Volume 53 — Maryland Reports

The case is stated in the opinion of the Court. Exception. — It is not necessary to set out the prayers offered by the plaintiff at the trial; the instructions given by the Court below (Dobbin, J.,) are contained in the opinion.

The case is stated iu the opinion of the Court. Exceptions. — At the trial after the evidence set forth in the defendants' first and second exceptions (mentioned in the opinion,) the plaintiff offered the following prayer That if the jury find from the evidence in this case that the plaintiff received in good faith, from J. B. Rose, of the firm of J. B. Rose & Co., for a valuable consideration, at or about the date thereof, the promissory note offered in evidence, and if the…

On the 26th April, 1877, the appellant obtained judgment for the sum of $943.33, in the Superior Court of Baltimore City, against John M. Miller, of that city, as surety on the bond of John A. Busk, a former agent of the appellant. In the procuring of that judgment, Mr. E. J. D. Cross, who had been for some time the regular counsel, in Baltimore, of the appellant, acted as its' attorney.

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

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

<p>Proceeding in Equity to Annul a Peed made by a Person when Insane — Proof of Continued Insanity.</p> <p>A person of full age who has been insane, may, after he has sufficiently recovered his reason to understand the character of his act, file a bill in equity to annul a deed or contract to his prejudice made by him, when he was of unsound mind and incapable of contracting.</p> <p>The maxim of the law, “ once insane presumed to be always insane,” is not an unqualified one. Neither observation nor experience shows us that persons who are insane from the effects of some violent disease, do not usually recover the right use of their mental faculties. Such cases are not unusual, and the return of a sound mind may be anticipated from the subsiding or removal of the disease which has prostrated their minds. If, therefore, the proof in a proceeding to annul a deed made by a person to his prejudice when he is alleged to have been insane, only shows a case of insanity directly connected with some violent disease, the party alleging the insanity must bring his proof of continued insanity to that point of time which bears directly upon the contract impeached, and not content himself with proof of insanity at an earlier period.</p>

This case has been before the Court on two previous occasions. (47 Md., 126 and 49 Md., 253.) After the cause was last remanded for further proceedings, the property was sold to the appellee; and the subsequent proceedings, so far as it is necessary for the understanding of the present appeal, are stated in the opinion of the Court.

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

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

<p>Section 160 of Art. 1. of the Public. Local La.ws, repealed by the Act of 1866, eh. 157 — Liability for Taxes — Dffect of a Decision on the same question but not between the same Parties — Construction of Art. 1, sec. 11, of the Public General Laws — Repeal of Laws.</p> <p>The appellant, a resident of Baltimore City, was assessed by the appellee with certain shares of stock,' owned by him, of the George’s Creek Coal and Iron Co., a corporation doing business in Allegany Co., and taxes on these shares for the year 1877, were levied for municipal purposes. In an action of assumpsit brought by the appellee against the appellant, to recover these taxes, it was Held :</p> <p>1st. That a decision of the Circuit Court for Allegany Co., in a case between the County Commissioners of that county and the George’s Creek Coal and Iron Co., whereby it was decided, that Art. 1, sec. 160, of the Public Local Laws, relating to Allegany Co., which provided, that “ the incorporated institutions and companies in Said county — whether they shall or shall not have declared any dividends or earned any profits — shall pay the State and county taxes levied upon the assessed value of their capital stock held by stockholders, residents or non-residents of said county; but the holders of said stock shall not be liable to taxation upon the stock held by them,” was still in existence, and operated to relieve the company from the liability set up in that suit under sec. 16, of the Act of 1876, ch. 260, providing for the general valuation and assessment of property in this State, quoad that claim, was conclusive as between the parties to that suit; but that such decision in no way bound the appellee.</p> <p>2nd. That sec. 160, of Art. I, of the Public Local Laws, was repealed by the Act of 1866, ch. 157, providing for the general valuation and assessment of property in this State; and that such being the case, the appellant is liable for the taxes sued for by the appellee.</p> <p>Art. I, sec 11, of the Public General Laws, which provides, that “ where the general public law and the local public law of any county, city, town or district are in conflict, the public local law shall prevail,” was never intended to remove local laws from the effect and operation of the ordinary rules of construction, derived from the common law, when applied to subsequent legislation. If the intention of the Legislature in the passage of later laws, by its language clearly indicates, either expressly or by necessary implication, a purpose to substitute a new scheme of laws for the pre-existing law, general and local, or to repeal the local, by the adoption of a new general law, clearly intended to operate equally throughout the State, the local law must yield to that intention thus ascertained. As respects the general and local laws-adopted by the Code, it declares the intention to be, that the local law shall have precedence. As respects subsequent legislation, the rule becomes but the declaration of the common law rule, that local laws or special laws, shall not be held repealed, except by clearly indicated purpose on the part of the Legislature.</p>

The case is stated in the opinion of the Court. Exception. — At the trial the plaintiff offered two prayers; the first is set out in the opinion, the second is as follows: That in estimating the damages to be given, the jury may consider the health and mental and physical condition of the plaintiff before the injury complained of, as -compared with his present condition of mind and body in consequence of the injury, and whether the injury is in its nature permanent, and how…

<p>Construction of an Agreement for Distribution of a Debtor’s-Assets — Buie of Law in Construing contracts.</p> <p>An agreement entered into between the mortgagee of a debtor and' others, unsecured creditors of the debtor and sureties for him, by which provision was made for the application of certain assets of' the debtor to the payment of his debts, controls the whole matter, fixes the rule of distribution, and makes the law for the case.</p> <p>The rule of law is, that the Court will give to a contract that construction which will bring it as near the actual meaning of the-parties as the words they saw fit to employ will permit, consistently with the rules of law. The rule of law further requires, that words shall not be forced away from their ordinary signification to one entirely different, but where the language used is. ambiguous, equivocal or obscure, that meaning will be accorded to. it which will effect the obvious intention of the parties.</p>

<p>Award of Contract for supplying Stationery and Printed Matter to the Mayor and City Council of Baltimore — When Equity will refuse to interfere by Injunction with the Authority of a Municipality — Practice in Cases where Injunctions are Refused.</p> <p>By virtue of Ordinance No. 74 of 1876, of the Mayor and City Council of Baltimore, the City Librarian on the 10th October, 1878, advertised for proposals for supplying the departments of the City Government with stationery and printed matter from the 1st January, 1879, to the 31st December, 1879, inclusive. In answer to this, three bids were presented, one by the appellants, one by the appellees D., and one by J. W. S. They were laid before the Mayor, who with the Comptroller and Register opened them. When they were opened, they were examined by the City Librarian and the contract for both stationery and printed matter was awarded to the appellees, D., as being the lowest bidders therefor. In proceedings on a bill filed by the appellants, as printers and stationers, and as tax-payers of Baltimore City, alleging that the contract was fraudulently obtained by D., and that it should have been awarded to them as the lowest bidders therefor, and praying that the Mayor and City Council might be enjoined from executing the contract, it was Held:</p> <p>That the bill presented no claim to the exercise of the preventive power of the Court.</p> <p>Applications for an injunction are addressed to the conscience and discretion of the Court, and the facts submitted should justify its exercise beyond reasonable doubt. Public wrongs, although involving private injuries, are not to be made the grounds of personal suits, at law or in equity, unless the complainant has sustained special damage, and in many instances, the private injury is merged in the public. In exceptional cases, where great principles or large public interests are involved, citizens or corporators may sue in behalf of themselves and their fellow-citizens to arrest some projected violation of constitutional law or abuse of corporate authority.</p> <p>This Court has not undertaken to declare that every abuse of a legal authority by a municipal corporation to the prejudice of a taxpayer or tax-payers is a ground for equitable interference to prevent injury. On the contrary, recognizing the contrariety of opinion which exists among the most eminent Judges as to the right of the Courts to interpose' to arrest the authority of local governments, in the exercise of lawful powers, they have confined their jurisdiction to cases of ultra vires, or clear assumption of powers not granted.</p> <p>Where the injunction asked for in a bill is ancillary to the relief prayed, and the cause is set down for hearing upon the motion to dissolve, if the injunction is refused, the bill should not be dismissed, the complainant being entitled to have the bill retained, and proceed to final hearing. But where the injunction asked for is not ancillary but the primary and principal relief prayed, there is no reason for retaining the bill, if upon hearing, upon bill and answer, or bill, answer and depositions, it appears to the Court, there is no ground upon the merits for issuing or granting the injunction.</p>

<p>Practice in Gases of Attachments — Rules of Court — Powers of Judges as to Conduct of Business in their Courts — Construction of Art. 4, sec. 33, of the Constitution.</p> <p>C. on the 80th May, 1867, issued an attachment on warrant' out of the Court of Common Pleas upon certain promissory motes of a defendant. The writ was returned by the sheriff on the same day, laid in the hands of G. On the same day the garnishee G. appeared by counsel, and was laid under rule to plead. No plea was filed, and no further steps were taken in the case by either side until the May 'term, 1878, and the cause in the meanwhile had been placed on the stet docket of the Court. In the early part of that term, and at ■different times during the term the Judge gave notice, that after he had completed the trial of cases on the trial docket, he would call the cases on the stet docket, and accordingly on the 10th July,' 1878, began the call of cases on that docket, and on reaching this case, entered a judgment of condemnation by default for want of a plea. On motion, made nearly a year thereafter, by G. to have judgment stricken out on the ground that it was irregularly entered, and was obtained by surprise, it was Held :</p> <p>1st. That this was a case not provided for by any rule of the Supreme Bench, and that the due and proper administration of justice fully justified, if it did not imperatively require the action taken by the Judge.</p> <p>2nd. That there was no ground whatever forthé allegation of surprise.</p> <p>The Constitution has not invested the Supreme Bench with the sole and exclusive power of making rules for the conduct of business in the Courts of Baltimore City. The Court of Common Pleas existing when the Constitution of 1867 was adopted, and that instrument having recognized and continued it and defined its jurisdiction, it cannot be supposed that it was the intention of those who framed or adopted the Constitution that by the provision contained in Art. 4, sec. 88, giving power to the Supreme Bench to make needful rules, the Judges of this and other Courts of Baltimore City, would be rendered powerless to act, to try causes and to administer justice, in case the Supreme Bench neglected to adopt rules for their guidance; or if such rules when adopted, failed to meet all possible contingencies, that the Judges should have no power to supply the deficiency, and adopt from time to time such orders and take such measures not inconsistent with the rules in force, as in their judgment would secure the trial or final disposition of all cases brought ■and pending in their respective Courts.</p>

<p> Evidence admissible under an Indictment for Burglary. </p> <p>R. was indicted for feloniously and burglariously breaking and entering in the night time, the dwelling house of one M., with intent the goods and chattels of M., then and there being, feloniously to steal, take and carry away. At the trial R. offered to prove that M. was a lewd woman, and that he had had improper intimacy with her; which evidence the Court below refused to admit. On exception, it was Held :</p> <p>That as one of the elements essential to constitute the crime of burglary, is the felonious intent with which the breaking and entry of the house may have been effected, it was very material to show for what object R. broke and entered the house; and that, if he entered the house solely for the purpose of having illicit connection with M., he could not be found guilty of burglary.</p>

The case is stated in the opinion of the Court. Exception. — At the trial before the Court without the intervention of a jury, the plaintiff prayed the Court to declare; That the United States bonds and the certificates of city indebtedness, mentioned in the evidence and in the agreed statement of facts, were dioses in action belonging to Mary E. Hamill at the time of her death; that there is no evidence in the case from which the Court can find that the said dioses in…

Mary’s County. The case is stated in the opinion of the Court. Exception. — At the trial the plaintiff offered two prayers which are stated in the opinion; as are also the four prayers offered by tbe defendants. The Court, (Magruder, and Ford, J.,) granted the plaintiff’s prayers and rejected those of the defendants. The defendants excepted, and the verdict and judgment for $276.62 being for the plaintiff, the defendants appealed.

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

<p>Invalid Mortgage from a Wife — Construction of Art. 45, sec. 11, of the Code — Power to a Wife to dispose of her Separate Property.</p> <p>In 1866, A. G., wife of J. G., executed two single bills and what purported to be á mortgage of certain real estate belonging to her as her separate estate; in the execution of which bills and paper purporting to be a mortgage her husband did not join. The only consideration of the bill was a debt contracted by the husband some time before. The appellee, an assignee of the claim against A. G., filed his bill in equity to subject the real estate to its payment, onthegronnd that the bills and the paper purporting to be a mortgage were evidence of a contract on her part, enforceable against her separate estate. Held</p> <p>That the bill could not be maintained.</p> <p>The only mode in which the wife can convey her real estate is in the manner directed in Art. 45, sec. 11, of the Code. To render such a conveyance valid, the husband must join in the conveyance, whether the same be absolute or by way of mortgage. Of course if the estate has been conveyed to the wife as her separate property, with a power annexed to dispose of and convey it in a particular mode, the power can be executed by her without reference to this section.</p>

<p> Mortgaged Premises must be Sold in the County in lohich Situate. </p> <p>Under the provisions of Art. 64 of the Code, a power cannot be given in a mortgage to a mortgagee to sell .mortgaged premises outside of the county in which they are situate.</p> <p>A mortgage with such a clause is without any valid power of sale, and the mortgagee can only proceed by obtaining a decree of foreclosure.</p> <p>A sale of mortgaged premises made in*tbe City of Baltimore, when they are situate in Baltimore County, is without authority of law and should not be ratified. .</p>

<p>Practice — Admissibility of the Testimony of an Alleged Atheist— Inadmissibility of Parol Evidence as to a Mortgage — Evidence in an Action for Damages for Injury to Real Estate.</p> <p>In the trial of the case, the plaintiff offered as a witness a person to whose competency the defendants objected, because he did not believe in God, and that under his dispensation he would be morally accountable for his actions, and be rewarded or punished therefor either in this world or the world to come; and they offered to prove by witnesses that about one year previously, the person objected to as a witness had so expressed himself to them and to several others in their presence, on two or three different occasions. The Court below, before hearing said witnesses, allowed the plaintiff’s witness to be sworn on his voir dire, and enquired of him, whether - or not he believed in God, and that under his dispensation he would be held morally accountable for his acts and punished or rewarded therefor either in this world or the world to come; and the said witness having answered affirmatively, the Court below offered to allow the defendants to produce any testimony to contradict that of the plaintiff’s witness, which the defendants declined io do. Whereupon the plaintiff’s witness was sworn to testify in the case, to which the defendants objected, and their objection being overruled, they excepted. Held :</p> <p>That there was in this course of examination a departure from what is the most approved modern method, yet inasmuch as the defendants were offered an opportunity to produce contradictory evidence, which they declined, it was not a substantial error, by which they were injured.</p> <p>Parol evidence cannot be offered by the defendants of the existence of a mortgage on the plaintiff’s property, in an action for damages against them for injury alleged to be done to it by them, while malting improvements upon a lot adjacent to the plaintiff’s house. The original instrument, or certified copy of the record is the proper evidence of a mortgage, if any such exist; and its non-payment can only be satisfactorily established by producing the legal evidence of the mortgage or accounting for its absence, and showing it had not been released. But the record evidence offered by the defendants, of such mortgage on the property alleged to be damaged, and the non-payment of the debt secured thereby, cannot be admitted to reduce the amount of damages.</p>

This action was instituted in the Superior Court of Baltimore City, and removed on the suggestion of the defendant, to the Circuit Court for Frederick County, and there tried. The case is stated in the opinion of the Court. Exception. — At the trial, the plaintiff offered three prayers: 1. The first prayer, with the Court’s addition, is substantially stated in the opinion of the Court. 2.

<p>Injunction agamst Negotiating Promissory Notes delivered on a Condition which was not fulfilled — Cancellation of a Name on a Note — Notice.</p> <p>In March, 1878, L. of Warrenton with D. agent of the appellants of Baltimore, went to the appellee’s house near Warrenton, and L. then and there out of D’s presence, solicited the appellee as surety to execute certain promissory notes in favor of the appellants for merchandise previously sold to him, but for which debt the appellee was in no manner bound. The appellee refused to sign the notes, but finally, upon the importunity of L., signed them, L. being the principal maker. The notes were then handed by her to L. with the condition, of which D. was made aware, that they were to be delivered to the appellants only in the event that her act was approved by her adviser, P. P. expressed his non-approval, and the appellee thereupon demanded that the notes (which L. had handed to D.) should be surrendered. This was refused; and D. after-wards handed the notes to the appellants. On a proceeding to enjoin the appellants from negotiating the notes with the appellee’s name thereon, and to have her name as surety thereon cancelled, it ld:</p> <p>1st. That these notes being still'in the payees’ hands, they were affected with all the knowledge acquired by their agent in the course of employment, whether that knowledge had been communicated to his principals or not.</p> <p>2nd. That as there was no intentional delivery of the notes to the appellants’ agent, either in person or by the appellee’s authority, they were not perfected contracts, and did not bind the appellee as between herself and the appellants.</p>

The case is stated in the opinion of the Court. Exception. — At the trial the plaintiffs offered the following prayer: If the jury find from the evidence offered that the promissory notes, or any of them, mentioned in the mortgage •offered in evidence were in the hands of William Mac-Williams, as owner thereof, at or after the time when the ■attachment in this cause was laid in the hands of Cruett, the garnishee, that then the attachment was a lien, and hound whatever money…

<p>Practice in Equity — Mistalce—Laches—Alleged Overpayment to an Outgoing Partner.</p> <p>In all cases of mistake Courts of equity require the injured party to take steps to obtain relief promptly, and if he has been guilty of laches, they will not listen to Ms complaint.</p> <p>The mistake must be made out by clear and satisfactory proof. If an amount is claimed to have been overpaid the outgoing partner in a settlement on a dissolution of a partnership, as in this case, the amount must be certain, and the error made under circumstances and be of such a character, as to make it just and equitable that it should be rectified.</p> <p>If a settlement bad between partners on a dissolution of a partnership, several years before, is to be opened for the purpose of correcting an alleged error in the settlement, whereby, it is claimed, the outgoing partner was overpaid, then justice would require that in this case, it should be opened for all purposes and an accounting between the parties for all the business and affairs of the partnership be had.</p>

<p>Widoiv of a Coparcener not Dowcible of Land, in which he had. an Interest, after Decree (passed before the Marriage) for Sale for the purpose of Partition — Allowance in lieu of Dower out of Proceeds of Sale.</p> <p>Upon a bill filed for the partition of S. L. P’s real estate among his heirs-at-law, a decree was passed in 1856, adjudging the land impartible, directing a sale for the purpose of partition, and appointing a trustee to make the sale. More than two years after decree was passed, S. G-. P., one of the co-parceners, and'a party to the suit, was married to the appellee. Before the sale was made, S. G-. P., died without issue, leaving his wife surviving him. The sale was made in 1862, reported to, and ratified by the Court. The purchaser paid all the purchase money, and it was distributed among the parties claiming to be entitled to it. S. G-. P’s portion, upon the interlocutory petition of his creditors, to which the appellee was made a party as his administratrix, was distributed among said creditors, and what was left was divided among his brothers and sisters. No allowance was made the appellee out of the fund for her dower, and no application was made in that case for such allowance. On proceedings in equity by the appellee against the appellant, who purchased the land, to have dower assigned to her according to the interest of her husband in the land sold, it was Held :</p> <p>1st. That the decree for sale barred the appellee from claiming dower in the land sold.</p> <p>2nd. That the appellee should have applied for an allowance in lieu of dower out of the proceeds of sale; and that the appellant ought not to be prejudiced by -any error in the distribution, or by her laches.</p>

The 'case is stated in the opinion of the Court. Exception. — At the trial the plaintiff offered the following prayers: 1. If the jury believe that the defendant’s servant, in the course of his master’s service, negligently killed the plaintiff’s cow, the plaintiff is entitled to recover the value of said cow. 2.

The case is stated in the opinion of the Court. Exception. — At the trial the defendant offered the following prayers: 1. That the Court exclude from the consideration of the jury the paper-writing offered-in evidence hy the plaintiff, purporting to be an agreement between George W. Chandler and George T. Waters, dated 8th June, 1865. 2.

<p> Construction of the Conditions of a Policy of Pire Insurance. </p> <p>On the 6th February, 1874, the plaintiff took from the defendant for one year a fire insurance policy for $2000, $1000 on a frame building and a frame warehouse, and a like sum on his stock of merchan-' dise. It was part and conditions of the policy, that if the insured should not Be the sole, absolute and unconditional owner of the property insured, and that if the property insured should be a building, and the insured should not be the sole, absolute and unconditional owner of the land on which said building should stand by a title in fee simple, and if in such cases such facts should not be expressed in the written portion of the policy, then it should be void. Such facts were not stated as required. It was admitted, that the plaintiff’s uncle, being seized in fee of the frame building and lot appurtenant, about December, 1867, made a verbal gift thereof to the plaintiff, and at the same time promised to make to the plaintiff a deed in fee of the same, at the request of the plaintiff; and that thereujmn the plaintiff took possession of the lot and building and occupied them as the owner, until the building was destroyed by fire on the 5th September, 1874, that he had the lot transferred to him on the assessors’ books, and that he paid the taxes on the property since 1867, and kept it in repair, and in 1873, improved it by an addition to the frame building, and by building the frame warehouse on the rear of the lot; and that on the 21st January, 1875, the plaintiff’s uncle, in fulfillment of Ms promise, made to the plaintiff a deed in fee of the lot and appurtenances, for the consideration of natural love and affection, and the nominal sum of five dollars. In an action to recover the amount for which the two buildings were alleged to be insured, it was Held:</p> <p>That these facts did not establish such title in the plaintiff as was required by the conditions of the policy, and he could not recover-</p>

<p>Transfer of a Husband’s Interest in Property purchased at Trustees’ Sale, by Deed to his wife from the Trustee under order of Court, in prejudice of the Bights of his Subsisting Creditors — Act of 1868, ch. 443, as to recording Justices’ Judgments and Executions thereon.</p> <p>On the 3rd December, 1870, at a trustee’s sale of an intestate’s real estate for the purpose of partition among his heirs-at-law, J. W., husband of one of the heirs-at-law, purchased a part for $2255; terms, one-third cash, balance in equal instalments at one and two years from day of sale, with interest. J. W. signed the contract of sale and his note, with surety, for the deferred payments. The sale was reported and ratified, and J. W. entered into possession of the land as his own; and during 1872 to 1876, borrowed various sums of money, in his own name and on his own credit, to'pay oh the purchase, on which account was also paid an amount lent by a person to whom in 1874, he executed a mortgage on the land for the security of part of what he received, without joinder of his wife, reciting his own indebtedness for the amount. After a petition by the trustee in December, 1875, for a re-sale at the risk of J. W., for the balance of purchase money unpaid, in March, 1876, the trustee reported the amount due by J. ~W. to be $956.52 including interest. A distribution of this amount was made and the share distributed to J. Vs wife was $328.80. The aggregate of all distributions to her from the whole estate was $1241, which amount was credited to the purchase money. On the 15th February, 1878, J. W’s wife, on his petition, in which he stated that he had sold his interest to her for a valuable consideration, was substituted by order of Court, in his stead as purchaser; and a deed was made to her by the trustee, and recorded the 19th February, 1878. The appellee, J. W., became- indebted to the appellants in 1872 and 1874, and on some of their claims they had recovered judgments before a justice of the peace. On a bill filed by the appellants to have the deed to J. W’s wife set aside, as being in prejudice of their rights as creditors, it was Held :</p> <p>That while the deed from the trustee to J. W’s wife should be set aside as an absolute conveyance of the property, it would be allowed to stand as security to the grantee for the principal sum of $1241; subject, however, to the mortgage executed by J. W.; and that executions and levies on the land, under the appellants’ judgments duly recorded, as required by the Act of 1868, ch. 443, constituted liens, according to their priority, upon J. W’s equitable interest in the land; and that if such liens or judgments were not otherwise discharged, that equitable interest might be sold.</p>

<p>Composition among Creditors and Agreement — When a fact is not Conclusively Established by the Verdict of a Jury— Evidence.</p> <p>A. T., the defendant, being largely indebted to sundry persons, signed and sealed this proposition to his creditors: “I, A. T., of the City of Baltimore, trading as J. O. T. & B., do hereby agree with-each and every creditor of J. C. T. & B., who shall accept and sign this agreement, written below, to pay to each and every creditor so • accepting this agreement, one-fourth of the claim of such creditor against J. O. T. & B., in cash, and to deliver to each creditor so accepting said agreement, two notes of J. O. T. & B., dated the 9th June, 1876, drawn to their own order, and endorsed by H. S. of said city, each of said notes for one-fourth of the claim of the creditor so accepting said agreement; said cash and notes to be accepted by all my creditors in full satisfaction of their respective claims against J. O. T. & B.; one of said notes to be payable twelve months after date, and the other eighteen months after date, without interest. And I, H. S., do hereby covenant and agree with each and every creditor of J. C. T. & B. who shall accept this agreement, and sign the same, that I will endorse two of said J. O. T. & B’s notes each for one-fourth of the claim of such creditor as agreed upon herein by the said J. O. T. & B. Witness our hands and seals, this 9th June, 1876.” The plaintiffs, O. & Oo., with a number of other creditors, if not all, by their attorneys, signed the agreement and accepted the composition, and were paid the cash stipulated and received the notes, which were paid. They afterwards sued A. T. t.o recover the remainder of their claim and also the claims assigned to them, of two other firms. With other pleas, the defendant specially set up the composition and agreement and pleaded payment and release, and the plaintiffs replied, that the agreement and release were procured by fraud practiced on them, and also for a further replication, that in a suit by S. & B., creditors of the defendant and who had agreed to the composition, against him to recover a debt due before the 9th June, 1876, in which the same pleas were pleaded as in this case a verdict was rendered against the defendant for the amount claimed, and that judgment was entered, and paid. The fact found by the jury, and which formed the basis of the judgment, was relied on by the plaintiffs as working an estoppel upon the defendant. A demurrer was entered to this replication, which was sustained by the Court below, Held :</p> <p>That the demurrer was properly sustained.</p> <p>Under circumstances like the above stated composition agreement presents, the only way to secure perfect equality, in case of fraud on any one brought into it, would be by a proceeding directed against the composition, in which all the parties interested could be allowed a hearing and were made parties to the suit.</p> <p>At the trial the plaintiffs offered to show by the defendant, as a witness, that after the verdict against him in S. & B’s suit he had settled with some other of the creditors for the balance due them, after they had received what was agreed on under the composition, and that he had made settlements of that kind with creditors who had not sued him. Held :</p> <p>That the Court below was right in rejecting the proffered proof.</p>

<p>Construction of a Will — Definite Failure of Heirs.</p> <p>In the will of B., which was admitted to probate in 1862, is the following clause: “ I give and bequeath to my daughter E. G. the wife of H. G.. my brick house and lot fronting on Madison street during her life, and at the death of the said E. G., it shall descend to S. J., her daughter, and to her heirs forever, and should the said S. J. die without heirs it shall then descend to my children then living, and be equally divided between them, share and share alike.” This was leasehold property. E. G. survived her husband and died in 1874, leaving the said S. J. and two sons, the appellants. S. J. died intestate without issue in 1877, leaving her husband surviving her, who surrendered possession of the properly, (which had been successively held by E. G. S. J. and her husband,) to one of the appellees. E., the testatrix at the time of her death left eight children living and in esse when the will was made, four of whom, the appellees, survived at the time of S. J’s death. In an action of ejectment brought by the appellants against the appellees to recover possession of the property, it was Held :</p> <p>That as S. J. had no heirs of her body living at the time of her death, the appellees took the property.</p>

In addition to the statement of the case in.the opinion of the Court, it appears from the proceedings, that Elizabeth Baynard died unmarried and without issue, in March, 1878, and that the appellant claimed to have an interest in the real estate devised to Miss Baynard, as one of her heirs-at-lavy.

<p>Lien of Judgments on Land Sold by Trustees under a Decree to enforce an alleged Equitable Lien against the Judgment Debtor and others Interested, for Attorneys’ Dees — After satisfaction of such Lien, the Share distributed from the balance of the Proceeds to the Children of the Judgment Debtor, not Liable for the Payment of the Judgments — Chancery Sales.</p> <p>S., the mother of the appellants, died during the progress of an action of ejectment to recover certain lands in which she was one-fourth interested. The lands, so far as her share and two others were concerned, were recovered in 1872. After the recovery, the surviving attorneys and the representatives of those who had died, who had gained the suit, filed a bill (to which the appellants with others were made defendants) for the sale of the land to satisfy the amount agreed on for their professional services, setting up a specific equitable lien on the land under a written agreement with the plaintiffs in the ejectment suit, but which agreement made after S’s death, the appellants, then infants, had not signed. It appeared that the defendants had no personal estate. A decree was passed in October, 1875, for the sale of the land for the payment of the attorneys’ claims, upon the assumption, the lien had been established by the proof in the cause, and the land was sold by trustees, and of the proceeds, after paying costs, commissions, expenses and the attorneys’ claims, a balance remained for distribution to the several defendants. A petition was then filed by the appellees setting up judgments they had recovered in September, 1864, (before the alleged equitable lien in favor of the attorneys was created,) against S., and asking that they be paid out of the amount to be awarded to her children, the appellants. Proof showed that S. left no personal estate. In the auditor’s account the amount coming to the appellants was applied to the payment of these judgments, leaving a small balance still due thereon. On exceptions to this account, it was Held :</p> <p>1st. That it would be inequitable and unjust to take the fund from the children, and apply it to the judgment debts of their mother.</p> <p>2nd. That the judgment liens upon S’s interest in the land were outstanding elder encumbrances, of which the purchasers were bound to take notice.</p> <p>3rd. That no appeal having been taken from the decree of October, 1875, it was neither affirmed nor approved but stood as the law of the case.</p> <p>Chancery sales, unless expressly stipulated to the contrary by the terms of sale, are made subject to the encumbrances on the property.</p>

The case is stated in the opinion of the Court. Exceptions. — At the trial after the exceptions to evidence [all of which are stated in the opinion except the third, in which the defendant proposed to offer in evidence the paper set out in the second bill of exceptions, and in connection therewith certain notes therein provided for, and offered to follow said paper hy evidence showing that said notes were not paid at maturity, and have never been paid by W. H. Hinkle, to…

The case is stated in the opinion of the Court. The declaration of the testator mentioned in the opinion as contained in the will, is as follows: “ In testimony whereof I hereunto set my hand and seal, and publish and declare this to he my last will and testament in the presence of the witnesses named below” * * * Then follows the usual attestation clause signed by the three witnesses.

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

<p>Practice in Equity — Bill by one Member of a Eirm to recover Ms Share of Indebtedness due it by another Eirm.</p> <p>A bill cannot be maintained by one member of a firm, before there has been a settlement of the partnership accounts, against the members of another firm to obtain against them and eaeh of "them, a decree for the payment of what is alleged to be the complainant’s share of an indebtedness by the latter firm to the firm of which the complainant was a member.</p> <p>Such a complainant has no right to embrace in the same bill an accounting between his partner and himself, and an accounting between the two firms.</p>

This suit was brought on the 3rd September, 1878. The special pleas, mentioned in the Court’s opinion as the first and second pleas, which were filed by the defendant in addition to the general issue, are as follows: And for a second plea the said George Coburn, administrator, as aforesaid, says, that on the 28th day of September, in the year 1877, he and a certain John Coburn were appointed by the Orphans’ Court of Baltimore City, joint administrators of said Thomas Coburn,…

<p> Inadmissibility in Evidence against a Plaintiff of a Contract to which he loas not a Party, and which was not Pertinent to the Issue. </p> <p>The issue before the jury was whether work was done and materials furnished by the plaintiff to the defendants under a contract between them, for the construction of an embankment for the defendants who occupied a pier on grounds belonging to the Canton Co. The defendants offered in evidence a lease between them and the Canton Co., made after the embankment was begun, for the purpose of' showing that it was the Go’s duty to construct the embankment. Held :</p> <p>That this lease was inadmissible in evidence against the plaintiff.</p>

Jane Bay, a resident of Baltimore City, died 4th July, 1876, and certain paper-writings being propounded in the Orphans’ Court of Baltimore City as her last will and codicils thereto, a caveat was filed by the appellant, a nephew and one of the heirs-at-law of the deceased.

<p>Attorney of a Mortgagee f CorporationJ must be Named in the Mortgage — Construction of Art. 64, of the Code — Purchasers, when the Power of Sale in a mortgage is Void.</p> <p>A mortgage to the appellant contained a power of sale to the corporation or its attorney, (without naming him.) The mortgaged premises were sold under this power by the appellant to itself, the sale was reported by it through its solicitor, ratified by the Court, an account stated, costs and expenses paid, and balance from proceeds distributed to the appellant. A deed was then made to the appellant by its -solicitor, appointed for that purpose by order ■ of Court. On an application by the appellant for an injunction to restrain the appellee, trustee in insolvency for the benefit of the mortgagor’s creditors, from selling the premises, it was Held :</p> <p>That the power of sale in the mortgage being invalid, under Art. 64, of the Code, the sale and the subsequent proceedings were void, and the appellant having acquired ho rights thereunder, it is the right and duty of the trustee in insolvency to sell the property for the benefit of the insolvent’s creditors, and to distribute the proceeds to those entitled according to the principles of law.</p> <p>If the property in such a case were purchased by a third party, and he pay the purchase money or part of it, if he be not restored the money so paid he would be held by a Court of equity to be equitably entitled as assignee of the mortgage, subject of course to the equity and right of redemption. And if he be let into possession of the mortgaged premises, and make valuable improvements thereon, he would be entitled to compensation therefor.</p>

The case is stated in the opinion of the Court. The rule of Court therein mentioned, provides, that “every bill of exceptions taken to the ruling of the Court, in the progress of the trial, must, if required by either party, be prepared and settled before the verdict is rendered; and in every case, unless otherwise expressly allowed by the Court, the bill of exceptions shall be prepared and submitted to the Court during the term at which it shall have been taken.”

<p> Deficiency in the Quantity of Ground conveyed by a Deed. </p> <p>In 1859, B. purchased at trustee’s sale a lot of ground as laid down on a sale-plat of a tract of land belonging to an estate, and described in the deed from the trustee to B., by metes and bounds as fronting a certain number of feet on a street, controlled by a call, and so many on an alley, to be determined by the distance from the point of intersection of the centre of a road with the west side of the alley and the place of beginning. In 1868, B., sold the lot to S., part, of the purchase money being paid cash and a redeemable ground rent created for the payment of the balance, a lease being duly executed. The ground rent was extinguished by S. paying the principal in 1873, when a deed in fee was made to him by B. and wife. The description of the property was the same in all these deeds, and the lease and conveyance both referred to the trustee’s deed. Shortly after becoming seized of the ground, S. on leasing a part of it discovered that, though he received all the land ■ contained within the boundaries stated in the deeds, yet the dimensions of the lot were considerably less than those mentioned in the deeds. It appeared that B. knew no more about the location and actual dimensions of the lot than S., and that both had equal means of information. On a bill filed by S. to compel B. to make compensation for the alleged deficiency, it was Held :</p> <p>That he was not entitled to relief.</p>

<p>Rights of Riparian Owners — Construction of Art. 4, secs. 264, 793, 794 and 795, and of the Acts of 1872, ch. 246, and ch. 58 — Public Nuisances — Action by Individual for Special and Particular Injury from a Public Nuisance — Evidence as to estimating Damages. ■</p> <p>If the rights of a riparian owner, under the Act of 1862, ch. 129, are invaded, or their enjoyment obstructed, the owner is entitled to his remedy for redress, as in other cases of the violation of the rights of property.</p> <p>The Act of 1788, ch. 24, sec. 10, as found in sec. 264 of Art. 4 of the Public Local Laws relating to the City of Baltimore, providing for the removal of obstructions and annoyances in the basin, harbor find Patapsco river, and the Act of 1796, ch. 68, sec. 9, as found in sec. 798 of said Article, providing for the preservation of the navigation of the basin and the river within the city and within four miles thereof, and sec. 794 of said Article, providing against the putting or throwing earth, sand or dirt into the river or any of the navigable branches thereof, or laying out such on the beach or shore below common high water mark, unless so secured as not to be washed into the river and its branches, are not in conflict with the Act of 1872, ch. 246, authorizing the Mayor and City Council of Baltimore to widen and deepen the ship channel leading into the Patapsco river and between the mouth of the river and the city, and to any point within the limits thereof; nor was sec. 794, repealed by the Act of 1872.</p> <p>The Mayor and City Council of Baltimore deposited mud, sediment and other material dredged from the bottom of the basin and in cleaning out Jones’ Palls, on the flats in the Patapsco river opposite the property of G. on that river within four miles from the city, and thereby materially obstructed access by water, as formerly used and enjoyed, to G’s property. In an action brought by G. against the Mayor and City Council to recover damages for an alleged special and particular injury suffered by G., it was Held :</p> <p>1st. That these obstructions constituted a public nuisance.</p> <p>2nd. That G. could maintain a private civil action for special and particular damage suffered by him by reason of this nuisance,</p> <p>. beyond that suffered by the public generally, on offering proof tending to show such to be the case; and that there being penalties prescribed by sec. 795 of Art. 4 of the Public Local Laws, and by the Act of 1872, ch. 58, for such obstructions of the navigation of the river did not exclude all other remedies, nor was the common law remedy by civil action for the damage sustained by G. in any manner affected thereby.</p> <p>3rd. That the Act of 1872, ch. 58, prohibiting the throwing overboard in the Chesapeake bay, &e., or in any river, creek or harbor in this State, below high water mark, any ballast, earth, &c., under penalties prescribed, with a proviso, that it shall not apply to the improvement of harbors, did not apply to the acts of the Mayor and City Council done in the execution of a plan for the improvement of the harbor.</p> <p>At the trial G. proposed to ask a witness whether he would, if the obstructions to transportation by water had not existed, have purchased clay from G. and what profits thereon would have accrued to the latter. On objection, it was Held ;</p> <p>That such evidence was inadmissible, as the foundation for estimating damages.</p>

<p> Conveyances with Intent to Defraud Creditors. </p> <p>The appellant being a judgment creditor of W. H. Y. filed a bill to have a farm, of which the title was in the name of Y. M. W., charged with the debt of W. H. Y., on the ground that the conveyance to Y. M. W. was fraudulent, the farm being paid for with the moneys or property of W. H. Y. To establish the secret trust, the appellant offered evidence that the title to property on Strieker street in Baltimore City, which had been bought by W. H. Y., was put in the name of R! H. Y., but that W. H. Y. in dealing in and about the property acted as the real owner; that this property was exchanged for other property in said city, on McHenry street, and that when the transfer of titles was made, the McHenry street property was conveyed to Y. M. W.; that subsequently the McHenry street property was exchanged for the farm, which was taken possession of by W. H. Y’s son. Held :</p> <p>That the appellant was entitled to a decree .for the sale of the farm for the payment of its debt.</p>

The case is stated in the opinion of the Court. Exception. — At the trial, the plaintiff offered three prayers, of -which it is necessary to set out only the first; which is as follows : That if the jury find from the evidence that the steamer George Appold, mentioned in the policy of insurance offered in evidence, having on hoard a cargo shipped under contracts of the term and effect of the hill of lading offered in evidence, took fire in the port of Savannah, on the 20th…

<p>Practice in Equity — Exceptions to Ratification of a Sale of Mortgaged Premises.</p> <p>Mortgaged premises were sold by the assignee of the mortgagee, and the sale reported. Exceptions were filed to the ratification of the sale by a corporation, on the ground that it had obtained a judgment against the mortgagor, and had filed a bill in equity to set aside the mortgage, under which the property was sold, as fraudulent, and that the assignee, and others in interest, had been summoned in the suit, and that pending it, the mortgaged premises were sold. Held:</p> <p>That the corporation could not come in and object to the ratification of the sale on such grounds; and that its rights, as a creditor of the mortgagor, would not be affected by the sale, should the mortgage be declared fraudulent in the pending suit.</p>

<p>Construction of a Will — General Legacy.</p> <p>By W’s will admitted to probate tlie 19th September, 1876, $500 were bequeathed to the V. of P. G’s P., to be invested, and the interest devoted to a specified object, and $200 were bequeathed to M. A. B. After other pecuniary legacies and devises of real estate, there is the following item : I .give, devise and bequeath to A., wife of J. G. E., the residue of said unimproved lot, my property on W. street in said town of R, improved by the brick dwelling house in which I now reside, and the brick building in which C. has his saddler’s shop, all my household and kitchen furniture, stocks, bonds, notes and' other evidences of debt, and all the rest and residue of my estate, real, personal and mixed, to her, her heirs and assigns forever, in fee simple. The appellant was appointed executor, and took out letters in 1876. By his final account, passed within six months thereafter, he claimed an over-payment of $822.93. He had delivered to his wife, A., all the personal property and certain U. S. bonds, claiming, that said chattels and bonds were specifically bequeathed to her. The V. of P. G’s P. had made formal demand of the executor for payment of the legacy before the passing of the final account, and at the Legislature of 1878, (which was the first Legislature convened after the testatrix’s death,) it applied for an Act granting assent to the bequest, which Act was passed. On a bill filed by the appellees against the appellant, to enforce payment of their several legacies, it was Held:</p> <p>1st. That the bequest to A. was a general legacy ; and that she took, subject to the payment of the testatrix’s debts, the property-bequeathed, after the payment of the pecuniary legacies to the appellees and others; the collateral tax due upon them being first deducted therefrom.</p> <p>2nd. That no laches could be attributed to tbe V. of P. G’s P., under Art. 38 of the Bill of Rights; and that the Act granting assent to the bequest was in time to impose on the appellant the obligation of paying it.</p>

All the material facts of this case, now on its second appeal, are contained in the report in 50 Md., 180, and in the opinion of the Court on this appeal; except the ninth condition of the policy, which is as follows: Any misrepresentation or concealment, fraud or false swearing, shall cause a forfeiture of all claims on the insurers, and shall be a full bar to all remedies against this Company under this policy.

The case is stated in the opinion of the Court. First Exception. — At the trial the plaintiff to sustain the issues on his part, gave in evidence an agreement between him and the garnishees which is sufficiently stated in the opinion; also a certificate of incorporation of the Illuminated Tile Company, and the corporation laws of the State of New York from 2 Rev. Stat. 500, sec. 19.

The case is stated in the opinion of the Court. The fact stated in the special return of the sheriff of Frederick County, referred to in the opinion, was: that Joshua Biggs, by virtue of a power of sale contained in a mortgage to him from G-onso and wife, upon default being-made, and all the provisions of the Code having been complied with, did, on the 15th August, 1872, sell at public auction to Daniel M. Reese, the lands and premises mentioned .and described in the…

<p>Voluntary Payment by a Debtor in this State to the Foreign Executor of the Creditor, before Administration was granted in this State — Tax on Commissions of an Administrator— Transfer by operation of Daw — Construction of a Will— Collateral Inheritance Tax.</p> <p>A voluntary payment by a debtor in this State to the executor or administrator of his creditor appointed in another State in which the creditor had his domicile at the time of his death, is valid, and a good discharge of the debt, where such payment has been made before any administration has been granted in Maryland, and such payment is a bar to the claim of the domestic administrator after-wards appointed; nor does the validity of such payment depend in any manner upon the fact of the non-existence of debts against the deceased in this State.</p> <p>There could be no tax in the State on the commissions of an administrator here as to the fund paid to the foreign executor, appointed after such payment.</p> <p>Where, according to the laws of Indiana, the time limited for the administration of an estate by an executor in that State had elapsed before money was paid him by a debtor, in Maryland, of his intestate, but he had not passed an administration account, and was still acting in his capacity of executor-and not of trustee, which he also was under the will, it was Held :</p> <p>That the doctrine of mutation of title by operation of law did not apply; and that the money was paid to him as executor and not as trustee.</p> <p>By the will of F. P. L., admitted to probate in 1876, in the office of the Clerk of the Circuit Court for Wayne Co., Indiana, an amount of stock of a bank in Baltimore City, Md., was bequeathed to her husband, I. L., (executor of her will,) sufficient to pay semi-annually . the sum mentioned in the following contract: (dated in 1872, and signed and sealed by the parties named therein.) “We, the undersigned, I. L. and F. P. L., his wife, and F. W. P. and E. B. P., his wife, do hereby covenant and agree, to and with each other, for , ourselves, our heirs, executors, administrators and assigns, in the manner following, to wit: for the purpose of more fully securing the support of their aunt, J. P., they agree to pay the sum of six hundred and fifty dollars annually, to the person or persons with whom the said J. P. may be residing during her life, the said sum to be used to pay the expenses of the said J. P.; provided, that if at any time the said J. P. should by any means become possessed of a greater amount of income than she now has, then the parties to this covenant shall be released from the payment of such part of the above stated amount, as shall be equal to the amount of income, which the said J. P. shall have further acquired. And it is further agreed between the parties, that whatever sum shall be paid by the above parties in gross, that I. L. and F. P. L., his wife, shall pay one-half of said sum, and that F. W. P. and E. B. P., his wife, shall pay the other half of said sum.” P. and wife resided in Maryland. The value of one-half of the stock was voluntarily paid by the bank to I. L. in Indiana, before administration was granted in Maryland. Held :</p> <p>1st. That the money secured by the agreement did not constitute a debt against her estate.</p> <p>2nd. That no collateral inheritance tax thereon was payable in Maryland.</p>

<p>Injunction to restrain Execution of a Judgment — New Evidence — Due Diligence.</p> <p>O. and wife mortgaged a tract of land to Mrs. K., wbo on default began, proceedings to sell. After ber death the land was sold by W., appointed trustee for that purpose. The proceeds of sale were paid to the said "W., administrator of Mrs. K., and on W’s death, judgment was obtained by the appellee for the amount against the appellants, sureties on W’s administration bond. After the judgment had been affirmed by this Court, the appellants applied for an injunction to restrain the appellee from issuing execution on his judgment, on the ground that they had discovered new evidence, based on the will of S. T. K., husband of Mrs. K., and a deed of the land from Mrs. K. under a power to her to sell, contained in the will, which land (afterwards sold by W., trustee,) O. and wife simultaneously mortgaged to Mrs. K., all of record; by which it appeared, they allege, that the proceeds of sale of the land should have been distributed to S. T. K’s children, and not paid over to Mrs. K’s administrator. Held :</p> <p>That the appellants were not entitled to the relief prayed, as they could have obtained this evidence with reasonable .diligence at the trial of the case at law.</p>

Appeals from the Superior Court of Baltimore City. This is an appeal from an order of the Superior Court of Baltimore City, overruling a motion hy the appellants to set aside an inquisition and judgment.

• This was an application hy James M. Shober for a writ of mandamus to compel John W. S. Cochrane not to interfere with or prevent the petitioner from' discharging the -duties of Secretary, Treasurer and Examiner of the Board of School Commissioners of Allegany County, and from receiving the emoluments thereof, and to yield up said office to the petitioner.

<p>Construction of a Bond and Declaration of Trust and Enforcement in Equity against the Estate of the deceased Obligor— Parties to a proceeding in Equity against' an Executor for an Account of his Testatrix's Personal Estate — Limitations.</p> <p>In 1853, S. P. R., widow, executed a bond whereby she promised and obligated herself to pay, “twelve months after demand, to the order of J. M. G., trustee, for the sole and separate use of M. G. S., lately M. G. J., his executors, administrators or assigns, the sum of six thousand dollars, with interest from date, at the rate of six per cent, per annum, payable half-yearly; to which payment well and truly to be made, &c.” At the same time she executed on the same paper a declaration of trust to J. M. G., in consideration of her love and affection for the said M., and for other reasons, and of the sum of five dollars, whereby she granted, bargained and. sold, conveyed, assigned and delivered unto the said J. M. G., his heirs, &c., successors and assigns, her bond aforesaid, in trust to hold the same, or, if and when paid, the principal sum thereof to be by him, or his successor in the trust, invested in either real or leasehold estate, stocks or funds, or loaned out on mortgage, as he, or his successor in the trust, in his discretion should think most beneficial for the parties interested ; and all the interest, rents, issues or net income of this trust fund to pay over to the said M. during her life, to her sole and separate use; and from and after her death to “convey the said bond, if not then paid, or if paid, the principal sum thereof, or to convey and divide the estate in which it may then be invested, to and among her children, and their issue then living, share and share alike,” &c., and in default of such children or their issue living at her death, “ to convey the said bond, if not then paid, or if paid, the principal sum thereof or the estate in which it may then be invested, to my own right heirs forever, when this trust shall terminate.” In case the 'said M. should die before S. P. R. without leaving child or children, then in trust to re-convey the said bond, if not then paid, or if paid, to convey and assign the principal sum, or the estate in which it might then be invested, to S. F. R., herself, to her own use forever. It was further provided, that in case the said J. M. G. should desire to retire from the trust, he was authorized and empowered to appoint, by deed, a successor in the trust, and to assign the bond or trust fund to such person as he should so appoint. The bond and declaration of trust were delivered to J. M. G., trustee, and accepted by him. S. F. R. paid the interest on the bond to M. to the time of her death. The principal sum remained unpaid when S. F. R. died in 1878, testate, having devised and bequeathed her entire estate and made S. G. G., a niece, general residuary devisee and legatee. S. F. R. died without issue, leaving surviving her, brothers and sisters and children of a deceased brother as her heirs-at-law, and only next of kin. M. was married, without issue. On a bill filed by M. against J. M. G., trustee, and R. M., executor of S. F. R. and the heirs-at-law, and next of kin of the deceased, and S. G. G. and her husband, to compel the collection of the bond from S. F. R’s estate, to require the trustee to give bond, and that the trust fund might be administered under the Court’s direction, it was Held :</p> <p>'That S. F. R’s executor should pay the amount of the bond (which was a perfect obligation and would come in after debts of the estate and before legacies,) to the trustee appointed by J. M. G., (who had declined to act further as trustee,) and in default of such trustee accepting the trust and giving bond, to a trustee appointed by the Court, to be held in trust for the use and benefit of M. during her life, and at her death for her children or their issue, if any then living, but if no such child or issue then living, the trustee should transfer the trust fund or the securities held therefor to the right heirs of S. F. R.</p> <p>As the executor is the trustee and proper representative of all persons interested in the personal estate, and has the duty cast upon him by law of protecting it against improper demands, it is not necessary or proper to join either a pecuniary or a residuary legatee, or the next of kin, as parties to a bill against the executor for an account of the personal estate, however much interested such persons may be in defeating the claim uiron which the suit is founded.</p> <p>The Statute of Limitations has no application in a Court of Equity, to an express and continuing trust.</p>

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

The hill of complaint in this case was filed on the 10th ■day of July, 1874, by the appellee, widow of John Clark, who died intestate in July, 1871, claiming dower in a lot of ground situated on the north-west corner of Baltimore and Calvert streets, in the City of Baltimore, and claiming •also one-third part of the rents and profits which have arisen since the death of her husband.

<p> Appeal from an Order striking out a Judgment, on a Motion made at the Same Term. </p> <p>No appeal lies from an order striking out a judgment, passed upon a motion made during the term at which the judgment was rendered; and this depends upon the time when the motion was made, and not upon the time when it was decided.</p>

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