Volume 54 — Maryland Reports

Appeals from the Circuit Court for Cecil County, in Equity. The nature of the case is stated in the opinion of the Court. The Court below passed a decree in both cases, dismissing the cross-bill of Cochran and wife and directing a sale of the mortgaged premises as prayed by the original bill of Pascault and wife. Prom these decrees the present appeals were taken.

<p>Court of Equity—Penalty imposed by Statute of 4 George II, chap. 28—Penalty not enforceable in Equity.</p> <p>A Court of equity will not lend its aid to a party, claiming to have leased certain stone quarries, and charging a refusal on the part of the lessees, after due notice in writing, to vacate and surrender the premises, to recover the penalty imposed by the Statute of 4 George II, chap. 28, upon parties wilfully holding over after the expiration of the lease.</p> <p>An action of debt is the sole remedy provided by the Statute of 4 George II, chap. 28, for the recovery of the penalty which it imposes.</p> <p>A Court of equity will never assist in enforcing a penalty.</p> <p>The penalty imposed by the Statute of 4 George II, chap. 28, is “ double the yearly value of the lands, tenements or hereditaments, so detained, for so long time as the same are detained,” and not double rent.</p>

The appellee exchanged certain property in Howard County, with John and Henry McShane, for certain leasehold property in Baltimore City, consisting of six houses, variously located, and Buck’s hotel, on Pratt street. The hotel was taken at a valuation of $25,000.00, and the appellee immediately effected insurances upon it to that amount.

<p>Divorce a mensa et tlioro—Alimony—Wife's separate estate— Absolute gift as between Husband and Wife.</p> <p>A legacy amounting to $2873.35, from the wife’s father, was paid by his executor, to the husband and wife jointly, and they executed a joint and several release therefor under seal, and acknowledged the same as their act, before a justice of the peace. The money was appropriated by the husband. Years afterward, the wife filed a bill of complaint, asking that she might be divorced a mensa et thoro, that proper alimony might be awarded to her, and that the said sum of $2873.35 might be paid to her by her husband. A decree was passed divorcing the complainant a mensa ét thoro from her husband, and awarding her alimony to the extent of $156 per annum, during the joint lives of herself and husband, but omitting to award her the said sum of $2873.35. The husband’s entire property consisted of a small farm of about eighty acres, and a house and lot renting for about forty dollars a year. His income from these sources did not exceed $250 per annum. On appeal from the decree by the complainant, the same was affirmed, it being Held .</p> <p>1st. That the conversion of the money by the husband with the concurrence of the wife, and her conjoint act and deed destroyed her right to recover it as her separate property after divorce, after a lapse of a series of years without any promise or agreement on the part of the husband to return or repay it.</p> <p>2nd. That the transaction amounted to an absolute gift.</p>

The hill in this cause was filed by the present appellants on the 29th of December, 18*70, for the purpose of obtaining an account of the personal estate of James L. Addison, who died in March, 1865, and its application, after the payments of the debts, to the payment especially of a legacy of $5000, left by said will to his widow, M. Elizabeth Addison, in exoneration of any charge in respect to said legacy on a farm called “ Cole Brooke,” devised by said will to other…

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

<p>Question of priority as between an Assignment of record of a Mortgage, and a subsequent Assignment and Release of record of the Mortgaged premises and Mortgage, the Mortgage notes not having been assigned to either.</p> <p>H. made two mortgages of leasehold property to S., to secure to Mm the payment of certain promissory notes. S., afterwards borrowed money of C., and to secure its repayment, made a mortgage to him of all his right, title, interest and estate in and to said two mortgages, “ and the notes named in said mortgages, and in and to the property mentioned and described therein.” Subsequent to the recording of this mortgage, H. mortgaged the same property to a ' Building Association, and on the following day, S. entered on the record book a release of the mortgage from H. to him. The notes secured by the two mortgages to S., were not transferred by him either to C. or to the Building Association, and they were alleged to have been lost or destroyed. On a bill filed by 0. against H. and S. and the Building Association, claiming a prior lien on the property, to the extent of his loan to S., and asking for a sale of the property to pay the same, it was Held :</p> <p>That 0. was entitled to priority over the Building Association to the extent of his claim.</p>

The case is stated in the opinion of the Court. Exception.—At the trial the plaintiff offered ten prayers, of which the following only need he inserted : 10.

This is a case of scire facias on a mechanics’ lien, brought by the appellant against the appellee; a further statement is contained in the opinion of the Court.

The nature of. the case is stated in the opinion of the Court. Exception.—The case being tried before the Court, without the intervention of a jury, the plaintiff prayed the Court to rule as follows: 1.

Appeals from the Superior Court of Baltimore City. William B. Bayne of Prince George’s County filed his petition in the Superior Court of Baltimore City, alleging that he had been appointed hy the Governor of the State, hy and with the advice and consent of the Senate, to the office of Tobacco Inspector in the State Tobacco Warehouse Eo. 1, in the City of Baltimore, and that he had been duly commissioned, and had given bond, and had taken the oath of office as required by…

<p> Dedication of a Street as a public Highway—Right of a Municipal Corporation to construct Wharves at the ends of Dedicated streets running to the water. </p> <p>McM. was the owner of a lot of ground, in the Oity of Baltimore, binding on the south side of Cross street, and extending eastwardly to the water of the basin or harbor. On the 24th day of April, 1878, a resolution of the Mayor, &c., of Balt, was passed and approved, appropriating a sum of money for the purpose of constructing a public pier or wharf at the end or foot of Cross street, along the south side thereof of the width of twenty-two feet, extending to the Port Warden’s line; and a contract for the construction of the wharf was made with G. There is no evidence of any proceedings for the condemnation of Cross street, but the street, as it now exists, extending to the water, was laid down on the earliest maps of the city, was dedicated by the owners of the land many years ago to public use, as a public highway or street, was accepted as such by the city authorities, and has been open and used by the public as such highway for a period beyond the memory of any living person. Por at least thirty-five years, the municipal corporation has exercised undisputed control over the street, and appropriated and expended at various times, sums necessary for its repair and improvement. In the deed under which McM. claimed title, the existence of Cross street was recognized as one of the boundaries of his lot. On a bill filed by McM. against the Mayor, &c., of Balto., and G. for an injunction to restrain the construction of said wharf, it was Held :</p> <p>1st. That the facts above enumerated were sufficient to show a complete and perfect, dedication of the street as a public highway, and the acceptance thereof by the corporation.</p> <p>2nd. That the right of the city to construct wharves at the end of public streets extending to the water, and to charge wharfage for the use thereof, is not affected by the fact whether the street has been regularly opened and condemned as a highway, or whether its use as such has been acquired by dedication. In each case the rights of the city and the public are the same.</p> <p>3rd. That the dedication of Cross street to the public use as a street extending to the water, carried with it by necessary implication the right of the city to extend it into the harbor by the construction of a wharf at the end thereof, as proposed by the Resolution of April 24th, 1878.</p>

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

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

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

Too case is stated in the opinion of the Court. Exception.—At the trial the plaintiff asked the following instructions: 1. That there is no evidence in the case that the defendants were deputy sheriffs, or held any official position whereby they had authority or right to make arrests, or do any act which any private citizen might not lawfully do. 2.

The case is stated in the opinion of the Court. Exception.—The plaintiffs at the trial offered three' prayers and the defendant ten, all of which are omitted as not necessary for the proper understanding of the questions decided hy this Court. The Court helow (Brown, J.,) granted the plaintiffs’ prayers and refused all those offered by the defendant except the tenth. The defendant excepted and the verdict and judgment, being rendered against him he appealed.

The case is stated in the opinion of the Court. The appeal is taken hy the complainant from the decree of the Court below (Yeelott, J.) dismissing his hill on the ground that the set-off claimed by John B. Tyrrell, one of the defendants, exceeded in amount, the amount claimed hy the complainant.

This appeal was taken by the complainants from the decree of the Court below, (Alvey, J.,) dismissing their bill. The case is stated in the opinion of the Court.

The case is stated in the opinion of the Court. The plaintiff excepted to the rulings of the court below, (Brown, J.,) which are sufficiently set forth in the opinion of this Court, and the verdict and judgment being against him, he appealed.

The case is stated in the opinion of the Court. First Exception.—At the trial the plaintiff being asked “had you any means of knowing the market value of this property on the 14th of April, 1877? (the date of the breach of the contract,) replied that he knew what it was worth to him from contracts he had made to sell parts of it; one of said contracts was made on the 7th of March.

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

Appeals from the Circuit Court of Baltimore City. The appellee filed a hill against the’ appellant, for the correction of a mistake in a policy of insurance, issued to him by the appellant, and the payment of a loss insured against under the policy. The nature of the mistake and the facts of the case are stated in the opinion of the Court.

<p>Jurisdiction in Equity to reform a Written Contract—Case of a hill to reform- a Policy of insurance, where through Mistake it was not expressed in the Policy that the property insured-stood upon Leased ground.</p> <p>Where an action arises upon a written contract, which from mistake or fraud does not express the actual agreement of the parties, it is a matter peculiarily within the jurisdiction of a Court of equity to reform such contract, and to grant relief in accordance with the intention of the parties.</p> <p>An Insurance Company through its general agent, insured certain property of A. standing upon leased ground. The agent himself made application for the insurance. A. stated to him that the property stood on leased ground, and the amount of the rent; and it was understood between them that the property was to be so described in the policy. Through inadvertence or mistake on the part of the agent, it was not so described, and the omission was not discovered by A. until after a loss was incurred under the policy. A. filed a bill against the company for a reformation of the policy and the payment of the loss insured. Upon demurrer to the bill, it was Held :</p> <p>That the fact that the complainant might have enforced the payment of the loss on the property insured, in an action at law on the policy, was no answer to the exercise of jurisdiction by a Court of equity, upon the facts stated in the bill.</p>

<p> Question whether a Discounted note teas a Renewal of a previous note—The question of Payment or renewal one of intention—Effect of the Assignment of a Bond secured by Mortgage, made by a Wife to her Husband, for the purpose of enabling him to raise money thereon, as affecting the rights of a party with whom they were deposited by the Husband as collateral security for a loan—Estoppel. </p> <p>In 1872, a married woman endorsed in blank a mortgage in her favor, and the bond secured thereby, and delivered them to P. her husband, for the purpose of enabling him to raise money on them. The E. N. Bank agreed with P. to lend him the money he desired, on his note with two other joint makers, and the deposit of the bond and mortgage as collateral security. The required note was given in favor of the Bank, payable at a Bank in Philadelphia, six months after date, and was discounted by the E. N. Bank for P., who deposited the bond and mortgage with the Bank, as collateral security. As attorney in fact for his wife, P. assigned the mortgage formally on the record to the E. NT. Bank, and on the original mortgage over the signature of the wife was written an assignment to the Bank of the mortgage and mortgage debt. When the note was about to mature, the Bank, at the request of P., agreed to renew it with the same makers, the Bank to retain the same col-laterals; but as a preliminary to the renewal, and as an additional condition of it, the Bank required that P. should procure the old note from the Bank in Philadelphia, and bring it to the E. ÍT. Bank. This was done, and the new note was given, and discounted, and like the first was made payable in Philadelphia. At the end of every six months thereafter the note was renewed and the collaterals retained, until the month of March, 1876, when the note laid over unpaid. Each renewal after the first one recited the fact of its being a renewal, and also recited the fact that the col-laterals were held by the Bank as security for the payment of the note. During all this time the Bank held possession of the bond and mortgage, without any denial of its right of possession under the arrangement with F. The mortgaged property was subsequently sold under a prior mortgage, and the balance of the proceeds of sale, after payment of the prior mortgage,-was audited to the E. FT. Bank in payment of its claim. On exception to the auditor’s report by the wife of F., upon the ground that the taking up of the first note by F. in Philadelphia was a payment of it, and that the arrangement for a renewal, and the subsequent discounting by the Bank of a new note, pursuant to agreement, did not make the new note a renewal, and that consequently the collaterals were released, it was Held :</p> <p>1st. That whether a new note takes the place of the old, and cancels it, or the old note is actually paid and a new note is discounted for the amount of it, in either case it is a renewal, if a renewal is intended. It is the intention of the parties and their understanding of it which makes it a renewal.</p> <p>2nd. That the transaction in this case was a renewal, so as to entitle the Bank to the benefit of the collaterals deposited as security for the first note.</p> <p>8rd. That the debt was not in point of fact paid, and was not intended to be paid by what was done respecting the note in Philadelphia.</p> <p>4th. That the Bank in Philadelphia was the agent of the E. FT. Bank, and payment there would have the same, but no greater effect, than if it had been paid directly to the E. FT. Bank, and had been handed immediately back under the agreement for renewal , in which case there would be no question about its being a renewal.</p> <p>5th. That the assignment of the bond for any purpose carried with it the mortgage which was its incident, and the power of F. over the bond after its assignment to him by his wife was absolute, and gave him the right to pledge it to the Bank as security for the note discounted for him, and to agree that the collaterals should remain as security for the renewals also.</p> <p>6th. That the facts showed that the wife had actual as well as constructive knowledge of the transactions between her husband and the Bank, and her conduct and admissions touching the matter concluded her from setting up any claim as against the Bank, which had been induced to lend its money on the faith of the collaterals which she had put it in the power of her husband to treat as his own, and confessedly to raise money on.</p>

The case is stated in the opinion of the Court. First and Second Exceptions.-—Sufficiently stated in the opinion of the Court. Held: during six years, the position of assistant professor of Erench, at the United States ISfaval Academy, at Annapolis, but was never commissioned or sworn in as an officer or other member of the United States Havy; that about October 1st,'1872, a person, whom the plaintiff considered his personal enemy, was appointed professor of…

<p> Usury—Admissibility of parol proof as to how the Consideration mentioned in a Deed was to be paid—Trustee’s commissions—Question covered by a former appeal not open to review—Fee for professional services in protecting a Trust fund loaned on Mortgage not allowable out of the proceeds of . the Mortgage sale as against the Mortgagor—Interest—Husband and Wife. </p> <p>A. as trustee held a mortgage of real estate made to him by S. The mortgaged property was sold by S. to B. for a stated sum. The deed from S. made no reference to the mortgage, but in fact the , payment of the mortgage by B. formed part of 'the consideration mentioned in the deed. On a foreclosure of the mortgage by A., . it was, upon exceptions to the auditor’s account distributing the proceeds of sale, Held :</p> <p>1st. That whether the mortgage debt was tainted with 'usury or not, was wholly immaterial in determining the price to be paid by B. for the land.</p> <p>2nd. That parol proof was admissible to show how the stated consideration for the deed to B. was to be made up, and how it was to be paid, and such proof in nowise altered, varied or affected ■ the deed itself.</p> <p>3rd. That the mortgage debt could not be abated on account of any usury that might have been paid or exacted from S. prior to the purchase of the property by B.</p> <p>The mortgage debt was due to A. as trustee for the wife of G. Before the mortgage note fell due, the time of its payment was extended for one year, and B. indorsed thereon a written agreement by which he assumed to pay the same at the expiration of the extension, with interest. At this time, and for several subsequent renewals, B. paid to G. two per cent, per annum on the mortgage debt. This amount was paid to secure G’s assent to the several extensions, without which assent, A. refused to grant them. Neither A. nor his cestui que trust received any part of the money so paid to G. Held :</p> <p>1st. That the payments to G. could not be regarded as usury exacted and received by the mortgagee.</p> <p>2nd. That if B. chose to submit to this exaction, or voluntarily paid these sums to G. in order to secure his assent to the extensions, and thus save his own property from sale under the mortgage, his remedy, if he had any, was against G. alone.</p> <p>The deed from S. was in fact made to the wife of B., but B. acted through all the transactions not only as her agent, but himself paid out of his own funds the interest on the mortgage as well as the payment to G., and furnished all the money and property that went to make up the consideration mentioned in the deed, apart from the mortgage debt. Held :</p> <p>That B’s wife had no rights or equities which he would not have had if the deed had been made directly to him.</p> <p>The order ratifying the sale under the mortgage allowed the mortgagee or trustee “ the usual commissions,” as well as his expenses. On appeal from said order, the same was affirmed by the Court of Appeals, and the cause remanded. On exception to the auditor’s report allowing commissions to the mortgagee, it was Held :</p> <p>1st. That the affirmance of the order of ratification of the sale, made it in its entirety the law of the case in all future proceedings therein, and binding not only upon the Court below, but upon this Oourt, and the allowance of commissions by the auditor, in conformity with that order was proper.</p> <p>2nd. That it was no answer to this to say that the question of commissions, was not argued on the former appeal. It was a question presented by the record on that appeal, and the appellant could then have raised it and have had that part of the order from which he appealed reversed, if it was erroneous.</p> <p>On an ex parte petition of the mortgagee, an order was passed allowing him, out of the proceeds of sale, a certain sum for professional services rendered by him in defending the order ratifying the sale, and for his personal expenses in attending to the taking of testimony on the subject. On exception to the auditor’s account allowing this sum, it was Held :</p> <p>1st. That this was a charge that ought not to be allowed against the proceeds of sale, to the prejudice of the mortgagor.</p> <p>2nd. That for the services thus rendered bis claim, was against the trust fund; which as trustee he invested in the mortgage, and must be prosecuted in the Court having charge of that trust.</p> <p>3rd. That the proper mode of dealing with the interest on the purchase money, was for the auditor to allow interest on the mortgage debt to the day of sale, and for the order ratifying the account to contain the usual clause directing the mortgagee to apply the proceeds of sale according to the account, “ with a due proportion of interest as the same has been or may be received.”</p>

The appellees brought this action against the appellant as the indorser of a promissory note held by them. The defendant pleaded “ never indebted ” and “ did not promise as alleged,” and for a third plea, “ that he has not had and received due legal notice of the demand and nonpayment of the promissory note mentioned in the declaration of the said plaintiffs.” Upon these pleas issue was joined.

<p>Mental capacity of Grantor consistent with Physical infirmity— The talcing of the Acknowledgment to a Peed, presumption that the Magistrate believed the Grantor to be mentally competent— Undue influence—Presumption in favor of a Peed expressing the intention of the parties.</p> <p>Great physical suffering oftentimes shatters and destroys the mind, but it does not necessarily produce such result. The law recognizes the fact that the mind may be competent, though the body is aged and stricken by disease and suffering.</p> <p>The presumption cannot be avoided that the magistrate (since deceased,) who took the acknowledgment of the deed, would not have taken the acknowledgment of a party whom he believed to be mentally incompetent to execute and acknowledge it.</p> <p>The devotion and affection of a grantor for her brother (the grantee,) and the belief of witnesses that she would do anything he asked of her, is not of itself sufficient ground for declaring that the deed has been obtained by undue influence.</p> <p>Where a deed is executed when the grantor is competent to do so, it carries with it the presumption that it contains what the parties intended. It will only be reformed upon clear proof that it does not contain what the parties intended at the time of its execution.</p>

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

This appeal is taken from the decree of the Court helow, (Pearre and Hotter, J.,) dismissing a bill filed by the appellants against the appellee. The case is stated in the opinion of the Court.

This appeal was taken from an order of the Court (Magruder, J.,) helow, finally ratifying and confirming a sale to John P. Hopkins, reported hy the trustees, Eoberts and Wootton, and requiring the said Hopkins to pay or bring into Court the sum of $1308.75, being the amount of the purchase money, after crediting the sum of $30, admitted hy the trustees to have been paid to the trustee Wootton, or show cause to the contrary, &c. The case is stated in the opinion of this Court.

<p>Wrong by Constable, for which an action on his Official bond will not Ue^-Bond of Constable liable only for breach of Official duty—For a wrong committed not in the discharge of his Official duty, personally liable—Act of 1870, ch. 84— Property wrongfully seized under a fi. fa. of a Justice of the Peace.</p> <p>An action cannot be maintained against a constable and his sureties, on his official bond, for a trespass committed by him in taking the goods of a stranger on an execution issued against the property of another person. The remedy in such case is by an action of trespass or trover against the officer personally, and against the plaintiff in the execution if he be a party to the trespass.</p> <p>For any breach of official duty by a constable, Ms official bond is responsible; this is the extent of liability assumed by the sureties. If he commit a wrong, not in the discharge of Ms official duty, he is personally liable, but his sureties cannot be held responsible therefor ; it is not within the terms of their contract.</p> <p>The Act of 1870, ch. 84, affords ample redress to a claimant of property wrongfully seized under an execution of a justice of the peace.</p>

Exception.—At the trial of this cause the plaintiff gave in evidence the bond of Richard M. Sprigg, as administrator of his mother, Jane D. Sprigg, and proved by John Humbird, one of the defendants, that his name signed to said bond was in his hand-writing, and that at the time of signing the same, he understood that he was signing said bond as one of the securities of Richard M. Sprigg as such administrator.

The case is stated in the opinion of the Court. The first and second hills of exception are omitted, as the questions of evidence involved therein were not passed upon by the Court. Third Exception.—The plaintiff offered three prayers, of which the following only need he inserted: 3.

This action was brought against the appellants in the Circuit Court for Anne Arundel County, by the appellee, to recover in damages for injuries sustained by him while driving on a public road, by the falling of a tree, through the carelessness of laborers employed by the Road Supervisor in repairing the road. The case was removed to Baltimore County where it was tried. Exception.—The plaintiff offered three prayers, which the Court, (G-kason and Yellott, J.,) granted.

Caveats having been filed in the Orphans’ Court of Baltimore County to the will of Noah Worthington of John, offered for probate on the 5th day of February, 1879, administration pendente lite, upon the personal estate of the said Noah Worthington, deceased, was granted on the 18th of the same month, by the Orphans’ Court to Eichard J. Gittings and Fielder C. Slingluff.

For a statement of the nature of this case reference may he had to the same case in 45 Md., 290. At the trial the plaintiff took one exception, viz., to the ruling of the Court (Lynch, J.,) in rejecting certain of his prayers and in granting certain of those of the defendant. The defendant took six exceptions. The first, second and third exceptions are stated in the opinion of the Court. The fourth and fifth exceptions were abandoned at the argument of the case.

Appeals from the Circuit Court for Baltimore County, in Equity. On the second day of July, 1874, Werner Dresel sold to the Maryland Inebriate Asylum, a body corporate of the State of Maryland, a tract of land situate in Baltimore County, and took from said corporation a mortgage of the same date to secure the payment of two promissory notes, one for $6500 and the other for $11,500 on account of the purchase money.

<p>Trustee in Insolvency—Mortgaged premises of the Insolvent— Mortgagor in default—Exclusive right of the Trustee in Insolvency to sell the Mortgaged premises.</p> <p>Where a mortgagor after default, applies for the benefit of the insolvent laws, and a trustee in insolvency is duly appointed, who gives bond, which is approved, such trustee is the only person entitled to sell the mortgaged premises, notwithstanding the mortgage contained a power, in pursuance of section 5 of Article 64 of the Code, authorizing the mortgagee or his attorney to sell the property in case of default,</p>

<p> Mortgage from a citizen of Maryland to a citizen of Pennsylvania, not affected by the Insolvent laws of the former State. </p> <p>■Certain property situated in Towsontown, Baltimore County, known as the “ Smedley House,” was mortgaged by M. and wife on the 3rd of April, 1869, to L., a citizen and resident of Pennsylvania,' to secure the sum of $16,000, with interest. This mortgage, which was duly recorded in Baltimore County, contained a clause as provided in section 5 of Article 64 of the Code, authorizing the mortgagee or E. S., also a citizen of Pennsylvania, to sell the premises upon default made by the mortgagor. ’ On the 18th of February, 1880, M. applied for the benefit of the insolvent laws, and on the same day B. was duly appointed trustee for the benefit of his creditors, and at the same time the insolvent executed a deed conveying to the trustee all his property, except such as was exempted by law. Default having been made by M., the mortgagor, in the payment of the money secured by the mortgage, E. S. advertised ■the property for sale at public auction, on the 10th of April, 1880. On a bill filed on tbe 27th of March, 1880, by E., the trustee in insolvency, claiming the right as such trustee, to sell the mortgaged property, and praying for an injunction to restrain L. .and S. from making sale thereof, and from interfering with the complainant in the administration of his trust, it was Held :</p> <p>That the mortgage being a contract between a citizen of Maryland and a citizen of Pennsylvania, was protected from the operation of the insolvent laws of the former State, and the mortgagee under the power of sale embodied in the mortgage, had the right to sell the mortgaged premises, without beiug interfered with by the trustee in insolvency.</p>

<p>Exceptions to a Sale of Mortgaged property by the Purchaser of the Equity of redemption—Improper objections by Exceptant—Act which does not constitute a Wrongful conversion by a Mortgagee of the Mortgaged property—Marshalling of securities in Equity— What the Purchaser of the Equity of Redemption may, and may not, rightfully claim to have credited on the Mortgage debt—Expense proper to be alloioed the Mortgagee.</p> <p>S. on the 9th of June, 1877, executed a mortgage, conveying all his real estate, and certain personal property, consisting of horses, cattle, farming utensils, &c., to H., to secure a debt of $1400. The mortgaged property remained in the possession of the mortgagor until it was sold by the mortgagee under a power in the mortgage. The real estate was sold on the 27th of May, 1879, and purchased by L. for $1456. D., who purchased the equity of redemption in the land, on the 7th of September, 1878, under an execution issued against S., the mortgagor, appeared in the proceedings under the mortgage, and filed exceptions to the ratification of the sale. Before these exceptions.were filed, H., the mortgagee, not having realized from the sale of the land enough to satisfy the mortgage, advertised and sold the personal property on the 9th of June, 1879, except a number of articles included in the mortgage, which had been previously disposed of by S., the mortgagor. The proceeds of sale of the personal property, as reported by H. amounted to $221-50, subject to certain expenses paid by him. On the 11th of August, 1879, the sale of the real estate was set aside, and there upon D. filed a petition asking that an audit be made showing the balance due on the mortgage; an order was passed by consent, referring the case to the auditor, who after taking proof, stated two accounts. To the second account D. excepted, first, because H., the mortgagee, was charged therein with only the sum of $221.50, the amount for which the personal property sold at Corrigansville, whereas as the mortgage provided that the property should be sold in Cumberland, the sale of it at another place amounted to an unlawful conversion of the same by the mortgagee, and he should be charged with the full value of the property, which according to the testimony of D., was $400. Second, because the exceptant being a subsequent purchaser of the real estate, subject to the mortgage debt of H. was entitled to have said lien marshalled, first upon the personal property in said mortgage, which ought to be credited on the mortgage to the. extent of $400, for the reason set out in the first exception; and for the further reason that the mortgagee, after the purchase by the exceptant of the real estate, allowed the mortgagor to squander, <fcc., the personal property, after notice given him by the exceptant that such was being done. Third, because the sum of $62, was not credited therein on said mortgage debt, although sworn to by the exceptant, and not contradicted by any one; and because L. was allowed the sum of $90, for keeping the stock and personal property of the mortgagor. Held :</p> <p>1st. That as D., the exceptant was not a party to the contract of mortgage, he could not be heard to urge as an objection, that the personal property was sold at a different place from that prescribed in the mortgage.</p> <p>2nd. That such a departure from the terms of the mortgage, made with the consent of the mortgagor, did not entitle the exceptant to insist that the whole value of the personal property should be credited upon the mortgage debt.</p> <p>3rd. That the proposition that such departure from the terms of the mortgage operated as a wrongful conversion by the mortgagee, was not supported by reason or authority.</p> <p>4th. That the exceptant could not rightfully complain that before the sale, some of the property was disposed of, or appropriated by the mortgagor to his own use, by the consent of the mortgagee, as it was competent for the mortgagee, if he had chosen to do so, to relinquish entirely his lien on the personal property.</p> <p>5th. That the doctrine of marshalling of securities in equity had no application.</p> <p>6th. That the real and personal property being mortgaged to secure the same debt, and the former having been sold, and the proceeds received by the mortgagee, the exceptant had the right to insist that whatever sum was thus actually received and retained by the mortgagee should be credited upon the mortgage debt; not upon the principle of marshalling, but because such receipt operated pro tanto as payment or satisfaction.</p> <p>7th. That the sum of $90, which the proof showed was a reasonable charge for keeping the stock, &c., of the mortgagor before the sale, was a proper expense to be allowed.</p> <p>8th. That the exceptant was not entitled to have the sum of $62, credited on the mortgage debt ;•—such sum being due by the mortgagee on his private account, to the mortgagor, could not, without some agreement between the mortgagor and mortgagee, be appropriated as a credit to the former on the mortgage debt.</p>

The case is stated in the opinion of the Court. First and Second Exceptions waived. Third Exception.—The plaintiffs offered the two following prayers: 1.

This suit was instituted in the Circuit Court for Cecil County, whence, upon the suggestion and affidavit of the plaintiff, it was removed to the Circuit Court for Kent County, where it was tried. The case is stated in the opinion of the Court. The verdict and judgment being for the defendants, the plaintiff appealed.

This suit was brought by the appellees, as receivers of the Franklin Land and Loan Company of Baltimore City, against the appellant.

<p>Appeal in the nature of a Writ of Error, from the Circuit Court for Harford County.</p> <p>The case is stated in the opinion of the Court.</p>

The hill of complaint in this case prayed that the sale made to the appellee, Frederick C. Meyer, might he declared null and void; and that an injunction might he issued to restrain and prohibit said Meyer from taking possession of the premises in litigation, or setting up or asserting any title thereto under the pretended sale of the 14th of April, 1875, or demanding or receiving from Robert D. Morrison and Thomas R. Presstman, receivers, the net rents and profits of said…

The case is stated in the opinion of the Court. The appeal was taken from the action of the Court helow overruling the motion of the defendant, James Sprigg, to strike out a judgment entered against him.

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

The case is stated iu the opinion of the Court. First Exception.—The plaintiff offered to prove by a competent witness, that within a few days after the robbery of the bonds, the defendant stated to the witness that the stolen bonds belonged to the plaintiff, and that he considered himself responsible to the plaintiff for their loss; that the plaintiff should lose nothing hy the theft; that he would pay the interest to him the same as the Government, and if the bonds were…

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

<p> Joint Contract to transfer Stock on or after a Certain day when demanded—Sufficiency of a demand upon one of the Joint contractors—Statute of Limitations—Time of accrual of the Cause of Action. </p> <p>A., B. and C. by a contract made jointly -with D., on the 29th of March, 1875, agreed for the consideration therein_stated to transfer to D., on or after the 15th day of October, 1875, shares of certain stock sufficient to amount to $500, at the market price of said stock when the transfer should be demanded. A demand for the transfer was made upon one of said joint contractors on the 11th day of July, 1878. Held :</p> <p>1st. That the joint contractors, not being partners, and the contract not being a negotiable instrument, the demand upon one was sufficient to bind all.</p> <p>'2nd. That the cause of action did not accrue until demand was made, and under the Statute of Limitations, 1 Code, Art. 57, sec. 1, the action might be commenced or sued on within three years from that time.</p>

The case is stated in the opinion of the Court. First Exception.—The defendant offered to prove that he sold the said vessel to Lewis on a credit of one and two .years from the time of said sale, and that neither of said payments had become due and payable at the time this suit was brought, and that in fact no part of the said purchase money from Lewis had been received by the defendant; to which last offered evidence plaintiff objected.

The case is stated in the opinion of the Court. Exception.—The defendant offered five prayers, all of which, except the fifth, were rejected hy the Court, (Brown, J.,) and the Court gave the following instructions to the jury: 1.

The bill of complaint in this case, filed by the appellant against the appellee, stated: “ That by virtue of a decree of this Court, passed on the 19th day of February, 18IY, in a cause therein where Samuel Shaffer was complainant, and Alfred J. Gent and others were defendants, a sale -was made at public auction, of a portion of the real estate of the late William C. Gent, deceased, for the purpose of laying the debts of the said deceased, his personal estate being…

Application of the State of Maryland in the matter of Margaret Glenn. The nature of the case is stated in the opinion of the Court.

<p> Demurrer—Plea in Abatement on the ground of Another suit brought on the same Cause of action—Effect of Dismissal of the Prior suit before Plea pleaded in the other. </p> <p>A plea in abatement averred tbe pendency of another suit by the plaintiff against the defendant on the same cause of action, “ at the commencement of this suit.” The plaintiff replied that said suit was not pending “ at the time of filing of said plea in this suit, in manner and form as the defendant in his plea had alleged, but that the same had been discontinued,” &c. On demurrer to this replication, it was Held :</p> <p>1st. That if the defendant’s plea had been-perfect, the replication would have been a good reply to it.</p> <p>2nd. That as the demurrer mounts up to the first error in pleading, and the defendant’s plea was bad in omitting to allege the pendency of the prior suit at the time of plea pleaded, the demurrer should have been overruled.</p> <p>3rd. That the first suit must be pending at the time of plea pleaded, to effect arujibatement of the second suit, and if the first suit be dismissed before plea pleaded, it will prevent the abatement of the second suit.</p>

The bill of complaint in this case was filed on the 20th of December, 1878, by Frederick Stump and others. The case was submitted upon a statement of facts agreed upon by the parties. The object of the suit was to obtain from the Court the true construction of the clause in the will of John Jordan, wherein he devised certain real estate to-his niece, Catharine J. Edie.

This appeal is taken from an order of the Court helow, .(Stump, J.,) setting aside a decree obtained ex parte by the appellant against the appellees. The case is stated in the opinion of the Court.

The case is stated in the opinion of this Court. The ■suit was instituted on the 10th of June, 1818, and was submitted to the Court below without the intervention of a jury. The Court, (Motter and Pearre, J.,) being of opinion that upon the facts, admissions and agreements the plaintiff was entitled to recover, rendered judgment in his favor for $44.51. The defendant appealed.

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

The case is stated in the opinion of the Court. First Exception.—The plaintiff prayed the Court to instruct the jury as follows : 1.

The deed referred to in the opinion of the Court from Charles T. Davis to Edwin C. Cutter and James E. Eitch, trustees, recited as follows: “ Whereas the said Charles T. Davis stands justly indebted unto Reverend Joseph W. Parker in the full and just sum of five thousand five hundred dollars, deferred payment of purchase money, for the hereinafter described property, for which amount he hath made and passed to the said Reverend Joseph W. Parker his certain promissory note,…

The nature of the case is stated in the opinion of the Court.