Volume 58 — Maryland Reports

<p>Constitutional Laic—Section 15 of Article 2, of the Constitution—Executive.</p> <p>Under section 2 of the Act of 1874, eh. 490, during the regular session of the General- Assembly of 1880, II. was nominated by the Governor, and by and with the advice and consent of the Senate, was appointed “ Register of voters for the fourth election district of Anne Arundel County,” for two years. Charges having been preferred against H., the Governor, after having proceeded in the manner prescribed by sections 13, 14 and 15, of Article 42 of the Code, passed an order on the 22nd day of August, 1881, removing H. from office, for official misconduct, and apx)ointed L. in his XJlace. IIei.d :</p> <p>That under the provisions of section 15 of Article 2 of the Constitution, the Governor had the power to remove II. from office for incompetency or misconduct, and to appoint L. his successor.</p> <p>The term “ Executive ” as employed in section 15, of Article 2 of the Constitution, is not to be understood as meaning the Governor alone; it includes apxiointments by the Governor with the co-operation of the Senate.</p>

The bill in this case was filed by the appellee against the appellants for the purpose of having certain deeds declared fraudulent, as intended to hinder and delay the creditors of Bernhard Fladung.

The case is stated in the opinion of the Court. First Exception.—At the trial the plaintiff offered in evidence the equity proceedings in which the injunction bond sued upon in this action was given.

<p>Claim for Taxes or Assessments not barred by a Failure to collect within four years—Construction of the Act of 1861, ch. 94—Taxes a Charge upon the proceeds of Bale—Obligation of Trustees in respect of Taxes and Assessments binding on the Trust property.</p> <p>A trust estate created by will, was brought into a Court of equity for its supervision of the administration of the trust. The trustees acting under a power in the will, but subject to the control of the Court, sold on the 13th of March, 1870, to S. B., a portion of real property in the city of Baltimore belonging to the estate. The sale was ratified on the 4th of May, 1876, and a deed was made to the purchaser on the 28th of September, 1877. By the terms of sale the trustees were bound to convoy the property to S. B., freo and clear of all taxes and assessments to the 1st day of January ? 1876. On* the 28th of September, 1875, there had been an assessment made by the city authorities upon the property along IT. street, for the grading, paving and curbing of said street. Bills for the assessment so made, were delivered to A. G., one of the trustees, on the 30t-h of November, 1875, with demand of payment; and a second bill calling for payment within thirty days of the date of its delivery was delivered to said trustee on the 5th of April. 1876. But there being a question raised as to the legality of the assessment, payment was withheld by the trustees. S. B. in order to get a deed for the property purchased by him, proposed to pay up the purchase money in full, and to give his separate check for part of said purchase money, being the amount of the assessment chargeable to that portion of the property purchased by him, said check to be held by A. B. & Son to await the issue of the claim of the city. This proposition was acceded to and the check was made by S. B. and received by the trustees as part payment of the purchase money, and was deposited with A. B. & Son in pursuance of the agreement, before the deed was made. The city was not a party to this transaction and no active steps were taken by it for the enforcement of its claim until after the expiration of four years from the time of making the assessment, when it asserted its claim in said equity proceedings to bo paid out of said check, the amount of the assessment made upon the property sold. The Act of 1871, cli. 94, declares that all taxes which “ may be levied in the city of Baltimore, shall be collected within four years from the levying of the same; and tiie collection of taxes shall not be enforced by law after the lapse of said four years, and the party from whom said taxes may be demanded may plead this section in bar of any recovery of the same.” On a plea of said Statute of Limitations filed by the trustee, it was Held :</p> <p>1st. That the claim was not barred by said Statute.</p> <p>2nd. That as to whether the Statute has any application to the collection of a tax or assessment like the one in question, or whether its provisions were only intended to apply to the ordinary taxes levied for revenue, as distinguished from the special assessments imposed in making improvements upon adjacent property, because of the special benefits imparted to such property— Quaere ?</p> <p>3rd. That the taxes or assessments due at the time of the sale became by the terms of sale a charge upon the proceeds of sale; and if the city collector had attempted by the summary proceeding of distress and sale to enforce the payment against the property, the Court would have restrained such proceedings for the protection of the purchaser.</p> <p>4th. That due notice having been given to the trustees of the charge on the property, and due demand having been made for payment of the assessment within the time prescribed by law, it became the duty of the -trustees, as well by the terms of the sale, as by the express terms of the statute, (1874, ch. 483, sec. 63,) to pay all assessments and taxes binding on the property.</p> <p>5th. That with this knowledge and duty the trustees received and held the amount of money in question applicable to the payment of the assessment due, in trust for the city. And having received the-money and set it ajiart for the express purpose, the trustees could not be allowed to avoid their duty and take advantage of their own delay by setting up the defence taken in this case.</p>

<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. • First Exception.—At the trial the defendant’s counsel asked a witness (the defendant,) the following question: “ Did you use any other fertilizer, or Bond’s Fertilizer on the same field, and. what was the difference in the wheat between that portion of the field where you used Bond’s Fertilizer, and that portion of the field where you used the Raisin Fertilizer?” To which question -the plaintiffs objected, but the majority of…

The case is stated in the opinion of the Court. Exception.— At the trial the plaintiff offered the following prayer: That if the jury shall find that the defendant being indebted to the plaintiff on the 19th day of January, 1880, in the sum of $840, executed the promissory note of that date, for the sum of. $255.44, and that on the 22nd day of July, 1880, when said note matured, executed the two promissory notes upon which this suit has been brought, in renewal of the same,…

Appeals from the Circuit Court of Baltimore City. The hill in this case was filed hy Eliza T. Rhodes, and others, specific and residuary legatees under the will of Charles Hoffman, against Anna Hoffman and Alfred Bennett, as executors of said will, and in their own right, and against George D. Reese. The case is stated in the opinion of the Court.

<p> Question as to the Bight of a Trustee to Appeal. </p> <p>Where a fund arising from the sale of mortgaged property is brought into Court for distribution among creditors and persons entitled to the same, the trustee, whose commissions have been allowed, has no right to appeal from an order directing the payment of a " claim against such fund.</p>

The c;ase is stated in the opinion of the Court. Exception.—At the trial _ the plaintiff offered the six following prayers: 1.

<p>Construction of the Act of 1874, eh. 320, relating to Execution on judgments—Belief in Equity against a Judgment of Condemnation rendered by a Justice of the Peace upon an Attachment on a Magistrates judgment recovered more than three years before the date of the Attachment—Mistake— Injunction— In terp leader.</p> <p>The Act of 1874, ch. 330, provides that “on all judgments rendered in any Court of law, an execution or attachment may issue at any time within twelve years from the date of such judgment.” Held :</p> <p>1st. That a judgment before a justice of the peace is not a judgment within the meaning of said Act.</p> <p>2nd. That where a judgment of condemnation was rendered by a justice of the peace in a case of attachment upon a judgment rendered more than three years before the issuing of the attachment, and said judgment of condemnation was entered by mistake without any fault on his part, the attachment debtor was entitled to an injunction restraining the execution of the judgment of condemnation which had been entered by mistake against him.</p> <p>The prayer of tlie bill was, that the complainant might be permitted to bring into Court the amount due by him upon a judgment against him in favor of S. amounting to $150 and interest, (it being the judgment debt attached in his hands) to abide the result of this suit; and that S. might be enjoined from executing his judgment against the complainant; and that W., the attaching creditor, might bo restrained from executing his judgment for more than the sum of $119.40. The injunction restrained W. from cxecutrng his judgment against the complainant for any amount whatever. Held :</p> <p>That the bill was not for an injunction merely, but was in the nature of a bill of interpleader. That all the parties were before the Court and inasmuch as the justice of the peace had no power to issue the attachment, and the judgment of condemnation haying been entered by mistake, and contrary to. the agreement of the parties, the Court properly enjoined W. from issuing an execution for any amount on said judgment.</p>

Appeals from the Circuit Court for Allegany County, in Equity.

<p> Will—Residuary clause—Beneficiaries undesignated and uncertain—Next of Kin. </p> <p>The residuary clause of a will, provided as follows: “ Whatever balance, if any, shall remain after payment of my debts and all necessary expenses, I direct my executor to divide proportionally between benevolent associations of this City, for the benefit of white and colored children.” On a bill filed by the executor to obtain a judicial construction of said clause, it was Held :</p> <p>1st. That said clause was void; first, because the benevolent associations to which the testator referred, were not named or designated in the will; and second, because the beneficiaries for whose use the gift was intended, were undefined and uncertain.</p> <p>2nd. That the next of kin of the testator were entitled to the fund.</p>

In this case an attachment on warrant was issued at the instance of the ’appellee on the 20th of April, 1869, out of the Baltimore City Court, against the property and rights of the appellant, and James Delaney and Mary Delaney, trading as James Foran & Company, as nonresident debtors. The writ was levied upon a certain dwelling-house and smoke-house in the City of Baltimore. On the 11th of May, 1869, a judgment of condemnation nisi, was rendered.

The ease is stated in the opinion of this Court. The •appeal was taken from the action of the Court below, 'quashing the writ oí fieri facían.

<p> When a Conventional Trustee may Appeal from a Decree distributing the fund 'in his hands—When he may not appeal—Costs. </p> <p>A conventional trustee appointed to sell property and distribute the proceeds among creditors has the right to an appeal: 1st. Whenever his commissions, or other allowances as trustee are affected by the order of the Court below. 2ndly. In all cases where the trustee is interested in the fund to be distributed, as a creditor. 3rdly. In any case where the question of the increase or diminution of the whole fund In his hands as trustee is involved, and which increase or diminution would enure to the benefit or loss of all the creditors.</p> <p>But where the question is a contest between the creditors of the debtor among themselves, the trustee has no right to intervene, and it is not his duty to prolong the litigation. In such cases, the creditors whoso rights are affected are the proper persons to appeal.</p> <p>Where, however, the Court is satisfied the trustee in appealing acted in good faith, and in discharge of what he supposed to be his duty, the costs will be paid out of the fund.</p>

This action was instituted on the 13th of September, 1880, in the Court of Common. Pleas by the appellee against Anton Weiskittle and Anton Weiskittle, Jr., to recover damages for the killing on the 23rd of July, 1880, of an infant child of the equitable plaintiff, Rachel Samuel, a widow. Said killing was alleged to have been the result of the negligence of a servant of the defendants in driving a wagon of such defendants over said fehild.

The case is stated in the opinion of the Court. In the Court below, (Bobbin, J.,) delivered the following opinion: “In this case the plaintiff obtained an ex parte decree for the sale of mortgaged '¡itemises, under which the same have been sold, and the sale has been reported to this Court for ratification.

This is an action on a policy of fire insurance, brought by the appellants against the appellee. The case is stated in the opinion of the Court.

The bill in this case was filed, by the appellees against the appellant, and others, to obtain a construction of the will of Frederick Ellender, Sen’r, who died in the year 1841, and for the sale of certain leasehold property bequeathed by said will. The case is stated in the opinion of the Court.

Tlie oa.se is stated in the opinion of the Court. First Exception.—The evidence being closed, the defendant offered the two following prayers: 2.

The bill in this case was filed by the appellant, praying that an injunction might issue against the appellee, enjoining him from prosecuting certain proceedings before the Circuit Court for Anne Arundel County, seeking to contest the election of the appellant to the office of sheriff of said county. The prayer of the hill was refused by the Court (Miller, J.,) and the complainant appealed.

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

On the 29th of March, 1867, Samuel B. Martin borrowed from Charles Eeeder $4,000 for three years, agreeing to pay eight per cent, per annum interest, and to secure the repayment of this sum Martin and his wife executed to Eeeder a mortgage of certain real estate in the City of Baltimore. The bonus of two per cent, for the three years, amounting to $240, was deducted at the time of executing the mortgage, making the sum of $3,760 actually advanced hy Reeder.

<p> Action in Damages for a Death alleged to have been caused by the Negligence of the Defendant—Prayer—Burden of proof—Absence of evidence of Negligence—Railroad Company—Brukeman. </p> <p>An action in the name of the State was brought against a railroad company to recover damages for a death alleged to have been caused by the negligence of the defendant. The deceased was found under the cars of the defendant mortally wounded. There was no testimony showing in what manner he got under the cars. Whether he was attempting to get on them while in motion, or fell while attempting to cross the track, was not explained by the evidence. The cars were on a siding, and going at the rate of one mile an hour. IIkld :</p> <p>1st. That the jury were properly instructed that “ under the pleadings and evidence in the cause the plaintiff was not entitled to recover.”</p> <p>2nd. That the burden was upon the plaintiff’ in the first instance to prove negligence or want of ordinary care on the part of defendant’s agents causing the accident.</p> <p>The place where the accident happened was not at a street, or highway, or a crossing-place. The defendant was entitled to a clear unobstructed track, and could not presume that any one would intrude thereon. There was no evidence that the deceased had any right to go upon the track. Held :</p> <p>That even assuming that there was some evidence that the cars had no brakeman on them while being run upon the siding, that fact would be no ground for charging the defendant with culpable negligence.</p>

Appeals from the Court of Common Pleas. Exception.—The case being closed on both sides, the plaintiff offered three prayers, the third of which was conceded; the others are as follows: ■ 1.

The case is stated in the opinion of the Court. First Exception.—The plaintiff offered to prove, in order to show what damages had resulted to him from, the failure of the defendant to carry out its contract, the amount of annual profits as regulated hy market prices in Cumberland, which he would have realized as a retail dealer in coal, if the trestle had been erected and the connections given him by the defendant; to this offer the defendant objected, hut the Court (Pearre…

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

The appellee being desirous to have the property which he had mortgaged, released, applied to the appellant for that purpose, and .offered to pay it the balance due on the mortgages, and tendered in payment thereof the sum of fifteen hundred dollars, which was refused. After this refusal the appellant filed its petition to procure a decree for the sale of the mortgaged promises.

<p>Senior and junior Mortgage—When junior Mortgage will be Preferred—Section 16 of Article 24' of the Code—Evidence not excluded by the Acts of 1864, ch. 109, 1868, ch. 116, and 1876, ch. 222—Practice in Equity—Matter not a subject for Review on appeal—Written memorandum—Inadmissible evidence.</p> <p>A junior mortgage duly recorded prior to a senior mortgage, will, under the provision of sec. 16 of Art. 34 of the Code, have preference to such senior mortgage, the junior mortgage having been made upon a good and valuable consideration, and without knowledge on the part of the mortgagee at the time he accepted his mortgage, of the pre-existing mortgage.</p> <p>A. executed a mortgage to B. to secure the payment'of a certain sum of money. A portion of the mortgage debt having been paid, the mortgage was released, and a second mortgage was executed to B. to secure the balance. On the same day of the execution of this second mortgage, A. obtained a loan from C. and to secure the same executed a mortgage on the same property. The release by B. and the mortgage to C. were recorded at one o’clock p. m., on the 3rd of November, 1876, and the new mortgage to B. was recorded at fifteen minutes past three o’clock p. m. on the same day. The mortgage to C. was subsequently assigned to I). To defeat the priority secured by the statute (Art. 24, sec. 16, of the Code) to the mortgage to C. it was endeavored to be shown by the testimony of A. that at the time C. accepted the mortgage he had knowledge of the existence of the prior mortgage to B. The testimony of A. was excepted to by D. on the ground that he was a party to the contract of mortgage, and C. the other party being dead, ho could not testify in relation thereto under the Evidence Acts of 1864, ch. 109, 1868, oil. 116, and 1876, ch. 222. Hklb:</p> <p>That in the controversy between the mortgagees as to their right of priority, the witness A. was not a party, and was in no manner interested; and being a competent witness at the common law the Evidence Acts aforesaid had no application. Their provisions apply only where the witness would bo incompetent by the rules of the common law either because of being a party to the suit, or by reason of interest in the subject-matter.</p> <p>The re-examination of a witness in a case in equity without a special order of the Court obtained for that purpose, in relation to the same subject-matter upon which he has been examined and cross-examined, is irregular, and the testimony so taken would be excluded upon exception by the other side.</p> <p>The passage of an order allowing the re-examination of a witness is a matter resting in the discretion of the Circuit Court, and its action in that respect is not a subject for review on appeal.</p> <p>In a controversy between the assignees of two mortgages executed on the same day, but recorded at different hours, as to their right of priority, a written memorandum purporting to state what had taken place between the junior mortgagee, since deceased, and the witness, the mortgagor, when the latter applied for and obtained a loan from the former, and prepared by the witness more than sixteen months after the mortgage had been executed and a decree passed to enforce the same, is not admissible in evidence for any purpose. ,</p>

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

This was an action of trover brought by the appellee against the appellants, (father and son) for the conversion of a valuable diamond ring. The case is further stated in the opinion of the Court. Exception.—The plaintiff offered two prayers, the second of whicli is omitted, the first is as follows: 1.

The hill of complaint in this case filed on the 18th of Eehruary, 1880, hy George Presstman against John Sill-jacks, sought to obtain the specific execution of the covenant of renewal contained in a lease for ninety-nine years, renewable forever, from Ann Eell to Alexander McMechen, dated the 5th of July, E769.

The case is stated in the opinion of the Court. The first exception, and. the question involved in the second and third exceptions are stated in the opinion of the Court.

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

The case is stated in the opinion of the Court. Exception.—The plaintiff offered a prayer which is contained in the opinion of the Court. The defendant ashed the following instructions to the jury: 1.

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

The case is stated in the opinion of the Court. The evidence showed that the larceny for which the appellant was indicted, was committed in West Virginia, and that he was arrested in this State with the stolen goods in his possession. Exception.-—The traverser moved the Court to strike out the above testimony from the consideration of the jury; but the Court, (Alvey, and Mottkr, J.,) overruled said motion.

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

fThe case is stated in the opinion of the Court. First Exception.—The plaintiffs offered in evidence the book containing what purported to be the by-laws of the company, and the entry of the payments made by Frank to said company, and the number of shares of stock held by him, which was produced by the defendant at the request of the plaintiffs, and which had been in his possession since its issue to him by the secretary of the corporation.

<p>Proof of Individual claim of Administrator in the Orphans' Court against the Estate of his Intestate—Construction of sec. 93, of Art. 12, of the Local Code, relating to powers conferred upon Register of Wills of Harford County— Deputy Register—Ansioers in Plenary proceedings—Sec. 103, of Art. 16, of the Code, relating to Answers in Chancery, not applicable to Plenary proceedings in the Orphans' Court.</p> <p>To entitle the individual claim of the administrator of a deceased person, against the estate of the deceased, on a promissory note made by the deceased, to be passed by the Orphans’ Court, it is necessary that it be accompanied by the proof prescribed by secs. 87 and 96, of Art. 93 of the Code.</p> <p>The jurisdiction and power conferred upon the Register of Will^ of ' Harford County, by sec. 93, of Art. 12, of the Local Code, to be exercised by Mm during the recess of the Orphans’ Court, cannot lawfully be delegated to, or exercised by his deputy in his absence.</p> <p>The answer to, be filed in a plenary proceeding in the Orphans’ Court must be under oath; but the solemn affirmation of the respondent to the truth of the answer, has the same effect as an oath.</p> <p>The provision of the Code,—Art, 16, sec. 103,—regulating the practice in chancery, with respect to the effect of an answer, where the respondent has not been called upon to answer under oath, has no application to plenary proceedings in the Orphans’ Court.</p>

The case is stated in the opinion of the Court. First Exception.—Not passed on by the Court. Second Exception.—At the trial the plaintiffs offered the three following prayers: 1.

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

<p>Creditors’ Bill—Plea of the Statute of Limitations—Practice in Equity—Appeal—Effect of the Ileservation contained in the Act of 1870, ch. 58.</p> <p>"Where an interlocutory decree is passed against resident defendants, and a decree pro confesso against non-residen1s, for want of ajjpearance and answer to a creditors’ bill, and other defendants plead the Statute of Limitations, this plea does not enure to the benefit of those not pleading it, and there is no necessity on passing a decree for a sale, to reserve the question, whether the non-answering and non-resident defendants are entitled to the protection of the Statute. But the Court has the undoubted right to reserve the question.</p> <p>The reservation of the question leaves the claim of the complainants yet before the Court for adjudication, and gives them no ground of appeal.</p> <p>A judgment was recovered on the 12th of November, I860, and was without stay of execution. On a creditors’ bill filed on the 4th of February, 1875, by the judgment creditor, and another, and a plea of the Statute of Limitations, it was Hbld :</p> <p>1st. That the whole period of statutory limitation having fully matured (after deducting the period allowed by the original seventh section, of Art. 57, of the Code,) before the bill was filed, the Act of 1870, ch. 58, allowing eighteen months after bill filed to sell tlie real estate of a deceased debtor, could not help the judgment.</p> <p>2nd. That whatever effect the Statute wrought was complete, and could be pleaded before the filing of the bill, and its being filed could not give the judgment a new lease of life.</p> <p>Srd. That the complainant who had offered in evidence certain claims and judgments in support of an allegation in the bill, that the decedent was indebted to others in addition to the complainant, had no interest in those claims, and did not represent them in any such sense as justified his appealing because of any supposed injury done to the holders of them.</p>

<p> Action to recover Damages for Personal injury—Evidence to ■ be adduced by Plaintiff—Contributory negligence—Durden of Proof—When case should be Withdrawn from the consideration of the Jury—Wegligence—Instruction to 'the Jury—Practice in the Court of Appeals. </p> <p>In actions to recover damages for personal injuries suffered by the alleged negligence of the defendant, it is incumbent ujron the plaintiff to prove, 1st, that there was a neglect of duty by the defendant; and Sndly, that the injury sustained was the direct consequence of such neglect of duty. And in many cases a third question arises, and that is whether the party killed or injured was so far to blame as to have directly contributed, by his own negligence or want of caution, to produce the injury complained of. This being matter of defence, the onus of proof in respect to it is properly on the defendant.</p> <p>But where material defensive facts are disclosed by the testimony adduced on the part of the plaintiff, and the evidence thus adduced by the plaintiff clearly establishes the fact of contributory negligence on the part of the person killed or injured, there is nothing to be left to the jury to find.</p> <p>While it is perfectly true, that where the plaintiff produces evidence, which, if uncontradicted, would justify and sustain a verdict, no amount of contradictory evidence, however strong, will justify the Court in withdrawing the case from the jury; yet, if it be proved, as part of the plaintiff’s case, or if it be otherwise proved and not controverted or denied by the plaintiff, that the party injured or killed was clearly guilty of negligence in the occurrence of the accident, and that such accident would not have occurred but for the negligence of the party injured directly contributing thereto, in such case the defendant is entitled to have the jury instructed that their verdict must be for the defendant.</p> <p>Negligence of the defendant is no excuse for negligence on the part of the person injured.</p> <p>In an action to recover damages for a death caused by the alleged negligence of the defendant, the Court instructed the jury, “ that the plaintiff was not entitled to recover because the deceased directly contributed to cause his death.” On appeal, it was Held :</p> <p>That while the form of the instruction would have been more appropriate, if it had directed the jury that upon the case made by the plaintiff, or upon the undisputed facts in the case there was no ground of action shown, and therefore their verdict must be for the defendant; yet whore this Court can plainly see that there is no ground for the action, or no possible right of recovery, it will not reverse the judgment upon the mere form of the instruction that has led to a right result.</p>

The case is partly stated in the opinion of the Court. The following assignment of mortgage is the one referred to in the opinion: “Eor value received we hereby sell and assign unto Luther M. Reynolds, the within and aforegoing mortgage, dated April 21st, 1871, together with the promissory note therein mentioned, and referred to, which represents the mortgage debt. “As witness our hands and seals, December 21st, 1876. “Louisa J. Butler. [Seal.] “Thomas C. Butler. [Seal.]…

<p> Conventional trustee—Appeal. </p> <p>A conventional trustee appointed by deed to sell property, and, after applying a part of the proceeds of sale as designated, to distribute the balance among creditors, has no right to appeal from an order fixing the amount of the claim of a judgment creditor, and directing its payment out of the trust funds.</p>

This was an action of trover by the appellees against the appellant, for the conversion of certain overdue interest coupons detached from the first mortgage bonds of the Western Maryland Railroad Company. It appeared at the trial, that the coupons in question had been overdue for many years. The company had funded them some years since, and the period of that funding having expired, it was engaged in refunding all its overdue coupons for a further period of ten years.

On the 9th of November, 1811, John Bau, the appellant, executed a mortgage to The Harrison Building Association No. 1, of Baltimore City, of which he was a member. By deed dated the 10th of December, 1811, for the consideration of $2150, Bau conveyed to William Schluderberg, subject to the aforegoing mortgage to the Building Association, the mortgaged premises.

The case is stated in the opinion of the Court. Exception.—The evidence on both sides being in, the plaintiff offered the three following prayers: 1.

<p> Illegal distress—Husband and wife—Replevin—Action of Trespass—Estoppel. </p> <p>Where a landlord 1ms wrongfully seized and carried away, under an illegal distress, goods of which the wife was the absolute owner, but to the immediate possession of whicli the husband, by virtue of his marital rights, may have been entitled, and ho replevies the goods, and in that suit recovers damages for their detention, as compensation for the disturbance of his right of possession, the wife is not estopped by such recovery of her husband, from maintaining an action in trespass to recover damages for any loss which sbe may have sustained, by tbe wrongful distress, as tbe absolute owner of the goods.- Nor is she barred of her right of action by the fact that she knew of the replevin instituted by her husband, and authorized, pr acquiesced in the same as a means of recovering possession of her property.</p>

<p>Case removed from one County to another—Fieri facias— Motion to quash—Art. 04, secs. 115, 116 and. 144, of the Revised Code-Acts of 1856, ch. 322, and 1878, ch. 475.</p> <p>Where a suit is instituted in one county, and on the application of the defendants is thence removed to another county, where the plaintiff recovers a judgment, he may have his writ of fieri facias thereon, directed to the sheriff of the county where the suit was originally instituted, although there has been no return of nulla bona in the county wherein the judgment was rendered, and neither the plaintiff nor his attorney of record, has made and filed with the clerk issuing the writ, an affidavit that he was unable to discover in the county where the judgment was rendered, property from which the same could be realized.</p>

<p>Covenant—Trustee—Liability of a person covenanting as Trustee—Appeul—Construction of Act of 18(54, eh. (5.</p> <p>As a general rule, it is quite well settled that one will be held personally liable on a covenant made by him as trustee. The additional word “trustee” in such cases is construed merely as a word of description, showing the capacity in which the covenantor acted. 1</p> <p>It is equally clear on the other hand, that, although one may covenant as trustee, he may limit and qualify the character in which he is to be held answerable; and where it plainly appears from the face of the instrument, that he did not mean to bind himself personally, Courts will construe the covenant according to the plainly expressed intention of the parties; and this too in cases where the covenantor had no right to bind himself in-a fiduciary character.</p> <p>A suit was brought on a covenant in a mortgage made by J. G., trustee of M. A. The mortgage recited that, “ whereas the said J. G. appointed by deed from said M. A., dated,” &c.; ‘‘ and duly recorded,” &c.; “ has by virtue of the provisions contained in said deed, obtained from H. C. B. a loan of two thousand dollars, and the said action of the trustee having been confirmed and ratified by order of the Circuit Court of Baltimore City,” &c. &c. Then followed a description of the mortgaged premises, and a covenant on the part of J. G., trustee, to pay the mortgage debt. Held :</p> <p>1st. That if the question depended solely on the covenant itself there could be no question as to J. G’s personal liability.</p> <p>2nd. But when the covenant is read in connection with the recitals in the mortgage, which refer to the deed of trust by which he was authorized to borrow the money, and the order of the Court having jurisdiction over the trust property, and to whom the trustee was answerable for its proper administration, it was clear that ,T. G. neither meant to make himself personally liable, nor was it so understood by the mortgagee.</p> <p>There is nothing in the Act of 1864, ch. 6, exempting judgments entered according to the provisions of that Act, from the operation of the well settled rule of practice, that no appeal will lie from an order of the Court striking out a judgment rendered by default, during the term at which it was entered.</p>

<p> Vendor and vendee—Sale of land set aside, because of Misdescriptions not obviously Injurious, but which materially induced the Purchaser to make the purchase. </p> <p>A purchaser is compellable to accept property, not strictly corresponding to that described in the sale, only when the variance is so immaterial that he is considered as getting substantially what he intended to buy, and what constituted the object and inducement of his purchase.</p> <p>And while it is incumbent on the buyer to show that a misdescription, not obviously injurious, relates to a fact which materially induced him to make the purchase; when this is established, much weight should be given to the purchaser’s own estimate of how far the deficiency or deviation, in the light of his own judgment and calculations, would affect the purposes he sought to accomplish in procuring the property.</p>

The hill of complaint in this case sought to have the inquisition for the condemnation of the complainant’s land declared null and void; and prayed that an injunction might issue, restraining the railroad company from entering-upon or using said land without the consent of the complainant first had and obtained. The Court (Full Bench) passed an order refusing the injunction asked for, and dismissing the hill. The complainant appealed.

Appeal, from The Superior Court of Baltimore City. This suit was brought by the appellee against the appellants.

<p>Party not Entitled to maintain Suit—Laches, delay and acquiescence.</p> <p>On the 14th of October, 1873, the Orphans’ Court of Cecil County, passed an order setting aside the alleged will of E. W. M., and revoking the letters testamentary previously granted to A. R. M. On the 1st of November, 1880, H. M. filed his petition seeking to have the aforesaid order of the Orphans’ Court set aside and annulled. The petitioner alleged “ that large property, real and personal, was left to him in trust under the will,” and. claimed that as trustee under the will he had the right to impeach the validity of said order. The evidence showed that for a pecuniary consideration which he afterward received, the petitioner agreed to renounce his office of trustee as well as that of executor. In pursuance thereof he filed a petition in the Orphans’ Court resigning his office as executor, and praying to be relieved therefrom, and an order was passed by the Court accepting his resignation and discharging him from the office of executor. The office of trustee, he never in fact accepted, except as such acceptance was implied by his assuming the office of executor. It was also in proof, that while the petitioner had actual notice in September, 1874, that the will of E. 'W. M. had been set aside, yet he took no-steps to impeach the judgment until the 1st of November, 1880, when he filed his petition. On an appeal from an order of the Orphans’ Court, dismissing his petition, it was Held :</p> <p>1st. That in the face of his express agreement to surrender his office as trustee, and after having received and retained a large consideration for entering into the agreement, the petitioner as trustee had no interest under the will, entitling him to maintain his suit, or to impeach the judgment of the Orphans’ Court.</p> <p>2nd. That even if it could- be shown that the petitioner had rights under the will, his laches, delay and acquiescence were fatal objections to the maintenance of his petition.</p>

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

<p>Building Association—Mortgagor and mortgagee—Usury— Act of 1872, ch. 178—Section 86, of the Act of 1868, eh. 471.</p> <p>G. having two shares of the stock of a Building Association, of the value of two hundred dollars each, executed a mortgage to the Association to secure the payment of four hundred dollars advanced him, on his two shares, which were thereby declared redeemed, and transferred to the Association. The covenant of the mortgage was “to pay the mortgagee the weekly sum of one dollar as weekly dues, and the further sum of sixty cents as weekly premiums, on every Monday evening, uniil the dissolution of the said body corporate shall have taken place according to the charter and constitution and by-laws thereof, which charter, constitution and by-laws are made parts of this mortgage; also to pay all ground rents and taxes ***** And to pay all fines that may be imposed on him by the said mortgagee for any failure to perform the requirements of the charter, constitution and by-laws aforesaid.” The mortgagor consented in the mortgage to a decree for a sale in the event of default. Article 7 of the Constitution of the Association provided that whenever there should be two hundred dollars in the treasury, a share should be loaned or redeemed, and that if there were no application for it, some member might be forced to take it. Article 8 provided that every shareholder who had received a loan or advance either on application or by compulsion, should pay the Association for every two hundred dollars thus loaned or advanced, the weekly sum of fifty cents as dues, and the weekly sum of thirty cents as premium. The law under which the Association was incorporated restricted the charge for interest on money loaned to six per cent. The Association was a solvent and going concern, and the mortgagor was a member thereof as well after the mortgage as before. Held :</p> <p>That the thirty cents per share required to be paid weekly as premium, by the mortgagor, was more than six per cent, on the value of the share, and to the extent of such excess was usurious, and the same was not recoverable by the Association.</p> <p>Building Associations are not included in the provisions of the Act of 1872, ch. 178; the Act was intended for an entirely different class of corporations.</p> <p>Section 86, of the Act of 1868, ch. 471, which provides for the payment of such tonus as may be necessary to place a new member on a footing with the older members,—that they may share equally the profits of the concern—does not warrant a Building Association to charge interest in excess of six per cent, under the appellation of premium.</p>

William Kloch, Joseph S. Taylor and Henry Korber, filed their petition in the Orphans’ Court of Baltimore City, claiming as legatees under a clause in the will of Louis Senft, deceased, which is set out in the opinion of this Court, to be entitled to fifty barrels of whiskey, as forming part of the specific legacy to them.

<p>Act of 1856, ch. 97, chartering the Maryland Agricultural College—Acts of I860, ch. 431, and 1880, ch. 432, maJcing Appropriations for the Support of the Government—Sec. 29, of Art. 3, of the Constitution— Withdrawal of Endowment of Agricultural College.</p> <p>The Act of 1856, ch. 97, entitled “ An Act to establish and endow an Agricultural College in the State of Maryland,” by its eighth section provided that “ the stockholders under the name and style of the Maryland Agricultural College, shall be entitled from the Treasury of the State of Maryland, to the annual sum of six thousand dollars, which said annual sum of six thousand dollars is hereby appropriated out of any unappropriated money in the Treasury, as an annual endowment of the said Maryland Agricultural College.” And by its eleventh section the right was reserved to the Legislature, at any future session, to withdraw any part, or all, of said endowment of six thousand dollars. The Act of 1880, ch. 431, entitled “ An Act making appropriations for the support of the State Government for the fiscal year ending on the thirtieth day of September, eighteen hundred and eighty-one,” appropriated “to the Maryland Agricultural College five thousand, nine hundred and ninety-nine dollars; ” and the Act of 1880, ch. 432, with precisely the same title as the foregoing, save that eighteen hundred and eighty-two was substituted for eighteen hundred and eighty-one, appropriated “to the. Maryland Agricultural College,-five dollars and no more.” Held :</p> <p>1st. That the clauses in the Acts of 1880, chapters 431 and 432, making appropriations to the Agricultural College for the years 1881 and 1882, are not so foreign to the subject of the Acts, as indicated in their titles, as to be violative of sec. 29, of Art. 3, of the Constitution, which requires “ that every law shall embrace but one subject, and that shall be described in its title.”</p> <p>2nd. That the effect of the Act of 1880, ch. 431, was to withdraw for the fiscal year ending the 30th September, 1881, the sum of one dollar from the annual endowment granted tlie Agricultural College by its charter; and that the effect of the Act of 1880, ch. 483, was to withdraw from the College for the fiscal year ending the 30th of September, 1883, the entire endowment, save the sum of five dollars.</p>

On the 19th clay of October, 1881, Luke Z. Barrett, John J. Barrett and Maria T. Yandaniker filed in the Orphans’ Court of Baltimore city, a petition alleging that Joseph Victory died in February, 1881, unmarried, intestate, and without issue, leaving Catherine Barrett, the mother of the petitioners, and Julia M. Brewer and Elizabeth M. Sullivan, his only heirs at law and next of kin; that Catherine Barrett died in June, 1881, a widow, intestate, leaving said petitioners her…

<p>Sale of property under section 129, of Article 16, of the Code— Sufficiency of Title under the Sale—Obligation of Life tenant to heep down the Taxes and ground, rents—Taxes and ground rents, Liens on the property—Claim for Incumbrances discharged—Subrogation—Extent of the Office and authority of an Administrator.</p> <p>The bill of complaint of E. J. W., filed on the 33rd of May, 1881, alleged, that on the 30th of May, 1879, a certain J. If. W., in his own right, and as guardian to his infant children, J. H. W., S. E. W. and E. W., being indebted to the complainant in the sum of $1000, upon a promissory note, dated the 30th of May, 1879, did execute a mortgage to the complainant upon certain property, specifically described in the mortgage. The bill also stated “ that a large portion of the said indebtedness, or sum of one thousand dollars, was expended for the payment of taxes, ground rents, and other incumbrances due and owing upon said property at the time said indebtedness was created, and that to relieve said property of these incumbrances, and to improve the same, were the reasons for the creation of this indebtedness.” It was alleged that the larger part of the property mortgaged was the property of the mother of the children already mentioned, and that she was dead, and administration on her estate had been granted to O. B. by the Orphans’ Court of Baltimore City; and that the remaining portion was the property of J. H. W.. the mortgagor; who it was also alleged was dead and intestate, and on whose estate no letters of administration had been granted. The bill also showed that taxes for 1878, 1879 and 1880, were then due, and the property was liable to be sold for the payment thereof. One of the children who was a minor when the mortgage was made, it was alleged had attained full age; that the others were still minors, and that all of them, with the said C. B., administrator of their mother, lived in the City of Baltimore. Process was craved for all these, and they were all summoned, appeared and answered, either in person or by guardian duly appointed. The mortgage which was filed with the bill, set out that J. H. W., the mortgagor, was authorized by the Orphans’ Court of Baltimore City to borrow the money on behalf of his wards, and to execute the mortgage. The administrator, C. B., answered, consenting to a sale, but reserving his rights as to the-fund. J. H. "W., one of the children, admitted the facts, and assented to a sale, but reserved his rights to the fund. The guardian for the other children answered ignorance, and submitted their rights to the protection of the Court. Subsequently the complainant filed his petition representing that the property was depreciating, and that notices of sale for taxes had been served, and asking the interposition of the Court by decree under sec. 129, of Art. 16, of the Code. Certain proofs were taken. The case was “submitted for decree or order of sale upon the petition filed therefor, and the proofs in the cause,” under an agreement signed by the solicitors of O. B., of J. H. W. and the complainant, and by the guardian for the infants. The Court being “ satisfied from the proofs that a sale will be ordered at the final hearing, and in view of the exigencies” of the case, ordered the sale. The sale was made and reported. The purchaser excepted on the ground that the trustee could not convey a good and sufficient title as per terms of sale. The Court overruled the exception and ratified the sale. On appeal by the exceptant, it was Held :</p> <p>1st. That the sale was properly authorized; that all the persons having an interest in the property were before the Court, and would be bound by the decree and the sale thereunder; and the purchaser’s title could not be questioned.</p> <p>2nd. That although the life tenant was bound to keep down the taxes and ground rents during his life tenancy, yet if it were not done, they were liens for which the property could be sold; and if a part of the incumbrance were incurred in the life time of the wife, that would not only be a lien on the property, but a legitimate claim against her infant children.</p> <p>3rd. That notwithstanding the mortgagor might not have been properly authorized to execute the mortgage so as to bind the interests in remainder of his children and wards; yet, if he did remove those incumbrances existing against his wards and their property in his hands, he would have a just and legitimate claim against them, and he would be entitled to the benefit of the lien which he raised ; and the lender whose money was applied to that purpose was entitled to be subrogated to the guardian’s rights in respect to the wards and their property.</p> <p>In Maryland the office and authority of an administrator runs over the whole State, ,and when letters of administration have been issued in one county, the office is filed, and no other letters can be ' taken out upon the same estate in another county.</p>

The bill in this case was filed by nineteen owners of property fronting or abutting or Park avenue, between Franklin and Madison streets, to enjoin the laying down of railway tracks by the respondent corporation and the other three respondents, who are respectively its president, superintendent and contractor.