Volume 51 — Maryland Reports

This appeal was taken from a decree of the Court below (G-ilmor, J.,) making perpetual an injunction to restrain the appellants from levying an execution, in the nature of a fi. fa., upon the property held and owned by the appellee. .

Tn this case, removed from the Circuit Court for Baltimore County, on the suggestion and affidavit of the plaintiffs, in addition to the statement thereof contained in the opinion of the Court, the following is inserted as the contract therein referred to: This agreement, made this 21st day of September, A. D. 1875, between D. J. McCauley, Edward Rider and Benjamin E. Jordan, County Commissioners of Baltimore County, and P. O’Brian & Co., contractors for building Wilkens’…

This suit was instituted by the appellee against the appellant to recover on a policy of insurance on her husband’s life. The declaration did not allege that the plaintiff was a resident of this State, nor that the cause of action had arisen in this State. The affidavit to the account filed with the declaration purported to have been made by the plaintiff before a notary public in the city of Washington. The defendant demurred to the declaration.

This appeal was taken by a creditor from an order of the Orphans’ Court for Talbot County, passed in the matter of the estate of Arthur W. Leeke, deceased.

The facts of this case (which was removed from the Baltimore City Court on the suggestion and affidavit of the defendant) are stated in the opinion of the Court. Exceptions. — At the trial the plaintiff offered the following prayers: 1.

<p>Divorce a mensa etthoro — Cruelty of Treatment — Act of 1872, ch. 272.</p> <p>A single act of personal violence to Ms wife by a husband does not constitute cruelty of treatment, within the contemplation of the Act of 1872, ch. 272, as a cause for divorce a mema et thoro.</p>

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

Tbe case is stated in tbe opinion of tbe Court. Exception. — At tbe trial before tbe Court without a jury, tbe plaintiffs offered tbe following prayers: 1.

<p>Owelty in Partition, am, Equitable Lien on the Purpart_ Statute of Limitations, not applicable to a Vendor’s Lien_ Presumption that an Equitable Lien, or Lien by Mortgage is satisfied after Twenty Years — Subrogation of a pledged Security, for the benefit of the Creditor.</p> <p>An equitable lien, in the nature of a vendor’s lien exists for the amount of money allowed as owelty in partition. It becomes a valid charge upon the purpart, on account of which it is granted, so soon as the partition is made final by the decree, and if not paid, it may be recovered by proper proceedings in equity against the land so charged.</p> <p>The Statute of Limitations does not apply to an equitable lien on land. The lapse of twenty years, as in the case of a lien by mortgage, is necessary to raise the presumption, that such a lien has been satisfied.</p> <p>The lien by mortgage continues for twenty years, not because of the seal attached to the mortgage, for sealed instruments in this State are barred by twelve years, but because it is a deed of conveyance,' the rights .under which are not barred except by the lapse of twenty years, by analogy to the time of limitations under the Statute of James, which saves the right of entry for that period.</p> <p>Holders of an equitable lien for the amount of money allowed as owelty in partition, cannot be properly chargeable with ladies when they have instituted their proceedings to enforce their lien within twenty years, and so soon as they became informed of their rights.</p> <p>A pledge of a United States bond, to secure another against loss from the payment of a debt not due primarily by him inures to the benefit of the creditor. And equity will accordingly subrogate the security thus held, whether the creditor was apprised of it or not at the time of its deposit.</p>

The case is stated in the opinion of the Court. Exception. — At the trial the plaintiffs offered the following prayers: 1. If the jury find that the plaintiff, Alice Sapp, was the owner of the house and lot in question, and that the defendant broke into the same and tore down the front wall, and erected on her lot the fence mentioned in the evidence, then the plaintiffs are entitled to recover. 2.

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

This was a proceeding in equity hy the appellee, Lange, against the appellant and others, to enjoin the appellant from collecting or attempting to collect a promissory note, purchased by it, but equitably belonging to the appellee Lange, or from protesting it, or taking any further steps in regard thereto. The injunction ordered to be issued, was served upon the appellant three days before the maturity of the note. The case is further stated in the opinion of the Court.

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

<p> Time within which a Mechanic's Lien Claim must be Filed. </p> <p>Where a mechanic’s lien claim was filed against four houses for materials alleged to have been furnished for them, and the proof failed to establish with sufficient certainty the delivery by the lienors of any materials for any of the houses sought to be affected by a lien, within six months before a claim for a lien was filed. Held :</p> <p>That the proceedings to enforce the lien claim had not been taken in time.</p>

Tins was a proceeding in the Court below by the appellees to enforce a mechanic’s lien claim filed by them against certain houses in said city, belonging to Treusch, the appellant, and built for him by O’Connor, the co-appellant. Exceptions. — There were four exceptions taken by the defendant, Treusch, which are sufficiently set forth in the opinion of the Court.

<p> When the Appearance of a Won-Resident Defendant by Attorney in can Attachment Proceeding shall not be Construed as a Voluntary Appearance in the Suit against him Personally. </p> <p>A non-resident defendant has a legal right to appeal by attorney in ancillary proceedings by attachment on warrant, for the purpose of moving that a judgment of condemnation rendered therein more than a year before, be stricken out, and the execution thereon be quashed, without thereby being within the jurisdiction of the Court in respect to an action of assumpsit brought at the same time against him personally, wherein a summons was issued and returned non est and never renewed.</p> <p>The appearance of the non-resident defendant by attorney in the attachment case for the purposes before mentioned, cannot be construed to be a voluntary appearance in the action of assumpsit; and as he was never served with prccoss therein, the Court could have no jurisdiction or power to render a judgment in personam in that case.</p>

This was a proceeding in equity by the appellant, as guardian of the infant children of bimself and Emma R. Winter his wife, to obtain a decree for the sale of certain leasehold property, in which, it was claimed, the children had an estate in remainder after a life estate of the wife, by virtue of a deed from one Henry Newman to the said Emma (misnamed Amaryllis in the deed.) The terms of this deed are set forth in the opinion of the Court.

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

<p> Order of Court ratifying a Sale Erroneously Reported by a Trustee as having been made to certain Parties in Interest Rescinded after the Term, on Petition of such Alleged Purchasers and Proof of Error. </p> <p>.In 1866, J. A. P., trustee, appointed by a decree of the Circuit Court of Baltimore City to sell, for the purpose of partition, a tract of land lying in Queen Anne’s County, Maryland, after duly advertising, offered the property for sale, in said city, and reported to the Court, that he had sold it to the appellants, who were some of the . parties entitled. This sale was finally ratified, as was also the auditor’s account distributing the net proceeds of sale to all the parties in interest. The purchase money was never paid. After this, J. O. P., one of the appellants, by orders filed in the cause, assigned his interest in the case to the appellees W. A. F. and F. O. L., in consideration of loans to him severally made by them. In 1876, the appellants filed their petition in the cause, alleging that the trustee had erroneously reported them as purchasers, that they never had purchased, and never intended to purchase the property, and that they had but recently learned of such report having been made: they prayed that the order ratifying the sale might be rescinded and the reported sale rejected. Held :</p> <p>1st. That as it a2>peared from the evidence in the cause that the trustee had reported the appellants as purchasers of the property under a mistake, or under an erroneous impression, and as the delay in filing the petition was satisfactorily explained, there was no reason why the relief asked should not be granted.</p> <p>2nd. That the sale having been reported as made to the three a23pellants, it should be rejected as an entirety, and that the aifiiellees W. A. F. and F. C. L., by virtue of the assignments to them of J. O. P’s interest, acquired no equities against the relief prayed by the appellants.</p>

It appears from tbe proceedings in this case, wbicb was consolidated in tbe Court below witb tbe case of the appellant against Alois Kuspert and wife, that on the 1st of April, 1871, Alois Kuspert and wife, joint owners of property in tbe city of Baltimore, executed to Tbe Peter’s Building Association, No. 5, of Baltimore City, of which association Kuspert was a member and a subscriber to seventeen shares of its stock, a mortgage of their property to secure to it the payment…

The proceedings in this case were begun by the appellants by an attachment on warrant, which was dissolved by the appellee giving bon'd and appearing to the action on the short note, which is as follows: This suit is instituted to recover the sum of $109.69, with interest at the rate of six per centum, per annum, from October 10th, 1873, and $10 Court costs, due and owing from the defendant to the plaintiffs; for that the said plaintiffs on the 4th day of May, 1874, in the…

This suit was instituted by the appellee against the appellant, in the Superior Court of Baltimore City, on tbe 18th October, 1874, and removed to the Circuit Court for Howard. County, the. record having been filed in the latter Court on the 16th August, 1877.

The case of Salathiel O. Cole against Joseph Alfred Cole and wife, is reported.in 41 Md., 301, 305. The cause was remanded for further proceedings. Thereupon, by a decree of the Court below, passed on the 1st February, 1875, the appellees were appointed trustees to sell the land mentioned in the proceedings; provided the defendants failed to pay the debt decreed to be due to the complainant on or before the 20th August, 1875.

<p>Construction of Art. 12, sec. 3, of the Baltimore City Code of 1869 — What constitutes a Case in Court.</p> <p>Professional services rendered to the appellant, by the appellee while city solicitor of the appellant, in the matter of proceedings on inquisitions for the condemnation of rights of property in Baltimore County taken by the appellant for the purposes of the Temporary Water Supply, came within the official duty of the appellee as city solicitor, as prescribed by Art. 12, sec. 3, of the Baltimore City Code of 1809.</p> <p>Whenever the object of a proceeding on inquisition by a jury, authorized by statute and conducted under special authority, is to establish a fact inter partes, upon the finding of which the action of a Court is necessary to its validity, it is a judicial proceeding constituting a case in Court, within the meaning of the Article and section above cited.</p>

On the 23rd October, 1872, in due course of law at the September Term, 1872, of the Court below, the appellant obtained judgment in an action of assumpsit against the appellee. The December Term, 1872, ended, and the February Term, 1873, began on the 17th February, 1873, on which day the defendant, by his attorney, moved in open Court to strike out the judgment so as aforesaid rendered against him, which motion was entered on the trial docket.

Appiíal from tbe Circuit Court for Howard County. This was an action of assumpsit instituted in the Superior Court of Baltimore City, by the appellee against the appellant, to recover the amount of certain promissory notes drawn by the appellant in favor of the appellee.

<p>Commissions to the Estate of a Deceased Trustee who dies before the Completion of the Trust — Commissions to Trustees appointed by a Court of Equity in place of Original Trustees under a Deed.</p> <p>H. executed, a deed conveying property to two trustees to secure a debt due to B., and in default of payment the trustees or either of them were empowered to sell the property, and it was stipulated in the deed, that in such event they should receive eight per cent, commissions as compensation for their services. One of the trustees never acted and resigned, and the other tiled his bond, made several attempts to sell the property, but died before doing so. On application to a Court of equity the appellants were appointed trustees in place of the original trustees to carry out and execute the trust, which they did. The auditor, in accordance with the instructions of the Court below, allowed to the appellants commissions according to the Chancery rule, and a certain sum to the appellee for the responsibility assumed and the labor and services rendered by his intestate. Hmld :</p> <p>1 st. That the practice of allowing a reasonable compensation to the estate of a deceased trustee who dies before the completion of the trust, is well settled and sanctioned by authority.</p> <p>2nd. That the parties to the deed made with the trustees of their own selection, a personal contract as to their compensation, but that 1hc compensation of the substituted trustees, they being appointees and officers of the Court, must be regulated by the rules of Court.</p>

This is tlie second appeal in this case; tbe first is reported in 45 Md., 119-123. The case is stated in tbe opinion of the Court.

The case is stated in the opinion of the Court. The appeal was taken from the orders (Gtlmor, J.,)of the 13th February, lSfó, and of the 13th March, 1818, mentioned in the opinion.

This case came into the Circuit Court for Baltimore County from the Court of Common Pleas, from which Court it was removed. The facts of the case are fully stated in the opinion of the Court.

The appellant, Cate, was the landlord, and Schaum, the appellee, was the tenant of a house and premises situated in the City of Baltimore, and the tenant was, on the 20th April, 1877, three months in arrear with his rent.

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

Writ or Error from tbe Circuit Court for Baltimore bounty. This case came into the Circuit Court for Baltimore County on appeal from a judgment in replevin, of a justice of the peace, in favor of the avowant, in the matter of a distress for rent. The case was tried before the Court and the judgment affirmed. The appellants then filed a motion (with the reasons therefor,) in arrest of judgment, which motion was overruled.

<p>A deed void as to Creditors and Others under the Stat. 13 Eliz. — Notice to Creditors and Others to file their Claims in Equity — Construction of Stat. 13 Eliz. — Construction of a Eecree as to Costs — Allowance of Costs In/ Courts of Equity.</p> <p>H. E. being indebted to the appellees in a large sum of money upon note and open account then due, sold and conveyed to the appellant all his property consisting of certain leasehold estate, for a consideration set forth in the deed and subject to a mortgage. The prayer in the bill of the appellees to have this deed set aside was, that the conveyance might be declared void, and that the said property might be sold and the proceeds applied to the payment of the appellees’ claim and of such other creditors who might become parties to the cause. It was shown that the grantor was indebted in large sums of money on mortgages to building associations, and to take up these and carry on his business, he negotiated a loan on mortgage of even date with the deed and therein recited, out of which loan the grantee in the deed paid off former incumbrances, leaving the grantor indebted to the grantee in the balance for which the sale was made to him; that the grantee had previously heard of the grantor’s indebtedness to the appellees, although he did not know the amount, or whether- the debt was still due. By the decree of the Court below granting the relief prayer, the trustee was directed to notify all persons having claims against II. E. to file their claims. The decree also ordered the appellant and II. E. to pay all the costs of the proceedings, including those already accrued or thereafter to accrue. Held :</p> <p>1st. That the coincidence in time of the date of the conveyance with the falling due of the appellees’ claim, connected with surrounding circumstances, constituted strong proof of an actual intent in the grantor and grantee to hinder, delay and defraud other creditors of the grantor.</p> <p>2nd. That the Statute of Elizabeth extends relief not only to creditors, but to all others, who have cause of action or suit, or any penalty or forfeiture, and embraces actions of slander, trespass and other torts.</p> <p>3rd. That, as to the costs, the decree should be construed with regard to the subject-matter, the controversy between the parties to the cause; and that collateral matters which might be introduced by petition subsequently', would be subject to the control of the Court according to the rules of equity.</p> <p>Decrees will not be reversed on the ground of allowance of costs, that subject being i>articularly in the discretion of Courts of equity.</p>

On the 8th August, 1878, the Baltimore and Ohio Rail-read Company instituted suit against the Potomac Coal Company,-for the purpose of recovering the sum of thirty-two thousand, three hundred and eighty-one dollars and seventy-seven cents, being a balance due from tolls and charges on coal and merchandise carried and transported by the plaintiff over the line of its railroad, in the cars of the defendant, at its request, from the 18th day of April, 1876, to the 23rd day of…

Mary’s County, in Equity. The consolidated cases of William Cornell and John Johnson against Daniel McCann, and others, William H. Dunkinson against Daniel McCann and others, and Daniel McCann against William Cornell and John Johnson, and others, will be found reported in 48 Md., 592- 605.

the Baltimore City Court. The case is stated in the opinion of the Court. Exceptions. — The case was submitted to and tried before the Court, and at the trial the plaintiff prayed the Court to declare: 1.

. Appeal from the Circuit Court for Talbot County. The case is stated in the opinion of the Court. Exceptions. — At the trial the plaintiff offered the following prayers: 1.

<p>Injunction to restrain County Commissioners from Collecting certain Items in the Tax Levy for the year 1878.</p> <p>There can. be no doubt of the power and jurisdiction of the Circuit Court for Baltimore County, to restrain the appellees from levying taxes for purposes not authorized by law. But in this case there appears to be no well founded objection to any of the items or sums included in the levy of 1878.</p>

<p>Injunction to restrain a Board of County School Commissioners from Converting a, Public School House, used for District Primary School Purposes, to the use and purposes of a County High School — Construction of the Acts of 1872, ch. 377, and of 1874, ch. 403 — Visitatorial Power of the State Board of Bducation.</p> <p>By the Act of 1872, ch. 377, sub-ch. 17, there are two classes of high schools contemplated; one, the district high school, and the other, the county high school; and the right and power to establish the latter is dependent upon no such conditions as the former. The appellees being clothed under this Act, in their discretion to establish a county high school, their determination upon the subject cannot be reversed or controlled by a Court of equity.</p> <p>A public corporation, such as the appellees, incorporated for a great public purpose, and charged with the duty of applying and properly disbursing large amounts of public funds, for the accomplishment of particular objects, is required to act strictly within the authority delegated, and to apply the funds at its disposal for the purposes expressed, and for none other whatever. And if there be an attempt to apply the funds to objects not embraced within the power granted, or to objects within the jmwer, but in total disregard of essential conditions prescribed by the statute to make it lawful to appropriate the funds, a Court of equity will interfere to restrain such action. But so long as such' body of public functionaries confine themselves within the limits of the power delegated, the Court will not interfere with the exercise of their discretionary powers, or undertake to determine the question whether an act complained of be wise or unwise, good or bad.</p> <p>Under the Acts of 1872, ch 377, sub-ch. 3, sec. 4, and of 1874, ch. 463, the State Board of Education have a visitatorial power of the most comprehensive character, and such power is, in its nature, summary and exclusive. It is to obviate the consequences of disputes or contentions among those entrusted with the administration of the public school system, or between the functionaries and the patrons or pupils of the schools, that the visitatorial power is conferred; and wherever that power exists, and is comprehensive enough to deal with the questions involved in a controversy, Courts of equity decline all interference, and leave the parties to abide the summary decision of those clothed with the visitatorial authority.</p>

<p>What, is construed as an Abandonment, of a Right of Way or other Easement in another’s Land — View of Property by Purchaser.</p> <p>A party entitled to a right of way or other mere easement in the land of another, may abandon and extinguish such right by acts in pais, and without deed or other writing. The act or acts relied on, however. to effect such result, must bo of decisive character; and while a mere declaration of an intention to abandon will not alone be sufficient, the question, whether the act of the party entitled to the casement amounts to an abandonment or not, depends upon the intention with which it was done, and that is a subject for the consideration of the jury. A cesser of the use, coupled with any act clearly indicative of an intention to abandon the right, would have the same effect as an express release of the easement, without any reference whatever to time.</p> <p>If the party entitled to a right of way over the land of another agrees or consents that the owner, or other person interested in such servient tenement, shall erect a house or a permanent wall across the way, which would necessarily obstruct the enjoyment of the easement, and such building or wall is erected accordingly, that would certainly, amount to proof of an abandonment of the easement. Such an obstruction being permanent in its nature, would, of necessity, so far as the party agreeing to the erection is concerned, terminate the enjoyment of the easement; and thus extinguish the right itself. But if the party be authorized to raise the obstructions complained of by mere parol license, and such license be executed before revocation, and the obstructions be only temporary in duration or partial in effect; the easement is only suspended or modified for the time of the duration of the obstructions raised in pursuance of such license; and the license being only for a specific act, and being, except to the extent that it has been actually executed, countermandable, the licensee cannot erect another obstruction of the same or of a different kind without a new license ; and consequently, such temporary or partial obstructions do not destroy or work an extinguishment of the right. In such case, after the removal of the obstructions, the right to use the easement as formerly, is fully restored. But a party having once givSfi» his free consent to forego the use of the easement, either temporarily or permanently, and suffered other persons to act upon the faith of that agreement or consent, and to incur expense in doing the very act to which his consent was given, it is then too late for him or those claiming under him, to retract such consent, or to throw on those relying upon his good faith, the burthen of restoring things to their former state and condition.</p> <p>If it be objected, that the purchasers looking alone at the muniments of title, are liable to be misled as to what they purchase, or as to the advantages and appurtenances of the property, it may be answered, that when a purchaser views the property he desires to acquire, he sees its real condition and surroundings, and he contracts for it accordingly.</p>

<p>Constitutionality of the Act of 1878, ch. 108.</p> <p>The Act of 1878, ch. 108, entitled “ An Act to add ail additional Article to the Code of Public Local Laws, to. be entitled Garrett County,” is clearly not a law creating or permitting any of the mischief, it was the design of sec. 29 of Art. 8 of the Constitution to prevent.</p>

<p>Practice — Irregular and Regular Entry of a Judgment of Condemnation — Gall of the Appearance Docket.</p> <p>A judgment of condemnation on an attachment entered on the docket by a clerk, in the Clerk’s separate office room, out of the Court room, and out of the presence of the Judge, and without any order or authority, actual or constructive, from him to make the entry, is clearly irregular.</p> <p>Judgments of condemnation nisi in cases upon the appearance docket, where there is no appearance entered for the garnishee, should be entered on the docket by the clerk, on the call of the appearance docket on appearance day, in open Court, in the presence of the Judge.</p> <p>The orderly and regular call of the appearance docket on the first or second day of each term is indispensable to the due administration of justice. The omission to have this done is fruitful not only of irregularities and difficulties, but of wrong and injustice, and in no class of cases is that result more liable to follow than in attachments.</p>

The case is stated in the opinion of the Court. The contract therein mentioned is as follows: This agreement, made this tenth day of May, ISTY, by and between Charles W. Hamill & Co., manufacturers of silver plated ware, of the first part, and A. M. Route, of the other part, both of Baltimore City, State of Maryland : Witnesseth, that the said A. M. Route does hereby agree to faithfully and honestly serve said Charles W. Hamill & Co., in the capacity of travelling agent and…

<p>Opinion formed or expressed by a Person offered as a Juror in a Trial for Murder — Bight of Challenge.</p> <p>At the empanelling of the jury at the trial of the appellant indicted for murder, B. was called as a juror, and sworn upon his voir dire. To the question: “ Have you formed and expressed an opinion as to the guilt or innocence of the prisoner at the bar?” he replied: “ I have.” In answer to questions then propounded to him by the Oourt, he stated that such opinion was formed solely from what he had read of the case in the county papers at the time of the commission of the crime, and from mere rumor; and that he did not know whether said publication and rumor were true or false; that he resided more than thirty miles from the place of the commission of the alleged crime ; that he had not conversed with any witness in the case, nor with any person who claimed to have any knowledge of the facts of the case, nor with any one who professed to detail to him any portion of the testimony in the former trial; that he had no prejudice or bias for or against the prisoner, and he felt confident that he could give him a fair and impartial trial, according to the evidence produced upon the stand by the witnesses. Held :</p> <p>That the person offered was a competent juror.</p> <p>The great purpose of the right of challenge, is to secure a fair and . impartial trial, and where the opinion is of such a character as partiality or prejudice may be inferred from it, then of course the person offered is not a qualified juror.</p> <p>The opinion which should exclude a juror must be a fixed and deliberate one, partaking in fact of the nature of a pre-judgment.</p>

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

<p>The 19th section of the Act of 1870, ch. 260, incorporating the Town of Laurel, not repugnant to the Constitution, Art. 3 secs. 29 and 33, nor to the 15th Article of the Bill of Bights, but Repealed by the Act of 1874, ch. 205, relating to Roads in Prince George's County — A defective Application for Mandamus — Construction of the Act of 1870, ch. 315, relating to Roads in Prince George's County, repealed by the Act of 1874, ch. 205.</p> <p>The nineteenth section of the Act of 1870, ch. 360, entitled “An Act to incorporate the Town of Laurel in Prince George’s County,” provides : “ that so much of the labor or money by the present or any future road law levied or taxed upon the owners of property or residents within the limits of said corporation, shall be turned over to said commissioners, and belong to and become a part of-the income of said corporation, to be by them appropriated for the improvement of roads within the limits of said corporation.” The appellants having, on demand, declined to comply with the provisions of said law, the appellees applied to the Court below for a mandamus, to compel their compliance therewith, alleging a levy of a “ tax for roads and bridges,” by the appellants on the taxables of the county, including the inhabitants of the Town of Laurel for the years 1877 and 1878, and that the appellants had not paid over to the appellees the whole of the said tax levied within said corporation for 1877, nor any part of that levied for 1878. The appellants replied by an answer, in the nature of a demurrer: that the said nineteenth section of the Act of 1870, ch. 260, was of no force and virtue in law, and not binding on them. Held :</p> <p>1st. That the title of the Act of 1870, ch. 260, fulfills the requirements of the Constitution, Art. 3, sec. 29.</p> <p>2nd. That the said nineteenth section is not a special law but a Public Local Law within the meaning of the Constitution, Art. 3 sec. 38.</p> <p>3rd. That the said nineteenth section does not violate the 15th Article of the Declaration of Rights, which provides that “ every person in the State, or person holding property therein, ought to contribute his proportion of public taxes for the support of the Government, according to his actual worth in real or personal property.”</p> <p>4th. But that the nineteenth section of the Act of 1870, ch. 260, is repealed by the Act of 1874, ch. 205; the second section whereof provides: “ that the County Commissioners of Prince George’s County, shall-have power, and it shall be their duty to provide for the repairs of all public roads and bridges in said county, and to that end may adopt any mode or system-they may deem most expedient for the purpose, and may levy upon the assessable property of the county, and pay the expenditures for such repairs,” &c. And the seventh section whereof provides: “that all Acts relating to public roads in Prince George’s County, inconsistent with the provisions of this Act, be, and the same are hereby repealed.”</p> <p>5th. That as by the eighteenth and nineteenth sections of the Act of 1870, ch. 260, the appellees were given power over the “roads” within the Town of Laurel, but as they had no authority over the “ bridges ” that might be within its corporate limits, if the Act of 1874, ch. 205, were not fatal to the application for mandamus, it could not be sustained, because it prayed for “ road and bridge ” money, and the order for mandamus was so issued by the Court below.</p> <p>The Act of -1870, ch. 315, entitled “ An Act to provide for maintaining and keeping in repair the public roads of Prince George’s County,” approved contemporaneously with that of 1870, ch. 260, being expressly repealed by the Act of 1874, ch. 205, which established a new road law for the county, it was intended that the nineteenth section of the Act of 1870, ch. 260, should fall with the repeal of the Act of 1870, ch. 315.</p>

<p>Power of the .Legislature as to firing the Limits of a Municipal Corporation — Construction of the Acts of 1870, ch. 428, and of 187(3, ch. 205, relating to Bladensburg.</p> <p>It is certainly not witliin the power of the Legislature to give to a municipal corporation the power of absorbing as much of the property, and as many of the people of a county, as it may suit the wishes of the municipal authorities to make subjects of their taxation and ordinances. The Constitution of the State has expressly reserved to the Legislature the right of creating municipal corporations; and the Legislature may without doubt create such a corporation and fix its limits, without consulting the people to be affected by it; but such a thing is not usually done without submission to a vote of the people to be affected, or such previous expression of desire by petition, as to indicate the popular wish.</p> <p>Public Local Laws, Art. 16, secs. 26 and 27, declared, the Village of Bladensburg incorporate, and designated its limits “ as described on a plat thereof filed among the proceedings of the commissioners of said Village.” The Act of 1870, ch. 428, authorized the appellees to lay off and define that which was described on said plat. The appellees acted in accordance with this power. The Act of 1876, ch. 205, enacted, that the appellants should pay annually to the appellees the amount of the road tax levied or taxed upon property within the limits of the Village of Bladensburg, and used by them for the repairs and improvement of the roads within said corporate limits. The appellees applied for a mandamus to compel the appellants to comply with this Act of 1876, ch. 205. Held :</p> <p>That the writ should issue.</p>

<p>Construction of sec. 136 of Art. 93 of the Code— What is a College within the meaning of that Section.</p> <p>Under sec. 186 of Art. 98 of the Code, which provided, before it was modified by the Act of 1876, ch. 295, that upon failure of relations of an intestate within a certain degree, “ the whole surplus shall belong to the State, and shall be paid to the college, if any, in the county where the deceased shall die, or if none, to any school in the county to which the public aid by law may be extended, and if none, to the county where the property shall lie,” the appellee, being the only college in the county where the intestate died, was entitled to the whole surplus of his personal estate.</p> <p>The terms “ to which the public aid may be extended,” are descriptive alone of the county schools authorized to take.</p> <p>The appellee under its charter, the Act of 1865, ch. 10, has the faculties and fulfils the definition of a college.</p>

The case is stated in the opinion of the Court. Plaintiff’s Hih Exception. — Atthe trial the plaintiff offered the following prayers: 1.

<p>Set-off of Notes purchased by Individuals against a Judgment, (which had been previously Assigned without notice,) against them as Executors, not Allowable — A.s Executors they could not purchase Outstanding Claims against Creditors of the Estate — Set-off does not extend to Claims purchased Conditionally — Set-off in Equity.</p> <p>In 1871, S. instituted an action of assumpsit against F.; pending the suit F. died, and his executors were made parties and judgment was recovered against them. This judgment, upon appeal taken by the defendants, was affirmed by this Court on the 2nd December, 1874. On 3rd December, 1874, it was assigned by S. pursuant to a previous agreement, to McD. for valuable consideration. The assignment was evidenced by an order of that date to the clerk of this Court, to enter the judgment to the use of McD. signed by one of S’s attorneys under S’s direction. This order being afterwards accidentally mislaid, another was written of the same tenor, signed by S's attorneys and filed in this Court on the 15th December, 1874, and a like order was also filed in the Court below where the judgment had been recovered. Upon a ji. fa. being issued on the judgment, the appellants filed their bill for an injunction to restrain further proceedings, claiming a right to set-off against the judgment and execution two promissory notes, dated 1st December, 1871, payable one eleven and the other twelve months after date, and signed by S. as maker and payable to the order of C. endorsed to the appellants by C. without recourse, on the 5th December, 1874, under an agreement between said C. and said appellants as executors of F., “that in case the judgment of S. against said executors, in the Court of Appeals, be set aside in any way, or in case said judgment be assigned by S., so that executors shall not bo able to use the two notes of S. endorsed to them by O. * * * as a set-off to said judgment, then the said notes shall be returned to C.„ and he shall refund any money he may have received therefor from said executors.” Herd :</p> <p>1st. That under the circunstances of this case, the transfer of the notes to the appellants could not affect the rights of McD., the assignee, who purchased in good faith and without notice.</p> <p>2nd. That the promissory notes did not constitute a cross-claim or mutual debt within the meaning of the Statute, because not held by the appellants in the same right in which they were liable on the the judgment. This was rendered against them as executors, whereas the promissory notes were held, and could only be lawfully acquired by them in their individual character, and in their own right. As executors it-was not competent for them to apply the assets of their testator in imrchasing outstanding claims against creditors of the estate.</p> <p>8rd. That the right of set-off does not extend to claims purchased conditionally for the purpose of using them as a set-off, and with an agreement to return them to the seller if not so used.</p> <p>Courts of Equity allow set-off in cases in which it could not for some technical reason, be allowed at law, where the party seeking the benefit of it, can show some equitable grounds for being protected against his adversary’s demand; and the insolvency of the party against whom the set-off is claimed, sometimes affords strong equitable ground for allowing it.</p>

<p>A Deed for the Benefit of Releasing Creditors Invalid as against attaching Won-Releasing Creditors — Parol Testimony Inadmissible to show a different Intent from that Imputed to the Parties by the Deed — An Affidavit in Attachment under the Act of .1864, ch. 306, Good where Sworn to, but not signed and certified at the time (but before the Writ was returned J by the Cleric.</p> <p>O’N. conveyed certain property to the appellants, in trust to sell the same, and out of the proceeds to pay releasing creditors, and the surplus, if any, to the grantor. The appellees, non-releasing creditors of O’N., attached under the Act of 1864, ch. 806, the property in the appellants’ hands. The appellants offered evidence tending to prove that the deed was so executed by O’N. by inadvertence and mistake, that he intended and believed he was executing an assignment of all his property to his creditors, non-releasing as well as releasing, before any surplus should enure to his benefit, and that the omission of a clause from the deed to that effect was occasioned by the mistake and inadvertence of the scrivener, and that the trustees as well as O’N. wore of the opinion and belief, that the deed had been so executed according to the intention of the grantor, until after the service of the attachment. Held :</p> <p>That this evidence was inadmissible.</p> <p>Where a conveyance by its terms operates to hinder, delay or defraud creditors, the intent to do so is imputed to the parties, and no evidence of intention can change that presumption. A different intent cannot be shown and made out by the reception of parol testimony, nor deduced from surrounding circumstances. It is equally clear that a mistake in a deed cannot be shown or availed of in an action at law.</p> <p>Where the proof offered by the appellants assailing an attachment under the Act of 1864, eh. 806, showed that the affidavit was actually sworn to before the clerk of the Court below, and that he administered the oath before ho issued the writ, and where his omission to sign and certify the affidavit, was corrected by him before the writ was returned. Held :</p> <p>That a motion to quash the attachment on this ground could not be sustained.</p>

<p>Acknowledgment of a Mortgage by an Attorney of a Corporation Mortgagor — Proceeding to obtain a Judicial Construction of the Rights of Mortgagees.</p> <p>A mortgage was executed to the appellant by a corporation by T. H. its attorney duly appointed for that purpose under the seal of the corporation. In the certificate of acknowledgment it is stated, that personally appeared T. H., attorney, for The Frostburg Lodge, No. 49, Independent Order of Odd Fellows, and acknowledged the foregoing mortgage to be his act and deed.” On a bill filed by the appellees, trustees, to obtain from the Court a construction of the rights of mortgagees in the property involved, it was Held :</p> <p>1st. That looking at the whole instrument, this acknowledgment was a substantial compliance with the provisions of the Code, and that the mortgage to the appellant was a valid legal instrument, and entitled to its legal priority in the distribution of the trust funds under a deed from the corporation to the appellees in trust, for the sale of the property, for distribution among its creditors.</p> <p>2nd. That the appellees, trustees, in filing.the,bill acted judiciously and in accordance with their duty.</p>

Appear from the Superior Court of Baltimore City. The case is stated in the opinion of the Court.

The case is stated in the opinion of the Court. The certificates of acknowledgment and of enrolment of the deed, mentioned in the opinion, are as follows: State of Maryland, Worcester County, to wit: Be it remembered, that on the day and year first within written, personally appeared Littleton Davis, before us, the subscribers, two justices of the peace for the county and State aforesaid, and acknowledged the within deed or instrument of writing to be his act and deed, and…

<p>Landlord’s Lien under a Distress for Rent — Rights of a Bona Fide Purchaser without Notice, of Property taken under a Distress — Pleading and Practice in an action of Replevin.</p> <p>Cattle taken under a distress for rent, were loft in the tenant’s possession unsold at his request, and upon his agreement to pay the rent on or before a day named, and as between him and the landlord, it remained subject to the lien acquired under the distress. If, how-t ever, the landlord permitted the cattle to remain in the possession of the tenant for an unreasonable length of time, without making a sale under the distress, and the cattle were then driven by the tenant from the farm occupied by him to the farm of W., and were there purchased by him without notice of the distress, the landlord’s lien cannot be enforced to the prejudice of the rights of W. as a bona fide purchaser. On the other hand, if the cattle were not sold to W., but merely left in his possession by the tenant, they still remain subject to the lien acquired by the landlord under the distress.</p> <p>Replevin may be maintained in this State, not only for the unlawful taking, but also for the unlawful detention of property.</p> <p>It is not necessary in replevin, that the plaintiff should prove an absolute title to the property. As against a trespasser or wrong-doer, the right of possession is sufficient. Tf W., the plaintiff in replevin, agreed to give a certain stipulated sum, and the tenant agreed to take it, or if the latter agreed to sell the cattle to the former in consideration of an existing indebtedness, the cattle being in the possession of W., the title passed, and no other delivery was necessary. On the other hand, if W. only made a conditional offer which was not in fact accepted, then of course the sale was incomplete, and the transaction did not amount to a valid bargain and sale of the cattle.</p> <p>If W. had notice of the landlord’s distress, or assisted the tenant in removing the property from the farm occupied by him for the purpose of preventing the landlord from executing his distress, then he was not entitled to recover. As against the landlord, he had neither title or the right of possession.</p> <p>The fact that W. assented, or assisted in driving the cattle from his premises when removed at the instance of the landlord, under a mistake in regard to his rights, would not prevent him from after-wards asserting his claim to the cattle.</p> <p>The fact that other persons appraised the cattle at $249, for which W. paid $300, did not lead in any manner to prove that the sale was fraudulent.</p> <p>In an action of replevin in this State, the plaintiff must show, that he is entitled to the right of possession. The defendant may plead non cepit, property in himself or in a stranger, inconsistent though these pleas may seem. The plaintiff’s replication. to these pleas must set up property in himself, and on this the issue is joined. And where the defendant pleads property in a third person, the burden of proof is upon the plaintiff to show a superior title to that third person. Under these pleas of property, the defendant if he succeeds, is entitled to a return of the property without making avowry or cognizance, because they destroy the iffaintiff’s title.</p>

The case is stated in the opinion of the Court. Exceptions.- — At the trial the plaintiffs took nine exceptions : The first and seventh exceptions were to the rulings of the Court, in excluding the check-book of the plaintiffs. The first exception is sufficiently stated in the opinion of the Court.

The case is stated in the opinion of the Court. Exception. — At the trial the Mayor and City Council of Baltimore asked the Court to instruct the jury as follows: If the jury shall And from the evidence that the appellant, George W. Tinges, acquired title to the property owned by him on the east side of St. Paul Street, between Townsend Street and North Avenue, referred to in the proceedings, by the deed from Hiram Woods, in evidence in this case, and that said Woods…