Volume 56 — Maryland Reports

Under Ordinance Ho. 68, of the Mayor and City Council of Baltimore, approved June 26th, 18*78, authorizing and directing the City Commissioner, to have Pratt street, between Jones’ Falls and Howard street repaved in a specified manner, the City Commissioner proceeded to have the work done.

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

This was an action of covenant brought by the appellant, against the appellee and her husband for the non-performance of certain covenants, (the payment of rent and taxes) on the part of the appellee, contained in a lease for a renewable term of ninety-nine years. Upon a former appeal, (Vide 52 Md., 297,) this Court held that the husband was improperly joinedj and remanded the case.

The nature of the case is stated in the opinion of the Court. The case was tried before the Court below, without the intervention of a jury.

<p>Attachment proceedings— When objection to Attachment proceedings may be made — Defective affidavit of the Debtor in the Attachment proceedings — Attachment improvidently issued— Void judgment of Condemnation.</p> <p>Objection to attachment proceedings on the ground that they do not upon their face show affirmatively that the requirements of the statute have been substantially comp lied with, may be made on a motion to quash, on a motion in arrest of judgment after verdict, or without making it in the Court below, it may be availed of on appeal.</p> <p>An affidavit for an attachment on warrant made before an Associate Judge of the District Court of Allegheny County, Pennsylvania, recited that it was taken before “ the subscriber, a Judge of the District Court of said county, being a Court of record.” The clerk of the Court certified that the Judge before whom the affidavit was made, was at the time Associate Law Judge of said Court, but did not certify that the same was a Court of record. Held :</p> <p>That the authentication in regard to the character of the Court was insufficient, and the attachment was, therefore, improvidently issued, and the judgment of condemnation thereon was a nullity.</p>

The appeal in this case was taken from an order of the Court below, overruling objectionsto the issuing,of a writ of habere facias possessionem, and awarding the writ. The case is stated in the opinion of this Court.

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 defendant offered as a witness' William H. Patterson, who testified that he was the Secretary of the People’s Passenger Railway Company, and had general charge of its business.

<p>Attorney and Client — Poioer of attorney to Release a judgment considered — Quashing an execution.</p> <p>It is well settled in this State that an attorney as such, has no power to compromise claims placed in his hands for collection, or in respect to which he may be employed to recover judgment. He can take nothing in satisfaction of the claim or judgment except money, nor can he receive a less sum than is really due thereon, without the express authority of his client obtained for the purpose. And if he assume to act without such express authority, his acts in making the .compromise, or agreeing to take a less sum in satisfaction than is really due, will not bind the client unless the latter, with full knowledge of all the facts, has ratified what has been, done by the attorney; though such ratification may be inferred from acquiescence, and from the facts and circumstances of the case.</p> <p>The attorneys of record for a judgment creditor, professing to act for and in his behalf, filed in the cause an order directing the clerk of the Court to enter of record a release from the operation and effect of the judgment, of certain land which belonged to B., one of the' judgment debtors, and was bound by the judgment; and which had been sold and conveyed by B. to W. This release was entered in pursuance of an agreement with B. and W., by which the larger part of the purchase money paid by W. for the land was paid over to the attorneys to be applied to the payment of the judgment. Subsequently another attorney entered his appearance for the judgment creditor, and directed a fi. fa,., to issue on the judgment. Execution was issued accordingly, but without any credit being given for the said payment, and the land purchased by W. was seized under the execution, that being the only property taken. Upon a motion to quash the execution, it was Held :</p> <p>That the proof offered in support of the motion showed an express authority given by the client to the attorneys to enter the release of the land from the lien of the judgment, or that their action in the premises had been ratified by their client with knowledge of all the facts; and that upon this state of case the Court could not do otherwise than quash the execution and all that had been done under it.</p>

The case -is sufficiently stated in the opinion of the Court. The exceptions are omitted, as they are not necessary to the understanding of the questions passed upon.

The case is stated in the opinion of the Court. First Exception —-At the trial the plaintiffs’ counsel asked the witness, Johnson, one of the plaintiffs, whether he had ever authorized or assented to the charging of Pitt’s individual indebtedness to the firm of Johnson & Pitt. To this question the defendant’s counsel objected, and the objection being sustained by the Court, (Gilmor, J.,) the plaintiffs excepted.

The bill in this case was filed by the appellants asking the construction of a clause of the will of Robert H. Macgill. The clause' is set out in the opinion of this Court. The Court below (Lynch, J.,) passed a decree dismissing the bill,- and the complainants appealed.

The case is stated in the opinion of the Court. After the decree was passed the defendant filed a petition asking that the prohibitory clause be stricken out, on the ground that the Court had no jurisdiction to decree such prohibition against her, she being a non-resident, and not having been lawfully brought into Court. The Court (Dobbin, J.,) overruled this petition and the defendant appealed.

Cross-Appears from the Circuit Court for Anne Arundel County, in Equity. The bill in this case was filed by Mary E. Owens against Richard Claytor and others, to enforce the payment of an annuity given to the complainant by the will of her aunt Mrs. Sophia Gr. Rogers.

<p>Art. i, sec. 8, of the State Constitution — Effect of failure to simo in the Record that a Trial before the Court, teas by Consent of both parties — Form of suggestion for removal of causes.</p> <p>Without the consent or agreement of both parties, a cause cannot be tried before the Court without a jury, under Art. 4, sec. 8, of the Constitution.</p> <p>Where on appeal it does not appear by the record that there was any such consent or agreement, this will be a fatal objection to the judgment appealed from.</p> <p>A suggestion for a removal under Art. 4, sec. 8, of the Constitution, instead of suggesting that “the parties cannot have a fair and impartial trial,” &c.; stated that “ the parties believe they cannot have a fair and impartial trial,” &c. Held :</p> <p>(Without deciding as to the sufficiency of the form of the suggestion.) That it is better that the terms prescribed by the Constitution be complied with.</p>

<p>Motion to dismiss appeal — Failure of cleric to malee up the Record, because of Ms not being paid for it — Case of appeal Dismissed because not talcen by a Party in interest.</p> <p>Where the failure' to transmit a record to the Court of Appeals within the time prescribed, is caused by the refusal of the clerk to make up the record until he is paid for it, such failure is no ground for dismissing the appeal.</p> <p>It is the duty of the clerk to make out the record in due time, and when completed he may refuse to transmit it until paid for by the party taking the appeal.</p> <p>The defendants in a foreclosure proceeding were W. and wife. The wife had no substantial interest, and the interest of W. was assigned to M., his sister, who filed a petition in the cause as claimant of the surplus. An appeal was subsequently ordered, the order being signed by the solicitor, who represented W. and wife, the signature of the solicitor having the addition “ Defts’ Solicitor.” M. was represented below by another solicitor, and his signature to her petition for the payment of the surplus fund to her, had the addition “ for Claimant; ” and no appeal was ordered in her name, or by her solicitor of record. Held :</p> <p>That as-the parties in whose name the appeal was actually taken, had no interest in the subject-matter, and the party in whose behalf it was attempted to be maintained, never in point of fact took it, there was no proper party appellant, and the appeal must be dismissed.</p>

<p> JEjfeet of a discharge in Bankruptcy upon the Liability of the Bankrupt for a balance due by him upon his Subscription to the Capital stock of a Corporation. </p> <p>Section 5117 of the Revised Statutes of the United States provides that “ no debt created by the fraud or embezzlement of the bankrupt, or by his defalcation as a public officer, or while acting in any fiduciary character, shall be discharged by any proceedings in bankruptcy.” In an action against a discharged bankrupt to recover a balance due on a subscription to the stock of a corpora-tion, it was Held :</p> <p>That there was nothing of a fiduciary relation or character created by the subscription more than exists in the ordinary relation of debtor and creditor ; and certainly noné that brought it within the meaning of the statute.</p>

<p>Construction of the Aet of 1870, eh. 84 — Effect of a Judgment for Return of property under that Aet-^The same no bar to an Action of Damages for the Taking and, Detention of the property — The damages awarded by a Verdict will be assumed to be those Warranted by the instruction granted— Appropriate remedy in case of a Verdict for Excessive or unauthorized Damages.</p> <p>G. D. recovered a judgment in the Court of Common Pleas, in an action brought January 10th, 1880, against J. R. C. and M. B. C. for damages for taking and detaining a horse, wagon, and wagon harness, to which the plaintiff derived title under a bill of sale from M. D. Prior to the institution of that action, the defendants had recovered a judgment before a justice of the peace against M. D., and issued a fi. fa. thereon, under which the constable took in execution the property forming the subject of the action in the Court of Common Pleas. G. D. made before a magistrate a claim to the property so taken in execution, and at his instance a trial was had under the Act of 1870, ch. 84, to determine the question of property. On the 5th of January, 1880, the magistrate gave judgment in favor of the claimant for the property taken, and one cent damages, and costs. On appeal to the Baltimore City Court, the appeal was dismissed on the 1st of June, 1880, because of the non-payment of the magistrate’s costs by the appellants. J. R. C. and M. B. C. then made a motion in the Court of Common Pleas, in the nature of an audita qumrela, that the case in that 'Court be dismissed, or the judgment entered satisfied, on the ground that since the rendition of the verdict, the plaintiff had recovered a judgment in Baltimore City Court for the same subject-matter, and the case on which he obtained it was pending before the case in the Court of Common Pleas was instituted. Held :</p> <p>1st. That assuming the judgment of the magistrate in favor of the claimant had been affirmed on appeal, it would be no bar to the action, in the Court of Common Pleas, nor furnish any ground for disturbing either the verdict or judgment therein.</p> <p>2nd. That the magistrate’s authority under the Act of 1870, ch. 84, was limited to an order for the return of the property to the claimant if proven to belong to him, and such judgment “ for costs” as should seem just; and such was the sole effect of his judgment relied on by the defendants in support of their motion.</p> <p>3rd.' That by giving the claimant the privilege of getting his property back in this way, the statute did not deprive him of his common law remedy for its seizure and detention.</p> <p>4th. That although the declaration averred that the defendants sold the property, and claimed damages therefor, it also claimed damages for the unlawful taking and detention of the property; and as the plaintiff by his prayer only asked, and the jury were only instructed to give, such damages as they might find from the evidence he sustained from the taking and detention, this Court could not say that the verdict included any other damages than those which the instruction allowed the jury to give.</p> <p>5th. That if the damages wore excessive, or the verdict included such as were unauthorized, the appropriate remedy of the defendants was by a motion for a new trial.</p>

The case is stated in the opinion of the Court. The defendant took six exceptions — five to. rulings in respect of evidence, which are sufficiently set out in the opinion of the Court; and the sixth to instructions granted or refused. Sixth Exception. — The plaintiff offered the two following prayers: 1.

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

<p>Appeals from the Circuit Court for Baltimore County.</p>

The case is stated in the opinion of the Courtand the following plat will facilitate the understanding of the locations therein referred to:

<p>Case of alleged Breach of Trust — Laches, and Lapse of time— Presumed, acquiescence — Bight of Parties interested in Bemainder, and, also in the Present income of a Trust Estate, to sue for a Breach of trust, before the Expiration of the preceding Life Estate — Acquiescence presumed from long Delay in asserting Adverse claims — Delay to be accounted for to Justify the interposition of a Court of Equity.</p> <p>•On the 22nd of Nov., 1824, certain real estate was conveyed to J. O’D. in trust for D. H. P., for her sole and separate use, and to apply the clear income of the same to, or towards the support and maintenance of the said D. II. P. and her children, and the education of said children, in such manner as the said J. O’D. or his heirs might think proper; with a power to the said J. O’D. and his heirs to sell and re-invest the proceeds. And upon further trust that the said proceeds of sale should be invested, and the income thereof applied during the life of D. II. P. to the support and maintenance of the said D. H. P. and her children; and from and after the decease of the said D. II. P., then so much of the specific estate and property thereby conveyed, and of the stocks and estate in which the proceeds of any portion of the trust estate should be invested as might then be remaining in the hands of, or under the control of, the said trustee or his heirs, in trust for all the children and descendants of the said D. H. P. who shall survive her, and the heirs of such children and descendants forever, as tenants in common; the issue of any deceased child of the said D. H. P. to take the part, share or portion to which their or its parents would, if living, be entitled. D. H. P. died on the 25th of October, 1872. Seven years after her death a bill was filed by her children and descendants alleging that certain persons, named in the bill as defendants, claimed title to said jn-ojmrty under a conveyance, made the 15th of October, 1880, from said J. O’D. and the said D. H. P. and her husband, to J. 0., in consideration of the sum of one dollar, the said deed being made with intent to defeat the said deed to J. 'O’D. and the trusts declared therein in favor of the complainants; and they charged that said deed was void as to them; that up to a very short time before.the filing of the bill they were ignorant of their rights, having always been informed by said D. H. P. and her counsel that she individually owned the entire equitable fee simple in all the property conveyed to J. C., apd that by such assertions they had been deluded and deceived, and kept in ignorance of their rights in the premises; and asked a reconveyance of the property held by the defendants, to some person in trust for them, the trustee J. O’D. being dead. It appeared in proof that the youngest child of D. H. P. was of full age thirty-six years before the filing of the bill. Held :</p> <p>1st. That the complainants, in preferring to accept the statements made to them in regard to the effect of the deed to C., to taking the trouble to examine for themselves, neglected to do what was reasonably incumbent on them to do ; so that they did not exercise that reasonable diligence which a Court of equity requires to appear, before it will interfere to enforce a claim thus situated.</p> <p>2nd. That although it is a general doctrine, that it can never be maintained that the acquiescence of a party under ignorance of his rights operates as a waiver of bis claim, or as a confirmation of anything done against him, and' that the onus of showing ignorance is not on the party so acquiescing; yet there are cases, as this was, where parties are in such position of interest that they ought to . assert their rights, if they do not acquiesce, and from great lapse of time are presumed to have acquiesced.</p> <p>3rd. That the doctrine that the complainants were not bound to assert their rights until the death of D. H. P., when their equitable remainder in fee could be enjoyed, is only applicable where the title is purely reversionary, and no present interest exists.</p> <p>4th. That the children of D. H. P. being entitled by the express terms of the deed to J. O’D., to a reasonable support out of the income of the estate during her life, if needed, it was their duty to look aftertheir rights, and see to it that the fund from which they were entitled to relief in necessity, was kept intact; and that the property was not wasted by breaches of trust on the part of the trustee or trustees having the same in charge. And if a breach of the trust, su.ch as was complained of, was actually committed, upon proper application within proper time, adequate relief would have been afforded.</p> <p>5th. That the diminution of the estate from which the income, in • which the complainants had a continuing and subsisting interest, arose, and the consequent prevention of the increase of the principal by the re-investment of surplus revenues, and the actual decrease of the revenue, was as much an interference with their rights in prmsenti, as the attempted disposal of the fee was to their future rights.</p> <p>6th. That the complainants, therefore, could not excuse, and successfully defend their delay in asserting their rights, on the ground that they were not bound to object, and assert their rights, till their estates in remainder had come into possession.</p> <p>7th. That from all the facts in the case; they must be presumed to have known the true state of the title of J. O’D., D. H. P., and J. C.: and to have fully understood what was done by them respectively with reference to the estate, and from the long delay in asserting their adverse claim, they must be presumed to have acquiesced in what was done, whether the fact be so or not.</p> <p>8th. That under all the circumstances, the delay in instituting proceedings was not sufficiently accounted for or excused, to justify the interference of a Court of equity in their behalf.</p>

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

<p>Sale of a Burial ground under the Act of 1864, eh. 211— What must be shown to authorize such Sale — Case where such Sale teas held not to be Necessary — Such Sale not permitted where it would Divert the lot from the Uses expressed in the Deed of grant — Rights- of the Heirs of the Grantor in case of such Diversion — Right of a Religious Society, when Incorporated, under Art. 40, secs. 157 to 168, of the Revised Code, to a Conveyance of ground, previously conveyed to Trustees for tie use of said Society.</p> <p>On the 17th of November, 1808, a lot of ground in the City of Baltimore, was conveyed by deed to trustees, upon - the trust, that it should “ at all times thereafter be used as a burial ground or place of deposit for the remains of the members of the Society of German Baptists, commonly called Dunkers, and such other persons as a majority of the trustees, residing,” &c., “ might think proper to give permission to be buried therein; and that any house erected, or to be erected thereon, should, and might at all times be used as a place of public or private worship for the said Society, or such other persons as a majority of the trustees aforesaid, residing,” &c., “should think proper.” In November, 1874, a certificate of incorporation, alleged to be of the Society of Baptists referred to, and described in said deed, was acknowledged and recorded under the General Incorporation Act of 1868, ch. 471. On a bill afterwards filed for tile sale of the lot on the ground that it had become unsuitable for burial purposes, and that it was necessary, and would be for the interest and advantage of all the parties interested therein that it be sold, it was Held :</p> <p>That before a decree for a sale of a burial ground under the Act of 1868, ch. 211, the proof must be sufficient to satisfy the Court that such sale is necessary, as well as for the interest and advantage of the parties interested in the place of burial.</p> <p>The lot was enclosed within walls, and was proved to be kept in proper condition. No cause was shown why it was not a suitable place for the burial of the dead, except what was assigned by two witnesses, living in its immediate vicinity, one of whom thought it stood in the way of the improvement of his own property, and the other of whom wished its removal because the sight of it from his chamber window produced disagreeable feelings. Held :</p> <p>1st. That such facts did not constitute such unsuitableness for a place of burial, and such necessity for its removal as were contemplated by the law; and were not sufficient to warrant a sale of it, even for the purpose of investing the proceeds of the sale in other ground, to be held and used as a burial ground.</p> <p>2nd. That in no event had the trustees named in the deed of 1808, their heirs and assigns, or the body corporate formed in 1874, or their successors, any right to have the lot in question sold, and the proceeds of such sale distributed among themselves, or their cestuis que trust.</p> <p>ílrd. That neither the parties to it, their heirs, the cestuis que trust, nor the lot-holders, had any right to divert the lot from the uses expressly declared in that deed.</p> <p>4th. That the fact that a valuable consideration was paid for the grant could make no difference.</p> <p>5th. That the lot must be held and used in strict conformity to the terms of the deed by which it was conveyed, and for the uses therein specially declared. Should it be diverted from those uses, the terms of the deed under which alone it was held, would be violated, and the heirs of the grantor would immediately become re-invested with the title to the lot.</p> <p>The corporation formed in 1874, filed a bill, which was consolidated with the proceedings for the sale of said lot, alleging that the persons so incorporated were the cestuis que trust for whom the lot was purchased and held in trust, and asking for a conveyance of the legal title to said lot from the heirs of the trustees to whom it was conveyed by the deed of 1808. The proof showed that said corporation was composed of German Baptists, commonly called Dunkers, and that they were the same persons for whose use the lot was conveyed to trustees by said deed, and that they were duly and legally incorporated according to the requirements of the Rev. Oode, Art. 40, secs. 157 to 168 inclusive. Held</p> <p>That the corporation was therefore entitled to á conveyance of the lot in question, to be held by it, however, subject to the uses declared by the deed of 1808.</p>

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

<p>Fraud and Undue influence — Mental incapacity — Void deed.</p> <p>Voluntary deed obtained by fraud and undue influence on the part of beneficiaries thereunder, from the grantor, an old man, in feeble health, and whose mind was so seriously impaired as to render him incapable of executing a valid deed or contract, declared void.</p>

The case is stated in the opinion of the Court. The hill was filed hy the appellant against the appellees, and a pro forma decree dismissing the hill and reserving to the complainant the right to appeal, was passed by consent of parties by the Court below, (Dobbin, J.) The complainant 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. The auditor’s account, from the ratification of which this appeal is taken, distributed the proceeds of the sale of the property in question, after the payment of costs and expenses, and claims proven, among the heirs of John Alexander Adams.

The case is sufficiently stated in the opinion of the Court, and in the report of the same case on a former appeal, 50 Md., 235. First Exception. — Stated in the opinion of the Court. Second Exception. — Sufficiently stated in the opinion of the Court. Third, Excerption. — The plaintiffs offered the two following prayers: 1.

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

The case is stated in the opinion of the Court. Two of the three lots, whose surrender is involved in this case, belonged to the heirs of Charles Carroll, deceased, and the infant children of a deceased heiress, and to her surviving husband, as tenant by the curtesy of his deceased wife’s share therein. First Exception — Stated in the opinion of the Court. Second Exception. — The plaintiff offered the six following prayers: 1.

<p>Construction of a Will — Conversion of Realty into Personalty — Request to a foreign Religious corporation — Bequest to a Pastor — Bequest to domestic Religious corporations— Legislative sanction required by Art. 38, of the Bill of Rights — Bequests void for Indefiniteness — Residuary bequests — Residue of a Residue — General legacies.</p> <p>S. D. C. died in June, 1876, leaving a will, executed, on the 2nd day of March, 1870, which was admitted to probate July 11th, 1876, whereby (after making several bequests to friends,) she devised and bequeathed “ all the rest and residue of her estate to her executor, in trust, to sell, and out of'the proceeds to pay the following legacies, to wit: to the Missionary Society of the Methodist Episcopal Church, incorporated by the Legislature of New York, $4500; to the Methodist Preachers’ Aid Society of Baltimore, $4500; to the Home of the Aged of the .Methodist Episcopal Church, of Baltimore, $5000; to the Church Extension of the Methodist Episcopal Church, incorporated by the Legislature of .Pennsylvania, $10,000, to be used as part of the Perpetual Loan Fund of said society, and to bear the name of the “ Durham Loan Fund; ” to the Trustees of the Strawbridge Methodist Episcopal Church of Baltimore, $2000 ; to the Trustees of the United Presbyterian Church of Baltimore, $1000; to her “highly esteemed friend and pastor,” the Reverend L. M. G., as a token of her respect and gratitude, $5000; and to her Executor, $500, to be invested by him, and the interest applied in keeping in order her lot and family vault in Greenmount Cemetery. The will further provided, that should the proceeds of said property when sold and converted into money, be more than sufficient to pay the aforegoing legacies in full, then the surplus should be distributed among all the legatees ratably; but in case the proceeds should be insufficient to pay the said legacies in full, then I direct that the same shall abate ratably. By a codicil,, dated Nov. 30th, 1875, and duly admitted to probate, she directed that $1000 should be paid to the Trustees of the Strawbridge Methodist Episcopal Church, of Baltimore, for the benefit of the Ladies’ Mite Society of the said Church; and a like sum to the Baltimore City Missionary and Church Extension Society of the Methodist Episcopal Church. The Legislature, by the Act of 1878, ch. 56, gave its sanction to these several bequests. The Ladies’ Mite Society was a voluntary unincorporated association; all the other societies were incorporated, either under the laws of this State, or of some other State, some by special Acts, and some under the general incorporation law; and all of them were authorized, by their charters, to take and hold both real and personal estate by gift, grant, devise, bequest or otherwise, up to a certain limit, which would not be exceeded by the allowance to any. of them of the legacy above given. The Church Extension Society, of Pennsylvania, had a fund, known as the Perpetual Loan Fund, which was applied to aid such necessitous Methodist Churches in the United States as a committee appointed by the General Conference might select; and the society allowed any one donating $5000, or more, to the said Loan Fund, to designate the name by which such contribution might be known. The executor converted the estate into money, and the amount realized was insufficient to pay all the legacies in full. In October, 1877, M. A. S. filed her bill, as heir-at-law and next of kin to the testatrix, in the Circuit Court of Baltimore City, asking to have the said several legacies declared void, and the amounts thereof paid over to her. Held :</p> <p>1st. That while a foreign religious corporation may not be able to hold land, or any interest in land, in this State, yet where, as in this case, the will directs á conversion of the realty into personalty, a bequest of the proceeds to such a corporation will be upheld.</p> <p>2nd. That the bequest “ to my esteemed pastor and friend, the Reverend L. M. G.,” being a gift to him in his personal and individual character, and not in his character of minister or preacher, is not within the terms of the 38th Art. of the Bill of Rights, and is consequently valid.</p> <p>3rd. That the power to take and hold property, by gift, grant, devise or otherwise, expressed in the charter of a religious corporation, whether the same be created by express legislative enactment, or formed under the general corporation law, cannot be construed as the sanction by the Legislature required by Art. 38, of the Bill of Rights. The true intent and meaning of that Article is, that the sanction of the Legislature must be expressly given to each particular devise or bequest to render it valid.</p> <p>4th. That such legislative sanction is sufficient if obtained within a reasonable time after the death of the testator; and the rights of the heir and next of kin vest subject to be divested upon the happening of the contingency of the sanction being obtained, nor need the will provide for such sanction. The rules in regard to other cases of executory devises, viz., that they must be made in words of the future tense, and that the will must show the contingency upon which they are to vest, and provide on its face for the contingency happening within the period prescribed to prevent perpetuities, do not apply. •</p> <p>5th. That the bequest to the executor for the purpose of keeping in order the lot and vault of the testatrix is void, as attempting to create a trust which cannot be enforced.</p> <p>6th. That the bequest to the Church Extension of the Methodist Episcopal Church, of Pennsylvania, to be used as part of the Perpetual Loan Fund, is void. As the Perpetual Loan Fund consists of a fund set apart to be loaned to necessitous Methodist Churches in the United States, the bequest becomes a gift, not to the corporation for its own use, but to it as trustee for this class of indefinite beneficiaries.</p> <p>7th. That a bequest to a voluntary, unincorporated association is void, as there is no cestui que trust, who can enforce its execution in equity.</p> <p>8th. That while the rule is well settled, that where a bequest of personal property is void, the property falls into the residue and passes to the residuary legatee, yet, where a portion of the residuary bequest itself fails to become operative, the portion thus failing will not go to increase the other portions of the residuum, as a residue of a residue, but passes to the next of kin as property not disposed of by the will.</p> <p>9th. That in this will, the true residuary clause is the one whereby the testatrix provides for a surplus or deficiency; and not the earlier clause, whereby she gives “ all the rest and residue ” of her • estate to the executor, to be sold, and out qf the proceeds to pay the several legacies.</p> <p>10th. That where there' are general legacies they must be paid in full, and they cannot be called upon to abate in favor of the next of kin on account of certain other legacies proving invalid.</p> <p>(The argument as to whether the Preachers’ Aid Society, and the Home of the Aged of the M. E. Church, are religious corporations, within the meaning of the Bill of Rights, is omitted, as that point is not passed upon by the Court. Rep.)</p> <p>[Argument as to whether the Preachers’ Aid Society is a religious corporation within the meaning of the Bill of Rights, is omitted, because that question was not passed upon by the Court; and upon the bequest to the Rev. Leonard M. Gardner, because its validity was conceded by the counsel for next of kin. Rep.]</p>

<p>Notice of application to Mayor, &c. of Baltimore to Condemn and- 'open McKim street, from Pager street to Hoffman street — Conformity between the Notice and the Ordinance subsequently passed — Construction of sec. 838, of Art. 4, of the Public Local Laws — Sufficiency of the Publication of Notice — Notice may be- given before Application made— Lapse of time betioeen Notice and application — Belay in passage of Ordinance.</p> <p>Notice that “ application will be made to the Mayor and City Council of Baltimore, to open and condemn McKim and Valley streets from Eager to Hoffman street,” &c., sufficiently describes McKim street as the same was ordered to be opened by Ordinance No. 142, subsequently passed, which authorized and directed the Commissioners for Opening Streets, “ to condemn and open McKim street, from Eager street to Hoffman street, as laid down on Poppleton’s Map of Baltimore City; ” and there is a substantial conformity between the notice and the Ordinance.</p> <p>Beference in terms to Poppleton’s Map in the notice, was not necessary. In the absence of anything to the contrary, the notice implied that the proposed extension of McKim street, was intended to be made according to the designation thereof on Poppleton’s Map.</p> <p>The provision in the Code (Public Local Laws, Art. 4, sec. 838,) that, at least sixty days’ notice shall be given of any application for the passage of an Ordinance for the opening of a street in the City of Baltimore, in at least two of the daily newspapers in said city, means that the notice shall be published in two of the daily newspapers of the city, and that a period of sixty days shall elapse after the publication of the notice, before any such Ordinance shall be passed.</p> <p>The publication of a notice that application will be made to the Mayor and City Council of Baltimore, to condemn and open a particular street, in two daily newspapers published in the City of Baltimore, once a week in each paper, for nine consecutive weeks, the date of the first publication being the 24th day of December, 1875, nearly ten months before the passage of the Ordinance to condemn and open said street, is a sufficient compliance with the provision of sec. 838, of Art. 4, of the Code of Public Local Laws.</p> <p>Notice that application will be made to the Mayor and City Council of Baltimore to condemn and open a particular street, may lawfully be given before the application has been made.</p> <p>A notice that application would be made to the Mayor and City Council of Baltimore to condemn and open McKim street, from Eager street to Hoffman street, was published for the first time on the 24th day of December, 1875. The application was made on the 22nd day of May, 1876; and the Ordinance directing the condemnation and opening of said street was approved on the 16th day of October, 1876. Held:</p> <p>'That ‘the lapse of time between the notice and the application, and the delay in the passage of the Ordinance, were not unreasonable, and did not render the Ordinance invalid.</p>

<p>Regularity and propriety of order of Re-sale at Purchaser’s rislt — Propriety of Pinal order of Ratification of a Re-sale— Where party had no right to Complain, even if the Pinal order of Ratification were improvidently passed — Practice in Equity in case of Re-sale at the rislt of the first Pur chaser — Porfeiture.</p> <p>The furniture and other personal property in the Highland Park Hotel, was sold by the appellees to B. for $20,000, and the sale was ratified by the Circuit Court of Baltimore City. The purchaser after payment of five thousand dollars, and having made default in executing notes for the payment of the balance, died; and the appellant took out letters of administration upon his personal estate. She having failed to meet the payments, the Circuit Court on the petition of the appellees, passed an order requiring her to bring into Court the balance of the purchase money, by a day named, or show cause to the contrary. A. copy of this order was served on T., the solicitor of record of the appellant, and no cause having been shown by her, the time for showing cause, was on the 23rd of .March, 1876, extended to the 17th of April of the same-year. No cause having been shown, the Court passed an order on the 16th of May, 1876, for a re-sale of the property, for the payment of the purchase money, with interest, and costs, for one-third cash, and the balance in six, twelve, eighteen and twenty-four months after date, with interest thereon. On the same day the appellees reported a private sale of the property to S. for $12,000, and in their report stated the reasons inducing them to make the sale. The appellant’s counsel was consulted by the appellees as to the propriety of the sale to S., and while he declined to enter into a written consent to the sale, he approved thereof, and stated that no objection would be made thereto. On the same day the sale was ratified without the usual publication of notice to parties to file exceptions. On the 1st of August, 1876, the appellant filed a ^petition, alleging among other things, that the order requiring her-to pay the balance of the purchase money, or show cause to the contrary, had been served on T., then acting as her attorney, but that she did not comply with said order, because she was utterly without means to do so; that the order for the re-sale was passed without further notice to her, and that the report of sale was made, and the sale ratified immediately; and that the order of re-sale was in violation of her rights; she prayed that the sale to B. should be declared null and void, and the order of re-sale rescinded so far as it aifected her, and that the appellees might be directed to pay her the five thousand dollars, cash payment of purchase money made by B. The appellees answered this petition; testimony was taken, and the Court being of opinion that the order of ratification of the-sale to S. should not have been passed without the assent of, or-notice to, the appellant, a day was given her to show cause why the order of ratification should be annulled. Subsequently she-filed a paper stating that it was impossible for her to show any other or further cause why the sale should not have been made at her risk, or at the risk of the estate of B., than already shown. The Court thereupon passed an order dismissing the petition of the-appellant. On appeal from this order, it was Held :</p> <p>1st. That as the petition and the order requiring the appellant to-bring the balance of the purchase money into Court, was served upon her attorney, and no answer to said petition was filed, and no-cause to the contrary shown, nor the money brought into Court as required by the Court’s order, the subsequent order directing the furniture to be re-sold at the risk of the appellant, was regular- and proper.</p> <p>2nd. That as the report of sale was made under oath, the facts therein stated, must, in the absence of proof to the contrary, be taken as true; and assuming them to be true, and upon the assurance of the appellant’s counsel to the appellees that no objection would be made, the Circuit Court did right in finally ratifying the sale.</p> <p>3rd. That if the order of ratification were improvidently passed, the appellant could not rightly complain, as she had a day in Court to show cause for rescinding said order and setting aside the sale; and no attempt was made by her, or any one else, to show that the property had not sold for its full value on the re-sale, or that it would have sold for more, if it had been sold at public sale after full publication, or that there was any other party who would have been willing to pay a larger price; but relying upon the alleged want of notice of the sale, and that it had been ratified without notice to her, she acknowledged that she had no other cause to show why the order of ratification should be rescinded and the sale set aside.</p> <p>Where a purchaser having paid the cash instalment, makes default in the payment of the balance of the purchase money, and the property is resold at his risk, he is to be charged with the whole purchase money, and costs of the re-sale, and credited with the payments he has made and the proceeds of the second sale. If the latter amounts be insufficient to pay the sum for which the property was first sold, the original purchaser is to be charged with the deficiency, but if it amount to more than the original purchase money, he is entitled to the surplus. The application of the cash jxaid as a ei’edit upon the ox-iginal purchase is, in no sense, a forfeiture, as the purchaser is entitled to any surplus which may remain.</p>

<p>Extent in Maryland of Judgment recovered in Pennsylvania— Judgment ■ in Pennsylvania against an Administrator— Action on such Judgment in this State — Appeal.</p> <p>A judgment recovered in Pennsylvania, can have no greater or larger extent or force in this State, than it is entitled to in the State where it was recovered.</p> <p>A judgment recovered in Pennsylvania against an administrator, is not evidence of assets in his hands, belonging to the estate of his intestate.</p> <p>On a judgment recovered in Pennsylvania, against a party in his representative character as administrator, there can be no recovery ’ in this State against such administrator personally.</p> <p>No appeal can be taken from a judgment by a party in whose favor it was rendered.</p>

On December 23rd, 1869, Mrs. S. C. Read executed to E. Wyatt Blanchard, trustee of the estate of Charles Waters, deceased, a mortgage of seven lots in' Baltimore County, to secure the re-payment in eight years, of a loan of $10,000, interest meantime to be paid half-yearly.

<p>Lien on Beal Estate for the Purchase money — When such Lien is discharged — No ground to restrain Mortgagee from, Selling the mortgaged property — Bight of subsequent Incumbrancer to intervene in the proceedings to sell the Mortgaged property, and claim balance of Purchase money, after payment of the Mortgage debt — Parol proof inadmissible to vary the terms of a Promissory note.</p> <p>J. D. oil the 10th of January, 1874, conveyed to his son, A. D., certain real estate for $4000. The son paid $1000 in cash, and for the balance of the purchase money, gave his two promissory notes, one for $400, payable “ twelve months after date, with six per cent, interest,” and the other for $2600, payable “ one year after the death of his mother, with six per cent, interest.” The father died shortly after the execution of the deed, leaving a will by which he appointed his son, M. D., his executor. On the 18th of March, 1879, A. D. and wife mortgaged the property to S. B., to secure a debt of $2000, and on the 21st of the same month, the executor, M. D., filed a bill in which he averred that part of the principal of the note for $400, and interest on the $2600 note, making in the aggregate $820.72, was then due, and he insisted that this purchase money was a lien upon the land. The bill further charged that the mortgage to S. B. was a device to defraud the complainant and the devisees of J. D. out of this unpaid purchase money. The bill prayed that a decree might be passed for a sale of the land for payment of the purchase money, that A. D. might be enjoined from selling or encumbering it, and that S. B. might be enjoined from disposing of her mortgage, and from selling the property thereunder. A. D. and S. B. answered the bill, and proof was taken. There was no evidence tending to impeach the validity of the mortgage or to sustain the charge of fraud; and there was nothing to affect S. B., the mortgagee, with knowledge or notice, at the time the mortgage was executed, that any part of the purchase money for the land remained unpaid, or that there was any claim therefor by the executor of the vendor. The proof showed that the note for $400 had been paid in full, before the bill was filed, and that some payments had been made on the other note. Neither the principal nor the interest of this note, was due or payable until one year after the death of the mother, who was still living. Held :</p> <p>1st. That as between the vendor or his executor, and the vendee, there was a lien upon the land for the unpaid purchase money.</p> <p>2nd. That the mortgagee with respect to her mortgage, was a subsequent hona fide purchaser from the vendee, for value and without notice, and could take the estate discharged of the lien.</p> <p>3rd. That the mortgagee could not be restrained from selling the property under her mortgage, or from dealing with that mortgage as she might see fit.</p> <p>4th. That should the mortgagee institute proceedings to sell the property under her mortgage, it would be competent for the executor, as a subsequent incumbrancer, to intervene in that case, and claim so much of the proceeds of sale as should remain after satisfying the mortgage debt.</p> <p>Where a note is made payable one year after the death of the maker’s mother, with six per cent, interest, nothing being therein specified as to the time when such interest should be paid, parol proof is inadmissible to show that at the time the note was executed, it was the understanding and agreement between the payee and the maker, that the latter should pay the interest annually.</p>

The case is stated in the opinion of the Court. The plaintiffs took thirty-six exceptions. The first thirty-five exceptions are sufficiently stated in the opinion of the Court. Plaintiffs’ thirty-sixth Exception. — The plaintiffs offered the eighteen following prayers: 1.

<p> When a Bill of Exceptions will not be Reviewed on appeal. </p> <p>A bill of exceptions prepared and signed, not only after the expiration of the term at -which the trial was had, but after two other terms had passed, and a third term had begun, and without the consent of the adverse counsel, and the Court not having passed an order extending the time for its preparation, will not be reviewed on appeal.</p>

This was an action brought by the appellee to recover on a note of the appellant, Mary E. Hymer, executed when she was Mary E. Anderson, drawn' payable to said appellee. The note was given for a debt due tbe Baltimore and Ohio Railroad Company, of which the appellee was Treasurer, and taken by the Vice-President of the Company, out of the presence of the appellee.

The case is stated in the opinion of the Court. First Exception sufficiently stated in the opinion of the Court. Second, Third, Fourth and Fifth Exceptions, not passed upon hy the Court. Sixth Exception. — The plaintiff offered six prayers, the third and sixth of which are omitted, as not having been passed upon by this Court; the others are as follows: 1.

The hill of complaint of William A. Moale, executor of William A. Moale, deceased, prayed that an injunction might he issued against Michael Duffy, John J. Griffiss and the Mayor of Baltimore, enjoining them collectively ■and severally, from tearing down or attempting to tear down a certain building erected hy Charles Feutrier, on a lot of ground leased to him for a term of five years, hy the complainant’s testator, and from carrying out or attempting to carry out the…

This was an action of replevin brought hy the appellees against the appellants, to recover' a crop of wheat and rye seeded hy the appellee, Hilleary, during his tenancy of the premises which he held of one John B. Smeising; which crop matured and was cut by the appellant, Paul, after he obtained possession of the premises as purchaser, and after the abandonment of the same by the tenant. The case is further stated in the opinion of the Court.

This action was brought by the appellee against the appellants, and the narr. alleged as follows : First. — Eor that the defendants, who are associated together as co-partners in carrying on and conducting the business of auctioneers in the City of Baltimore, heretofore, to wit: on or about the eighteenth day of November, 1878, contracted with the plaintiff to sell for the plaintiff a certain large lot of goods and merchandise, of great value to the plaintiff, for a price…

<p>Bill to restrain Defendants from interfering with the Team of Complainant in passing over a Turnpike road — Demurrer to Mil — Case of a. Public nuisance — Remedy by Indictment.</p> <p>A bill was filed to restrain tbe individual defendants professing to be officers of a Turnpike company, from doing any act to interfere with or prevent the team of the complainant from passing over the road, which the defendants, professing to constitute the Turnpike company, claimed to hold as a Turnpike road of the company, and to charge and to collect tolls for passing over it. On a demurrer to the bill, it was Held :</p> <p>1st. That if the road in question were a public road or highway over ■which the complainant had a right to travel without obstruction, he had simply made out a case of a public nuisance by the erection of the toll-gate.</p> <p>2nd. That not having shown that he had suffered from it some special and particular damage, different in kind and degree from that experienced in common with other citizens, or that he had suffered, or was likely to suffer, any irreparable injury or damage, he had failed to present such a case as would entitle him. even to a civil action for damages, still less to the protective interposition of a Court of equity.</p> <p>3rd. That the remedy in such case was by indictment.</p>

<p>Appeal as upon Writ of Error, from the Circuit Court for Frederick County.</p>

<p>Attachment on Judgment recovered Prior to the passage of the Act of 1874, ch. 45 — Construction of the Act of 1874, ch. 45.</p> <p>On a judgment recovered by S. against T. on the 8th of April, 1872, for $482.78, an attachment was issued on the 5th of March, 1880, and on the same day laid in the hands of the B. & O. Railroad. At that time nothing was due. T. who was in the employ of the B. & O. Railroad, at a salary of $3000, a year, payable monthly; but between the time of laying the attachment and the time of trial, there had accrued due and been actually paid to T. as salary, the sum of $2250, in monthly instalments of $250. Held :</p> <p>That the Act of 1874, ch. 45, by its express terms, did not apply to the aforesaid attachment, as the judgment upon which it was issued, was recovered long before the statute was passed.</p> <p>By the Act of 1874, ch. 45, which repealed sec. 36 of Art. 10 of the Code, and re-enacted the same as amended, the right of attachment, as against wages or hire, is altogether taken away, unless the debt or judgment upon which the attachment is issued, shall, exclusive of costs, exceed the sum of $100; and the exemption is extended to $100, in those cases in which .the attachment may issue and be levied under the Act.</p> <p>Section 36 of Article 10, of the Code, as it stood before it was amended, and the amendatory Act of 1874, ch. 45, must be read together and construed in pari materia; and as to debts and- judgments existing prior to the passage of the Act of 1874, the exemption is limited to $10, and the right to attach wages or salary of the debtor is restricted to such as may be actually due at the date of the attachment, as provided in the original section of the Code.</p> <p>First National Bank of Hagerstown, Garnishee vs. Weckler, 52 Md., 30, not applicable to this case.</p>

<p>Questions of Settlement and Laches — Limitations—Practice in Court of Appeals on remanding case under see. 28, of Art. 5, of the Code — Standard of liability of Distributees for a Claim against their Testator.</p> <p>The administratrix of E. H. having funds in her hands for distribution, left the State. J. M., one of her sureties, died, and his estate was settled up, and distributed among the persons entitled. A. H., one of the next of kin of E. H., residing in Ireland, sued the remaining surety on the bond, and recovered judgment, upon which a fi. fa. was issued and returned nulla Iona. On a bill filed by A. H. against the distributees of J. M., to compel them to pay her claim, it was Held :</p> <p>That the defences of settlement and laches could not be coupled together so that one might be made to eke out the deficiencies of the other.</p> <p>At law the complainant would have had the clear right to sue, since allowing the thirteen months for the settlement of the estate, twelve years had not elapsed from the time of default made, and the administration bond was still liable to be sued.</p> <p>Ordinarily a party has the same time in equity as at law in which to bring suit.</p> <p>There may be circumstances of peculiar hardship, where a party stands by and allows other rights and interests to attach to the subject-matter, in which a Court of equity will impute laches, even where the statutory period of limitations does not apply.</p> <p>But a party who holds a claim which gives him a fixed time within which to sue at law, and having the full period allowed him in which to commence proceedings, will not be held to a more rigid restriction in equity, especially when the remedy at law has been lost by accident unmixed with the fault of the party complainant.</p> <p>The rights of parties are not to be taken away by irregular and insufficient evidence merely because better evidence is not accessible.</p> <p>As the record disclosed the existence of persons who were residing in the place where the bill was filed, and professing to have authority from the complainant to make the alleged settlement, and as a power of attorney from the complainant was alleged to be held by one of them, and as the cause had to be remanded for further proceedings, the Court, under sec. 28, Art. 5, of the Code. Held :</p> <p>1st. That without affirming or reversing the decree of the Court below, the cause should be remanded, in order to enable the defendants to" take further proof.</p> <p>2nd. That if such proof should not be obtained showing satisfactorily the payment and discharge of the complainant’s claim, she would then be entitled to a decree for the payment of her distributive share of the estate of the said E. H., by the defendants, to the extent of the sums received by them from the estate of the said J. M., (except as to one-sixteenth part waived by the complainant on account of the failure to bring into Court one of the defendants,) and in proportion to the amounts so received by them respectively; and in case any one or more of the sums so decreed to be paid, could not from any cause be collected from any one or more of the defendants, then upon a proper showing the complainant would be entitled to further relief in like manner against the other defendants for the deficiency, to the extent however only of the sums received by them respectively.</p>

<p>Pleading and Practice in Criminal cases — Construction of sec. 24, of Art. 30, of the Code, relating to Forgery — A cheelc on a Panic held, to be a bill of Fxehange within the meaning of said section — Forging an indorsement — Amendment of an Indictment — Act of 1862, eh. 80 — Indictment for Forgery.</p> <p>Where there is no demurrer to an indictment, the question whether the act charged is a felony for which the accused may be sentenced to the penitentiary, is not so presented as to warrant its being considered by this Court upon writ of error.</p> <p>A check drawn on a bank is a bill of exchange, and the forgery of the endorsement thereon is a felony, and punished by section 24, of Art. 30, of the Code.</p> <p>An indictment is a finding by a grand jury upon oath, and it cannot, except in cases where the law has specially authorized such proceeding, and in matters of form which are not matters of substance, be amended by the Court without the concurrence of the grand inquest by whom it was presented.</p> <p>In matters of form, however, which are not matters of substance, an amendment may be made by the Court or under its direction at any time before the commencement of the trial.</p> <p>By the Act of 1860, ch. 80, it is provided among other things that it shall be sufficient in any indictment for forging any instrument whatever, “ to allege that the defendant did the act with intent to defraud, without alleging the intent of the defendant to be to defraud any particular person, and on the tiial it shall not be necessary to prove an intent on the part of the defendant to defraud any particular person, but it shall be sufficient to prove that the defendant did the act charged, with an intent to defraud.” Held :</p> <p>That under this Act the allegation in an indictment that the forgery was committed with intent to defraud K., the cashier of the H. Bank, was unnecessary or mere surplusage proper to be disregarded. And allowing it to be stricken out was clearly an amendment in mere matter of form and not of substance.</p>

The appellant was indicted for a larceny of cattle, alleged to have been committed by him on the 21st day of August, 1880.

<p>Appeal from the Orphans' Court of Baltimore County.</p>

<p>Competency of a party to a Contract to Testify, where the Assignee of the other party to the Contract is Dead — Principal and surety — Set-off—Admissibility of parol Evidence to show that the principal Debtor on the face of a Mortgage made by two persons, was in fact the Surety of the other Mortgagor — Incompetent witness — Effect of rejection of a claim by the auditor — Practice in Equity.</p> <p>A mortgage was made by E. NT. S. and Ms wife of the separate estate of the wife. The mortgagee assigned the mortgage to M., who afterwards died. After the death of M., A. as trustee of her estate, advertised the mortgaged property for sale under a power of sale contained in the mortgage. On a bill filed by the mortgagors against the trustee, to have certain claims of E. N. S., the husband, against the estate of M. set off against the mortgage debt, it was Held :</p> <p>1st. That M. not being a party to the original mortgage contract, her death did not render the husband incompetent as a witness, to prove that the mortgage debt, while purporting on its face to be a loan to the wife, was in fact a loan for the use and benefit of the husband.</p> <p>3nd. That it did not contradict the mortgage to show, that although the money was lent to the wife by the mortgagee, yet as between her, and her husband, he was the one beneficially interested in securing the money, and she was, therefore, but his surety, and that an equity therefore arose, to have Ms money applied in payment of the mortgage debt.</p> <p>3rd. That this was entirely collateral to, and independent of, the contract made by the mortgage, and in no way impaired or contradicted it, and was therefore admissible.</p> <p>4th. That treated as the debt of the husband, he had a right to have the debt due by his creditor set off against the debt due by him and his surety.</p> <p>5th. That this application of set-off was not in conflict with the law protecting the property of the wife from the debts of the husband.</p> <p>One of the claims sought to be set off against the mortgage debt, was a bill for medical services rendered M., and paid by E. hi. S. This claim had been presented by E. 1ST. S. against the estate of M., and was disallowed by the auditor. Held :</p> <p>1st. That E. ÍT. S. was not a competent witness to prove this claim,, the party against whose estate it was made being dead.</p> <p>2nd. That the rejection of this claim by the auditor was not conclusive, there not appearing to have been any order of Court rejecting it, and it being omitted from the account of the auditor simply for want of proof.</p> <p>3rd. That the claim was still a valid and subsisting cause of action, and capable of beiug pleaded as a set-off, and if sustained by proof should be allowed. And the complainants should, therefore, be allowed to take further proof in support of the claim.</p> <p>The defendant claimed that E. N. S. individually owed the estate of •M., a sum greater in amount than the two claims sought by him to be set off against the mortgage 'debt, and, that said claims of E. ÍT. S. should be set off against his individual debt, rather than against the mortgage debt. Held :</p> <p>That the said individual debt of E. N. S. was not the subject-matter of a suit in this cause, and the principle of set-off is only applied where a suit is brought to recover the debt to which the set-off is to be applied.</p> <p>There is no such thing as a set-off to a set-off.</p> <p>The power a party has to make an application of his claim of set-off to any debt in suit, is like his power to apply the payments he makes to any debt he chooses; and it has never been thought censurable for a principal to apply his payments first to the relief of his sureties.</p> <p>Where a claim is rejected by the auditor for want of proof, the practice is to allow further time for proof before final rejection.</p>

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

<p>Appeal — Whether an order referring a case to the Auditor was Pinal or interlocutory — Pffect of an unrecorded Mortgage as against Subsequent creditors icitho'ut notice — Constructive notice — Principal and surety.</p> <p>The real estate of J. H. deceased, being less than $3500 in value, was sold under a decree of the Orphans’ Court at the suit of creditors of the deceased. Among the claims filed were, 1st. A mortgage from the deceased to J. R. dated May 6th, 1864, not recorded until February 22nd, 1868. This mortgage was assigned April 1st, 1874, to P. L. and by him to E. N., October 30th, 1877. 2nd. A single bill, payable to the same J. R., dated April 1st, 1874, made by J. N. as principal, with two sureties. This single bill was paid by S. L., one of the sureties, September 15th,. 1880. A part of the purchase money for the land being in the hands of the trustees for distribution, the auditor stated an account by which the whole net balance was distributed to the assignee of the mortgage, being less than his claim. It was admitted the mortgage was not withheld from record with any fraudulent intent, and also, that the other creditors had no notice of the mortgage till the filing of the bill in this cause. Upon exceptions to the audit, the Orphans’ Court delivered an opinion and ordered, adjudged and decreed that the distribution in favor of the mortgage claimant be set aside, and further ordered a distribution pro rata among the creditors of the deceased ; and referred the case to the auditor to make distribution according to said opinion and decree. On appeal, it was Held :</p> <p>1st. That the order of the Orphans’ Court was not merely interlocu- • tory, but was, in its nature, a final order. It was in form a1 judgment or decree deciding and settling the very matter in controversy between the parties, and determining the question of right in issue in the cause. And from such an order or decree an appeal properly lies.</p> <p>2nd. That the mortgage having been placed upon record after the lapse of the time prescribed by law, and without any order or decree of a Court of Chancery for that purpose as prescribed by the Code, Art. 16, sec. 23, the registration of the paper could not have the effect of constructive notice to subsequent purchasers or creditors; as to them it must be considered as an unrecorded mortgage.'</p> <p>3rd. That the rights of the sureties of J. H. on the single bill, were not affected by the fact, that the creditor at the time the debt was contracted, held an unrecorded mortgage of the principal debtor, of which the sureties were ignorant.</p> <p>4th. That S. L., the surety, by whom the single bill was paid, was . entitled to claim distribution with respect to the amount of the single bill, pari passu with the debt secured by the mortgage.</p> <p>The implied obligation of the principal to indemnify his surety, springs up at the time the relation is entered into, and is consummated when the surety has paid the debt. And his claim against the principal relates back to the time when the debt was contracted.</p>

e Circuit Court of Baltimore City. The case is stated in the opinion of the Court. The decree passed by the Court below, (Dobbin, J.,) and from which this appeal is taken, provided that unless the complainant’s claim was satisfied, the deed impeached by the bill should be set aside, and property conveyed by it, sold for the payment of said claim.

<p>What constitutes a sufficient Compliance with section 13, of Article 5, of the Code — Insufficient grounds for setting aside Sale made by Trustee in Insolvency — Right of Trustee in Insolvency to Appeal from order Setting aside Sale made by him — Order proper in the case.</p> <p>A statement by tbe Court in its opinion, in proceedings in insolvency, of its reasons for setting aside a sale made by tbe trustee of tbe insolvent, is a sufficient compliance with section 13, of Article 5, of the Code, requiring the Court in such proceedings, where an appeal is taken from its judgment or order therein, to certify the questions decided. A further statement after appeal taken, would be superfluous.</p> <p>In pursuance of an order of the Circuit Court, duly passed, A., the trustee, sold the property of B., a petitioner for the benefit of the insolvent laws, and upon a report of the sale to the Court, the same was ratified nisi. The order nisi was duly published. The purchaser, who was a creditor of the insolvent petitioner, filed his petition, alleging that he believed that at the time of the application of B. for the benefit of the insolvent laws, he was desirous of paying his debts, and that since such application, he had paid the petitioner, save only a balance of fifteen dollars, wherefore he prayed the Court to refuse to ratify the sale, to the end that B. might save to himself his property, together with the costs of the sale, and have further opportunity to settle with his creditors, most of whom had already consented to his withdrawing his application. B., by his petition, objected to the ratification on the ground that he was misguided, and misapprehended the nature of the Insolvent Act when he made his application — that before the sale, he petitioned to have the sale postponed, to enable him to arrange with his creditors ; that all his creditors had consented to his withdrawing his petition; that he understood through his attorney that the trustee had stated to Judge P., that no sale would take place on the day appointed, to give the petitioner opportunity to arrange with his creditors; that the property did not bring half of its value. A., the trustee, denied the alleged grounds of objection. A commission was issued, and testimony was taken thereunder. The Court set aside the sale reported, and suspended the further sale of the property until the insolvent had obtained the consent of all his creditors to the withdrawal of Ms application, and the restoration to him of his property, and time was allowed for the purpose. The Court said that while it would not set aside the sale on the proof of inadequacy of consideration alone, it would so order, as in connection therewith, it appeared that the purchaser was asking to have the sale set aside, in order that the insolvent might have time to arrange with his creditors, and that it also appeared that most of his creditors had already agreed thereto. On appeal by the trustee, from the order setting aside the sale, it was Held :</p> <p>1st. That the reasons for setting aside the sale were insufficient. The purchaser had signed the memorandum of sale, and w'as bound for the price he agreed to give for the property; and none of the creditors had complained that the price was inadequate.</p> <p>2nd. That if the order had only suspended the final ratification of the sale for the period named, to give the petitioner an opportunity to secure the consent of his creditors to the withdrawal of his petition, and the re-conveyance to him of the property, such action would have been unobjectionable.</p> <p>3rd. That the creditors had a vested interest in the prbperty, through the trustee and the sale that was effected, and their rights ought not to have been jeoparded, by subjecting them to possible loss, by the expenses of a new advertisement, and a new sale, and the possible sale for a less sum.</p> <p>4th. That the trustee representing the creditors, and also personally interested as a bonded trustee, with right to fair compensation for his services, had an undoubted right to appeal.</p> <p>5th. That if the creditors were paid by the petitioner, or consented to the dismissal of the proceedings, and the re-conveyance to him of the property, the Court, could, with the consent of the purchaser, properly discharge the trustee, and order such re-conveyance, making, however, due provision for the payment to the trustee, by the purchaser, or by the insolvent petitioner, of such necessary expenses as he was subjected to in making and defending the sale, and such compensation by way of commissions, if any, as under all the circumstances the Court might see fit to allow, as a condition precedent to such re-conveyance, &c.</p>

<p>Sabbath-breaking — Indictment under the Act of 1866, ch. 66— Good indictment.</p> <p>An indictment under the Act of 1866, ch. 66, charged the traverser with unlawfully selling a quantity of spirituous liquor, not less than a pint, to a particular person named, on the 4th day of July, 1879, “the same day in the year aforesaid, being the Sabbath day, commonly called Sunday.” It was objected by the traverser that the indictment was fatally defective, because of the averment, that the 4th day of July of the year, 1879, on which the sale of the liquor was alleged to have been made, was Sunday, whereas in fact, as the Court was judicially bound to know, the 4th day of July of that year was Friday. Held :</p> <p>That the gist of the offence being the sale of the forbidden article on Sunday, the day of the week, rather than the day of the month, was the material averment in respect to time; and the indictment charging the offence to have been committed on Sunday, though the day of the month it named, did not fall on Sunday, was sufficient.</p> <p>Where the offence consists in doing a thing on Sunday, the indictment will be good if it charge the unlawful act to have been done on Sunday, though the day of the month given in it falls on some other day of the week.</p>