Volume 57 — Maryland Reports

<p>Public Nuisance — Injunction against. One of Many Contributors to a Nuisance — Proceeding against All the Contributors together■ — Prescription—Remedy against a Nuisanee — Damages — Slaughter-houses.</p> <p>An injunction was prayed by the owner of a flour mill on a stream, against the owner of a slaughter-house above on the same stream, to restrain the latter from letting flow down the stream into the mill dam and thence into the mill race, blood, offal and other matter from slaughtered animals, on the ground that such acts created a nuisance by rendering the water offensive and depriving the air of its purity, thereby injuring the health of the mill operatives, lessening the value of the mill property, and depriving the complainant of its comfortable and reasonable enjoyment. It appeared that the defendant was one of many who contributed to create the alleged nuisance, there being other slaughter-houses, breweries, soap and other factories, and cattle scales, from which flowed filth and refuse, with the occasional addition of dead animals and offal and other offensive matter from other sources, the blood being the principal contribution from the defendant’s slaughter-house; and that the mill had been in use for more than twenty years before the slaughter-house was erected; and that the pollution of the water had been gradually growing worse for some eight years before suit was brought. Hkt,d :</p> <p>1st. That the defendant was entitled to the relief prayed; and that he would be entitled to the same relief against all those contributing to the nuisance, and if it should not cease upon the granting of the injunction in this case, he would be entitled to join in one case all who continued the injury.</p> <p>2nd. That the wrong complained of amounted to a public nuisance-for which there could be no prescription.</p> <p>The remedy in equity to prevent a nuisance is generally said to exist,, whenever the nature of the injury is such, that it cannot be adequately compensated by damages, or will occasion a constantly recurring grievance. Especially is an injunction the only effectual remedy, when the injury is caused by so many that it would be difficult to apportion the damage, or say how far any one may have contributed to the result, and so damages would likely be but. nominal, and repeated actions, without any substantial benefit, might be the result.</p> <p>Slaughter-houses are prima facie nuisances.</p>

<p> Admissibility in Evidence of Declarations of the Mother on a Trial of an alleged Abductor of her Children. </p> <p>At the trial of the appellant indicted for forcibly abducting minor-children of one McK., and for persuading and enticing the children away from the father, the State produced as a witness J. McK. a son of McK., (not one of the children alleged to have been abducted) ■who testified, that in August, 1880, his mother was living, with the said children in the mountains, above Clearspring, in Washington County, and his father was temporarily absent in Montgomery County, engaged at work, leaving his family at his house; that, during the absence of his father, the prisoner came to the house, and, brandishing a revolver, said to witness, and his mother, that he was going to be boss now for awhile; that the prisoner then loaded the furniture in the house, on a wagon belonging to the father, and harnessed the horse thereto, and against the wishes, and in spite of the remonstrances, tears and crying of the mother, about 11 o’clock at night, made her and the children go with him, and drove away the horse and wagon, that his mother said she did not want to go away, but was compelled to do so through fear of the prisoner, who was armed with a revolver; that they went down the road passing several houses named, and came to H’s, where they remained over night; that the wagon broke down on the road, and they walked then to H’s; that on the way the prisoner said, that he would shoot Mrs. McK. and witness if they tried to go back or run away. The State also called the husband and father, who testified to being away at the time; and among other things, that he had written to his wife sometime before, that if she had more pigs than she needed, she could, sell some. The prisoner called S., who testified, that she was living at the time with Mrs. McK. as a servant; that two days before Mrs. McK. and the children left home the prisoner came to the house and bargained with Mrs. McK. for-two pigs, and went away leaving the pigs; that on the morning Mrs. McK. went away, she and her son, J. McK., the witness for the State, about 6 o’clock in the morning, commenced to load the .wagon with the furniture and harnessed the horse to the wagon; that after the wagon was loaded and the horse harnessed to it, the prisoner came along and asked Airs. McK. about the pigs he had bought, and she told him that the pigs were on the wagon, and if he would drive the horse down the mountain for her, the pigs would be hauled on the wagon; the prisoner then drove the wagon away from the house with Mrs. McK. and the children. The prisoner then produced Mrs. 11., and offered to prove by her, that when Airs. McK. and the children came to her house, about ten miles from AIcK’s house, in the evening, Mrs. McK. told witness that she had made up her mind not- to live with her husband any longer, and had left home and taken with her, her children, and liad gotten the prisoner to drive the wagon, and that the prisoner drove it at her request,, and also that she declared these, things to the witness in the absence of the prisoner; to which offer the State objected (the said Mrs. McK. being alive and residing in Washington county, within reach of the process of this Court,) which objection the Court, below sustained, and refused to allow the testimony to go to the jury. On exception, it was Held:</p> <p>'That the testimony was admissible.</p>

This is an appeal from, a decree of the Circuit Court of Baltimore City, passed on the 21st June, 1880, directing the appellant to issue and deliver to Wm. Hollingsworth Whyte, guardian of Frederick M. Ketchum, Junior, as a replacement, certain certificates of the loans of the City ■of Baltimore, amounting to $19,500, on the ground that they had been wrongfully cancelled by the officers of said ■city, and for the payment of arrears of interest thereon.

This appeal is taken from a pro forma decree of the Court helow, passed the 1st April, 1881, enjoining the -appellant from taking any steps to collect municipal taxes ■assessed and levied upon the shares of the capital stock of the appellee, a corporation of the State of Maryland,for the years 1879 and 1880.

The ease is stated in the opinion of the Court. The special damage laid in the declaration was as follows: And the plaintiffs say: That they had business dealings with certain merchants in JSTew York, doing business under the style of Burgess & Goddard, and the plaintiffs enjoyed good credit with them, and were indebted to them in a large sum of money, and the plaintiffs liad sent them their promissory notes for the amount of said indebted- ' ness, payable to the order of…

The case is stated iu the opinion of the Court. The receipted bill of parcels and contract mentioned in the opinion were as follows : Mitkiewicz, Cooke & Co., Wholesale and Retail Dealers iu all kinds of Coal. Office 39 Post-Office Ave. R, R. Yard, Cathedral Street, near Biddle. TermsCash. Baltimore, Jany. 19th, 1880.

The case is stated in the opinion of the Court. It appears from the record, that after the execution of the deed from William Key Howard to Catharine E. Lee on the 7th February, 1859, William Key Howard married again, and that he has had children by his second wife, and that he, his wife and children are now1 alive.

This is the second appeal in the matter of issues involving the validity of the will in controversy in this ■case ; the first appeal is reported in 50 Md., 466.

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

<p> What Proceedings stayed, pending an Appeal by an Administrator from an Order of an Orphans1 Court, Revoking his Letters. </p> <p>Pending an appeal by an administrator from an order of an Orphans’ Court revoking his letters of administration, the appellant remains the administrator. Any proceeding in the Court below, which displaces him pending such appeal, and takes the funds of the estate from his hands is unwarranted; and such a proceeding is not justified by sec. 74, of Art. 71, of the Revised Code.</p>

The case is stated in the opinion of the Court. The third, fourth, fifth, and sixth pleas of the appellant referred to in the opinion are as follows : And for a third jdea: That said plaintiff, before the institution of this suit, to wit: on the first day of August, in the year 1811, in accordance with the constitution and by-laws of said defendant, appealed from the refusal of the defendant to pay to him said weekly sum of $3 during his sickness, in said declaration…

The appellant was indicted in the Criminal Court of Baltimore, for forging an order for the payment of money purporting to he signed p. p. J. Harmanus Fisher, H. A. Orrick, and to be drawn upon the Merchants' National Bank, payable to the order of George W. Kimball, and to he dated at Baltimore on the 16th July, 1880, and to he endorsed by George VY.

<p>Pleading — Action by Husband and Wife for Slanderous Words spoken of Wife — Defective Conclusion to the .Declaration — ■ Motion in Arrest of Judgment — Clerical Mistake.</p> <p>An action for slanderous words spoken of a wife must be brought by the husband and wife jointly; and the claim for damages must be made in behalf of them, as plaintiffs.</p> <p>A. declaration in an action for slanderous words spoken of the wife brought by the husband and wife concluded, “ to the great damage of the plff., and the plaintiff claims $10,000 damages.” The verdict being for the plaintiffs, the defendant moved in arrest of judgment. Hhlu:</p> <p>That the motion should not prevail, as the word “plaintiff” for ‘•plaintiffs ” was a mere clerical mistake in the pleader.</p>

The case is stated in the opinion of the Court. Exception. — At the trial, the defendant offered one prayer (stated in the opinion;) which the Court (Gilmor, J.) granted, the plaintiff excepted, and the verdict and judgment being for the defendant, the plaintiff appealed.

<p>Appeal from the Circuit Court for Carroll County, in Equity.</p> <p>The case is stated in the opinion of the Court. The case of Main and MoKellip, Gam. vs. Lynch referred to in the opinion, is reported in 54 Md., 658.</p>

The case is stated in the opinion of the Court. Exceptions. — At the trial, after the taking of the six exceptions, the substance of which is stated in the opinion, the plaintiif offered the following prayers : 1.

<p>Practice in the Orphans' Court — Petitions to have an Order annulling a previous Order admitting a Will to Probatey Set Aside on the ground of Fraud in its Procurement— Jurisdiction of the Orphans’ Court — Administration Pendente Lite.</p> <p>Petitions were filed by the appellants (not within thirty days after having first learned of the facts therein stated,) in the Orphans’ Court of Cecil County, each asking the Court to set aside and annul a former order of the Court passed on the 14th October, 1873, whereby the order of that Court previously passed, admitting the will of E. M. to probate, was annulled, the will set aside and the letters testamentary of the appellee were revoked. The petitions under oath alleged, by various and specific charges, that the order sought to be set aside and annulled was procured by fraud, collusion and deceit practiced upon the Circuit Court for Cecil County and the jury in that Court, and upon the Orphans’ Court, whereby a verdict upon certain issues of fact affecting the will of E. M. was procured without evidence and by consent and collusion, contrary to the facts as they existed, by which means the Orphans’ Court was imposed upon, and was induced to pass the order of the 14th October, 1873. The appellee by his answer under oath denied the allegations of the petitions and averred other facts and circumstances inconsistent therewith. When the case came on for trial the petitioners offered to prove by competent testimony the allegations of their petitions, the appellee excepted, and as if by demurrer, to the admissibility and competency of the testimony, on the ground of want of jurisdiction in the Orphans’ Court: 1. Because the peti-</p> <p>• tions were not filed within thirty days after the 13th September, 1880. 2. Because H. S. M. and E. R., who were of the caveators in the proceedings in the Circuit Court, were not made parties to the proceeding in the Orphans’ Court. 3. Because the Orphans’ Court had no jurisdiction to set aside their judgment of the 14th October, 1873, upon the case made by the petitioners, because it was based on the1 verdict rendered in the Circuit Court, which, not being set aside by that Court, remained of binding force on the Orphans’ Court. It was further objected, by the appellee, (admitting the Orphans’ Court had jurisdiction,) that the petitioner If. II. had no standing to assail the order of the 14th October, 1873, because his only interest was that of creditor of the estate, and he had no interest or rights in the question of the validity or invalidity of tiie will; and further, that in this case the petitioners should be held to the strictest rules of pleading and the same test of sufficiency should be applied to their petitions as is applied to a bill for an injunction where demurrer is interposed. The Orphans’ Court dismissed, without heaving the proffered evidence, the petitions of the appellants. IImTjD:</p> <p>1st. That, this case being considered as if on demurrer without reference to the answer, the Orphans’ Court on Hie allegations of Hie petitions, liad jurisdiction to hear and determine their complaint; that the limit of thirty day s within which to begin proceedings, (by analogy' to the period within which appeals are to be taken.) did not apply to this case, in which fraud of a gross character was alleged; and a reasonable time for necessary investigations and preparations was allowable to the petitioners.</p> <p>2nd. That the fact that H. 8. M. and li. R., non-residents of the ¡State, were not made parties to the proceeding, did not affect the jurisdiction of the Court,, as they were original parties in the proceedings assailed, caveators, and applied for the issues to the Circuit Court, and under the circumstances were not entitled to especial notice, and should be held to be in Court to defend the proceeding instituted to set aside the judgment they had procured.</p> <p>3rd. That the jurisdiction of the Orphans’Court to act in this case was not affected by the proceedings in the Circuit Court, as the verdict contemplated by the law was not such a verdict, as was alleged to have been rendered in'that Court, without any evidence whatever upon any of the matters at issue, but by simple consent of [>an,ies charged to have colluded to procure it, and without any act ual contest; and if the verdict was procured in the way alleged, it was void and not binding on Hie Orphans’ Court, and that Court; had a right to enquire into the alleged fraud.</p> <p>tth. That IT. M. had no standing to assail the order of the 14th October, 1873, if lie were only a creditor of the estate, as ho should have some interest, under the will to give him standing in Court to contest or defend it, but as it did not appear from his petition that he had renounced the trust to him under the will, he should be held to have such an interest as entitled him to appear and contest the will, so far as appeared on this appeal. If it should appear hereafter, that H. M. had renounced the trust, and divested himself of the title, &c., it will be the duty of the Orphans’ Court tq dismiss his petition; that the other petitioners being legatees under the will, had standing in Court.</p> <p>5th. That the strict rules' of pleading practiced in other Courts should not be applied in the Orphans’ Court, and pleadings should be taken in that Court to import what common sense would understand by them; that enough was stated in the petitions to entitle the petitioners to a hearing and to warrant the relief prayed for, if the Court should find the allegations sustained by proof.</p> <p>The appellants petitioned the Orphans’ Court for the appointment of an administrator pendente lite. Held :</p> <p>That the same was properly dismissed, as the Orphans’ Court was not authorized by Art. 93, sec. 68, to appoint an administrator pendente lite in this matter, as the will of E. M. was not before the Court on contest.</p>

<p>Proceeding to have a Deed, Set Aside — Failure of Proof of Fraiul — Evidence of Eon-Payment of Consideration in Peed — ■Inadmissibility of Parol Fvidenee of other hind of Consideration than that stated in Peed — Vendor’s Fien.</p> <p>T. signed a deed for a house and lot, stated therein to be for a money consideration, to C., and afterwards flled a bill in equity to have the deed set aside on the ground of fraud and imposition in its obtention, which allegation was not sustained by the testimony taken. It was shown, that no money consideration was paid, but that there was an agreement in parol between the parties, that O. was to board and lodge T. in the house, and pay the taxes and other expenses on the property. Hist.d :</p> <p>1st. That the deed having been executed by T. voluntarily and with knowledge of its contents, it could not be set aside; but that it not being competent for the parties to prove another kind of consideration than that stated in the deed, T. was entitled to recover the money consideration with interest thereon; and to a vendor’s lien upon the property for the same.</p> <p>Snd. That the bill should ho retained to enable T. to assert this claim under the prayer for general relief.</p>

The case is stated in the opinion of the Court. Exception. — At the trial, the plaintiff, .to sustain the issues on its part, offered evidence, the substance of which is stated in the Court’s opinion. And proved by H. W. Hoffman, attorney at law, that he assisted the regular attorney of the Commissioners, Mr. Cox, at the last trial of said case; that the Commissioners paid him $100 for his services, which was reasonable and proper compensation.

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

This was an action upon the testamentary bond of Samuel Hart, late executor of Arthur McCourt, brought by the administrator d. 5. n. c. t. a. of McCourt against the executrix of Hart, for the recovery of a sum of money, alleged to have been collected by him as executor of McCourt, but not accounted for or distributed. McCourt died the 1st July, 1857, and Hart qualified as executor-on the 7th of the same month. Hart died January 1st, 1879.

The case is stated in the opinion of the Court. Exceptions. — At the trial the facts stated in the opinion were admitted. The defendant, Lambrecht, then offered to prove that Sidney C. Long was insolvent as stated in the opinion, and evidence to this effect was offered subject to the exception of the plaintiff, as follows: That at the time he took out letters, Sydney C. Long was largely indebted and unable to pay his debts, some of which were judgments and could not be made.

The case is stated in the opinion of the Court. The assignment of errors in this case was as follows: 1.

Appeals from the Circuit Court for Allegany County, in Equity. The case is stated in the opinion of the Court. The previous contention of the Consolidation Coal Company and the Cumberland and Pennsylvania Railroad Company, with the Pennsylvania Railroad Company in Maryland, is-reported in 55 Md., 158.

- The case is stated in the opinion of the Court. Exception. — At the trial, after the testimony, summarized in the opinion, had been given, the plaintiff offered the following prayers : 1.

This was an action brought against the appellees, Sheriff of Cecil County, and his sureties, to recover damages for an alleged i-efusal by the sheriff, to allow the equitable plaintiff, (now appellant,) the exemption to which he alleged he was entitled under the Act of 1861, ch. 7.

<p>Pleadings — Evidence in a Suit on a Single Bill, for the use of an Equitable Plaintiff, against an Endorser — The Endorser of a Sealed Bill, not a, Drawer — Eorm of Action.</p> <p>By the first count of his narr., L. S., for the use of E. S., sued H., for that on tho 1st April, 1872,1. Z. S., by his single bill then overdue, promised to pay to the order of the plaintiff $100, with interest, for value received, twelve months after date; and the defendant at the time of making said single bill, and before the delivery thereof to the plaintiff, for value received, endorsed the same in writing, and the plaintiff for value received, endorsed in writing said single bill to the said E. S., the cestui que use and equitable plaintiff, and the defendant thereafter promised to pay the said single bill to the equitable plaintiff, but did not pay the same. The second count of the narr. alleged the making of the single bill by I. Z. S., to L. 8., the endorsement by L. S. in writing of tho same to E. S., for value received, and that the defendant endorsed said single bill in writing, and guaranteed for value received, the payment thereof to the said E. S., but did not pay the same. The third count was the same as the second, only adding a demand and refusal to pay. The defendant pleaded that ho was never indebted, and never promised, as alleged. The plaintiff at the trial offered the single bill and endorsements, and offered to prove in connection therewith, the signatures and names thereon, and that at the time of the execution thereof, and before delivery of the same to the payee, the defendant signed his name on the back as it appeared; and further to prove that the payee for value received, assigned tho same to the equitable plaintiff; and also that after-wards, on demand, the defendant had paid a part of the single bill, and promised to pay the balance. The defendant objected to this evidence as offered, and the Court below sustained the objection. On the exception of the plaintiff, it was Hjhvd :</p> <p>That the ruling of the Court below was correct, as the evidence offered did not support the suit as brought.</p> <p>The. endorsement of a sealed bill does not make the endorser a drawer. In such case the right of action is confined to the distinct, and collateral contract which the endorsement creates.</p> <p>In actions upon contracts under seal and inter partes, (except where-the statutes for assignments give a different right,) the suit must be brought by a party to the instrument, although it be for the benefit of some one else mentioned in the instrumentas a beneficiary-under it. In a matter of simple contract, a promise to one for the-benefit of another, may be enforced by the person for whose benefit the promise was made; and unless the promisee has some beneficial interest himself, he cannot maintain the suit. In such case, the suit is brought by the person beneficially interested; arid the nasr. alleges the promise to be to him; and the proof that it was made-to another for his benefit, is admitted to support the declaration.</p>

<p>Ascertainment of the Will 'of Hie, Voters in the matter of Local Option in Prince George's County under the Act of 1880, eh. 82 — Exceptions to Evidence, in a trial for Violation of that Act — Practice under the Law allowing Appeals in Criminal Gases — Dismissal of such an Appeal.</p> <p>At the trial of the appellant, indicted for a violation of the Act of 1880, cli. 83, entitled an Act to enable the qualified voters of Prince George’s County to determine by ballot whether spirituous or fermented liquors, or alcoholic bitters shall be sold in said county, the State, for the purpose of showing that the Act of 1880, ch. 83, was the law governing the sale of liquors in Prince George’s County, offered in evidence the returns from the several election districts of said county, made by the judges of election to the Clerk of the Circuit Court for Prince George’s County, under the provisions of sec. 3, of that Act. It also offered in evidence for the same purpose, the proclamation of the Clerk of the Circuit Court for Prince George’s County, made under the authority of the same section, showing that a majority of the votes in said county had been oast against the sale, in said county, of spirituous or fermented liquors, or alcoholic bitters. It proved by the said clerk, that the proclamation, thus offered in evidence, though it purported to be a copy, was the original proclamation, issued by him from his office, and how it appeared to be certified as a copy, was duly explained. The appellant objected to this testimony ; but the Court below overruled his objection, and allowed the said proclamation to be read as evidence in the case. Held:</p> <p>That this was competent evidence and was properly admitted.</p> <p>The State further offered in evidence copies of the county papers containing the proclamation, together with the testimony of one of the editors touching the publication thereof. The appellant objected to this testimony, but the Court below overruled his objection, and admitted the proffered proof. Held :</p> <p>That this ruling wras correct.</p> <p>The appellant, in support of his plea of not guilty, desired to show that the law had not been duly accepted by the qualified voters of' the county and was not in force; and offered to prove, (by way of ■ showing fatal irregularity in the election,) by the sheriff, that notice of said election was.not posted in one or more districts; and that the poll-books of one district were not delivered at the-polls of that district until one o’clock, p. m. of the day of election; and that voting in that district did not begin until that hour. The Court below refused to permit this testimony to be offered, and the appellant excepted. Held :</p> <p>That this ruling was clearly right; for until in some legitimate and conclusive way the election were declared void, or the result of it were 'changed, the certificate of the judges of election and the proclamation of the clerk were conclusive of the question.</p> <p>Where in an appeal under the Acts of 1872, ch. 816, and 1878, ch. 40, allowing appeals in criminal cases, it appeared, that the case-was tried on the 9th April, and the verdict and judgment were entered the same day, and the traverser was fined as the law required; and the exception, which had been noted at the trial,, was not signed by the Court till the 21st June afterwards, and the appeal was not prayed nor affidavit made'till the 25th June, it was Held ;</p> <p>That the appeal must be dismissed, as the bill of exceptions should have been tendered and signed before the judgment had been entered, and as soon after the verdict as was reasonably possible ; and that the failure to do this, was a waiver of the exception noted, which was not sufficient notice of an intention to appeal, and the Court below was justified in proceeding to judgment and sentence.</p>

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

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

<p>Deed from Principal to Agent — Confidential Delations— Undue influence — Mental and Physical Infirmity — Consideration of Deed — Admissibility of Evidence.</p> <p>J. Ik K. was the general agent on the farm of O. E., his mother, from 18511 to 1873, when C, E. died. O. E. owned a farm of 317 acres. On 4th Eel)., 1804, O. E. executed a deed to J. P. K., for 75 acres, including ilio dwelling; and for a ten acre wood lot. The recital and consideration of the deed were as follows : “whereas J. P. K. has, for many years, taken care of his own mother, O. E., surrounding her with every possible comfort, and the said J. P. K. has for so many years taken care of and improved the real and personal estate of the said O. E., at her entire pleasure and satisfaction. Now this indenture witnesseth: that the said O. E. in consideration of the above recited premises and also of the solemn promise made by the said J. P. K., of allowing his brother, J. B. K., the privilege of a home in the dwelling at Hart Park during his single life, and also in consideration of the said ,1. Ik K. having given up any claim to any portion of real estate she may leave at her death, has granted,” Ac. On bill filed by the heirs-at-law of O. E., to set aside this deed, alleging it to have been procured by the fraud, undue influence and persuasion of J. P. K., as general agent of O. E., when O. E. was old and infirm in body and mind, and unable to make or understand the instrument; and alleging that after discovering the deed had been procured from her, the said C. E. in her life time filed a bill-to set it aside, which bill was dismissed by an order from her, procured in like manner with the deed-If km> :</p> <p>1st. That ,T. Ik K. being general agent of C. E., the deed to him was prima, facie, tainted with fraud and undue influence.</p> <p>3nd. That the services of J. P. K. and minor son on the farm, not otherwise compensated, formed sufficient consideration for the recital and consideration of the deed, provided, the amount and mode of compensation were not the result of undue influence.</p> <p>3rd. That on the proof the deed must be sustained as fair and good.</p> <p>4th. That J. B. K. a beneficiary under the deed was not incompetent under the act of 1864, ch. 109, to testify.</p> <p>5th. That non-experts must state grounds and facts sufficient to justify the expression of an opinion, and the reasons for it, respecting mental capacity.</p> <p>6th. That persons in the service of one alleged to be infirm in mind, and frequently or constantly about such person, and having business dealings together, are competent to express an opinion respecting the mental condition of such person.</p> <p>7th. That the dismissal of bill to set aside deed, after full knowledge of the facts from independent counsel, an attorney who instituted the proceeding, was a re-adoption of the deed; and the deed then stood as if originally executed after independent advice; provided the dismissal itself was not fraudulently procured.</p> <p>8th. Objections to questions as leading must be made before commissioner, when propounded.</p> <p>9th: Declarations of a grantor cannot be admitted to impeach his deed,, while his declarations in support of it are admissible as against himself or those claiming under him. .</p>

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

On the 14th July, 1879, John A. Reed, filed his petition in the Court below, for process of attachment under Art. 45, sec. 7, of the Code, against the property of Christiana B. Hoffman, wife of John O. Hoffman; in which petition he alleged, that while the said Christiana B. Hoffman was conducting business in her own name, as a feme sole, she became indebted to the petitioner in the sum of two hundred dollars, for professional services, by agreement rendered by him to said…

<p>Leases and Advance Mortgages — Partnership Assets under a Lease — Mechanics’ Lien Claims — Usury—Mode of Stating ■ an Auditor’s Account.</p> <p>On the 3rd May, 1878, C. agreed to lease to L. R. and Gr. R., co-partners, trading as R. & Son, eight lots of ground upon which the lessees agreed to build eight houses. To aid them in the erection of the houses, C. was to advance a certain sum on each house, and upon their completion, he was to convey to them in fee, a lot of ground in the rear of said houses. On the 8th May, C. accordingly executed a lease for ninety-nine years, renewable forever, to L. Rl and G-. R., their personal representatives and assigns; on the same day the lessees mortgaged the lots to C. to secure the payment of the advances. After the houses were partially built, the lessees applied to C. for an additional advance, and an extension of the time within which they weré to be finished. O. agreed to advance a further sum on each house, and to extend the time of" heir completion till the 1st May, 1879. To secure the payment of he additional advance, the lessees executed a second mortgage by which possession of the lots was delivered to C., the lessees reserving the right to enter for the purpose of completing the houses; and to redeem any one or more of them, by the payment of the amount due thereon under the second mortgage; and upon the payment of the interest due on the first mortgage, and all arrears of ground rents, assessments, taxes and liens of every kind, due or chargeable on all the eight houses and lots. The lessees also, in consideration of the additional advances thus to-be made by 0., and the extension of the time within which the houses were to be finished, by deed, dated the 14th November, 1878, (in which deed the lessees referred to the lease of the 8(li May, as having been executed in pursuance of the contract of the 3rd May,) relinquished all right and interest in the rear lot. Shortly after the execution of the second mortgage, 6. R. died, and the work upon the houses, was after his death prosecuted by L. R., the surviving partner. On the 34th April, 1879, a bill was filed by G. R’s administrators against L. R. for a sale of the houses, and C. was made a party. By consent of parties in interest, the houses were sold at public auction by trustees appointed by the Court, and C. became the purchaser. On exceptions by the appellants to the auditor’s account, ratified by the Court below, allowing O’s claim for advances made under the two mortgages; and allowing mechanics’ and other lien claims ; and to the refusal of the Court below to allow appellants’ claim for usury; and to the mode of stating the account, it was Hkld :</p> <p>1st. That under the lease of the 8th of May, the leasehold interest in the lots on which the houses were built, was in B. R. and G. R. as co-partners, and not as tenants in common.</p> <p>2nd. That on the death of G. It., L. R., the surviving partner, had a right to finish the houses, and to charge G. It’s interest with its proportion of the expenditures incident thereto, and consequently the advances made by C., both before and after the death of G. It., were properly allowed.</p> <p>3rd. That, under these proceedings and the agreement, C. being entitled to make the same claim against the proceeds of sale, as he could have made under a bill to redeem, amounts paid by him on account of arrears of ground rent, taxes and water rent, were properly allowed, and so were also the several mechanics’ lien claims which conformed to the requirements of the statute; except two, which, as they claimed payment out of tile particular fund constituting part of the partnership assets, on the ground that the claims were charges or liens, upon the fund itself were defective, because it did not appear from the face of the accounts, nor from any paper accompanying the same, at what time or times the materials were furnished; but that when such claims shall have been amended as permitted by Art. 67, sec. 41, of the Revised Code, they should be allowed.</p> <p>4th. That the appellants’ claim for usury was properly disallowed, as the consideration for the surrender of the rear lot was a good consideration, and in no sense usurious.</p> <p>5th. That no injury was done to the exceptants, from the fact that the auditor aggregated the proceeds of sale of the, eight houses, and also aggregated the mortgage claims and liens; as in this case, whether the proceeds of sale were treated in the aggregate or distributively, was a matter of no consequence to the appellants, the mortgage debt, claims, liens and taxes exceeding the entire proceeds of sale.</p>

<p>Appeal in Criminal' Oases — Pleas and Evidence in Bastardy Cases — Affidavit that Appeal is not taken for Delay.</p> <p>No appeal lies in criminal oases from the rulings of the Court below on demurrer, until after final judgment; and then only by a proceeding in the nature of a writ of error.</p> <p>To an indictment for bastardy, N. pleaded: 1st. Not guilty. 2nd. That the prosecution was not commenced within a year from the commission of the oilence as alleged in the indictment. 3rd. That the prosecution was not commenced within a year from the birth of the child. 4th. That the warrant issued by the justice was not a proper warrant. 5th. That he was arrested on a warrant issued by one O. J. M., justice, and was tried by one J., another justice, and judgment was rendered' against him, from which he appealed to the Circuit Court, and was indicted, and the indictment quashed; that he was arrested again and taken before O. J. M., justice, and judgment was again rendered against him, from which he appealed; and that he now appeared to answer to the indictment found on this appeal. The State demurred to the second, fourth and fifth pleas, and joined issue upon the first and third pleas. Hkud :</p> <p>That the second plea was bad, a good plea would have alleged that the prosecution was not begun within a year from the birth of the child; that the fourth and fifth pleas were also bad; that the fifth plea, if intended as a plea to the jurisdiction of the Court, was bad, because it showed that all that was required to give jurisdiction to the Court wras done, and that having jurisdiction, the regularity of irregularity of the proceedings before the justice did not affect the questions at issue upon the indictment; and that if the fifth plea was intended as a plea of former acquittal, it was defective because it did not allege that N. had been tried and acquitted, and the quashing of the indictment did not operate as an acquittal, nor did it prevent N. from being again indicted.</p> <p>The State offered in evidence the warrant issued by O. J. M., justice, the judgment and the recognizance of N., being the proceedings on which the last indictment against N. was found. On exception, it was Held :</p> <p>That this evidence was admissible under the plea of limitations, for the purpose of showing that proceedings were begun against N. .within a year from the birth of the child.</p> <p>N. offered in evidence the judgment and proceedings before J., justice, and proposed to show that the indictment found upon these proceedings was quashed. On exception, it was Held :</p> <p>That such evidence was not admissible, either under the plea of not guilty, or the plea of limitations, the only pleas before the jury.</p> <p>The record to this Court in a criminal case, should state, that the affidavit, that the appeal is not taken for delay, was made by the counsel (naming him,) for the accused; and not merely, that the affidavit was made in due form of law.</p>

<p>Meals furnished Jurors in Removed Oases — Construction of Art. 27, see. 1, of the Code.</p> <p>Honey paid by the county, where a case was tried, removed from the Court where it originated, for meals furnished to jurors empanelled to try such case, and to the bailiff who had the jurors in charge, was properly recoverable by the county where the case was tried, from the county where the case originated, under Art. 27, see, 1, of the Code.</p>

<p>Cmistmetion of Art. 48, of the Code, Insolvent Law, as Amended by the Act- of 1880, oh. 172.</p> <p>A joint proceeding against soveral as partners, will not lie under tin1 Insolvent Law of this State, but such proceeding must be taken against each separately.</p>

Appeals from the Circuit Court of Baltimore City. Iu October, 1876, Thomas Sewell, Jr., and Richard Sewell, Jr., applied to Henry W. Rogers, a broker, to procure them a loan at 6-| per cent., to be secured on real estate, situate on Pennsylvania avenue, in Baltimore city.

The case is stated in the opinion of the Court. Exceptions.- — At the trial seven exceptions were taken. The substance of the first, second, third and fourth exceptions, is stated in the opinion. In the present aspect of this case, it is not necessary to.set forth the fifth and sixth exceptions ; the seventh is as follows: The evidence on both sides being closed, the plaintiff offered four prayers: 1.

The case is stated in the opinion of the Court. Exceptions-At the trial,after the testimony summarized in the opinion was in, the plaintiff offered five prayers; the third and fifth are stated in the opinion : the others aro as follows : 1.

<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 case is stated in the opinion of the Court. The cause was argued before Bartol, C. J., Miller, ALVEY.and Irvins, J. B. Emmett Jones, and Wm. Shepard Bryan, for the appellees, moved to dismiss the appeal: Because the order overruling appellants’ demurrers to the hill, and ordering them to answer, was not in any respect final, and was not the subject-of appeal. It did not conclude the rights of the parties.

<p>Bill to set aside a Voluntary Conveyance, alleged to be in Fraud of Subsequent Creditors.</p> <p>A voluntary conveyance made by a party solvent at the time, may be impeached and set aside by subsequent creditors, provided it be executed with the intention and design to defraud those who should thereafter become his creditors. Where such fraud is charged, the fraudulent purpose will not be presumed, but must be proved. The onus rests on the parties assailing the deed to establish the fraudulent intent by satisfactory proof.</p>

Appeals from the Superior Court of Baltimore City. The case is stated in the opinion of the Court. Exception. — At the trial, the plaintiff offered the following prayers: 1.

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

<p>Bill filed by a Wife.to have a Marriage Contract set aside on the alleged ground, that she never signed or aclcnoioledged it — Certified Copy of the Recorded Contract, ISvidence — The Wife a Competent Witness under the Act of 1864, eh. 109, and its Supplements — Failure of Proof on the part of the Wife.</p> <p>The appellee and the appellant lived together as man and wife for some years before 1870, when they were legally married; a marriage contract was executed some two and a half years before the ceremony of marriage, by which contract each of the parties relinquished all marital rights in the property of the other; thecontract was acknowledged and duly recorded in Baltimore City and ' Baltimore County. In 1879, the wife filed a bill to have the paper, purporting to be a marriage contract, set aside, on the alleged ground that she never signed or acknowledged it, and accidentally discovered its existence some time after her marriage in 1870. The original paper was lost, but a certified copy from the records, signed by the wife, and acknowledged before a justice of the peace, was filed with the bill. Held :</p> <p>That this copy was prima facie evidence of the genuineness of the instrument, and that the burden of proof was upon the complainant, to show it was not lier act and deed; that she was a competent witness under the xlct of 1804, ch 100; but that her evidence, flatly contradicted in every material part by that of the husband, did not sustain the allegations of her bill.</p>

The case is stated in the opinion of the Court. Exceptions. — At the trial, after the evidence stated in the opinion was in, and after the exception to the proffer of evidence stated in the opinion, the plaintiff offered four prayers: the second is stated in the opinion; the first and fourth need not he set forth ; the third is as follows : That if the jury believe from the evidence, that the defendant issued the policy in proof, and the property therein mentioned was…

The case is stated in the opinion of the Court. The deed of the 7th May, 1860, therein referred to, provided, that after the termination of the life estate of Myra E. • Downes, the wife of R. E. C. Downes, grantor in the deed, the property conveyed should go to the children of the said Myra E, Downes hy her husband R. E. C. Downes, and to the children of the said R. E. C. Downes, in fee simple.

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

The case is stated in the opinion of the Court. The commissions to the trustee, mentioned in the opinion were one-half commissions allowed to him on the amount due, to wit, $183.59, unpaid taxes and ground rent, under the 39th Rule of Court; he had advertised the property for sale before the sale was enjoined.

<p>Appeal from an Order orerruling a, Demurrer to a Bill— Remedy I»/ Action of-Ejectment, and Not by Bill in Chancery — 1873, eh. 346.</p> <p>An appeal will lie from an order overruling a demurrer to a bill, where the demurrer goes to the entire bill.</p> <p>It appearing from a bill, that the complainants are seeking through the medium of a suit in equity to recover property from parties, who not only deny their title,’but who are in possession holding adversely, under no tenancy in common with the complainants, and whose adverse holding may, for aught that appears, have continued for such, a period as to have clothed them with a title good even as against- the undisputed owner of the paper title, a demurrer to such a bill should be sustained. For such a case there is adequate and ample remedy at law. Under the Act of 1872, ch. 346, the plaintiff in an action of ejectment may recover not only the land in controversy, but mesne profits and damages for the ejectment and detention of the premises up to the time of the determination of the suit. As respects rents and profits in such cases, this action at law now affords as ample relief as could be obtained by a bill in equity.</p>

<p>.Dismissal of an Appeal from Orphans' Court — Revised Code, Art. 71, see. 72 — 1807, eh. 373, Stenographers — Removal of an Executrix for Neglect of Duty and alleged Fraud.</p> <p>No appeal will lie from an order of an ^Orphans’ Court passed in a summary proceeding on evidence, unless such evidence has been reduced to writing and transmitted to this Court, as required by Art. 71, sec. 72, of the Revised Code. If such an appeal be from an order of the Orphans’ Court of Baltimore City, the evidence must bo taken down by the Court stenographer, then transcribed, signed by the witnesses, and transmitted by the Judges to this. Court, as required by the Act of 1867, ch. 373, sec. 3.</p> <p>A petition was filed in the Orphans’ Court by parties in interest, to. have an executrix removed on the ground, that she had refused to defend suits brought against her as executrix, although she had been notified by the petitioners that the demands made in the suits were unjust, and were not properly chargeable against the estate; and that she had colluded with the persons bringing the suits, to defraud the petitioners of their respective interests in the testator’s estate. The evidence taken in the Court below was not contained in the record. The executrix was removed by order of the Orphans’1 Court, and appealed. Held ;</p> <p>That the charges set forth in the petition, if sustained by proof, were sufficient to justify the Court below in removing the executrix from her office.</p>

B. L. Solomon’s Sons on the 29th December, 1881, filed a petition setting forth that they were creditors of Albert Schiff and Lewis Steigerwald, who were co-partners theretofore, trading under the firm name and style of A. Schiff & Co., to the amount of $930,21, being the price of merchandise sold them at various dates, between November 1st and December 9th, 1881, upon sixty days’ credit, and ■alleging that said Schiff and Steigerwald, co-partners, as aforesaid, and each of…

<p>Sale of Land for Taxes, where Division is practicable— Appeal.</p> <p>The power of a collector to sell land for taxes is not unlimited, as to quantity. His duty is to sell no more than is reasonably sufficient to pay the taxes and charges thereon, where a division is practicable without injury. This rule, outside of positive law, rests upon principles of obvious policy and universal justice.</p> <p>No appeal lies from an order passed by a Circuit Court in a proceeding before it, not within its ordinary common law jurisdiction, but in the exorcise of a special authority under a statute, which does not in terms authorize an appeal.</p>

<p>Practice in Equity — Motion to dismiss an Appeal — Solicitor— Use — Audits—Rescission of Order ratifying an Auditors Account after the Term had passed — Course of Proceeding in Stating and Correcting Audits and Distributing Dividends among Creditors.</p> <p>In January, 1877, oil tlie petition of S. J. T., a married woman, with , separate estate, the Court below appointed a trustee for S. J. T., and authorized him on her behalf to form a co-partnership with O. W. II. The partnership was formed and continued for about fifteen months, when on the bill of complaint of C. W. II., the Court below passed an order putting the concern into the hands of receivers, who took charge of the property and sold it, and reported the proceeds to the Court for distribution among the creditors of C. W. H. & Co. An auditor’s account was then stated, providing for dividends and distribution among creditors of the partnership. The audit was ratified nisi on the 14th April, 1879. Among the creditors to whom dividends were allowed, were: A. M. F., (including interest) §1135.90, awarded a dividend of §158.61; Nat. Mecli. Bk., $1311.14, awarded a dividend of §184.71; S. J. T., $13,639.08, awarded a dividend of $1780.45. On the 5th June, .1879, Nat. Mecli. Bk. excepted to this account, because it allowed a dividend on S. J. T’s claim. On the 30th November, 1879, the Court below passed an order overruling the exceptions, ratifying the audit, and directing the receivers to pay over in accordance with it. Subsequently, but before the November term had passed, Nat. Mech. Bk. filed a petition asking a rescission of the order of ratification. During the January term, 1880, on the 38th February, the Court below dismissed the petition, and left the order of ratification passed the 30th November, 1879, undisturbed. On the 34th March, 1880, the November and January termshaving both expired, A. M. F. filed his petition, setting out that by the decision of this Court, lie had been adjudged, to have a valid claim against C. ~W. TÍ. cfc Co. for ¿5071, with appropriate interest, and representing that there had been an auditor’s account made,-which had been finally ratified, but that the funds were still in the hands of the receivers, and praying that he might- lie allowed his claim, and for such other relief as he might require. In the audit he had been allowed a dividend upon a larger claim than this Court finally adjudged him entitled to, and the auditor in his report mentioned the contest pending over that claim, and although he had allowed the claim si dividend, he recommended that its payment be suspended fill the suit was determined. On the petition of A. M. Í’., the Court- below passed on the same day on which it was filed, an order, that the fund not having been distributed, the ease was remanded to the auditor to state a further account, taking notice of the claim stated in the petition of A. M. F., and also that the auditor might state any other hypothetical accounts which might lie required by the parties, and that, awaiting the accounts thereby ordered and allowed, the order of Court passed on the 20th November, 1879, was suspended till further orders, and the order of the 28th February, 1880, on the petition of Nat. Mech. Bk. was rescinded. Leave was also given to take testimony to support any account, that might be taken under this order. Testimony was accordingly taken, and another account was stated in accordance with instructions from ¡8. J. TV counsel, and was ratified nisi. Exceptions were filed to it by TÑat. Mech. Bk. The Court below refused to ratify this account and another which was stated at the wane time, and ordered another account- to bo stated in accordance with the opinion of the Court. 8ueh account was then stated, and was excepted to by S. J. T. These exceptions were overruled, and that account was finally ratified, and by it 8. J. T’s entire claim was rejected. On appeal by 8. J. T., it was Hi«t,d :</p> <p>1st. That a motion by the appellees to dismiss the appeal on the ground, that before the ratification of the first account, S. J. T’s solicitor had entered all S. J. T’s interest in the cause to his use, (it appearing from the solicitor’s affidavit that such entry was made merely for the purpose of securing to him a reasonable fee,) should be overruled, as S. J. T. had an equitable interest to be protected; and that a motion to dismiss the appeal made on the ground, that S. J. T. had appealed by solicitor, and being a married woman, she could not appoint an attorney, should also bo overruled, as it appeared, that this appeal was taken by next friend, and the solicitor who tiled the exceptions for the next friend, had appealed for the next friend, and the cestui-que trust, S. J. T.; and that the last appeal, under Art. 5, sec. 22, of the Code, opened for review the order of the 24th March, 1880.</p> <p>■2nd. That the order of the 20th November, 1879, whereby the claim of S. J. T. was passed upon and sustained,, was a final adjudication of her claim and rights, which the order of the 24th March, 1880, could not disturb, as the order of the 20th November, 1879, after the term had passed, became enrolled, and could not be set aside on petition, (except upon a showing of fraud, surprise or mistake,) and could only be reached by appeal or bill of review; and that the proceedings which followed the order of the 24th March, 1880, should not be sustained.</p> <p>3rd. That whatever abatement was necessary, on the dividend'allowed ' the claim of A. M. F. could have been easily ascertained by calculation, and fixed in the order on his petition; and that the creditors should not have been delayed in receiving what had been already audited to them, and compelled to await the distribution of the small sum ascertainable as above mentioned, before getting their dividends; and that A. M. F. should have been at once paid his • corrected dividend; and that the creditors, including A. M. F., should have received their shares with interest, if any, of the small sum resulting from the abatement of A. M. F’s claim.</p>

The action in this case was begun in the Court below the 11th July, 1879. On the 19th January, 1881, by leave of Court, the following amended declaration was. filed : The plaintiff, by Robert D. Morrison, its attorney, sues the defendants for that the defendants, on the 26th day of June, 1878, made and executed a certain writing in the words following, to wit: Baltimore, 26th June, 1878.

<p>Action for Damages against the Oicner of Dogs for Injuries from being Bitten by them — Fierceness of the Dogs, and the (honeds Knowledge thereof— Evidence — Presumptions.</p> <p>In order to render the owner liable in damages to any one bitten by his dog, it must be proved not only that the dog was fierce, but that his owner had knowledge that he was fierce.</p> <p>■Such knowledge in the owner may be presumed from the fact, shown in an action for damages against him for injuries sustained from being bitten by them, that he was accustomed to keep his dogs tied during the day-time, and let them loose at night; and the fact testified to by himself, that his dogs had not been chained at an earlier hour on the day the person was bitten, because he had staid in bed later that day than usual, tended to show that he knew it was unsafe to leave them unchained at a time it was likely persons would be visiting his house; and he knew the person bitten was in the habit of coming to his house at that time. Evidence that the owner’s wife asked their daughter ( — who let the person bitten into the yard, and told him, that she would not let (he dogs bite him — ) “ why she had not tied the dogs,” was such presumed knowledge in the wife that the dogs were fierce; as could not be imputed as knowledge to her husband; nor was such knowledge in the daughter presumable, as could be imputed to the owner.</p> <p>Evidence tending to prove the temper and vicious disposition of the dogs and the owner’s knowledge thereof, should be left to the jury.</p>

<p>Rent reserved in a Lease for 99 Years Renewable forever, a Rent Service and Apportion able — Non Demand and Non Payment of Rent — Presumptions—Renewal of Ijease — Substantial Sum in Apportionment of Rent.</p> <p>In September, 1782, J. E. H. leased to J. H. a lot of ground, now fronting about 169 feet on Howard street in Baltimore City, for ninety-nine years, with the usual covenant for perpetual renewal, reserving a yearly rent, equivalent to about $43, of the present currency. In January, 1828, J. E. II’s executors under a power in his will, sold and conveyed the reversion in this lot to a person, who on the 2nd November, 1832, conveyed the same to L. S. L. S. on the 3rd November, 1882, accepted a .surrender from E. L. of his leasehold interest in a part of the lot, about 123 feet of its frontage; and on the same day, by two leases, leased for ninety-nine years, renewable forever, sixty feet of the same, to S. and S., and sixty-two feet and six inches of the same, to E. L., reserving in each lease a yearly rent of $300. L. S. never disposed of her reversion in the residue of the lot, consisting of a frontage of about forty-six feet. In June, 1864, Q-. M. E. purchased from the then owners of the leasehold interests, their lot, fronting twenty-two feet on Howard street, a part of the residue of the forty-six feet. The deed by which tins interest was conveyed to G. M. E., recited that the grantors acquired their title under an assignment from a person named, in April, 1857, subject to a yearly rent of $88, and they assigned to G. M. E., subject to the same rent; and it was assumed that G. M. E. derived his title from J. H., the original lessee of ,1. E. H„ through mesne assignments and sub-leases. To a bill filed by G. M. E. to obtain a decree, requiring C. F. M., who held the legal title under L. S’s will, and the aestuis que trust under that will, to convey to G. M. E„ the naked fee held by them in the twenty-two feet, or to execute to him a new lease thereof for ninety-nine years, renewable forever, subject to a mere nominal rent, the defendants demurred; the demurrer was sustained, and on G. M. E's appeal, it was Hkld :</p> <p>1st. That the rent reserved under the lease from .J. E. H. to J. II., (the reversion of which L. S. acquired in 1832,) was a rent service, and not a rent charge, and that it was apportionable; so that by the surrender of the 122 feet from E. L. to L. S., the original rent reserved in the lease of 1782, was not extinguished, but was apportionable to the residue of the forty-six feet, whereof the reversion was owned by L. S. and by those claiming under her will, and that this proportionate part remained fastened upon the forty-six feet.</p> <p>2nd. That even if it were admitted that no part of the original rent had ever, in the memory of any one now living, been paid by any owner of the leasehold interest in the lot of twenty-two feet, and that that lot had always been treated as discharged and relieved from the payment of any portion of the original rent, nevertheless, the law upon these facts alone, would raise no presumption of some a or of the parties in interest relieving the lot of twenty-two feet irosn payment, of any part of the original rent, or its extinguishment quoad that lot, and it being conceded that the relation of landlord and tenant once existed between the parties, under the lease of 1782, after the conveyances of 1832.</p> <p>3rd. That G. M. K. has a right to obtain relief by way of renewal of the lease of 1182, but ho can only do this under a bill making proper averments, and bringing before the Court the necessary and proper parties ; but that G. M. E. would not bo entitled to demand or receive a renewed lease, subject to a merely nominal rent; as the part of the original rent to be apportioned to G. M. E’s lot will constitute a substantial, and not a mere nominal sum.</p>

<p>Construction of a Deed of Trust — Exercise of Power of Revocation of a .Deed of Trust by the Execution of Mortgages of the hand Conveyed, by Husband and Wife,<without Reference in terms to the Power — Title acquired by Purchaser under Eale of Mortgaged Premises.</p> <p>On the 16th October, 1855, II. W. and wife conveyed land in A. A. Co. to A. J., his heirs and assigns, in trust for the use of the wife during her natural life, and in caso II. W. survived her, to him for his natural life, and whichever of them survived the other and remained unmarried, then at his or her death, for, such of the children of H. W. and wife and their heirs, and in such proportions, as such survivor might by last will and testament name, limit and appoint, and in case of the marriage of the survivor, then at the death of such survivor, for the use of the children of IT. W. and wife and their heirs equally, and in default of any such children or their descendants living at the time of the death of such survivor, then in trust for the right heirs of such survivor; and also in further trust, that A. J. should “ unite with II. W. and wife in any conveyance of the whole or any part of said property upon such, or further trusts of said property, which they may request and direct, even to the entire revocation of the trusts herein and hereby created, (full power of revocation, as to the whole or a,ny part 'of said property by deed, to said H. W. and wife being hereby ex})ressly reserved.) ” In 1871 and 3 874, H. W. and wife executed two mortgages of the land conveyed by the deed of trust. These mortgages were in the usual form, and conveyed the whole property in fee simple, provided for its sale in case of default, and directed the surplus after paying the debts, to be paid over to II. W., his heirs and assigns. These mortgages were afterwards assigned to T. (3., and default having been made, the property'was sold under the mortgages, and T. G. became the purchaser. The sale was finally ratified by the Court below, and a deed made to T. G. by the trustee appointed by the Court. II. W. and wife refused to surrender possession of the premises. In a proceeding by T. G. for the quieting of his title and possession, it was Held :</p> <p>1st. That full power to revoke the deed of trust by their deed was expressly reserved therein to H. W. and wife.</p> <p>2nd. That the mortgages executed by H. W. and wife, of themselves worked such revocation, notwithstanding no reference in terms was made to this power in these instruments; that A. J’s title was thereby extinguished; and that T. G. under the sale of the property ratified to him, acquired the same discharged of all right, title or interest of any of the parties claiming under said deed of trust.</p>