his testamentary bond was discharged, and the sureties thereon were in no manner bound to J. Q. H., for the payment of the 55000 or for its safe investment for his security; the fund was from that time in the hands of J. W. H., not as executor, but as devisee, subject only to the charge in favor of J. Q. H.; and as to that charge he held as devisee in trust.</p> <p>4th. That the remedy of the legatee, in case he apprehended loss, was by application to a Court of Chancery under sec. 138, of Art. 16 of the Code.</p>

<p>Power of a Court of Equity to vacate a Decree to let in a Meritorious defence — This may be done upon Petition — Insufficient ground for Denying an application to have a Decree vacated — Competency of a Wife, after the death of her Husband, to Testify on her own offer, that her Signature to a Deed was procured by his Fraud and violence — Act of 1864, ch. 109, sec. 2.</p> <p>On a bill filed against husband and wife, who were non-residents, for the sale of real estate under a deed of trust or mortgage, a decree was passed pro confesso on the 11th of October, 1872, after an order of publication, for the sale of the land, unless the defendants should pay the debt, interest and costs, on or before the 12th November, 1873, or bring the money into Court to be paid to the complainants. The decree not being executed, the wife on the 26th November, 1874, aDd after the death of her husband, filed her petition in the cause, praying that the enrolment of the decree might be vacated, and she be allowed to answer the bill, for the reasons (among others) that the deed was void as against her, because she was forced to sign and acknowledge it by the threats, menaces and ill-treatment of her husband, which she, in her then enfeebled condition of health, was unable to resist: and that the existence of the suit in which the decree was passed, was studiously concealed from her by the devices of her husband. Upon this application, and after the petition had been answered by the receiver of the Bank, who had been admitted as a party complainant, and by the trustee in the deed, and after proof taken, the Court vacated the decree, and afterwards on final hearing dismissed the bill. On appeal, it was Held :</p> <p>1st. That where a decree has been passed by default, without a hearing upon the merits, a Court of Equity has power, in the exercise of a sound discretion, to vacate the enrolment in order to let in a meritorious defence, and this may be done upon petition, without a bill of review or an original bill for fraud.</p> <p>2nd. That the application could not be denied, because the petitioner had not filed her petition within “two months” after she had knowledge of the decree, in analogy to the 9th Rule respecting Appeals, for though it is true that in some cases Courts of Equity have adopted by analogy statutory limitations of time with respect to the assertion of certain rights, and particularly the right of appeal after the discovery of fraud or mistake, where the statute is silent as to the time within which appeals in such cases may be taken, yet no case has decided that it is absolutely imperative upon the Courts to adopt such limitations in every case, and with respect to every right. On the contrary, so far as the decisions have gone, it is plain no such inflexible rule exists with reference to a case like the present.</p> <p>3rd. That the power of the Court to open the enrolment is a discretionary power to be exercised, or not, according to the circumstances of the case, and this is applicable as well to the time when the petition is to be filed, as in other respects.</p> <p>The wife having under the commission testified on her own offer and in her own behalf, it was objected that she was not a competent witness after the death of her husband, to testify that her signature to the deed was procured by his fraud and violence. Held :</p> <p>That the witness was competent; that such evidence was not excluded by the provision in the Evidence Act (1864, eh. 109, sec. 2,) that “when an original party to a contract or cause of action is dead, either party may be called as a witness by his opponent, but shall not be admitted to testify on his own offer.”</p>

The appellee under its charter, (Act of 1810, ch. 438,} and the ordinances of the city of Baltimore, laid down its railway tracks through certain streets in said city, and among others through Carey street, between Fayette street and Lafayette Avenue, and for some years had been exercising the easement of running its cars over said tracks.

This was an action of slander instituted by the appellees against the appellant, for words spoken, concerning the appellee Jeannette, wife of the appellee John D. Ahalt, alleging that she had committed adultery with the defendant.

The appellant was indicted for the killing of one Solomon Costley, Jr. Two exceptions which are stated in the opinion of the Court, were taken by the traverser. The jury returned a verdict of guilty of murder in the first degree, and thereupon the traverser moved in arrest of judgment for the following reasons: 1st. Because the verdict is contrary to law. 2nd. Because of manifest errors in the indictment. ‘ 3rd.

This was an action of assumpsit brought hy the appellee in the Court of Common Pleas of Baltimore City, on the 31st of August, 1875, to recover from the appellant a sum of money alleged to have been received hy him as proceeds of the sale of certain shares of stock of the Baltimore City Passenger Railway Company, to which proceeds the plaintiff claimed to he entitled.

<p>An objection to Evidence not made below, excluded from Consideration by the Court of Appeals — Rule 4, respecting Appeals from Courts of Lcuv — Legal existence of a Corporation not to be inquired into collaterally — Party to proceedings in Equity — Estoppel.</p> <p>In an action of ejectment the plaintiff offered in evidence to support her title to the land claimed, a deed which was read subject to exception. On appeal it was insisted that this deed was not sufficient to pass the title from the grantors to the grantee, because it was defectively acknowledged. It did not appear tbat any point was raised at the trial below as to the admissibility of the deed as evidence, because of any defect in its execution or acknowledgment. Held :</p> <p>That however tenable the objection made might have been, if raised below, it was excluded from consideration by the Appellate Court, by Rule 4, respecting Appeals from Courts of Law.</p> <p>The validity of the articles of incorporation of an Association, cannot be inquired into incidentally and collaterally.</p> <p>A party to proceedings in equity under which title to property has been acquired, is estopped from disputing the title so acquired.</p>

This suit was instituted by the appellee against the appellant.

The appeal in this case was taken from a decree directing the sale of the mortgaged premises in the proceedings mentioned, and from an order ratifying certain auditor’s accounts distributing the proceeds of sales, and rejecting others.

<p>When an answer cannot be used as Evidence against the Complainant — Act of ] 852, ch. 133 — Equity Practice — When a case is ordinarily at issue — Consent, express or implied, may dispense with the Replication — Partnership debts must be paid before distribution of the assets can be had — Euty of each partner to aid in the settlement of the business of the firm — Onus of proof — Effect of lapse of time and Laches in matters of account.</p> <p>Under the Act of 1852, ch. 133, an answer not required by the bill of complaint to be made under oath, and not read at the hearing by the complainant, is not evidence against the complainant.</p> <p>The Act of 1852, ch. 133,-as construed by this Court, ( Warren vs. Twilley, 10 Md., 39,) has no application to a case heard upon bill, answer and exhibits, because under the prior practice where the case was set down for hearing by consent, the answer must be taken to be true in all respects, and the Legislature could not have intended to prevent a party from so consenting.</p> <p>The answer in such case was treated as true, because no replication having been filed, no opportunity was afforded the defendant to supply proof of his defence, and therefore the truth of the answer must be conceded.</p> <p>After the cause is so set down, without any proof being taken, the complainant has no right to put in a replication without the consent of the Court, or the defendant, because his rights are affected thereby; but where proof has been taken, the case is different, for the defendant has had the opportunity to support his answer by evidence.</p> <p>The cause is ordinarily at issue only when the replication has been put in and the pleadings closed. But the cause may be at issue by consent, express or implied, without replication, as in this case had no rep lication been filed, from the order of the proceedings; the consent for the issuing of the commission to take testimony of which each party availed themselves, virtually imported that the parties were at issue without the formality of a replication.</p> <p>As long as the debts of a partnership are outstanding, it is irregular to undertake to distribute any assets thereof amongst the partners. The right of any partner or his representative extends only to his share of any surplus, after all of the liabilities of the firm have been discharged. It is the duty of each partner to aid in the final settlement of the business of the firm. If the firm had been finally dissolved, this duty of the partners would still continue; it had to be wound up, their assets, if any, applied to the discharge of their liabilities — steps taken to recover any effects belonging to the partnership; receipts, acquittances or discharges given, and a final ascertainment of the condition of the firm. Such acts are requisite upon its dissolution to meet the obligations due to others, and for the division of any surplus amongst the partners, after the debts and charges have been extinguished.</p> <p>The powers of the partners were co-ordinate, whether the partnership was in active operation, or subsisted only for the purpose of winding up the affairs thereof, and it was the duty of each partner to keep precise accounts of all his own transactions, for the firm, and to have them at all times ready for inspection.</p> <p>If there have been a total failure to do this, it affords a good reason for a Court of equity to decline to supply them, without a sufficient reason or excuse for the omission.</p> <p>The authorities in regard to the effect of laches are applicable to the claim now interposed to any surplus of profits of the partnership existing in 1842, as well as to any claim to the profits of the first firm.</p> <p>The representative of P. E. Scott, the deceased partner, charging in the bill, the existence of indebtedness on the part of H. O. Scott, the surviving partner, and claiming a decree therefor, has the onus of making good such allegation, and in the absence of clear proof thereof, has no right to expect a Court of equity to establish and decree the same.</p> <p>A Court of equity will not grope its way in utter darkness and undertake to create and establish a claim upon mere contingencies, or the preponderance of mere possibilities or probabilities.</p> <p>There is no duty devolving on it to assume the impracticable task of adjusting the relative rights of these partners, when the proof is utterly deficient and inconclusive. In matters of account, more especially, Courts of equity refuse to interfere after a considerable lapse of time, from considerations of public policy — from the difficulty of doing entire justice between the parties (which as a Court of conscience it is bound to do,) where the transactions have become obscure by time, and the evidence may be lost.</p> <p>Lapse of time may operate as a bar to a decree to account. In equity laches and neglect are discountenanced. Stale demands without an effort to enforce them, cannot invoke the aid of a tribunal which only lends its power to reasonable diligence.</p>

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

On the 28th of February, 1877, an attachment was •issued hy the Clerk of the Circuit Court for Prince George’s County, on the warrant of a justice of the peace of said county, at the instance of Henry S. Halley, executor of John Kulp, deceased, against the lands, tenements, goods, &c., of Joseph Ff. Young and J. Fenwick Young as non-resident debtors. .

This case was before thi's Court on a former occasion, on an appeal from an order of the Superior Court of Baltimore City, directing the record of the case to he returned to the Circuit Court for Baltimore County, (41 Md., 312.) The order appealed from was affirmed and the cause remanded to the Superior Court, that the order might be carried into effect.

This case was submitted on bill and answer in the Court below, and by agreement of counsel a decree joro forma was passed, refusing the injunction prayed for by the complainants and dismissing their bill. Erom this decree the complainants appealed. The case is stated in the opinion of the Court.

This action was brought by the appellee, the owner of a tannery on Jones’ Falls, in the City of Baltimore, to recover from the appellant for the loss and damage occasioned by the suspension of his business under circumstances set out in the opinion of the Court.

<p>Personal liability of a StoeJeholder for a Debt due by the Corporation — Act of 1872, ch. 203, and Act of 1872, ch. 325— Conflicting Statutes approved on the same day — Question as . to the Existence of a Statute, or the Time when it takes effect — When a Statute takes effect — Act of 1868, ch. 4=71— When a part of the Title of an Act will be rejected as Surplusage — Article 3, section 29, of the Constitution.</p> <p>In a suit brought against a stockholder of a corporation, to enforce his personal liability for a debt due to the plaintiffs by the corporation, the defendant among other defences pleaded that before the first of April, 1872, and before the plaintiffs’ debt was contracted, he had fully paid to the said corporation the whole amount of his subscription to the capital stock of the company. On demurrer to this plea, it was Hbld :</p> <p>That under the Act of 1872, ch. 325, approved 1st of April, 1872, which provides that “no stockholder shall be individually liable to the creditors of such corporation, except to the amount of his, her or their unpaid subscription to the capital stock,” said defence was well taken, and was a complete answer to the plaintiffs' declaration.</p> <p>The Act of 1872, ch. 203, and the Act of 1872, ch. 325, being inconsistent with, and repugnant to, each other, the latter Act, having been approved subsequently to the former, repeals the same and becomes the law, though both Acts were signed and approved by the Governor on the same day.</p> <p>Whenever a question arises in a Court of law as to the existence of a statute, or the time when it took effect, the Judges who are called on to decide the question, have a right to resort to any source of information, which in its nature is capable of conveying to the judicial mind a clear and satisfactory answer to the question — the best and most satisfactory evidence in dll cases being required.</p> <p>A statute takes effect from the very moment of its approval; and to ascertain this precise moment, Courts disregard the fiction which obtains in the law for some purposes, that fractions of a day are not considered.</p> <p>The Act of 1868, ch. 471, having b'een intended by the Legislature as a substitute for all existing general laws on the subject of incorporations, is applicable to a company incorporated in 1865, under Article 26, of the Code.</p> <p>The mere fact that part of the title of an Act refers to a subject-matter, foreign to, and inconsistent with, other parts of the title, and which finds no corresponding provision in the body of the law, will not in itself render the Act invalid. In such a case so much of the title as is repugnant to, and inconsistent with, the Act will be rejected as surplusage. Consequents the Act of 1868, ch. 471, is not invalid from any want of conformity to the requirements of section 29 of Article 3, of the Constitution of the State.</p>

David Orendorff and David Utz being partners, dissolved the partnership, Orendorff agreeing to pay all the debts and assume all the liabilities of the firm, and to save said Utz harmless from the same, executed to him a bond of indemnity, in which John Orendorff was joint obligor as surety.

Cross-Appeals from the Circuit Court for Frederick County. This suit was brought by the appellant Boor, to recover from the appellee Wilson, the amount of an award, it was commenced in Allegany County where the plaintiff recovered a judgment. The defendant thereupon appealed and the judgment was reversed and the case remanded for anew trial.

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

The first, second, third, fourth, fifth, sixth and seventh exceptions are stated in the opinion of the Court. The eighth, ninth and tenth exceptions were abandoned.

The hill in this case was filed by the appellee for the specific performance of an agreement in writing for the conveyance to him, by the appellant, of a leasehold estate in Baltimore County, in consideration of the conveyance by the appellee to the appellant of certain other land in said county in fee simple.

Court of Baltimore City. The bill in this case was filed hv the appellees to enforce a mechanics’ lien for bricks furnished in the erection and construction of a certain house in the City of Baltimore, of which the appellant was owner or reputed owner. The appellant answered; he admitted that the complainants furnished the bricks used in erecting the house referred to in the hill, hut denied that the same were furnished to the respondent.

The case is stated in the opinion of the Court. Exception. — The plaintiff offered two prayers, as follows: 1.

The case is stated in the opinion of the Court. Exception. — The plaintiff offered three prayers as follows : 1. ' That the petition of the defendants in the attachment case in Baltimore County, the proceedings in which, have been given in evidence, is conclusive evidence against the defendants, that they knew that the sheriff had seized the goods in question, and that they ratified the seizure. 2.

This case was before this Court on a previous occasion, (45 Md., 144,) and having been remanded for a new trial, was again tried, the issues being the same. Exception. — The plaintiff offered the two following prayers: 1.

<p>Appeals from the Court of Common Pleas.</p> <p>The case is stated in the opinion of the Court.</p>

<p>Pleading — Misjoinder of Counts — Count in Assumpsit at Common law, and under the Code — Art. 75, seo. 22, of the Code— Common counts — Counts in Assumpsit for the recovery of Bent — When Bent may he recovered in action of Assumpsit.</p> <p>The joinder of a count in debt with a count in assumpsit is improper, and such misjoinder may be taken advantage of by a motion in arrest of judgment.</p> <p>At common law the allegation of a promise to pay by the defendant was necessary to make a good count in assumpsit, but the necessity of alleging such a promise, has been dispensed with by the Code. (Art. 75, sec. 22.)</p> <p>Common counts in the form prescribed by the Code, (Art. 75, sec. 22,) are counts in assumpsit.</p> <p>Counts which allege the letting by the plaintiff to the defendant of certain tenements described, at twelve dollars per month, and the occupation thereof by the defendant for the period' mentioned, and allege the amount due on account of said rental, are counts in assumpsit.</p> <p>An action of assumpsit may be maintained for the recovery of rent due on a parol demise.</p>

The case is stated in the opinion of the Court. Exception. — The plaintiff offered the four prayers following : 1. That the legal effect of the bill of exchange offered in evidence is prima facie to make the defendant personally liable as acceptor of the same. 2.

This was an action of ejectment brought by the appellee against the appellant to recover certain property described in the narr. Plea non cul. and issue joined. The case was tried before the Court without a jury upon an agreed statement of facts. The plaintiff and defendant derived title from a precedent owner common to both of them, and the plaintiff held under the elder title.

Appeals from the Circuit Court of Baltimore City. ' Ou the 12th of October, 1864, Helen Steuart, a minor, acquired by purchase the reversion in two parcels of ground, in the City of Baltimore. The owner of the leasehold interest in said property was Mrs. Mary Hanscbert.

The appellees in April, 1812, obtained a judgment against William H. Trego, a member of the firm of Trego & Kirkland, engaged in business in Baltimore City.

This suit was instituted hy the appellee to recover a debt due him for goods ■ and merchandise sold to Maria T. Odend’hal, a married woman, trading as a feme sole. The proceeding was hy attachment under Article 45, section V, of the Code, and the writ was laid in the hands of Sebastian Odend’hal, the husband of the defendant. He appeared and pleaded non assumpsit for the defendant and n/ulla bona for himself. On these pleas issues were joined.

The appeal in this case was taken from an order of the Circuit. Court sustaining the exceptions of the mortgagors to Account A, and overruling the exceptions of the Receivers to Account B, and ratifying said latter Account, and directing said Receivers upon payment to them of the amount as shown by said Account B, to be due by the said mortgagors, to release their mortgage. Account B, was stated on the theory of the mortgagors. The case is stated in the opinion of this Court.

<p>Mortgage to a Corporation by a Shareholder to secure a loan— Usury — When the defence of Usury need not be raised by Special plea — When Usurious interest should be disallowed by the Court in the absence of a Special plea of Usury — Usurious contract not protected by the Act of 1872, ch. 178 — Act of 1872,. c/t. 178, unconstitutional — Section 57, of Articled, of the Constitution of the State.</p> <p>Where a shareholder in a corporation executes a mortgage to such corporation, to secure a loan on which he agrees to pay interest at the legal rate weekly, during the continuance of the mortgage; and also a premium of twenty-five cents weekly on each of his shares of stock, making in all nine and a half per cent, interest on the money loaned, such charge is usurious.</p> <p>In such case, where property is sold for the payment of the mortgage debt, and the proceeds are in Court for distribution, the defence of usury need not be raised by a special plea.</p> <p>It was the duty of the Court, the proceedings showing that the objection to the claim of the mortgagee was on the ground of usurious interest, to disallow it, although a special plea of usury was not filed.</p> <p>The Act of 1812, ch. 118, does not protect such contract from the charge of usury, for the Legislature has no power by a special law to authorize a certain class of corporations to loan money at a higher rate of interest than is allowed by the Constitution and the general law of the State. Such Act is in conflict with section 51, of Article 3, of the Constitution of the State.</p>

The Chesapeake- Mutual Land and Building Association of Baltimore City, incorporated under the provisions of the General Incorporation Law, (1868, ch. 471,) in 1869, became actively engaged in the business for which it was organized, and so continued until sometime in the year 1874, whem becoming embarrassed, its affairs were by a decree of the Circuit Court of Baltimore City, dated 1st December, 1874, placed in the hands of the appellants as receivers.

The ease is stated in the opinion of the Court. First Exception. — After the introduction of evidence hy plaintiff and defendants, the defendants further offered to prove by Mr. G-wathmey, one of the defendants, that they were shippers of grain, and that their business required the delivery of complete cargoes on board vessels, between and including the first and last days of the month, in order to comply with contracts for shipments during such months, as the contracts…

The case is stated in the opinion of the Court. First Exception. — At the trial the plaintiff offered the following prayer: That if the jury shall find for the plaintiff upon any count in the declaration, they are not limited as to the amount of damages they may assess to the actual damage which the plaintiff may have sustained, but may assess exemplary damages by way of punishment to the defendant, for the wrong and indignity put upon the plaintiff by applying to him the…

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

The case is stated in the opinion of the Court. The jury rendered a verdict for the defendant, and judgment was entered accordingly. The plaintiff appealed.

The case is stated in the opinion of the Court. The exceptions, eight in number, are sufficiently set out in the opinion. A verdict of guilty was rendered against the traverser, William E. Bloomer, hut as to the traverser, Upton W. Dorsey, the jury being unable to agree, were discharged. The traverser, Bloomer, appealed.

<p>Modification of a deed of Leasehold property refused as not authorized by the Evidence — Presumption arising from Lapse of time — Claim to certain shares of Stoclc, not sustained by the proof.</p> <p>E. K. and A. McD. entered into a partnership in the City of Baltimore. In the articles it was stipulated that all the net profits accruing from the. business should be held and owned jointly by them share and share alike. In the event of the death of either, the survivor, (subject to sundry small charges,) was declared to be “entitled to have and hold all and every part and parcel of the property that may have been held jointly by the partners.” E. K. died in lS’TG, leaving a will. During the partnership a leasehold interest in a lot of ground was purchased by said parties, and by deed of assignment was conveyed to them as tenants in common. And certain shares of stock in a Building Association were, purchased in the name of B. K. on which were paid the weekly dues or instalments down to the time of her death A bill was filed by A. McD. against the executor of E. K. alleging that through mistake, inadvertence, and the failure to give special information to the conveyancer, the deed for the leasehold property was so drawn as to vest it in the parties as tenants in common, and not as it should have been in joint tenancy, and asking that the sole ownership might be decreed to be in A. McD. and that the executor of E. K. might be decreed to convey by deed to A. McD. the undivided moiety of said lot. Allegations of the bill were denied in the answer of the executor. Held :</p> <p>1st. That whether the application be regarded as one for the reformation of the deed, or as for the establishment and declaration of a trust in respect to the property conveyed by the deed, the effect was substantially the same, and in either case the beneficial effect and operation of the deed was proposed to be essentially changed and modified.</p> <p>2nd. That such being the nature of the application, it is a well settled principle that all the essential facts to entitle the party to relief, must be made out and established in the most clear and decided manner, and to the entire satisfaction of the Court.</p> <p>3rd. That there was no satisfactory proof that any portion of the partnership funds was applied to the purchase of the property for which the deed was taken.</p> <p>4th. That the evidence offered to show that the draftsman of the deed prepared it in a form, and made it convey an estate, different from what was really intended by the grantees, was so indefinite and inconclusive that it furnished no safe ground on which to base a decree.</p> <p>5th. That the lapse of time before proceedings instituted, and the fact that no question or objection was raised in regard to the form and effect of the deed until after the death of E. K., a period of nearly eight years, added greatly to the presumption against the complainant, and increased the necessity for plain and demonstrative proof of the facts upon which she founded her claim to relief.</p> <p>As to the shares of stock in the Building Association, the complainant made claim upon the alleged ground that the money paid on the shares was an investment of the profits accruing from the business of the partnership. This allegation was also denied in the answer of the executor. Upon a review of the evidence bearing upon this question, it was Held :</p> <p>That the allegation of the complainant was not sustained.</p>

The appeal iu this case was taken by the defendants from a decree of the Court below, requiring them to pay, or bring into Court to be paid, to the complainants the sum of $1818.33, with iuterest from the 28th of September, 1866, until paid, or brought into Court as aforesaid, together with the complainants’ costs. The case is stated in the opinion of this Court.

Appeals from the Circuit Court of Baltimore City. The bill in this case was filed on the 5th of March, 1870, by the appellee against the several appellants and others, and alleges: That heretofore, your orator was jointly interested and concerned with a certain Charles K. Cannon, of the City of Baltimore, Thomas Roberts, of Baltimore County, and Edward E. Folger and William L. O’Brien, both then of New York, in the management and running of certain steamboats from Baltimore…

The case is stated in the opinion of the Court. First Exception. —At the trial the defendant offered in evidence a deed dated October 5th, 1876, (subsequent to the commencement of the action,) by which the plaintiff conveyed to the defendant her interest in the property, in respect to which the action was brought. To the admission of this deed the plaintiff objected. The Court (Dobbin, J.,) overruled the objection and permitted the deed to be read to the jury.

<p>Appeals from the Circuit Court for St. Mary’s County, in Equity.</p> <p>The case is stated in the opinion of the Court.</p>