Volume 49 — Maryland Reports

This appeal was taken by the complainants from a decree of the Court below (Gilmor, J.,) dissolving a temporary injunction, and dismissing the hill with costs.

The appellee was indicted at the May Term, 1877, of the Circuit Court for Carroll County, for having fraudulently embezzled, secreted and made way with one sewing machine, of the value of forty-five dollars, ($45.09,) the property of the Howe Machine Company. Upon the trial the prisoner was adjudged not guilty, and was discharged. At the trial certain exceptions were taken by the State.

This appeal was taken by the complainants from a decree of the Court below, (Gilmor, J ) dismissing their hill with costs. The case is stated in the opinion of the Court.

The nature of the case and all the exceptions, including the eighth, based on the granting by the Court, (Borne, J.,) of a prayer offered by the defendants, are stated in the opinion of the Court. The jury rendered a verdict for the defendants, and the plaintiff appealed.

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

The appellants were creditors of the appellee, as holders of two of his promissory notes. Under proceedings in bankruptcy the appellee effected a composition with his creditors, under which twenty-five per cent, of his debts was to be paid partly in cash and partly in three instalments, for which his promissory notes were given. The cash and the first note having been paid, and the second note not being paid, the appellants sued him on the original notes.

<p>Necessary party to an Appeal—Art. 2, sees. 9,10,11 and 13, of the Code—Act of 1862, eh. 167—Case of Appeal where the Appellee died before the Appeal was talcen—Bill of Revivor and Review.</p> <p>An appeal like all other judicial proceedings must hare proper parties. This Court in the absence of express authority cannot proceed to hear and determine an appeal on the mere ex parte presentation of the appellant.</p> <p>A defendant upon whose demurrer a bill in equity was dismissed, died on the 12th day of July, 1877, and an appeal was not taken until the 27th of September following, so that at the time the appeal was taken there was no defendant in the Court below, and no one to meet the appeal in the appellate Court. On a motion to dismiss the appeal, it was Held :</p> <p>1st. That secs. 9, 10 and 11, of Art. 2 of the Code, or sec. 13 of said Art., as enacted by the Act of 1862, ch. 167, did not apply to the case.</p> <p>2nd. That the defendant having died before the appeal was taken, ho never was a party to the appeal and there was no statute that applied to the case, or gave the Court power to entertain the appeal under such circumstances.</p> <p>3rd. That it might be that the appellant could reach the justice of the case by a bill of revivor and review for errors apparent on the face of the proceedings, but there was no power here to review, and reverse or affirm the decree appealed from and the appeal must be dismissed.</p>

Appeals from the Circuit Court of Baltimore City. In the year 1843, a certain George Stonebraker, of Baltimore City, departed this life, having previously, on the 31st day of August, 1832, executed a last will and testament, which was duly admitted to probate in the Orphans’ Court of Baltimore City, on the 13th day of May, 1843.

The contents of the will of the testator in this case, as far as material, are stated in the opinion of the Court.

This suit was instituted by the appellant against the appellee, in the Circuit Court for Allegany County, whence upon the suggestion and affidavit of the plaintiff, it was removed to the Circuit Court for Montgomery County, where it was tried, resulting in a verdict for the plaintiff. On motion of the defendant, the Court granted a new trial.

The appellant sued the appellees on a written guaranty. The declaration stated that, “ George W. Davis, William M. Davis and Isaac T. Davis, on the nineteenth day of April, in the year eighteen hundred and seventy-five, by their promissory note now over due, promised to pay to the plaintiff the sum of five hundred dollars, with interest from date, twelve months after date ; and that at the same time and as part thereof, and for the same valuable consideration, and in order…

<p>Construction of a will—Bequest of the use of a room in testator’s house, and question as to the right of the legatee to a Commutation in money for its use—Testimony irrelevant and inadmissible under the allegations in the bill—Charge of legacy on land—Question as to liability of the Bur chaser to pay interest on the legacy where the evidence shoioed that the devisee of the land was not liable because of the relations between him and the legatee—Notice to the purchaser of the Bxistence of the lien—Waiver—Estoppel—Statute of limitations not applicable to legacies—Laches—Claim, subject to equities—Reciprocal benefits Cancelling current obligation•:— Claim in rem and in personam—Subrogation.</p> <p>A testator by liis will gave to Ms daughter R. O. O. any room she might choose to occupy in his dwelling house during her single life. After his death the house was sold subject to the right of R. C. O. to a room therein under the will. Oil a bill filed by R. C. O. against the purchasers claiming a sum of money in commutation of her right to the room, the proof failed to sustain the allegation of the complainant as to her inability to occupy the room; and it appeared that the legal possession of the room was still in her, that she left a part of her furniture in it, and retained the key, and left the house because she could not remain without her brother, and with disagreeable people in the house, the managers of the defendants. Held:</p> <p>That for the reasons stated in the case of Meakin vs. Duvall, 43 Md., 3Y8, the complainant was not entitled to a money commutation for the use of the room.</p> <p>The complainant offered evidence that she left the house and surrendered her room to the defendants on an agreement made with them to submit the valuation of the room to referees, and on the undertaking by the defendants to adopt such valuation as the referees might find. This evidence being excepted to for specified reasons, it was Held :</p> <p>That although the reasons of their exceptions might not be tenable, yet there being no allegation in the bill relying on the agreement and award as a ground of relief, or any averment in relation thereto, either in the bill or answer, testimony on that subject was incompetent and inadmissible because irrelevant to any issue in the cause.</p> <p>Whether a legacy is a charge on real estate is a question of intention, and the more recent authorities determine that words which charge debts upon the realty, will have the same effect as to legacies.</p> <p>The testator by his said will devised and bequeathed to his wife during her her natural life all his personal estate, (excepting as thereinafter mentioned,) and all the real property of which he died seized, and after her death the said land and personal property to be equally divided between his sons R. L. O. and G. G. O. to them and their heirs in fee simple, &c. The testator further gave and bequeathed to the complainant the sum of three thousand dollars to be paid to her by her said brothers R. and G. each paying one-half of the said sum upon getting into possession of the property therein-before bequeathed them. After the death of the widow the testator’s real estate was divided into two parts, that part containing the mansion being assigned to G. C. O. and the complainant resided with him until the year 1871, when the real estate of G. O. O. was sold under proceedings instituted against himself and his wife, and was purchased by the defendants. The complainant in her said bill alleged that the said G. O. O. was insolvent, and had never paid her any part of the one-half of the legacy of §3000 bequeathed to her, and that the sum of $1500 with interest remained due to her, less a sum of $1500 paid in part thereof by the defendants since their purchase, and claimed that the same was a lien upon the land purchased by them, and asked that said lien might be enforced by a sale. Held :</p> <p>1st. That the provision in the will requiring the legacy to be paid by the testator's sons on 'their getting into possession of the property thereinbefore bequeathed to them, did not restrict the charge to the personal estate.</p> <p>2nd. That the legacy was a charge upon the property purchased by the defendants.</p> <p>3rd. That as the will was the foundation of G. C. O’s title and interest in the lands purchased by the defendants, and was referred to in the advertisement of sale, they must be considered as having notice of the charge imposed by the will on the lands devised.</p> <p>The trustee by his advertisement notified the bidders that the sale would be</p> <p>. subject to any right which might exist under the will of the testator in favor of Miss R. O. O. of a room, &c.; and the payment of fifteen hundred dollars. The complainant was no party to the proceedings under which the lands were sold, and did not appear to have any personal knowledge of the sale or any participation in the result beyond her demand of the $1500, and the acceptance of the check of the defendants for the sum of $1500 payable to her order and endorsed by her. Held :</p> <p>1st. That these acts could not be regarded as a waiver of any antecedent rights per se.</p> <p>2nd. That whether she was advised of her rights or acted in ignorance of them, the demand and acceptance unexplained constituted no estoppel.</p> <p>3rd. That legacies are not barred by the Statute of Limitations, nor had there been such laches in this case, considering the relations of the parties, as should preclude the complainant from asserting her right.</p> <p>4th. But the complainant’s claim being only cognizable in equity should be subject to all the equities which would exist between her and the devisee of the land.</p> <p>The complainant’s brother testified that he never paid his sister a cent of principal or interest, but he further stated that “she lived with witness but never paid any board; witness never asked her board; there was never any understanding between us she was to pay board, nothing was ever said between us with reference to her board, she never asked me for a dollar in her life.” Heud :</p> <p>1st. That such reticence between a brother and sister for a long course of years on a subject of such importance to both, could only proceed from a mutual consciousness that reciprocal benefits cancelled all current obligations between them.</p> <p>2nd. That the claim in this case was both in rem and in personam; the charge on the land was an incident to the claim on the person, and the one could not exceed the other.</p> <p>3rd. That the defendants if liable at all were liable as owners of the land charged by the will.</p> <p>4th. That the amount of their liability depended upon the mutual dealings between the brother and sister who occupied the farm, and the defendants being substituted by equity to the liabilities of the late proprietor should be subrogated to all his rights.</p> <p>5th. That the complainant, was not entitled to interest on the claim of $1500 since she became an inmate of her brother’s family, and while she remained such.</p>

<p>Contract—Abandonment of Contract—Contractor Abandoning Ms work and refusing after notice to proceed, liable for Loss sustained in completing Ms work.</p> <p>J. M. L. made a parol contract with J. H. to plaster for him five houses for-$1500, the latter furnishing all the materials as heeded. The work proceeded according to the mutual convenience of the parties and was paid for as it progressed. When the work was partially completed, and J. M. L. had received $650, he abandoned it, alleging that J, H. did not furnish the necessary materials as needed. After notice to J. M. L., other mechanics were employed by J. H., and the work was finished at a cost of $328. J. M. L. afterward filed a mechanics’ lien claim for $850,—balance claimed to be due under the contract, and a bill in equity was filed to enforce said lien claim. Held :</p> <p>1st. That leaving out of the calculation any claim of J. H. by way of compensation for damage sustained by him, by reason of the non-performance of his contract by J. M. L., he paid for the work $9'78, and this deducted from $1500,—the contract price, left $522 due to J. M. L., which was the full extent of his claim, and which he was entitled to recover.</p> <p>2nd. That as to any claim of J. H., on account of damage occasioned by the-delay, it was competent, for him at any time, after notice to J. M. L. to proceed with the work, and having the materials ready, if there was failure on the part of J. M. L., to engage other parties to finish his work, and hold J. M. L., if delinquent, for the consequent loss sustained through his non-performance.</p>

<p> Resulting Trust—Olear and convincing proof required to establish Resulting Trusts—Instifficiency of Evidence to establish a Resulting Trust. </p> <p>On the 5th of March, 1873, J. F. and wife leased to E. P. S. a lot of ground for the period of ninty-ninc years, the consideration being the annual payment of thirty-two dollars rent. On the 23rd day of the following June, the lease was assigned by E. P. S. to his wife, for the consideration of five dollars. D. E. T. had recovered a judgment against E. P. S. in 1869, and the said judgment having been revived by scire facias, an execution was issued and levied upon the property so assigned to his wife by E. P. S. Proceedings under the execution were restrained by injunction. Upon final hearing a decree was passed making the injunction perpetual. On appeal from this decree it was Held :</p> <p>1st. That the only ground upon which the wife’s claim to the property assigned to her, could be supported, was by reason of a resulting trust.</p> <p>2nd. That the law is well settled that if a husband purchase an estate with the money of his wife, there is a resulting trust, and the husband holds the property as trustee for the benefit of his wife.</p> <p>3rd. That to establish a trust of this sort, strong and convincing proof is always required.</p> <p>4th. That the evidence in this case not being plain, direct and unequivocal, but altogether unsatisfactory, fails to establish a resulting trust for the benefit of the wife.</p>

The appeal in this case was taken by the complainants from the decree of the Court below, which adjudged that the defendants William White and Oliver E. Lantz, trustees under the will of Samuel Elder, deceased, should within a reasonable time transfer and pay over to the defendant Cassandra Olivia Buck, absolutely, the sum of three thousand dollars directed by the will of the said Samuel Elder to be invested for Margaret Buck, for and during her life, with all the issues and…

<p>Appeal from the Circuit Court for Prince George’s County.</p> <p>The case is stated in the opinion of the Court. An exception was taken by the plaintiffs to the ruling of the Court, (Brent, C. J. and Ford, J.,) upon the prayers. It is not deemed necessary to set out the prayers. A verdict was rendered for the defendant and a judgment was entered in his favor l’or costs. The plaintiffs appealed.</p>

<p>A Stationary steam engine not in itself a Nuisance—Power of the Mayor and City Council of Baltimore to legislate upon the subject of the erection and use of Steam engines within the City limits—Discretion of the Mayor and City Council of Baltimore as to such Legislation, and its enforcement—Such discretion not beyond Judicial Control in all cases—Power committed to the Mayor of Baltimore over the use of Steam within the limits of the City, practically absolute—Ordinance conferring such pwoer, void—Jurisdiction in Equity to restrain the Enforcement of a void Ordinance.</p> <p>In 1866, R. applied to the Mayor and City Council of Baltimore for permission, which was granted, to erect and use on his premises and in the carrying on of his business of carpentering and box-making, a steam engine. The resolution granting this permit contained a provision in conformity to a Oily Ordinance on the subject, that the engine was “to be removed after six months notice to that effect from the Mayor.” Thereupon R. erected his steam engine and continued to use the same until some time in 18Í3, when he received a notice from the Mayor to remove it, which he refused to do. After the expiration of six months, the city instituted a suit, before a justice of the peace to recover the penalty for non-removal provided in the ordinance, and R. thereupon filed his bill praying an injunction to restrain the prosecution of that action, and others which the city threatened to bring from day to day, in order to enforce the removal of this engine. On appeal from the order of the Court below, granting the injunction as prayed and making it perpetual, it was Held :</p> <p>1st. That a stationary steam engine is not in itself a nuisance even if erected and used in the midst of a populous city, unless it interferes with the safety or convenience of the public in the use of the streets.</p> <p>2nd. That the liability of a steam engine, in common with all other steam boilers, to explode, and its use in a business in which combustible materials are necessarily brought into dangerous proximity to the fire in the boiler, thereby subjecting buildings and merchandise in that vicinity to increased danger from fire, do not make it a nuisance.</p> <p>3rd. That the Legislature has granted ample power of legislation upon the subject of the erection and use of steam engines within, the city limits, to the Mayor and City Council of Baltimore, independent of the power “to prevent and remove nuisauces;” and as to the necessity for municipal legislation on this subject, the Mayor and City, Council are the exclusive judges, while the selection of the means and manner of enforcing such legislation is committed to their sound, discretion.</p> <p>4th. That this discretion, though broad, is not absolutely and in all cases beyond judicial control; for there may be a case in which an ordinance, passed under a grant of power like this, is so clearly unreasonable, so arbitrary, oppressive or partial, as to raise the presumption that the Legislature never intended to confer the power to pass it, and to justify the Courts in interposing and setting it aside as a plain abuse of authority.</p> <p>5th. That the ordinance requiring the removal of steam engines-in such cases as this, after notice from the Mayor, did not prescribe regulations for their construction, location or use, but committed to the unrestrained will of a single public officer a power over the use of steam within the limits of Baltimore City,' practically absolute, so that he might prohibit its use altogether.</p> <p>6th. That an ordinance which clothes a single individual with such power, the exercise of which m#y proceed from enmity or prejudice, from partizan zeal or animosity, from favoritism and other improper influences and motives, easy of concealment and difficult to be detected and exposed, hardly falls within tke domain of law, and is void and inoperative.</p> <p>tth. That where a municipal corporation is seeking to enforce an ordinance which is void, a Court of equity has jurisdiction, at the suit of any person who is injuriously affected thereby, to stay its execution by injunction.</p>

On the 12th of September, 1874, the Port Deposit Homestead Association of Cecil' County, under a power of sale in a mortgage to it from a certain Silas Gorrell and wife, offered for sale in Port Deposit a certain bouse and lot, the sale being made for the Association by Wm.

<p>Construction of the Act of 1872, ch. 244, sec. (5—Meaning of the words “ through elevatorsP</p> <p>By the sixth section of the Act of 1872, ch. 244, the Weigher General of grain is required to have weighed all grain carried to the City of Baltimore for sale, except grain carried to said city on wagons, carts, railroad cars, or “through elevators ” Certain grain which arrived in Baltimore City, by water, was purchased by the appellants, and the vessels in which it was brought were ordered by them to unload it at the grain elevators at Locust Point or Canton. The grain was taken out of the vessels by the elevator machinery, and deposited in the elevator where it was weighed by an employé of the elevator company, under the immediate superintendence and direction of an assistant weigher of grain, stationed there by the Weigher General for the purpose of superintending and directing said weighing. The grain was so weighed under a claim of right and duty on the part of the Weigher General, to weigh the same under the Act of 1872, ch. 244, but said right and duty were denied by the appellants, who claimed that said grain was exempted from being so weighed, by section 6, of said Act of 1872, ch. 244. Held :</p> <p>1st. That the object and general purpose of the Act of 1872, ch. 244, authorizing the appointment of weighers of grain in and for the City of Baltimore, was to provide a competent and suitable officer to inspect grain sold in the City of Baltimore, and to ascertain with fairness and accuracy the true quantity sold, by weighing and measuring; to establish a system by which the Legislature supposed the farmer would more honestly receive, and the merchant more honestly pay, exactly for what was sold and bought.</p> <p>•2nd. That the Legislature clearly intended to except from the operation of the Act of 1872, ch. 244, not only grain carried to Baltimore for sale, “on carts, wagons, and railroad cars,” but also all grain carried by water to the city for sale, and carried through the elevators, as it must have known that grain so carried through the elevators would be accurately weighed by a fair and impartial person standing between the seller and the buyer, and that thus the object intended by the Act would be accomplished.</p> <p>3rd. That when grain had been removed from vessels and taken up into the elevators, and thence let down into the hoppers and weighed, and after being weighed had been put into the bins of purchasers, it had been carried through the elevators in the contemplation of the Act, and was exempt, from being again weighed by the grain weighers of the State.</p>

<p>Validity of a, Sale under a Decree—Correctness of Decree and formality of Trustee’s bond as affecting Validity of Sale— Conduct of Original trustee as affecting Sale made by his Successor.</p> <p>The validity of a sale, as a general rule, does not depend upon the judicial correctness of the decree or the formal execution of a sufficient bond by the trustee; the one may be erroneous in law and the other informal and insufficient, and yet the sale be above exception The misconduct of the original trustee, if proved, cannot avail to set aside a sale made by his successor.</p>

<p>Sale of Mortgaged premises—Order of Re-sale at the risk of the Purchaser, without Notice, erroneous—Sale to be Ratified before order of Re-sale can be properly passed—Proceedings against Purchaser failing to comply with terms of Sale—When the costs and expenses attending Sale may be imposed upon Purchaser in default— When Court may direct a Re-salc at risk of Purchaser.</p> <p>A trustee made report of the sale of certain mortgaged real estate, and on the same day of reporting the sale, he filed a petition alleging the failure of the purchaser to comply with the terms of sale, and praying an order for resale; thereupon an order for re-sale at the risk of the purchaser was passed without giving him notice, or affording him an opportunity to be heard. Under the order of re-sale the property was re-sold. The first purchaser filed a pelition asking that the order for re-sale be rescinded, and that the first sale be ratified, alleging himself willing and ready to comply with the terms of sale as prescribed by the decree. He also filed exceptions to the second sale, as did also the mortgagor. On appeal from the order of the Court overruling these exceptions, and finally ratifying and confirming the second sale, it was Held :</p> <p>1st. That the first sale having been reported by the trustee, no order affecting the rights of the purchaser should have been passed without notice, and an opportunity afforded of showing cause against such order.</p> <p>2nd. That the order for re-sale was clearly erroneous and without warrant in law, as it was not only passed ex parte and without notice, but the re-sale was ordered to be made at the risk of the purchaser.</p> <p>3rd. That this could not be done until the first sale was ratified. The party must be accepted as the purchaser, and the sale ratified, before he can be proceeded against for the enforcement of the contract of purchase.</p> <p>4th. That where a sale is reported and the purchaser refuses to comply with the terms of the sale, the Court may, upon representation by the trustee or other party in interest, order that cause be shown why the terms of sale are hot complied with, and if sufficient cause be not shown, the Court, considering all the circumstances, if there be no other sufficient cause to the contrary, may either ratify the sale or set it aside, as will best subserve the interest of the parties concerned.</p> <p>5th. That in such case if the sale be set aside, the Court may properly impose upon the party returned as purchaser, all the costs and expenses attending the sale, as the condition of his release from the purchase and the consequences of his default.</p> <p>6th. That if the sale be ratified, and the party still fail to comply, the Court may then proceed in a summary way, by order nisi and final order, to direct a re-sale of the property at the risk of the purchaser.</p>

<p>Canal Company cutting its Canal across a Public highway— Obligation, of the Canal Company in respect to such Highway—New road, across another already in existence—Structures necessary for Crossing old, road—At whose expense such Structures to be erected and maintained—Duty of Canal Company to keep in repair a Bridge erected by the Company to Unite a public highivay severed by the Construction of the Canal—Duty of County Commissioners to keep such bridge, being a County bridge, in repair, upon failure of the Canal Company to do so—Primary obligation of the County Commissioners to the Public—Liability of the County Commissioners in Damages for Injuries sustained by reason of the Bridge being out of repair, by a Person crossing it— Liability of the Canal Company for the same—Right of Action against the Canal Company by the County Commissioners for ichatever damages might be recovered of them— Bight of the County Commissioners to recover of the Canal Company money expended by them in necessary repairs of the Bridge—Measure of damages.</p> <p>The appellant sued the appellees to recover damages for injuries sustained by reason of the defective condition of a bridge across the Chesapeake and Ohio Canal, over which he was riding on horseback. It was admitted that the road on which this bridge was situated was a public county road in Allegany County, and was such before the canal was constructed. The Canal Company in constructing their canal cut through and severed this road about the year 1846, and afterwards erected a bridge over the canal at the place of severance. This bridge was burned down some time during the late civil war, and the bridge standing at the time of the accident was shortly afterwards built by the Canal Company in the place of the one destroyed. The defendants insisted that they were not responsible in this action, because the Canal Company was by law bound to erect, maintain and keep the bridge in repair. Held :</p> <p>1st. That the Canal Company was authorized to cross and sever all existing public highways throughout the route prescribed by its charter; but in thus cutting its canal across public highways, the Company had no power utterly to destroy them, but was bound to unite, for the public accommodation, any highway so divided, by a reasonably convenient thoroughfare over or under its canal.</p> <p>2nd. That where a new way or road is made across another already in existence and use, the crossing must not only be made with as little injury as possible to the old road, but whatever structures are necessary for such crossing must be erected and maintained at the expense of the party under whose authority and direction they are.made.</p> <p>3rd. That the duty of maintaining and keeping the bridge in repair, devolved upon the Canal Company.</p> <p>4th. That the bridge on which the accident happened was a county bridge, under the charge and control of the County Commissioners, and one which in discharge of their duty to the public they were bound to keep in repair if the Canal Company neglected its duty in that respect.</p> <p>5th. That the obligation of the County Commissioners to the public is primary and unqualified, and the fact that the Canal Company was bound to repair, did not absolve the County Commissioners from their primary duty to the public, nor was their liability affected by the fact that this action could have been brought against the Canal Company.</p> <p>6th. That while the County Commissioners were liable to the appellant in this action, the Canal Company was not discharged from its obligation to maintain and repair this bridge; nor were the Commissioners left without remedy against the Company, but had their remedy against it for whatever damages might be recovered against them in this action; and if they expended money in necessary repairs, they could recover it back from the Company in an action on the case.</p> <p>In an action to recover damages for injuries sustained by reason of the defective condition of a bridge over which the plaintiff was riding on horseback, the jury, should they find a verdict for the plaintiff, in estimating damages, should consider the health and condition of the plaintiff before the injury complained of, as compared with his present condition, in consequence of said injury, and whether said injury was in its nature permanent, and also the physical and mental suffering to which he was subjected by reason of said injury, and should allow such damages as in their opinion would he a fair and just compensation for the injury which the plaintiff had sustained, and they should also consider the condition of the plaintiff’s horse before the injury complained of, as compared with his subsequent condition in consequence of such injury, and allow the plaintiff such damages as in their opinion the horse had sustained.</p>

<p>Public Nuisance—What constitutes the Public to be offended by a Nuisance—Meaning of the words Roads and Streets” in an Indictment fot a Nuisance in carrying on an offensive trade—Sufficiency of the Allegations in stick Induiet%nent.</p> <p>Joshua Horner, Jr., was indicted in the Circuit Court for Baltimore County for maintaining a nuisance, in carrying- on an offensive trade. The indictment charged that said Horner “near unto divers roads and streets, and also near unto the dwelling houses of divers liege inhabitants of the State, there situate and being, unlawfully and injuriously did use, and yet doth continue to use, a certain furnace and boiler," for certain specified purposes in carrying on the said offensive trade. A demurrer to the indictment, and a motion in arrest of judgment, were successively overruled; and after judgment entered upon the verdict of guilty the case was brought before this Court as upon writ of error, the traverser alleging that the indictment was fatally defective, 1st, because it did not aver that the furnace and boiler •used in so carrying on the said offensive trade were located near a public ' road or high way,or at any place where the public had any right or interest; 2nd, that what was charged amounted to nothing more than a private nuisance for which an indictment would not lie. Held :</p> <p>1st. That in determining what constitutes the public to be offended by a nuisance, and what degree of annoyance will subject the party causing it to public prosecution, reference must always be had to the local situation of the nuisance complained of; and where the trade or business producing the alleged nuisance is in itself lawful, before it can'be declared a nuisance it must be shown to be in such proximity to public ways, or other places of public resort, as to be offensive to those passing, or resorting to, such places, or that it seriously incommodes the people generally in the neighborhood where the trade is carried on.</p> <p>2nd. That the ordinary and accepted meaning of the words “roads and streets” was “ways for public travel,” unless qualified by the adjective private, or some other qualifying expression.</p> <p>3rd. That the allegation that the nuisance existed “near unto divers roads and streets, and also near unto the dwelling houses of .divers inhabitants of the State, there situate and being,” was sufficient.</p>

Appeal as upon writ of of error from the Criminal Court of Baltimore City. George W. Strauss was indicted on the 8th September, 1877, in the Criminal Court of Baltimore City.

<p>Buie of the Common Law in respect to a Verdict of acquittal on an Indictment for a felony or misdemeanor, on the application of the Prosecutor to have it set aside—Construction of the Act of 1872, ch. 310, providing for Appeals in Criminal Cases—Court of Appeals not required to express opinions upon mere Moot questions or abstract propositions—When the Court of Appeals is required, to notice Exceptions by the State in Criminal Cases, on Appeals by the State.</p> <p>It has always been a settled rule of the common law, that after an acquittal of a party upon a regular trial on an indictment for either a felony or a misdemeanor, the verdict of acquittal can never afterwards on the application of the prosecutor in any form of proceeding be set aside, and a now trial granted, and it matters not whether such verdict be the result of a misdirection of the Judge on a question of law, or of a misconception of fact on the part of the jury.</p> <p>The Act of 1872, ch. 316, providing for appeals in criminal cases, contains no power to grant a new trial in a case where the accused has been duly acquitted. No provision is made for suspending t-he effect of a verdict of acquittal, or the entry of judgment thereon in favor of the accused, if that be necessary for his discharge, pending an appeal by the State’s attorney, or for keeping him in the meantime in custody, or requiring him to give bail.</p> <p>In the absence of anything in the Act of 1872, ch. 316, either express or implied, authorizing the Court of Appeals to award a new trial to the State in a case where the verdict was in favor of the accused, the common law rule in respect thereto must be adhered to.</p> <p>The Legislature has never undertaken, even if it had the power to do so, to confer jurisdiction, and require the Court of Appeals to express opinions upon mere moot questions or abstract propositions. The Constitution requiring the Court to file an opinion “ in every case,” and providing that its judgment therein shall be “final and conclusive,” contemplates some action by the Court which shall be effective and binding upon parties on both sides of causes brought hero by appeals or writs of error.</p> <p>The Court of Appeals is required to notice exceptions by the State in criminal cases, on appeals by the State, only in cases where the parties accused have been convicted, and have also taken exceptions and appeals. In such a case, if it shall be found there was error in the rulings excepted to by the accused, so that a new trial can be awarded him, it will then become the duty of the Court to consider and determine all questions raised by the State on its appeal, so that in the new trial the Court below can be guided by the judgment of this Court on all such questions as well as on those raised by the appeal of the accused.</p>

<p> Rejection of application for Insurance against Fire—Rejection within a Reasonable time—What does not constitute a Contract of Insurance. </p> <p>The appellee was incorporated on the 24th of July, 1816, and on the 7th of August following application was made by the appellant for insurance, among other things, on his house, the application being subject to the approval of the Board of Directors. The application was handed to one of the directors on the 9 th of August, and on the 12th of the same month, as he thought, he delivered it to the Secretai'y of the Company or laid it on his desk; a quorum was not present at the time and no business was done. A special meeting of the Directors was held on the 19th of August, but the application was not considered. On the 30th of August the house was destroyed by fire. At the first regular meeting of the Executive Committee, held on the 25lh of September following, the application was rejected, and this action of the Committee was subsequently approved by the Board of Directors. In an action by the appellant to recover the amount of the alleged insurance on his house, from the appellee, it was Held :</p> <p>1st. That the company had not failed to act upon the application within a reasonable time, and its conduct was not calculated in any manner to mislead the plaintiff.</p> <p>2nd. That there was no contract of insurance upon which an action could be maintained.</p>

On the 2nd of February, 1864, John M. Gantt and his sister, Mary W. Gantt, (who afterward intermarried with Henry F. Turton,) executed a mortgage of certain land lying in Anne Arundel County, to Burlington Carlisle to secure the payment of a loan of two thousand dollars. In February, 1869, the mortgagee died, and in March, 1870, his daughter Mary McC.

<p>Order of Orphans’ Court from which an Appeal will not lie— Art. 93, sec. 15, of the Code.</p> <p>■ The power to grant letters of administration to two or more persons with the consent of the person first entitled, conferred on the Orphans’ Courts by sec. 15 of Art. 93 of the Code, is one to be exercised entirely in the discretion of the Court, and from its exercise no appeal will lie.</p>

This suit was instituted by the appellee to recover on a promissory note or due-bill of the appellant. On the 5th of April, 1875, the defendant confessed a judgment in favor of the plaintiff, on terms to be filed, and agreed that the same should he extended on the following Thursday. On that day the judgment was extended for the plaintiff for $127.60.

Maier Simon on the 28th of September, 1869, recovered against Elisha Riddle a judgment by confession for $619.67. . On the 16th of August, 1875, the judgment was entered to the use of Henry Simon, and on the same day an attachment was issued thereon, returnable on the second Monday of September, 1875. The writ of attachment was returned endorsed as follows: “Laid in the hands of Ed. F. Abell on the 30th day of August, 1875, at 10 A. M., and summoned him as garnishee.

Cross Appeals from the Superior Court of Baltimore City. The directors of the Baltimore County Brewery, Malting and Distilling Company, of whom John Snyder was one,' employed a certain Peter Schneider as their agent with power and authority to purchase the malt and hops for the brewery, and each director of the company, by a bond executed December 22nd, 18^3, agreed to become individually responsible in the sum of $2500, “ for the malt and hops which the said manager shall…

Joseph Stansbury died in October, 1876, leaving a widow and four children. He was at the time of his death about eighty-two years of age, had been once paralyzed, and had been in feeble health for some years before his death.

The New York Life Insurance Company issued a policy of insurance upon the life of William Harper, payable to his wife. Afterwards, upon representations of William Harper, the Company substituted for that policy a new one bearing the same number and for the same amount, payable to his legal representatives. Upon the death of the husband the Company filed a bill of interpleader against the wife and the executor of the husband, asking that they might be required to interplead.

C. W. H. Owings died in August, 1875, leaving a last will and testament whereby he bequeathed to Virginia M. Owings “Eight thousand Dollars in State of Missouri Bonds.” Among the assets of the testator were found eight thousand dollars in State of Missouri Bonds, and these were the only State of Missouri Bonds owned by the testator.

<p>Attachment under Act of 1868, ch. 471, sec. 211, against a foreign Corporation as garnishee—Question as to whether the cause of action arose under a Maryland Contract, and when Motion to quash may he made.</p> <p>C. and S., citizens of Maryland, having a claim against P. who was a resident of Washington City, in the District of Columbia, sued out of Baltimore City Court an attachment on warrant against him as a non-resident, and caused the same to be laid in the hands of the R. C. Ins. Co. as garnishee. The R. C. Ins. Co. was a corporation created by the laws of Canada, exercising franchises in this State, and having a branch office in the City of Baltimore. The debt sought to be attached was due to P. for a loss by fire on the goods of the latter in a store in Washington, under a policy of insurance issued by the garnishee. In the printed heading of the policy were contained the words “Baltimore Branch.” And it is stated in the concluding part of the policy, which purports to be dated at Baltimore, that two of the directors of the company, by their attorney, had signed it and caused the common seal of the company to be affixed thereto. After the engraved signatures of the two directors were the words “by their attorney, J. A. R., Manager Baltimore Branch ” Below this was the following: “Not valid</p> <p>.unless countersigned by the duly authorized agent of this company at Washington, D. 0.,” and this was signed “B. P. S., Agent.” .The Baltimore branch office was simply one of the agencies of the Company whose home office was at Montreal. J. A. R. was the general manager of The Baltimore Branch Office, and as such was manager of the district for the Southern States including the District of Columbia. The Company had also a Washington Agency at Washington, the agent there appointed by J. A. R. subject to the right of rejection or remora,1 by the Company. At the time the policy was issued, B. E. S. was the agent of the Company at Washington, and it was in fact countersigned by him at Washington, and there delivered by him as the agent of the Company to E., who was then and had' since continued to be a resident of that city. It was J. A. R's. custom to sign policies as the general manager of the Baltimore Branch Office, and then send them in blank to the Washington and other local agents of the Company, who would fill them up, countersign and deliver them to persons who from time to time insured in the Company; and the policy in question was so signed by him as manager of the Baltimore Branch and sent in blank to the Washington agent. On a motion to quash the attachment, as unauthorized by the Act of 1868, ch. 471, sec. 211, it, was Held :</p> <p>1st. That this could not be regarded as a Maryland contract, and the attachment based thereon could not bo sustained under said Act.</p> <p>2nd. That it was not too late for the garnishee to make the motion to quash, after having appeared and confessed assets, and expressed its willingness to abide by the order of the Court in the premises.</p> <p>The Act of 1868, ch. 471, sec. 211, above referred to, provides that suits against foreign corporations exercising franchises in this State, may be brought in any of the Courts of this State by a resident of this State for any cause of action ; and by a plaintiff not a resident of this State, when the cause of action has arisen or the subject of the action shall be situated in this State.” Held :</p> <p>That this enactment is not a grant of a privilege or immunity from suit, to parties otherwise liable to be sued in the Courts of the State and subject to their jurisdiction, but the grant of a restricted and limited jurisdiction to the Courts themselves over certain suits against foreign corporations not otherwise compelled to submit to the jurisdiction of any Court of the State.</p>

The bill in this case was filed by Charles C. Shriver •against the appellees. The nature of the case is stated in the opinion of the Court. During the pendency of the suit the complainant died, and his widow and infant child were made complainants in his place ; and they are the appellants in this case, the Court below, (Pearre, J.,) having passed a decree dismissing the bill.

The appellee sued the appellant on the common counts, “for services rendered during 1870, 1871, 1872, 1873 and 1874, in obtaining patent, negotiating loan in London, and various duties in California, Baltimore, Philadelphia and New York.” Exception.—At the trial the plaintiff offered the three following prayers: 1.

The bill in this case was filed by Ann Rebecca Cole against the appellants for the specific performance of a contract for the sale of a lot of ground in the City of Baltimore.

The case is stated in the opinion of the Court. Exception.—At the close of the plaintiff’s evidence, the . Court (Dobbin, J.,) required the defendant, to submit the following prayer. 1. The defendant prays the Court to instruct the jury that there is no evidence legally sufficient to entitle the plaintiffs to recovér. This prayer was granted by the Court, The defendant excepted. The jury rendered a verdict for the defendant and judgment was entered accordingly.

The bill in this case was filed by the heirs and next of kin of Mary E. McFarland, against her executor, claiming that the residuary clause of the will of the testatrix, which'is set forth in the opinion of the Court, was void, and asking that the executor he required to distribute the residuary estate among the complainants.

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

Appeals from the Circuit Court of Baltimore City. Benjamin A. Buck and Margaret Buck, his wife, conveyed August 1st, 1857, to Samuel Elder, all the property which said Margaret had received from her father, in trust for the sole and separate use of said Margaret during her life, and after her death for the sole and separate use of her daughter, Margaret Buck, the younger, during her life, and after her death, then in trust as to the remainder for such child or children of…

The question in this case was as to which of the successive owners of property between the filing of an application with the City Commissioner to have done certain paving and the completion of said paving, was liable in an action of assumpsit for the tax assessed for such paving.

<p>Bill of Revivor by Defendant to revive a decree after the death of the Complainant—Question as to the right of a father after a decree of Divorce giving him under certain Conditions the Custody of an infant Childf to exercise the power conferred upon him by the Statute 12 Charles 2nd, sec. 24, of providing by will for the guardianship of said Child—Question as to the power of the Court under Art. 16, sec. 26, of the Code, to modify or take away the power conferred upon the testamentary Guardian.</p> <p>Under a decree for a divorce a vinculo matrimonii, the care, custody and control of an infant daughter of the parties was committed to the father, (the complainant,) until the further order of the Court. The decree also provided that the mother, (the defendant,) should have access to the daughter “twice during each year, at such times as said defendant shall designate, and at such place or places as shall afford said defendant reasonable opportunity and facility for making such visits.” By arrangement between the parents, the visits of the mother to the daughter were specifically provided for. The father subsequently died, leaving a will by which he gave the sole guardianship of the daughter to his sister. The latter duly qualified as guardian, and assumed the charge and custody of the daughter, and refused to allow the mother access to her. On a bill of revivor filed by the mother, asking for a revival of the original proceedings in the divorce case, and for the enforcement of the provisions of the decree securing her the right to visit her child, it was Held :</p> <p>That the complainant, although a defendant in the original cause, and the decree passed therein was against her, had rights and interests under the decree which entitled her to have the same revived.</p> <p>The statute 12 Charles 2nd, ch. 24, confers upon the father the power of disposing by last will and testament of the custody and tuition of his minor •child, and the Code, Art. 16, sec. 26, provides that in all cases where a divorce is decreed, “ the Court shall have power to order and direct who shall have the guardianship and custody of the children.” Held :</p> <p>1st. That the statute of 12 Charles 2nd, ch. 24, has the same force and effect as if it had been enacted by the Legislature. It forms a part of the statute law of the State, and must be construed in connection with the subsequent legislation prescribing the powers of the Court in cases of divorce, to have and exercise supervision over the children of the separated parents, and to order and direct who shall have the guardianship and custody of them.</p> <p>2nd. That in this case the Court having directed that as between the parties litigant the father should have the care and custody of the child “until the further order of the Court,” or in other words, placed the child in the custody of the party who is at the common law the guardian by nature, there is no reason why he had not the power to appoint a testamentary guardian.</p> <p>3rd. That construing together the Statute of Charles and the provisions of the Code as in pari materia, they must both have operation and effect as far as practicable and are consistent with each other.</p> <p>4th. That the aifect of the decree was not to take away the power of the father to appoint a testamentary guardian; but while this power continued, it could be exercised only in subordination to the power and authority conferred on the Court to supervise and direct who should have guardianship and custody, and which was expressly reserved by the terms of the decree.</p> <p>Sth. That the authority and rights of the testamentary guardian as to the custody of the child were held in subordination to the power of the Court, in the same manner as they were held by the father in his life-time.</p> <p>6th. That the Court in the exercise of its jurisdiction under the above Article of the Code had power to modify or change the previous order or decree in this respect, and in its discretion to change the custodian of the child and place her in the care and custody of some other person.</p> <p>íth. That under the facts and circumstances of the case, the child ought not to be taken from the custody of the aunt and placed in that of the mother.</p> <p>Sth. That nothing new having transpired since the original decree was passed to show that the child could be in any manner injured, or her welfare and happiness endangered, by allowing her mother access to her, a decree ought to be passed reviving the decree which had abated by the death of the father, and directing that the mother should have the same privilege of access to her daughter which was secured to her by the original decree. 9th. That the Circuit Court might prescribe in its decree, if it should be deemed' expedient, the times and places when and where such access should be-allowed; it being competent for said Court at any future time, when from a change of circumstances or from other cause they should consider it proper, in their discretion to alter or modify their decree in this respect..</p>

This was an action for slander brought by the appellants against the appellee. The declaration contained two counts; the second was abandoned.

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

On the 22nd of July, 1876, the appellee filed her bill of complaint to foreclose a mortgage against the appellants, and the proper parties were made defendants. The defendants were duly summoned, hut failed to appear and answer, and on the 4th of October, 1876, the Court passed an interlocutory decree and issued a commission, ex parte, to take testimony.

The appeal was taken from the ruling of the Court below sustaining the demurrer of the defendants to the plaintiff’s declaration. The case is stated in the opinion of the Court.

<p> Wills—General Devises, with power of disposition, carry entire estate—Devises for life, with power of disposition, carry only life estate, with power annexed—Power of disposing of Reversion after life estate how to he executed. </p> <p>N B. died in 1847, leaving a last will and testament whereby he devised to M. B., his widow, certain real estate in Baltimore city, consisting of houses and lots, naming and locating each house and lot so devised, aud as to two of the houses and lots he made this provision :—“ the two houses and lots on Monument St. to be disposed with as my said wife sees fit, at her decease ” Following the said devises was this general devise and bequest,— “and also I give and bequeath unto my said wife all my property, real, personal and mixed, of every description, to have and to hold for her benefit, maintenance and comfort, during her life. One of the Monument street lots, being leasehold, and held under a renewable lease, the widow by deed of assignment conveyed to a certain O. H. H., and in the deed of assignment referred to her husband’s will as the source of her right to convey The widow died in 1877 without attempting* to dispose of the said lot by last will.and testament. Afterward the appellees were appointed administrators d b. n. c. t. a. of N B , the widow having first administered his estate, and upon the assumption that no legal disposition had been made of the said lot so convoyed to C. H. H., the said administrators advertised and sold the same to the appellant. The sale was reported to the Orphans' Court of Baltimore City, but. exceptions thereto were filed by the appellant, on the ground that the said lot, had been previously legally disposed of by the said widow in her life-time, and that the said administrators could not give a legal and valid title thereto. The exceptions were overruled and the sale ratified. The questions in this case were : 1st, whether the widow took more than a life estate in the two lots on Monument street, and 2nd, whether the power of disposition given by the will was well executed by the deed of assignment. Held :</p> <p>1st. That where an estate is given to a person generally or indefinitely with power of deposition, such gift carries the entire estate ; and the devisee or-legatee takes, not a simple power, but the property absolutely.</p> <p>2nd. That when the property is given to a person expressly for life, and there-be annexed to such gift a power of disposition of the reversion, there the rule is different, and the first taker takes but an estate for life, with the power annexed.</p> <p>3rd. That the manner in which the power of disposition in such cases is to be-exercised, depends upon the language of the testator used in granting the-power, and unless such language indicates that the power must be exercised by last will and testament, the fact that the disposition is not to take effect until the death of the donee of the power is no reason why the disposition cannot be made by deed.</p> <p>4th. That the deed of assignment could well operate both upon the inlerest of the widow in the property conveyed and also as an execution of the power of disposing of the reversion.</p> <p>5th. That in this case the widow took but a life estate in the Monument street lots, with the power of disposition, and that this power was effectually-executed by the deed of assignment.</p>

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

Samuel J. Rouskulp held two mortgages upon the fee simple property of Benjamin F. Kershner, of Baltimore City. To accommodate Kershner, Rouskulp agreed to allow a mortgage for $8000 to be executed upon the same property and to take precedence of his mortgages.

<p>Act, of 1876, ch. 222—Competency of Witnesses—Where one of the two original parties to a contract is dead, the other surviving cannot testify on his oivn offer in an action on the contract.</p> <p>Thomas II. Standford, Senior, executed, a mortgage of certain leasehold property and passed to the mortgagee certain promissory notes signed by himself of even dale therewith, to secure the payment of a certain debt Upon the death of the mortgagee, his administrator, the appellee, foreclosed the mortgage, and to the auditor’s report distributing the proceeds of sale exceptions were filed by the appellant, on the ground that the mortgage was tainted with usury. The only evidence • offered to sustain the charge of usury was that of Thomas H. Standford, Senior, who admitted that he had executed the mortgage and signed the notes with his own name, though as the agent of the appellant. The auditor declined to accept this evidence on the ground that the witness was incompetent, the mortgagee being dead. The exceptions were accordingly overruled. Hkld :</p> <p>1st. That the witness was incompetent to testify, the mortgagee being dead.</p> <p>2nd. That in an action on a promissory note by the payee, the maker may always prove by parol the failure or want of consideration, and if the note be given for the debt of a third party it should, under the Statute of Frauds, show on its face a good consideration moving to the maker, and it may be proved to have been given for the pre-existing debt of another. But none of these facts can be proved by the maker in a case where the payee in the note is dead and suit is brought by his administrator.</p>

<p> Selling liquor without license—Trader closing business may sell old stock of liquors without renewing license—Sow such sales must be made—Code, Art. 56, sec. 5— Instructions by the Court to the Jury in Criminal Gases. </p> <p>IV. S. F. carried on a hotel at Bel-Air, and was licensed to sell liquors. On 1st May, 1877, he discontinued keeping the hotel, but having on hand a.n old stock of liquors, proceeded to sell the same without renewing his license 1o' sell, the sales being made as alleged by the traverser in his pleas, for the purpose of getting rid of the old stock and closing business, and not with a view to profit in the prosecution of a regular trade. The sales were made at cost, in quantities not less than half a pint and extended over a period of about six months W. S. F. was indicted for selling spirituous liquors without license in the prosecution of a regular trade. Held :</p> <p>.1st. That where a trader or keeper of an ordinary, whose license has expired, discontinues his business, he may, without renewing his license, lawfully sell and dispose of his chattels, including his stock of goods remaining on hand. If this is done in good faith, not in the prosecution of a regular business, the case would fall within the exception made by Art. 56, sec. 5, of the Code.</p> <p>2nd. That a trader under such circumstances could not be allowed to go on without a license to sell out his stock of merchandise by retail to such customers as might choose to buy, and then claim protection under Art. 56, sec. 5, of the Code.</p> <p>3rd. That where a trader under such circumstances sells out his stock of liquors at public auction with his other chattels, or disposes of them at private sale by wholesale and at one time, in good faith, for the purpose of closing his business and not in the prosecution of a regular trade, such acts would not constitute an infraction of the license laws.</p> <p>4th. Though the jury in criminal cases are judges both of the law and the facts, and thougb the Court is not obliged to give them instructions in such cases, it is within the discretion of the Court to give instructions to the jury, to which they are hound to give only such weight as in their judgment they see proper.</p>

<p>Act o/1872, oh. 316—How rulings upon demurrers in criminal cases may be brought before Court of Appeals for revieiv.</p> <p>The Act of 1872, ch. 316, allowing appeals in criminal cases, does not apply to rulings of inferior Courts upon demurrers; from such rulings no appeal will lie until after final judgment, when the rulings complained of may be brought before the Court of Appeals for review by a proceeding in the nature of a writ of error.</p>

<p> Leasehold property assets in hands of Executor—Interest of legatee or distributee subject to rights of Creditors—Legatee has no vested estate until Administration completed—Application of Income to Save Corpus of Estate. </p> <p>R. D. L. bequeathed all his property, after the payment of his debts, to O. P. M. in trust for the use of the widow of said R. D. L. for life, so that she be permitted to hold and enjoy the said property, and the rents, issues, interest and income thereof, after the payment of all ground rents, taxes, insurance, repairs and expenses upon said property, and after her death in trust for the testator’s grand-children. Said O. P. M. was appointed executor of the will and proceeded to administer the estate. The property of the testator</p> <p>■ consisted chiefly of improved leasehold estate, from which income was received by the executor during the first year of his administration, and applied by him to the payment of the funeral expenses of deceased, debts and costs of administration. The executor filed his first administration account showing how the income had been applied, and the widow thereupon filed her petition claiming that she was entitled to receive the income of the testator’s estate from the time of his death, and praying that the said administration account be set aside. Held :</p> <p>1st. That the property being leasehold it devolved on the executor and was held by him subject to the rights of creditors.</p> <p>2nd. That the widow had no vested estate in the property until the administration had been completed and the estate settled.</p> <p>3rd. That as between the legatee for life, and the creditors, the latter were entitled to claim that their debts should be paid out of the assets in the hands of the executor before any part thereof should be paid to the former.</p> <p>4th. That the income of the estate for the first year was assets in the hands of the executor and the application thereof to the payment of debts and expenses, in order to save the corpus of the estate, was equitable, in accordance with the due and proper course of administration and for the interest of the widow of the testator.</p> <p>[The foregoing quotation was taken from the opinion of Judge Inglis, in the case of Coates, Ex’r vs. Brune, Ex’r, then pending in the Orphans’ Court of Baltimore City.—Rep.]</p>

Lewis B. McMillan being seized in fee simple of certain lands lying in Garrett County, known as “ Joseph’s Farm,” which included military lots Nos. 3836 and 3837, devised the same to Elizabeth McMillan, his wife, for life and after her death to the appellees, William McMillan and Kate. Coyner their only children, in fee. This was an action on the case brought by the appellees to recover damages of the appellant.

The appellant sued the appellee for damages in the Circuit Court for Baltimore County, from which Court the case was removed to the Baltimore City Court and afterwards to the Circuit Court for Howard County. The suit was instituted 31st August, 1875, the declaration was filed 27fch November, 1875, the case was continued from term to term, and the plea was filed 12th March, 1877.

<p> Precatory words in Wills—When to be construed, as creating a Trust—Effect of absolute power of disposition in first talcer—Property which is subject of trust must be definite and certain. </p> <p>A. A. died leaving a last will and testament, whereby he devised and bequeathed as follows : “It is my will and desire, and I hereby devise and bequeath all my property, real, personal and mixed, to my dear wife E. A., and her heirs and assigns forever, and it is my request and desire that my said wife E. A. should by last will and testament devise and bequeath all of said property at her death remaining in her possession to my friend B. W., and to E. W., their heirs and assigns forever, share and share alike." Said E. A. afterwards died without devising and bequeathing to B. W., his heirs and assigns the balance of said property remaining in her possession at the time of her death, according to the said request of A. A., contained in his last will and testament The heirs of B. W. accordingly filed their bill of complaint claiming that the devise and bequest of A. A. to his said wife E. A. created a trust in favor of said B. W. as to such part of said property as should remain in the possession of E. A. at the time of her death. Held :</p> <p>1st. That precatory words may create a trust, but the effect of such expressions in creating trusts depends entirely on the supposed intention of the testator, to be gathered from the tenor of the instrument.</p> <p>2nd. That in order to justify a construction of precatory words in a will as creating a trust, it must appear that the property which is the subject of the trust is definite and certain.</p> <p>3rd. That the power of disposition by E. A., implied in the absolute gift of the property to her, was not limited or controlled by the subsequent words which had reference only to such property as might remain in her possession at the time of her death.</p> <p>4th That precatory words will not be construed to create a trust where the gift to the first devisee is absolute in its terms followed by precatory words indicating the disposition to be made of what might remain of the property at the death of the first devisee.</p> <p>5th. That words of recommendation and other words precatory in their nature are not to be construed as peremptory unless by the context of the will that meaning is forced upon them.</p>

Julia Ann E. Sisco, as administratrix of James Sisco, deceased, and as widow, and as guardian of Henry Sisco, minor child of said James Sisco, sued Patrick Forrester for damages occasioned by the defendant's obstructing and closing up an alley way. In the first count of the declaration said Julia claimed damages for the injury done to herself and her said ward, Henry Sisco, and in the second count cl,aimed damages for the injury done to herself alone.

The appellants sued the appellee for goods bargained and sold by the appellants to the Baltimore Chandelier Manufacturing Company, in which the appellee was a stockholder. A bill of particulars was filed specifying the dates and character of each charge, the dates extending from October 18th, 1875, to February 28th, 1876, and among the charges were some for work and labor done in the preparation of the goods sold to said company.