Volume 52 — Maryland Reports

This was an action of debt brought by the appellee against the appellant. The narr. contained two counts.

The eighth count of the declaration in this case was as follows: 8.

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

<p>Appeals from the Circuit Court for Washington County.</p> <p>The cases are stated in the opinions of the Court.</p>

This suit, the nature of which is set forth in the opinion ■of the Court, was brought to the September Term, 1877, of Wicomico County, by the appellee against the appellants. The plaintiff on the 26th of November, 1877, declared with three counts in his narr., and on the 9th of ■January, 1878, the defendants pleaded the general issue and three special pleas. On the same day, on suggestion of the plaintiff, the Court directed the case to be removed to Worcester County.

Henry Wagner and Edson M. Schryver as co-partners, carrying on business in Baltimore city, under the firm name of Wagner & Schryver, made advances on consignments of broom corn to Albert D. Roberts, of Ohio, the appellee. The advances exceeded the consignments some $2800. Wagner died and Schryver went into partnership with John Gr. Harryman, under the name of Harryman & Schryver.

Lazear Brothers, who had been for some years engaged in the wholesale grocery business, keeping their commercial account in the Western Rational Bank of Baltimore, in 1868, at the invitation of Mr. William W. Spence, a director in the Rational Union Bank of Maryland, transferred their account to the latter bank.

<p> Right of Husband to money received from the Sale of his Wife's Real estate—Debt due by Husband to Wife—Statute of Limitations—Equity Pleading. </p> <p>Money received by a husband from the sale of his wife’s real estate, made before the adoption of the Code, belongs to the husband absolutely, unless at the time he received it he promised the wife to repay, it, and obtained possession of it upon the faith of such promise.</p> <p>The receipt of money under sucb circumstances as would make the husband liable therefor, merely creates a debt due by him to his wife, and against such a debt the Statute of Limitations runs, and it will be barred unless sued for or claimed in due time after disability of coverture removed.</p> <p>A bill to carry out the directions of a will for the sale of real estate, with prayer for general relief, is not a creditors’ bill, and the filing of such a bill does not prevent the running of the Statute of Limitations, as against a debt due to the complainant, and recoverable under a creditors’ bill.</p>

<p>Assumpsit—Loan—Action on the Case—Principal not liable' for act of Agent not authorized, and. not subsequently Ratified.</p> <p>An action of assumpsit cannot be maintained to recover a sum of money promised to be loaned.</p> <p>Whether an action on the case for breach of contract, in not loaning the money promised, can be maintained. Quatre?</p> <p>A. having become a member of a Building Association, applied for the loan of a sum of money. It was agreed to loan the money upon the security of a mortgage on certain real property in Baltimore County, if the counsellor of the Association should report favorably upon the title. The mortgage was accordingly executed and taken by the counsellor of the Association, with the assent of A. to Towsontown, where he went for the purpose of ascertaining the title of A., by an examination of the records. He found the title unsatisfactory, and so reported to the Association. The mortgage, however, was left in the clerk’s office, and there placed upon record. The cloud upon the title was never removed to the satisfaction of the counsellor of the Association, though time was given to A. for the purpose, and the money agreed to be loaned, was never paid to A. The mortgage was put upon record by thecounsellor of the Association, without its authority or knowledge-</p> <p>It had no knowledge by its proper officers of the recording of the mortgage, until about the time of the bringing of the suit by A. The action of its counsellor was not ratified or confirmed by the . Association. In an action against the Association by A. to recover upon its promise to loan the sum agreed upon, it was Held :</p> <p>That, as no actual notice of the recording of said mortgage was given to the defendant’s board of directors, until at or about the time of the bringing of the suit by A., and as the defendant never ratified the act of its counsellor in leaving said mortgage for record, the plaintiff was not entitled to recover.</p>

Mary’s County. The nature of the case is stated in the opinion of the Court. First Exception.—The defendant offered certain testimony, to the admissibility of which, at the time of the offer of the same, • the plaintiff objected, hut the Court (Brent, C. J. and Ford, J.) overruled the objection, and permitted such testimony to go to the jury; the plaintiff excepted.

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

Samuel Stonebraker died in January, 1873, leaving a will, executed on the 5th of July, 1867, the provisions of which, for the purposes of this case, are… Held: that W. and his wife had but an estate for life ; and, on such a devise, although they might have had no child at the time of the devise, yet every child which they might have after, would take hy way of remainder. Other and later authorities of the greatest weight are full and explicit to the same effect.

. Cross-Appeals from the Circuit Court of Baltimore City. The hill of complaint in this case was filed on the 16th of June, 1869, hy Oliver F. Hack and Annie H. Hack, his wife, daughter of James A. Sangston, deceased, Annie E. Hack infant daughter of the said Oliver and Annie, James E. Sangston, son of the deceased James A. Sangston and Laura E. S. Sangston and others, infant children of the said James E. Sangston, against George E. Sangston and Lawrence Sangston.

This case was instituted by the appellee against the appellants in the Baltimore City Court. Subsequently on motion of the defendants, the case was removed to the Circuit Court for Howard County, where it was tried. The case is stated in the opinion of the Court. First Exception.—Stated in the opinion of the Court.

The appellees recovered a judgment for $1635, with interest and costs, in the Court of Common Pleas against Richard W. Kimhall on the 14th of January, 1875. Upon this judgment an attachment was issued on the 15th March, 1878, and ou the same day was laid in the hands of Edwin L. Jones, the appellant, as garnishee. The garnishee pleaded nulla bona, and. on this plea issue was joined.

This action was brought by the appellant against the appellees, and at the conclusion of a jury trial, the narr. was amended to appear as follows : Eor that the said defendants, at the time of happening of the grievance hereinafter complained of, and for a long time previously thereto, were possessed of certain fixed property, situate in the City of Baltimore aforesaid, to wit: a messuage fronting on a public street in the said city, generally known as “Hillen street,”…

The hill in this case was filed by George Hawkins Williams, executor of Henry Willis Baxley, deceased. The Johns Hopkins University, Claude Baxley, and Isaac R. Baxley in his own right and as executor of his mother Mary Virginia Baxley, were made defendants. The defendants were the ^parties interested in the estate of Henry Willis Baxley.

<p> Question whether an Act of the Legislature authorizing the construction of a Horse car railway on a Street or avenue in Baltimore County, being an Lxtension of one of the Streets of Baltimore .City, was Constitutional ? and whether said street was a public Highway? Where the rights exercised under said Act are Constitutional they will not be held illegal because the language of the Act covers other rights not tvithin the scope of the Legislative power—Matters arising subsequent to the filing of the Bill and not made the subject of a Supplemental bill, cannot be noticed on Appeal—Forfeiture of Charter. </p> <p>The complainants in their bill, alleged, that they were the owners of lots abutting upon D. street or M. avenue, between S. and B. streets in Baltimore County; that the bed of said street or avenue belonged to them, and that the same was a private way. That the defendants without their assent, and claiming incorporation under, and authority by, the Act of 1865, ch. 83, were laying a railway track along said street or avenue to the complainants’ injury, without having condemned the right of way, or made any compensation to them for their interest in the soil and the damages incurred. The bill then prayed for an injunction. The answer admitted the complainants’ title, but denied that the said street was a private way, and charged it to be a public street or highway, and a very important thoroughfare. It admitted the laying of the railway track, but alleged it was only a horse car railway, which their charter fully authorized, and the defendants disavowed and forever renounced all claim to place a. steam railway on said street, and insisted, that the law was wholly within legislative powers. The admissions and proof, showed, that the street or avenue in question had been thrown open to public use, and had been accepted and used by the public for many years; that lots had been sold calling for said street, and that it had been used for many years as a thoroughfare for all the ordinary modes of transit. Held :</p> <p>1st. That the complainants were estopped from denying it was such street or highway for all the purposes for which it might be fairly inferred that the dedication was intended.</p> <p>2nd. That the Legislature had the power to confer upon the defendants the right to construct and use a horse car railway on said street.</p> <p>3rd. That it was not necessary to determine whether under said Act of 1865, ch. 32, a steam railway, if attempted to be laid, would be without sufficient legal warrant, as the defendants were not laying claim to any such right, but were building a horse car railway only, and renounced all claim to lay any other.</p> <p>4th. That it did not necessarily follow that said Act was wholly unconstitutional because something may be attempted under it, and may in the broad language of the Act seem to be covered by it, which the Legislature could not authorize. If the law will admit a construction which will justify that which was being done under it, and which by the terms of the law was clearly warranted by it, to that extent the law ought to be sustained.</p> <p>5th. That the terms of the Act included the right to build a horse car railway, and such railway along a public street or highway, is not a new and additional servitude on the land. „</p> <p>After the filing of the bill, the time within which, by the terms of the Act of 1865, ch. 32, the defendant was required to complete its road, expired. Ho supplemental bill was filed suggesting that as an additional reason for the injunction, and subsequent to its expiration the commission to take testimony was issued and executed, and the bill was dismissed by consent pro forma for the purpose of an appeal. Held:</p> <p>1st. That under such circumstances, this Court on review must consider all the proceedings as relating to the time of filing the bill, and decide the cause according to the actual rights of the defendants at the time they were, at the instance of the complainants, arrested by injunction from proceeding with a work which was then legitimately authorized.</p> <p>2nd. That the injunction granted originally on the complainants’ prayer, ought not to have been granted when it was granted, therefore the final order dissolving it was correct.</p> <p>3rd. That to hold otherwise on this point would in effect be declaring a forfeiture of the defendant’s charter in an incidental way, without any proceedings instituted for that purpose.</p>

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

<p> Question whether an Authority to draw a Draft constituted an Acceptance, or merely a Promise to accept; and xohether the Endorsee eoxild recover against the Draxvee upon the general Money counts—The form of the Declaration by the Endorsee of sxieh Draft considered—Bight of the Endorsee to sue upon the Promise to accept and pay the Draft—A bona fide holder not Affected by the state of Accoxmts between the Drawer and Drawee—Absence of Laches in presenting Draft for Acceptance. </p> <p>E. L. living in Westminster, Maryland, sent to B. & Co., of Baltimore, a telegram dated April 27th, 1878, in the following words: “you may draw on me for seven hundred dollars.” The same was received about two o’clock p. m. the same day, being Saturday. On the Monday following, April 29th, B. & Co. drew their draft in favor of themselves on E. L. for $700, payable at sight. On the day of its date, the draft endorsed by B. & Co. was received by the F. Bank of Baltimore, and the amount thereof placed to the credit of the drawers upon the faith of the telegram and the authority thereby given, the same being shown to said Bank. The draft was sent to a Bank in Westminster for collection, and on the 7th day of May, 1878, was presented to E. L., who refused to pay the same, and it was protested for non-payment. In an action by the F. Bank against E. L. upon said draft, it was Held :</p> <p>1st. That the telegram of April' 27th, cannot be deemed and treated as an acceptance of the draft.</p> <p>2nd. That the suit could not be maintained as an action upon an accepted draft, nor could the plaintiff recover upon the general money counts.</p> <p>The declaration did not allege an acceptance by the defendant, actual or implied, but the ground of the action as there stated was that the defendant authorized B. & Co., to draw a draft on him for $700, and promised that he would pay the said sum to the holder of the draft on the presentation thereof to him the defendant. It then alleged that in pursuance of said authority, B. & Co. drew the draft payable at sight, that the same was endorsed by B. & Co., and passed to the plaintiff for value, and was received by the plaintiff upon the faith of the authority given to B. & Co., by the defendant. It further alleged the presentation of the draft to the defendant, and his refusal to pay the same. Held :</p> <p>1st. That this did not constitute a count upon an accepted draft, but for the breach by the defendant of his contract to accept and pay a draft drawn on him by his authority; and was sufficient, and substantially averred a breach by the defendant of his implied promise to accept and pay the draft according to its tenor and effect.</p> <p>2nd. That the telegram must be construed as an authority to draw • the draft payable at sight.</p> <p>8rd. That such an authority implies a promise to accept the draft upon presentation, and to pay it at maturity, that is to say, at the expiration of the days of grace, viz., three days after sight.</p> <p>4th. That such authority to draw, and promise to accept and pay inures to the benefit of any Iona fide holder of the draft who takes it on the faith of the promise.</p> <p>5th. That the plaintiff being the tona fide holder of the draft was not affected by the state of accounts between B. & Co., and the • defendant.</p> <p>The draft having been received by the plaintiff in Baltimore on the ' 29th of April, and presented to the defendant at Westminster for acceptance on the 7th of May, there was no ground for imput- • ing laches to the plaintiff in presenting the draft for acceptance.</p>

<p>Act of 1847, eh. 158—Question whether the ground ceded to the United States for a Naval Academy, can be considered “ out of the State” within the meaning of the Act of Limitations—. Validity of a reservation by the State of the right to execute Process within the ceded territory—Construction of the Act of Limitations, with reference to a Defendant’s absence from the State during a part of the period within ivhich Action must be brought—Art. 57, sec. 4, of the Code.</p> <p>In an action of assumpsit in which the Statute of Limitations was pleaded, the plaintiff replied: 1st. That at the time of the cause of action aforesaid accruing to him against said defendant, the said defendant was absent out of the State, to wit: within the territory ceded to the United States of America by the State of Maryland, under and .by virtue of the Act of Assembly of said State, of the year 1847, ch. 158; and that this action was commenced within three years after the presence of said defendant within this State, and out of the aforementioned ceded territory. 2nd. That after the contracting of the said debt on the part of the said defendant, whereby the said cause of action accrued to said plaintiff, and within three years after, the said defendant absented, himself from the State, whereby the said plaintiff was at an uncertainty of finding out said defendant or his effects; nor did the said defendant at the time of so leaving the State, leave effects sufficient and known for the payment of his just debts in the hands of any - person who assumed the payment thereof to his creditors, and this action was brought within three years after defendant’s return to this State; nor had the defendant been in this State for three years in all after the aforesaid cause of action accrued to the said plaintiff, at the time this suit was commenced. On demurrer, it was Held :</p> <p>1st. That the power reserved to the State by the Act of 1847, ch. 158, to have its process served in the territory by that Act ceded to the 1 United States for the Naval Academy, is valid and operative.</p> <p>2nd. That ás process from the Circuit Court for Anne Arundel .County could reach the defendant while residing there, he could not pro tanto be considered “ out of the State ” within the meaning of the Act of Limitations.</p> <p>3rd. That the allegation in the second replication, that the defendant within three years from the accrual of the cause of action left the State, whereby the plaintiff “was at an uncertainty of finding the said defendant or his effects,” was not a sufficient answer to the plea.</p> <p>4th. That sec. 4, of Art. 57, of the Code, on which said replication was based, must be construed with reference to the time and circumstances under which the Act of 1715, ch. 23, from which it was codified, was passed, as set forth in the recital by way of preamble to the 4th sec. of that Act; and in subordination to well established rules in reference to Limitations.</p> <p>5th. That the plaintiff could not, as attempted by the last part of the second replication, avoid the Act of Limitations by going into a calculation of time, showing that the defendant had not been within the State precisely three years in all, from the time the cause of action arose, to the time of suit brought.</p>

<p>Appeal from the Baltimore City Court.</p> <p>The case is stated in the opinion of the Court.</p> <p>The appellees were the defendants below and demurred to the plaintiff’s declaration. The Court below, (Carey, J.,) sustained the demurrer, and the plaintiff appealed.</p>

<p> Action on an Injunction Bond—Items and Measure of Damages in such Action—A Survey and Measurement of land excluded as evidence in such Action, on the ground that the question of Title could not be tried in that collateral way and that the Survey was made ex parte—Effect of the Injunction Case upon the question of Title in.an action upon the Injunction Bond. </p> <p>In an action on an injunction bond, proof was offered that the plaintiff was engaged in supjdying his customers with milk, and kept a number of milch cows. His frame stable having become somewhat out of repair, was partially tom down in the summer of 1877, and he began to erect a brick stable in its place. In Aguust of that year, he was stopped by the injunction, which continued till the Cth day of December following. After it was dissolved he went on to complete the building, and had it finished about the 25th of the same month. While the injunction was in force the plaintiff’s cows were deprived of their accustomed and proper shelter, and were more exposed to the weather. The following question was then propounded to the witness: “ what was the effect upon the cows if any, in consequence of being exposed to the wet and cold weather, because you could not finish the brick stable while the injunction suit was pending?” On objection by the defendants it was Held :</p> <p>That the question was pertinent and legal.</p> <p>One of the grounds of special damage stated in the plaintiff’s narr. was “ the injury done to his cattle by exposure to the weather, requiring extra care and food, and causing their flow of milk to greatly decrease.” Held :</p> <p>That such damage was one of the direct consequences of the injunction, for which the plaintiff was-entitled to recover.</p> <p>The defendants offered evidence for the purpose of proving that the stable was built in part upon land belonging to the defendant L., on objection it was Held :</p> <p>1st. That it was not competent for the defendant to prove title to the property in this collateral way.</p> <p>2nd. That he was concluded on that question by the decision in the injunction case.</p> <p>3rd. That the evidence by which it was offered to prove title was ex parte and inadmissible, being a survey and measurement of the ground made by a surveyor, not in the presence or by the authority of the plaintiff, or by any authority of law. ■</p> <p>By the prayers which were granted the jury were instructed that" they might find for the plaintiff “in such damages, if any, as shall appear from the evidence that he has actually and necessarily or directly sustained by reason of the granting and serving of the writ of injunction,” and “ that actual, natural and proximate damages are such as are the direct necessary and natural result and effect of the act complained of, and from which injury is alleged to have been sustained.” And a prayer of the defendants, which was granted, excluded from the computation of damages, all evidence of the rental value of the brick stable if it had been completed. Held :</p> <p>That these instructions left to the jury the question of the items- and measure of damages in a way of which the defendants had no cause to complain.</p>

The case is stated in the opinion of the Court. Exception.—At the trial the plaintiff offered nine prayers all of which were rejected and not inserted in the record except the following, which were conceded hy the defendant: Y. If the jury shall find that the plaintiff was indicted, tried and acquitted in the Circuit Court for Baltimore County, on the charge set forth in the record of that Court, and the docket entries read in evidence, and shall find that the defendant,…

<p>Construction of Art. 93, sec. 250, of the Code, relating to the framing of Issues in the Orphans’ Court—Province of the Orphans’ Court in such Cases—Buie given for the framing of Issues and prohibiting the granting of Several issues raising the same substantial question—Case of issues improperly granted because obnoxious to said rule.</p> <p>Sec. 250, of Art. 98, of the Code, requires the Orphans’ Court in all cases of controversy therein, if either party require it, to direct an issue or issues to be made up and sent to any Court of law convenient for trying the same. Held :</p> <p>1st. That the obvious purpose of this provision is to enable the Orphans’ Court to advertise itself of the real facts of the case. These when found by the jury are conclusive upon the Orphans’ Court, which has no discretion, but must enter the judgment in conformity with the finding of the jury.</p> <p>2nd. That in framing issues, it is the duty of the Orphans’ Court to present the questions of fact in dispute and to be determined by the jury, in a plain and clear way. There is an obvious impropriety in multiplying the issues unnecessarily, and especially in presenting the same substantial question in two separate and distinct issues.</p> <p>On a caveat to a will, the first issue granted by the Orphans’ Court, presented the question whether the execution of a paper purporting to be the will of S., was “ procured by undue influence practised upon him.” Held :</p> <p>That it was error to grant a second issue presenting the question whether the execution of said paper was obtained from the said >x, “ by the exercise of a dominion or influence by some person or persons which prevented the exercise of a sound discretion on the part of the said S.”</p> <p>It is not the province of the Orphans’ Court to define the nature or degree of influence which will render a will void.</p> <p>The third issue granted presented the question -whether said paper-writing was “ revoked after the making and execution thereof.” Held:</p> <p>1st. That the questions raised by two other issues, as to the effect of certain deeds mentioned therein, and whether they operated to revoke said will, were questions which arose under, and were properly presented by, the third issue; and said issues were improper to be granted.</p> <p>2nd. That what would be the effect produced by a fraudulent concealment of said will to prevent its being cancelled or destroyed, was a question which could properly be raised under the third issue, and ought not to be made the subject of a further and 0 distinct issue.</p>

<p>Case of issues on separate Caveats to a Will, where all the issues were grouped in one case with all the Caveators as Plaintiffs, and, all the Caveatees as Defendants, although one of the parties was a Caveator in his individual capacity, and Guveatee in his capacity as Executor—The order of arrangement of the Issues a matter of form—The order of the Argument of the case prescribed—The order of introducing the Evidence a matter for the Court below to determine.</p> <p>A paper-writing purporting to be the last will of NT. W., was exhibited in the Orphans’ Court by J. L. R., one of the executors, and proved in the usual form by the three subscribing witnesses. Afterwards J. F. O. W., also named as one of the executors, filed a petition and caveat alleging that said paper contained in fact the true last will of ÍT. W. but that after its execution it was fraudulently altered, without the authority or knowledge of the testator, by the insertion therein of certain words of gift to said J. L. R., the effect of which was to make the instrument appear to bestow upon said J. L. R. one-half of the whole residuary estate. D. W. W. and O. A. W. two of the heirs-at-law also filed their petition, and caveat to the entire paper exhibited, alleging that it was not executed in the manner and form required by law; that at the time it was executed, N. W. was not of sound and disposing mind; that it was the result of undue influence and undue importunities, and that it was obtained and procured by misrepresentations and by fraud and deceit. An answer to the petition and caveat of J. F. C. W. was filed by J. L. R. denying the allegation of a fraudulent alteration or interlineation of the paper in question. Separate answers were filed to the caveat of the heirs-at-law, by J. L. R., J. F. C. and J. F. C. W., the three executors named in the alleged will. J. L. R. insisted upon the validity of the entire will; J. F. C. alleged that he knew nothing of the will except what is disclosed upon its face; and J. F. C. W. insisted upon its validity except as far as it was fraudulently altered as alleged in his caveat. Issues were thereupon prayed as follows: J. E. C. W., asked for four issues raising in different forms, questions as to the alteration of said paper, and its due execution and validity except as to said alteration. J. L. R. asked for one issue presenting the question as to the fraudulent alteration of said paper; and the contesting heirs-at-law asked for six issues presenting questions as to the valid execution of the paper, the sanity of the testator and the exercise upon him of undue influence, fraud, deceit and misrepresentation. All the issues asked for were allowed by the Orphans’ Court, and they were grouped together in one case with J. E. C. W., and D. W. W., and O. A. W., as caveators, and J. L. R., and J. E. C. W., J. L. R. and J. E. C., executors as caveatees. On appeal it was Held :</p> <p>1st. That the Orphans’ Court acted rightly in bringing together the several issues asked for, in the one case, and in designating the caveators and caveatees as they had done in its titling.</p> <p>2nd. That although possibly it would have been more systematic, and have tended to simplify the proceedings to have arranged the issues differently from what was done, such arrangement was but matter of form and did not constitute error.</p> <p>3rd. That it would be for the Court where the issue were tried, to allow J. E. C. W. to explain his position in the case as both caveator and caveatee, and with proper instructions granted to the jury( there could be no confusion in their finding upon the several issues.</p> <p>4th. That as to the order of argument, the caveator, J. F. C. Wo would be allowed to open upon his issues involving the alteration of the will, and the caveators D. W. W. and O. A. W., would also open upon their issues; J. L. R., the respondent to the caveat of J. E. C. W., would reply, and also the counsel for the will; J. E. C. W. was then entitled to close on his issues, and D. W. W. and O. A. W. upon theirs. Thus upon both caveats there would be an opening, a reply and a closing; and while the danger of conflicting verdicts was avoided, neither of the parties interested was deprived of any right.</p> <p>5th. That the order in which the evidence was to be offered would also be readily determined by the Court before which the issues were tried.</p>

<p>Exceptions to Trustee's Sale—Acceptance of interest on mortgage debt, after Default, no waiver by implication of the Default—Extension of time for payment—No such Extension effected by propositions held under ad visement by the Mortgagee subject to conditions not complied ‘icith—A demand as a condition of Extension that taxes due but not collectable by distress, be paid, not an unreasonable, one—Sufficiency of description of Property in Advertisement of Sale—Effect of weather upon Postponement of Sale—Tnadequeney of Price— Conduct of Trustee in mailing Sale.</p> <p>M. being trustee under a decree of the Circuit Court of Baltimore City, and as such trustee having funds in his hands for investment, invested the same under the direction of said Court in a mortgage on property in Baltimore County. A note was given for the principal of said loan, and separate notes for the semi-annual instalments of interest to accrue during the period for which the principal was loaned. The mortgage was conditioned for the payment of said notes, as they severally matured, and provided for a sale of the mortgaged property by the mortgagee as trustee, upon any default, in the conditions of the mortgage. Just before the principal of the mortgage debt fell due, the mortgagor sold the mortgaged property to the wife of M., subject to said mortgage; and to secure an extension for another year, M. endorsed a written guaranty of the principal sum, (or balance thereof,) and the interest semi-annually, stating in said guaranty that it was for the purpose of securing an extension for one year from maturity. Further indulgence was given from time to time until the 11th of February, 1878, when the principal not having been paid, the trustee in March, 1878, advertised the property for sale, and sold the same pursuant to said notice, and reported the sale to the Court. On exceptions to said sale, it was Held:</p> <p>1st. That an acceptance by the. trustee after the 11th of February, 1878, of the interest which fell due on that day could not by implication be held to extend the time for the payment of the principal.</p> <p>2nd. That such extension was not effected by certain interviews between the trustee and M., not culminating in an agreement for extension.</p> <p>In the first of said interviews the trustee demanded the payment of five thousand dollars of the principal to make the claim abundantly secure. Being importuned to withdraw that demand and indulge at least until the fall, he promised to see his eestuis que trust, and see what could be done, provided M. would at once go and have a certain policy of insurance assigned as collateral security, and would also pay the taxes unpaid and get receipt for the same deed, send him the written evidence of such payment and of'such assignment by the following Monday morning. These demands were not complied with, and on the Monday morning, the trustee saw in the newspapers that M. had made an assignment for the benefit of his creditors, which fact had been concealed from him in the interviews referred to, notwithstanding the conveyance was made the day before the first interview. Held :</p> <p>1st. That the trustee was not only not' bound by anything he had said to stay proceedings, but was fully justified in proceeding at once to advertise the property for sale.</p> <p>2nd. That the fact that the taxes of which payment was required although due, could not have been collected by distress at that time, did not affect the right of the trustee to demand their payment, as one of the conditions of the extension.</p> <p>The mortgaged property consisted of three parcels, all of which were advertised as adjoining, and each was not only specially described by reference to Liber and page of the Land Records of Baltimore County, but the property was described as the former residence of Mr. A., a prominent citizen, and also as adjoining the famous H. estate of Mr. J. M., and as being one-and-a-half miles west of C. station on the N. C. Railroad in the limestone valley of the Beaver dams. Held :</p> <p>That the description was more than usually full, and sufficient to give notice to any one wishing to buy such property where it was. and enable him to find it for examination.</p> <p>There had been rain in the morning but it was fair at the time of the sale. It cleared off before ten o’clock a. m. And the sale took place at one o’clock p. m. One of the witnesses stated that he had intended to go out and look at the property early that morning, but was prevented by the weather. It was not shown that he was wholly prevented from bidding by this fact, but that he was prevented by other considerations. Held :</p> <p>That taking all the proof together, the trustee did not appear to be reprehensible for not postponing the sale till -another day.</p> <p>Upon consideration of the facts touching the manner in which the sale was conducted, and the sufficiency of time allowed for the bidding, it was Held :</p> <p>That there was no objection to the sale in this respect.</p> <p>It was also, upon a review of the testimony relating to the value of the property, and the price for which it was sold, Held :</p> <p>1st. That there was no ground for disturbing the sale upon the ground of inadequacy of price.</p> <p>2nd. That there was nothing in the case to indicate any dereliction on the part of the trustee in regard to his duty to use his best efforts to effect a sale for the best possible price. And the price obtained for the property, which was very nearly the appraised value of it for the purpose of taxation, would not warrant the Court in attributing to him a failure to exercise reasonable discretion and reasonable endeavors to do justice by all his cestuis qui trust.</p>

Writ or Error from the Circuit Court for Charles County. Tlie plaintiff in error was charged before a justice of the peace of Charles County, on the oath of William 8.

<p>Sale of Mortgaged property in Solido—Junior hen-holders— Junior lien-holders properly made Parties to a Bill by the Senior UenJiolders to procure a Sale of Mortgaged,property— Equity practice—Duty of Court to protect the interest of the Junior lien-holders.</p> <p>A bill was filed by the senior mortgagee for a sale of tlie mortgaged property, to pay his claim, and all the junior lien-holders, together with the mortgagor, and the grantee of the land subject to the mortgages thereon, were made parties defendants, and all, except the mortgagor and his grantee came in and answered, admitting the allegations of the bill and submitting to a decree, and against the mortgagor and his grantee an interlocutory decree was had; a trustee was appointed to make sale of the mortgaged premises, and authorized to sell so much thereof as might be necessary for the purposes, and on payment of the entire purchase money, to convey the property sold, clear and discharged of all claim of the parties to the suit. The trustee sold the entire mortgaged property in solido, save two acres, which was sold separately. The proceeds of sale were more than sufficient to pay the claim of the complainant. It did not appear that a more advantageous sale would have been effected by selling the land in parcels. On exceptions by the grantee of the mortgagor to the ratification of the sale on the grounds that the decree did not authorize a sale of more land than wms enough to pay the complainant’s claim and costs, and that the land was divisible into parts and the trustee should have divided and sold it in parcels, the exceptions w'ere overruled and the sale was sustained.</p> <p>Where on a bill filed by the senior mortgagee for a sale of the mortgaged premises, to obtain payment of his claim, the junior lien-holders who were made parties defendants, came in and answmred, admitting the allegations of the bill, which alleged their claims to be unpaid, and consenting to a decree, such admission and consent must be regarded as a submission of their rights to the jn-otection of the Court, though they did not formally pray payment of their mortgages.</p> <p>Where a bill is filed by the senior mortgagee for the sale of the mortgaged premises, to secure the payment of his claim, it is proper to mate the junior lien-holders parties to the suit, with a view to a final settlement of the rights of all the parties in interest. And when they are thus made parties, they are concluded by the decree.</p> <p>Where a decree is passed for the sale of mortgaged property on a bill filed by the senior mortgagee to secure the payment of his claim, the junior lien-holders having been made defendants, and having answered, admitting the allegations of the bill, and consenting to a decree, such decree, as being the .better practice, should refer specially to the junior lien-holders, defendants, and provide in so many words for the payment of their claims out of the surplus proceeds of sale. But the omission to do so should not be held to prejudice their rights.'</p> <p>The equities of such junior lien-holders are as much before the Court and as much entitled to its protection as the complainant who is the holder of the first mortgage; and the Court will not lose sight of their interest when they are in Court assenting to the sale and relying on the Court for protection.</p> <p>This case distinguished from the cases of Boteler & Belt vs. Brookes, 7 Gill & John., 143, and Hubbard and Wife vs. Jarrell, et al., 23 Md., 66.</p>

<p> Exceptions to Mortgage sale—Effect of omission to Advertise on the day of sale—Question whether the property should be sold in Separate lots as indicated on a Elat dividing the property into Streets and Lots, where no Streets were actually Opened—Effect of a Division of the property into Separate parcels by the location of a Bail road through it, in requiring the Parcels to be sold separately—How much to be sold in such case—How Costs to be paid on setting aside Sale. </p> <p>In February, 1871, a mortgage was made of certain property consisting of about twenty-two acres, lying partly in Baltimore County, and partly within the City of Baltimore. Though described in the mortgage as three parcels of land, these were contiguous to each other, and constituted one parcel occupied as a dairy farm. About the year 1872, or 1878, the property was surveyed and laid off into lots and streets, but no improvements were made thereon, no streets were actually opened, nor was there any physical change in the condition of the property, or in its mode of occupation, the lots and streets being merely designated on a map, and marked on the ground by stones placed there for that purpose. The W. M. Railroad was constructed upon the property, crossing it diagonally, so as to completely separate it into two parts, about four acres being on one side of the railroad and the balance on the other side. Under proceedings of foreclosure of the mortgage the property was advertised and sold in one parcel, and was purchased by the mortgagee. The mortgage required “ at least twenty days notice of the time, place, manuerand terms of sale, in some newspaper p ublished in the city of Baltimore.” The advertisement was printed in a newspaper published in said city, the first insertion being on the 11th of March, and the last on the 13th of April. The day of sale was the 18th of April, but through mistake, the advertisement did not appear on the morning of the day of sale as is customary in the City of Baltimore. Accompanying each advertisement, were printed numbers and letters indicating the dates upon which the same would be published, and among these were the 17th and 18th of April, the day of sale and the day before, on both of which it was omitted. The effect of this omission as shown by evidence was to produce the impression upon the public that the sale would not take place. On exceptions to the sale filed by the mortgagor it was Hmi/d :</p> <p>1st. That the omission of the advertisement on the day of sale, was a valid and sufficient reason for setting aside the sale.</p> <p>2nd. That the mortgagee on a re-sale was not bound to offer thepioperty for sale in small lots fronting on the projected streets.</p> <p>3rd. That the two parcels into which the land had been divided by the location of the railroad ought to be sold separately.</p> <p>4th. That if one of those parcels should sell for enough to pay the mortgage and interest, with the taxes and costs, the other should not be offered.</p> <p>5th. That the costs of the proceedings should be paid out of the proceeds of sale.</p>

Cross Appeals from the Superior Court of Baltimore City. This action was brought by the State of Maryland against the Mayor and City Council of Baltimore to recover : 1. Money paid by the plaintiff for the defendant, at its request. 2. And for money received by the defendant, for the use of the plaintiff. 3. And for money found to he due from the defendant to the plaintiff, on accounts stated between them. 4.

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

<p>Validity of the Act of 1878, ch. 159, considered, with reference to the Sufficiency of its Title, and its Interference with the rights of Navigation—Question whether the Levy by the City of Baltimore of a sum to pay for the Bridge therein provided for, was Mandatory or Directory only—Case of Mandamus prematurely brought.</p> <p>The title of the Act of 1878, ch. 159, is “ An Act to repeal ch. 220 of the Acts of 1876, entitled an Act to. establish a free bridge over the Patapsco river at or near the present site of Light street Bridge, * * * and to enact the following in lieu thereof.” By this Act the Mayor and City Council of Baltimore, and the County Commissioners of Anne Arundel County, are “authorized, empowered and directed ” to purchase the present bridge over the Patapsco river, known as Light street Bridge, and keep the same as a free bridge, if the owners will on or before the first day of January, 1879, agree to sell the same unto the said Mayor and City Council of Baltimore, and the County Commissioners of Anne Arundel County, at a price and upon such terms as to them may apirear fair and reasonable. The Act further authorizes, empowers and directs them, if they cannot buy the said bridge to build a free bridge over said river, provided the whole cost “ shall not exceed in the aggregate the sum of forty thousand dollars; ” and provides for a keeper for opening and closing the draw, but makes no provision respecting the size or extent of the draw. By the 4th sec. the said Mayor and City Council, and the County Commissioners of Anne Arundel County are “ authorized and directed,” to levy on the assessable property of the city and county respectively, “at such time or times as they may deem best, such sums of money as may be necessary to carry out and secure the provisions of this Act, the expense thereof to be borne equally by said city and county, a portion thereof at least to be levied at their regular annual levy for the present year.” On a mandamus filed in September, 1878, asking that said Mayor and City Council “ may be compelled to levy a portion of the costs of carrying out the provisions of said Act, in accordance with the provisions of the said Act,” it was Held:</p> <p>1st. That the title of said Act was not defective under sec. 29 of Art. 3 of the Constitution.</p> <p>2nd. That the direction as to the time within which or at which the first portion of the levy was to be made, was so far directory only that the defendant was not under compulsion to levy until after the exhaustion of efforts to buy within the period mentioned, and it was known whether it could buy or build within the sum designated by the Act.</p> <p>3rd. That the proceeding was premature, and no mandamus should be awarded until it should appear, after the first day of January, 1879, that the defendant was wilfully disregarding the requirements of the Act of Assembly.</p> <p>4th. That although the Act of Assembly, while it provides for a draw to the bridge, does not designate its size, it will not be held to have intended the construction of a bridge without a sufficient draw for the conveniences of navigation; and the said Act cannot be held void because of its interference with the rights of navigation.</p>

The bill in this case was filed by the appellants against the appellees and the Board of Commissioners of Public ' Schools of Baltimore City, and others, for the purpose of having the contract therein referred to declared illegal, and for an injunction to prevent its being carried out.

John Frederick Walker devised his farm, on which he dwelt in Baltimore County, containing about ten acres, to his son, John Frederick Walker, Jr., “ upon condition that if my wife, Maria Leonora Walker, should survive me, that he, my said son, shall keep, provide for and support her during her natural life, and allow her to dwell and reside on said property with him and his family free of expense during her lifetime.” At the time of the testator’s death there was a mortgage…

The appellant instituted an action of attachment under the Act of 1864, ch. 306, to recover from the appellee the value of certain bonds, basing the action upon the ground that the defendant fraudulently contracted the debt or incurred the obligation in respect to which the action was brought. The Court helow quashed the attachment and the plaintiff appealed. The case is further stated in the opinion of the Court.

The appellant was sued by the appellee before a justice of the peace of Kent County, and judgment being rendered against him, he appealed to the Circuit Court. In that Court he applied for a removal of the case on the ground that he could not have a fair and impartial trial before a jury of Kent County. The Court, (Wicices and Stump, J.,) passed an order refusing the application, and the defendant appealed.

The hill in this case was filed by the appellant to compel the specific performance of a contract made between himself and the appellee for the sale to the latter of a farm which the complainant claimed to own in fee under a devise, the terms of which are set forth in the opinion of the Court. The property was devised to him after the death of his father, who is alleged in the bill to be dead.

The case is sufficiently stated in the opinion of the Court. First Exception.—The defendant offered in evidence the following letter written hy its Treasurer: Hagerstown, January 17th, 1876. Messrs.

<p>Charge upon land to secure sums due for Owelty of Partition— Difference betioeen such Charge and a Vendor’s lien—The Charge not impaired by a Subsequent deed of Trust of the same land made to secure the same sums—Case of a Deed held to be a deed of Trust and not a Mortgage, and not affected by the provisions of the Code relating to the Execution and Recording of mortgages—Construction of sec. 19 of Art. 24 of the Code, relating to the Recording of deeds— Effect of recording deeds after the time prescribed by law, as to the rights of Prior and Subsequent creditors—Case of a Deed held to be a Mortgage—Question whether the Affidavit to the consideration was in due form and. made before the proper officer—Effect of not recording the Mortgage within six months from its date—Constructive notice.</p> <p>On the 10th of February, 1877, W. D., conveyed certain land to trustees for the benefit of his creditors. The trustees made sale of the same, and an account was stated by the auditor distributing the proceeds amongst certain preferred creditors. The land thus sold had been conveyed to W. D. by his brothers and sisters, by a deed dated March 20th, 1854, in which after reciting a partition made by mutual consent between the grantors and W. D. of the real estate devised to them by their father, it was further recited that the land conveyed by said deed had in said partition been allotted to W. D., one of said devisees as his portion of said real estate, but “ charged with the payment ” of certain specified sums to the trustees of his three sisters respectively, for owelty of partition. As a further security for the payment of these several sums, W. D. executed his three several bonds, in favor of the trustees of his said sisters, and on the 12th of July, 1854, conveyed to the same trustees, the same land to secure the payment of the same several sums of money and interest thereon. The interest was paid by W. D. down to July 1st, 1869, but the whole principal and interest from that date remained unpaid, and constituted certain claims allowed in the auditor’s account as preferred claims. On exception to these claims, it was Held :</p> <p>1st. That by the deed of March 20th, 1854, the several sums of money payable to the trustees of the sisters of W. D. were expressly charged upon the land.</p> <p>2nd. That the said charge was not in the nature of a vendor’s lien resting only upon the interest or share conveyed by the grantors respectively, but by the terms of the deed it was charged upon the whole estate therein described and which was held by W. D. subject to the charge thereby created.</p> <p>3rd. That the bonds and deed of trust of July 12th, 1854, even if the latter was in all respects valid in law, were mere collateral securities for the same debts, and would not have the effect of impairing the charge created by the deed.</p> <p>4th. That said claims were properly allowed as preferred liens on the fund.</p> <p>Certain other claims allowed as preferred claims were upon promissory notes of 'W. D., dated January 24th, 1863, secured by deed of trust made February 14th, 1863, by W. D. and wife, and recorded August 25th, 1869. There was no evidence that it was withheld from record with any fraudulent intent. On exception to said claims it was Held :</p> <p>1st. That the provisions of the Code relating to the execution and recording of mortgages, are to be construed as referring to deeds of mortgage technically such, and do not apply to deeds of trust such as the deed of February 14th, 1863.</p> <p>2nd. That under Art. 24, sec. 19, of the Code, said deed not being a mortgage might be recorded at any time.</p> <p>3rd. That the saving clause in said sec. 19 in favor of creditors, is not to be construed as applicable only to creditors who may have acquired liens upon the land, but embraces all creditors who come within the terms of the saving clause.</p> <p>4th. That so far as respects the debts, if any, of "W. D. created before the 14th day of February, 1863, the date of the deed, or thereafter created with notice of the deed, these must be postponed to the claims thereby secured, and in the.same manner the parties whose claims were secured by the deed were entitled to priority over all creditors who became such after the 25th day of August, 1869, when the deed was recorded.</p> <p>5th. But as respects the creditors, if any, whose debts were contracted after the date of the deed and before it was recorded, without notice thereof, these if they were merely general creditors who had not acquired liens on the land, were entitled to come in pwri passu with the parties whose claims were secured by the deed, and to par-, ticipate with them ratably in the distribution, and if they had acquired liens on the land they were entitled to priority over those in whose favor the deed was made.</p> <p>Certain other claims which were allowed a preference by the auditor, were based upon promissory notes of W. D., dated January 1st, 1863, in favor of the trustees for his sisters, secured by a deed made by W. D. and wife, on the 16th of February, 1863. The deed was a conveyance to the creditors directly for the purpose of securing the debts due and payable to them, and provided for a release and re-conveyance of the property on payment of the debts secured. Held :</p> <p>That the deed was strictly and technically a mortgage within the meaning of the Code, subject to the provisions therein contained relating to the execution and acknowledgment and recording of such instruments.</p> <p>The deed was executed and acknowledged before H. K., a Commissioner of Deeds for the State of Maryland, in the District of Columbia, and was recorded on the 26th of August, 1869. An affidavit was made by the grantees “ that the several debts mentioned and secured by them in and by the foregoing and annexed deed are justly and tona fide owing to them as set forth in said deed.” This affidavit was made at the same time that the acknowledgment was made, and before H. R. who had taken the acknowledgment, as Commissioner of Deeds, but the certificate was signed by him, not as Commissioner of Deeds, but with the letters “ J. P ” affixed to his name. Held :</p> <p>1st. That the affidavit although not in the words prescribed by sec. 29, Art. 24, of the Code, was of equivalent import and effect, and so far as the form of the affidavit was concerned, it was a substantial compliance with the requirement of the Code.</p> <p>2nd. That H. R’s affixing the letters “ J. P.” to his name, or calling himself a justice of the peace, did not impair the validity of the affidavit, as it appeared on the face of the paper that he was at the same time a Commissioner for the State of Maryland, and therefore a person before whom the affidavit could lawfully be made.</p> <p>3rd. That said deed being a mortgage, did not come within the provisions of Art. 24, sec. 19, of the Code, and was not entitled to be placed upon record after the expiration of six months from its date without an order or decree of a Court of Chancery for that purpose as prescribed by Art. 16, sec. 23.</p> <p>4th. That the registration of the papier without such order could not have the effect of constructive notice to subsequent purchasers or creditors, and the paper must be considered as a mortgage unrecorded.</p> <p>5th. That being in all respects regularly executed and acknowledged with a sufficent affidavit by the mortgagees, it was valid between the parties, and if made bona fide and not withheld from the record for a fraudulent purpose, or in other words, if it was an instrument which a Court of Chancery would order to be recorded under sec. 23, it operated to give to the persons whose debts were thereby secured, priority over all creditors of W. D., whose debts were contracted before its date, and also over all subsequent creditors who became such with actual notice of the deed.</p>

<p> Administration de bonis non—Effect of a Sale by an Executor who died without Reporting the Sale or Distributing the proceeds—Lapse of Time—Jurisdiction of the Orphans' Court, and Court of Appeals. </p> <p>A testator died in the year 1850. His executor qualified as such, and returned an inventory of the estate; afterwards he returned a list of sales, passed an account, and in April, 1853, made distribution of the balance which that account showed to be in his hands. The executor died in the year 1854. In the inventory which had been returned by him was included a parcel of leasehold property, which was not included in the list of sales or in the distribution made by him. In the year 1878, a petition was filed in the Orphans’ Court by some of the parties interested in the estate, asking that an administration de bonis non, be granted for the purpose of making distribution of said leasehold property. This petition was resisted by the widow of the testator, on the ground that the executor had sold the said property to her and she had paid him for it, and that the claim was barred by lapse of time. On appeal from an order of the Orphans’ Court dismissing said petition, it was Held :</p> <p>1st. That said order regarded as an adjudication by the Orphans’ Court, that no administration was necessary or should be granted, was erroneous.</p> <p>2nd. That even if the property had been sold to the widow and paid for by her, this would form no ground for refusing the letters, which were necessary for the purpose of perfecting her title. And if her allegation in regard to the sale were true, it would show an amount for distribution in the late executor’s hands, which could be reached in this way more apjrropriately than in any other.</p> <p>3rd. That the lapse of time interposed no bar to the granting of such letters.</p> <p>4th. That it was not the province of this Court as the case stood to decide who was entitled to the letters, but that question first belonged to the Orphans’ Court.</p>

The case is stated in the opinion of the Court. First Exception.—Stated in the opinion of the Court. Second Exception.—Stated in the Court’s opinion, except that the rule of the Superior Court on which the decision -of this exception is based, is not there stated.

Appeals from the Circuit Court of Baltimore City. The opinion of the Court,- together with the dissenting opinion of Chief Judge Bartol, furnish a statement of the -case.

<p>Appeal from the Circuit Court of Baltimore City.</p> <p>The opinion of the Court, together with the dissenting opinions, furnish a statement of the case.</p>

Appeals from the Circuit Court for Washington County, in Equity. Ahraham Horst, a citizen of Washington County, being indebted to Daniel Eshleman, a citizen of Pennsylvania, executed to him on the 5th of June, 1874, a mortgage of certain real estate lying in Washington County, to secure the sum of $4000, with interest thereon from the 1st of April, 1874. The mortgage was duly acknowledged before a justice of the peace in and for Washington County, on the day of its date.

By the will of Joshua T. Estep, dated the 6th day of August, 1861, the testator gave his property, real and personal, to Henry Clay Cross; Arthur Cross, and Julian Cross, his illegitimate children hy Mary Emily Cross, to he equally divided among them; and in the event of their dying without heirs, he gave the same to the heirs of John C. Estep and the heirs of Margaret P. Shaw, to he equally divided among them, share and share alike.

This was an action of ejectment brought by the appellees against the appellant and Sarah Evans, his wife. Pending the case, Sarah Evans died ; her death was suggested, and her name as a defendant was stricken out. First and Second Exceptions.—Sufficiently set out in the opinion of the Court. Third Exception.—The plaintiffs offered the following prayers: 1.

Appeals from the Superior Court of Baltimore City. This was an attachment instituted under the Act of 1864, ch. 306, by the ’ appellees against the appellant. The attachment was laid in the hands of Francis W. Bennett and Alfred C. FT. Mathews, trading as F. W. Bennett & Co. The defendant and the garnishees appeared and pleaded. The case is further stated in the opinion of the Court.

The hill in this case was filed hy the appellee for the purpose of procuring a decree to correct a mistake, which was charged to have heen committed in the execution of an instrument of writing of the 13th of December, 1873, by William Walsh and. Bernard A. Dougherty, to Charles H. Ohr, instead of to Charles H. Ohr, as guardian of the complainant, and to have a conveyance of said property to himself.

This action was instituted by the appellant against the appellee. The case is stated in the opinion of the Court. The prayers of the plaintiff, which the Court (Pearre and Motter, J.,) rejected, are omitted, as they are of unusual length, and their insertion would only encumber the case, without serving to elucidate the questions involved, which are fully presented in the opinion of this Court. The defendant offered no prayers.

<p> Capital Stoclc of a Corporation—Taxation—Exemption from taxation—Taxable and Eon-taxable property of a Cemetery Company. </p> <p>It is the settled law of this State, that the capital stock of a corporation is, for the purpose of taxation, the representative of its property, and the exemption of the one carries with it the exemption of the other.</p> <p>An exemption from taxation exists only where it is expressed in explicit terms, and it cannot be extended beyond the plain meaning of those terms.</p> <p>The charter of a Cemetery Company entitled to hold real and personal property, provided that the “ land of the comjsany dedicated to the purposes of a cemetery, shall not be subject to taxation of any kind.” Held :</p> <p>1st. That this embraces the land with the permanent improvements thereon, but not a fund invested in stocks, the interest of which is devoted to the maintenance of the cemetery.</p> <p>2nd. That its capital stock being, therefore, represented by non-taxable real estate, and taxable personal property, is taxable to the extent that the taxable element enters into and forms part of ita value, and to that extent only.</p>

<p> Demurrer to Bill in Equity—Multifariousness—A failure to file the Exhibits on which a prayer for Injunction is based not Waived by a Demurrer to the Bill—A general Demurrer to the Whole bill overruled where it was good only as to Fart of the Bill. </p> <p>A bill was filed by the complainant claiming to be a creditor of and a shareholder in the B. O. M. Co., a corporation under the laws of this State, alleging that the corporation was insolvent, and praying that its liabilities might be ascertained, and the shareholders ratably assessed towards the payment of said indebtedness. The bill further alleged that F., being the president of said corporation and the holder of unpaid shares of its capital stock, fraudulently obtained a judgment against the company, and afterwards brought suit against W., a shareholder, and as such individually liable for the debts of the corporation, and recovered judgment against him. In addition to the prayer for general relief, the complainant prayed that F., and L., his assignee, might be restrained from enforcing the payment of said judgment. On demurrer it was Held :</p> <p>1st. That the bill was not multifarious.</p> <p>2nd. That the bill in so far as it prayed for an injunction was fatally defective, because it alleged that the company was indebted to the complainant on a promissory note secured by mortgage, and also upon a promissory note indorsed by the company, and the complainant had failed to file as exhibits with his bill either the notes, copy of mortgage, or any other evidences of said indebtedness.</p> <p>3rd. That this defect was not waived by the demurrer, which admitted only the truth of the facts stated in the bill, so far as they were relevant and well pleaded.</p> <p>4th. That the defect however only applied to the special relief prayed, namely to the injunction to restrain the judgment of F., and did not in any manner affect the general relief to which the complainant was entitled as a creditor and shareholder of the company.</p> <p>5th. That the demurrer being general, applying to the whole bill, and good as to a part only, should be overruled.</p>

The case is stated in the opinion of the Court. Exception.-—At the trial the plaintiff offered the two following prayers: 1. Held: by intermediate assignments, a leasehold interest, which was derived under a lease from Ann Fell, dated July 5th, 1769, to Alexander McMechen, then the legal title of the said Presstman expired at the expiration of the lease to the said McMechen, to wit, on the 5th of July, 1868, and that if the jury shall believe that the said…

This action was brought by the appellee to recover of the appellants for certain work done, under a written contract, on the line of Jones’ Falls between Pratt Street, and Canton Avenue in the City of Baltimore. Sundry exceptions were taken by the defendants during the progress of the trial. The case is further stated in the opinion of the Court. The jury rendered a verdict in favor of the plaintiffs for $1408.91, and judgment was entered on the verdict.

<p>Section 58 of Article 16 of the Code—Act of 1870, ch. 450, not Retrospective in its operation.</p> <p>Section 58 of Article 16 of the Code, before it was amended by the Act of 1870, ch. 450, provided that: “ Whenever lands lie partly in one county and partly in another, or partly in a county, and partly in the City of Baltimore, or whenever persons, proper to be made defendants to proceedings in chancery, reside some in one county, and some in another, or some in a county, and some in the City of Baltimore, that Court shall have jurisdiction in which proceedings shall have been first commenced.” A bill was filed in the Circuit Court of Baltimore City, where the defendants resided, alleging that certain land situated entirely in Baltimore County, could not be divided without loss to the parties interested, and praying for a sale of the same, and for a division of the proceeds arising therefrom. A decree was passed on the 19th of June, 1866, directing the sale of the land, and appointing trustees to make the sale. The land was sold and the sale reported to the Court; but the sale was afterwards set aside for cause. Before any further effort to sell was made, the Act of 1870, ch. 450, amending sec. 58 of Art. 16 of the Code, was passed. By this Act two provisoes were added to the section. The first was as follows: “provided, that all proceedings for any partition of real estate, to forclose mortgages on land, or to sell lands under a mortgage, or to enforce any charge or lien on the same, shall be instituted in the Court of the County or the City of Baltimore where such lands lie, or if the lands lie partly in one county and partly in another, or partly in one county and partly in the City of Baltimore, then such proceedings may be commenced in either county or in the City of Baltimore; but no sale or partition of lands under any such proceedings shall take place after the passage of this Act, except under the decree of a Court, as-hereinbefore provided.” It was insisted by two. of the defendants that the last clause of this proviso, divested the jurisdiction of the Court which passed the decree, and rendered it inoperative and void. Held :</p> <p>That the Act of 1870, ch. 450, was intended to be, and was prospec- • tive in its operation only; and could not be held to aifect the rights of parties under a decree which went into effect before it was passed, or the powers of the Court to enforce such decree.</p>

<p>■Contract for the Sale of Land where the Purchase money is payable in Instalments—Part payment of the Purchase money—Rescission of the Contract—Rights as betweenVendor and Vendee—Liability of the Grantee in a Deed, absolute in form, but intended as a Mortgage, for Taxes on the property—Practice in Dquity in respect of Remanding a Commission to talce testimony.</p> <p>Under a contract for the sale of lands where the purchase money is payable in instalments, if the vendee pays part and then rescinds the contract, he cannot recover back what he has paid, the vendor being ready and willing to perform on his part.</p> <p>But if the vendor be the party who rescinds the contract, he cannot hold on to any part of the consideration he has received under it, and what has been paid may be recovered by the vendee.</p> <p>Where the contract itself provides what shall he done with the land in case the vendee fails to pay the instalments, the vendor cannot treat his failure to pay as a total rescission of the contract by the vendee.</p> <p>In such case both parties are bound by its terms, and any rights which the contract gives to the vendee in the proceeds of the sale to be made by the vendor upon the vendee’s failure to pay, are still reserved to the latter.</p> <p>A grantee in a deed, absolute in form, though in fact intended as a mortgage, is, in the absence of any agreement to the contrary, liable as between himself and the grantor, to pay the taxes on the property accruing after the date of the deed.</p> <p>A commission had been returned at the instance of the complainant, and after he had full opportunity to take his testimony. More than eight months thereafter, and after the case was ready for hearing, he applied to have the commission remanded to enable him to take further testimony. Held :</p> <p>'That there was no error in refusing this application; there is no rule of equity practice that will justify the remanding of the commission under such circumstances.</p>

<p>Accounts of an Executor or administrator subject to Revision and correction in the Orphans1 Court-Passage of a Claim by the Orphans’ Court against a Decedent’s estate—Claim by an Executor to be allowed for Services rendered his Testatrix in her life-time—Right of parties interested in Decedent’s estate, to objeet to such Claim—What is a reasonable Time within which a motion for a Revision and Correction of an Executor’s account may be made—Parties not excluded as Witnesses, under the Act of 1864, ch. 109, and its Supplements—Improper claim by an Executor— What necessary to Justify a claim for Services rendered a Deceased person— Costs in the Orphans’ Court discretionary under Art. 93, sec. 250, of the Code—Proper allowances to an Executor.</p> <p>So long as the estate of a decedent is open, that is, not finally closed and settled, the accounts of the executor or administrator in the Orphans’ Court, are subject to revision and correction in respect of any matter discovered to be erroneous.</p> <p>The simple passage of a claim against a decedent’s estate by the Orphans’ Court, or the passage and approval of an account retaining for it, does not establish the correctness of either.</p> <p>The passage of a claim by the Orphans’ Court, does not bind the executor to pay it; he may still resist it, and the claimant is put to his proof.</p> <p>Parties interested in the distribution of a deceased’s estate, may, in a proper way, and within a reasonable time, object to the propriety of a claim preferred by the executor of the deceased for services rendered her, in her life-time, although it has been passed upon and allowed ex parte, by the Orphans’ Court, and included by the executor in his account.</p> <p>An executor preferred a claim, in his own behalf, against his testatrix for services rendered her, in her life-time, and included it in his first administration. account dated the 15th of December, 1874, which was passed, and approved by the Orphans’ Court. The inclusion of this claim in his account gave the appearance of an overpayment of the estate. This over-payment was brought forward successively in each of the two following accounts as a matter for allowance. The third account was passed on the 37th of April, 1878, and within ten days thereafter, an application by parties interested in the distribution of the estate, was made for a revision, and to strike out. Held :</p> <p>That this was a reasonable time within which to seek a correction of the errors and improper charges of the executor.</p> <p>Parties interested as devisees under the will, in the distribution of the estate of a deceased person, are not excluded under the Act of 1864, ch. 109, and the supplements thereto, from testifying adversely to a claim made by the executor of the estate, which he seeks to have allowed, for services rendered his testatrix.</p> <p>An executor cannot rightly claim to be allowed out of the estate of his testatrix, his mother, for the cost of renovating, and removing to another place, the tombstones of the grand-parents of himself and other devisees under the will.</p> <p>To justify a claim against a deceased’s estate for services rendered the deceased, it must appear that there was a design, at the time of the rendition, to charge, and an expectation on the part of the recipient to pay, for the services. There must have been an express or implied understanding between the parties that a charge for the services was to be made, and to be met by payment.</p> <p>The awarding of costs in a litigation in the Orphans’ Court, is, under sec. 350 of Art. 98 of the Code, altogether in the discretion of the Court, and is not reviewable on appeal.</p> <p>An executor may rightly claim to be allowed out of the estate of his testatrix for fertilizers furnished by himself, to her in her life-time.</p> <p>Where a farm, part of the estate of a deceased person, is, under the will, in the hands of her executor for sale, and is managed by him, and he charges himself with all the proceeds of the crops raised thereon, he is entitled to be allowed out of the estate for fertilizers used in their production.</p>

<p>Parol Contract—Executed Contract—Statute of Frauds— Waiver of a Condition precedent—Facts insufficient to ivarrant the treating of a Contract as abrogated—Bight of action—Acts which constitute a binding Contract for the Sale of a house—Specific performance—Decree for the execution of a Deed.</p> <p>It was verbally agreed between. A. and B. that A. should do the plumbing and gas-fitting in ten houses of B. for the sum of $2050. Subsequently another contract was verbally made between the parties, that A. should take a certain house of B. at the price of $1200, subject to a certain mortgage resting on it, in part payment of the work, and the balance only in money. The work contracted for was all done, and some extra work besides, all of which was satisfactory. It was in evidence that an appointment was made for a settlement, and that A. directed certain attorneys to examine the title, and prepare a deed for the house, which was done, and he paid for its preparation. The deed was .executed by B. and left with the Justice of the Peace who took the acknowledgment, for A. who called to get it, but declined to receive it, because certain tax receipts had not been left with it, and for no other reason; of this refusal or the reason for it, B. had no notice. A. testified that all the taxes were to be paid by B. before he was to take the property, and B. admitted he was to pay the taxes in arrear, but did not understand it was a condition precedent to the consummation of the agreement. Subsequently to the execution of the deed, and its being left with the Justice for A., the parties met and settled for the work done. The price of the house was deducted from the gross cost of the work done, and the cash or its equivalent was paid for the residue, and A. executed a receipt in full. At that time, A. asked for the tax bills and receipts, and B. promised they should be sent to him. At the time of the settlement, B. gave A. an order on the tenant of the house for the rent; and for fourteen months thereafter, A. received the rent from the tenant, and paid one year’s ground-rent. Meanwhile the deed remained in the hands of the Justice, and never was taken away; though B. was never notified thereof. A. in August, 1876, offered the house for sale at public auction, but it was not sold, the price asked for it not being bid. A. received the rents from the tenant till about July, 1877. A. testified that when he agreed to take the house, the mortgage resting on it, was stated to be $1200 ; the deed which was prepared for him recited that it was subject to a mortgage of $1250. A. stated that after the settlement and the receipt of the order for the rent, he examined the house, and found it did not come up to representation. He gave no notice, however, of exception either on account of its defects or of the excess of the mortgage claim over the alleged representation, ■ A. admitted that at the time of the bargain or negotiation, B. requested him to examine the house for himself, B. being notified by the mortgagee at one time that he had some difficulty in getting his mortgage claim fixed up by A. because of some unpaid taxes. B. paid them, and told A. who said it was “ all right,” and afterwards saw the mortgagee and promised to pay the interest. In an action of assumpsit by A. to recover from B. a balance alleged to be due, it was Held :</p> <p>1st. That assuming the facts stated, to be true, the contract for the purchase of the house had become an executed contract by the payment of the purchase money and the entry into possession and exercise of all the acts of ownership; so that it was wholly “ extracted from ” the operation of the Statute of Frauds.</p> <p>2nd. That if the payment of the taxes were originally intended to be a condition precedent to the consummation of the arrangement, the evidence of the conduct of A. afterwards, was sufficient to warrant a jury in finding a waiver, under instruction from the Court; and the subsequent notice of taxes in arrear and of distress for the same, of which A. gave no notice to B. did not warrant his treating the contract as abrogated thereby.</p> <p>3rd. That if A. had paid the taxes, he would, under their arrangement, have had a right of action against B., but he could not at that time repudiate the contract and abandon the house.</p> <p>4th. That in order to make the contract for the sale of the house a binding one on A., it was not necessary that a deed should have passed; his acceptance of possession, and exercise of all the acts of ownership for so long a time, and the payment of the purchase 'money by his work, as was agreed, would have entitled him to a specific performance and to a decree for the execution of a deed to him; and e converso, B. was entitled to hold him to the contract, in the absence of fraud, of which there was no proof.</p>

<p>Statute of Limitations—Bill in Equity for an Account— Demand in Equity by Gestui que trust of an Account from Trustee—Statute of Limitations as applicable to Implied or Constructive Trusts—Petitioner for the benefit of the Insolvent Laws—Petitioner not actually Insolvent—Who entitled to Surplus remaining after payment of Debts—When Limitations are in favor of a Stranger to a Trust—Effect of a party7s Intrusion upon an Infant7s estate—What does not ■ affect the running of the Statute of Limitations—Entries in aEamily Bible or Testament as Evidence—When entries in the Baptismal Register of a Church made by the Clergyman, are admissible in Evidence.</p> <p>As a general rule the Statute of Limitations is a bar to a bill in equity for an account, just as it is a bar to an action of account in a Court of law.</p> <p>Where there is an express, subsisting and recognized trust, and the cestui que trust demands in equity an account from the trustee, neither the period of limitation prescribed by Statute, nor length of time is a bar- to relief.</p> <p>But where there is merely an implied or constructive trust arising by operation of law, Courts of equity, as a general rule, will follow and obey the law by applying the statutory limitation of time.</p> <p>The fact that a petitioner for the benefit of the insolvent laws is not actually insolvent, does not affect the validity of his discharge, nor oust the jurisdiction of the Insolvent Court.</p> <p>In such case the surplus remaining in the hands of the trustee, after payment of debts, belongs to the insolvent by way of resulting trust, and is not held by the trustee under any express trust for the benefit of the petitioner. ,</p> <p>Where there is a trustee competent to sue and protect the trust estate, limitations run in favor of a stranger to the trust, notwithstanding the cestui que trust may be an infant.</p> <p>A party intruding upon an infant’s estate becomes constructively his guardian or trustee, but against such a trust limitations run; and to avoid the bar, the bill for account must be filed within three years after the infant arrives at age. '</p> <p>Mere doubt as to the right, or difficulty in the way of its assertion will not affect the running of the Statute; apart from the disabilities expressed in the Statute itself, there must, in order to prevent its operation, be some insuperable barrier, or some certain and well defined exception clearly established by judicial authority.</p> <p>Entries in a family Bible or Testament are admissible in evidence even without proof that they have been made by a parent or a relative.</p> <p>But such entries are not in all cases conclusive of the facts stated; their weight as evidence is subject to be weakened or strengthened by all the proof in reference to them.</p> <p>Who made the entries, when they were made, and whether the book has been so kept as to be accessible at all times, to all the members of the family, are all matters to be considered in determining the probative force of such entries.</p> <p>Entries in the baptismal register of a church made by the clergyman in the regular discharge of his clerical duties, are admissible in evidence, after his death, though there is no law requiring such records to be kept.</p> <p>Ordinarily such entries are admissible only for the purpose of proving the fact and date of baptism, and not of other matters therein stated, such as the date of the birth of the child.</p>

Charles Torrance died in 1822, leaving a will duly executed to pass real estate, hy which he devised to his-wife, Elizabeth Torrance, during her natural life, the whole of his estate, real and personal, and then directed as follows : “And as to what shall become of it after her decease, I do hereby authorize and empower my said wife, Elizabeth, hy deed, will or otherwise, to give, grant, convey, devise or dispose of my said estate unto and among all or such of my children,…