Volume 59 — Maryland Reports

The appeal in this case was taken from a decree of the Court below, dismissing the hill of the complainant. The case is stated in the, opinion of this Court.

This suit was brought by the appellees against the appellant.

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

<p>How letters of Attorney are to be construed—Redeemable ground rent—Mortgage—Question whether a Power of Attorney to Borrow on Mortgage, authorizes the creation of a Redeemable ground rent—Form and execution of Deed made under Poiver of attorney—Act of 1856, oh. 154, sec. 23, (Gode.r Art. 24, sec. 27.)</p> <p>The rule that the authority conferred by a letter of attorney must be strictly pursued, cannot override the general and cardinal rule, that the intention of the party creating the power must prevail in its construction, and that such intention is to be ascertained from the language employed, and the object to be accomplished.</p> <p>The instrument moreover must be read in the light of such surrounding circumstances as Courts always consider when called upon to-construe any written contract.</p> <p>A ground rent redeemable at a definite future period, has most of the-essential features of, and is practically nothing more than a mortgage to secure a principal sum, the interest of which is placed in the form of an annual rent.</p> <p>A foreign owner of real estate in Baltimore, and his wife, executed a power of attorney to their son, ■ authorizing him “to sell, transfer and assign unto any person or persons whatsoever, and for such price as our attorney shall think fit, all or any property of whatever description held or owned by us, or either of us, in the said City of Baltimore, or in his discretion, to borrow money in his own or our names, and to pledge said property by way of mortgage to secure the repayment of the same, and interest thereon,” and giving him the-power to execute all deeds or other instruments necessary to carry out the power given. Under this power the son borrowed money on the property, by conveying it in fee to the lender, and taking back a redeemable lease at a rent equal to the interest on the loan. The deed of conveyance on its face purported to be made by M. B. and C. B. his wife, acting by their attorney in fact L. Z. B., and was signed “M. B., [seal,] by his attorney L. Z. B.; C. B., [seal,] by her attorney L. Z. B.” Held :</p> <p>1st. That the borrowing of the money, and pledging the property for its payment by ihe means adopted, was within the scope and warrant of the terms of the power of attorney.</p> <p>2nd. That the deed to the lender was executed in strict conformity with the requirements of the common law, being executed in the names of the principals, and as the act of the parties giving the authority.</p> <p>3rd. That there was nothing in the Act of 1856, ch. 154, (sec. 27, Art. 24 of the Code,) which in terms abolished the previously existing mode of executing instruments under powers of attorney, and in the absence of such express prohibition, the common law form, as well as that authorized by the statute, might be, (as in practice it had been) still used.</p> <p>4th. That the deed made under the power of attorney in this case, was a valid and effective conveyance of the property therein described.</p> <p>5th. That a conveyance made as the statutory provision directs, and in the form adopted in the case of Land Co. vs. Doll, 35 Md., 89, was equally valid and effective with one made according to the common law form.</p>

<p> Power of Municipal authorities to authorize the Predion of Safety Railway gates at Railway Grossings. </p> <p>The city authorities have the power to establish such reasonable appliances in the public thoroughfares where railroads pass along, as will, by a temporary arrest of travel, protect the public from the danger of meeting passing trains.</p> <p>The streets are under the exclusive control of the city, as avenues of travel, and whatever precaution may be reasonably taken to secure the safety of those who use them, is but effectuating the object of such highways, and discharging a corporate responsibility.</p> <p>Assuming that the device of a post and beam for a safety railway gate at a street crossing a railroad is an approved one, the planting of the necessary post and the temporary interruption thereby of travel near the crossing, during the period of danger, must be submitted to, notwithstanding, from the propinquity of a man’s residence to the railroad track, it may work more interruption to him than to others.</p> <p>Where the city, by express legislative sanction, has the right to allow the laying of railroad tracks through the streets, upon such terms and conditions as it may prescribe, and such' tracks have accordingly been laid, it must follow that whatever precautions are reasonably incident to the danger from the passing to and fro of trains in a crowded community, may be lawfully adopted.</p>

<p>Construction of sections 79, 83 and 86 of Article 16 of the Code relating to the Jurisdiction of Courts of Equity, in the matter of Sales of the Beal estate of a Lunatic—Taxes due by the Estate of a Imnatic.</p> <p>Section 79 of Article 16 of the Code gives to a Court of equity full power and authority to make such orders and decrees respecting the persons and estates of a lunatic as the Court may deem proper; and if it stood alone, there could be no question of the power of the Court, in all cases, and in any manner, to decree a sale.</p> <p>By subsequent sections of the same Article, directing how, and in what manner, this great power shall be exercised in some cases, certain safe-guards are thrown around the procedure, not for the purpose of restricting the jurisdiction of the Court, but for the purpose of enabling it to act more advisedly.</p> <p>In section 83 it is provided, that in cases of application to sell the real or personal property of the lunatic, he shall appear and answer by guardian appointed by the Court, and proof shall be taken as in other chancery cases, &c., before such sale. By section 86 of the same Article (16th,) it is provided, that in all cases where a trustee has been appointed by the Court for the management of the person and estate of the lunatic, the Court may decree a sale of so much of his property as may be necessary for his support, or for the payment of all reasonable expenses which said trustee may have incurred. Held :</p> <p>1st. That it could hardly have been contemplated by this 86th section, that before the Court could order a sale of any of the property of the lunatic to„pay his reasonable and just expenses, a regular chancery proceeding should be instituted, the lunatic summoned, a guardian appointed to answer for him, and proof, taken under a commission, that the expenses were just and reasonable.</p> <p>2nd. That the claim of a creditor of a lunatic stands upon a different footing; and in cases where a creditor seeks to collect his debt, or enforce hie lien, an adversary proceeding, such as is prescribed in section 83 of the Code, is the proper one.</p> <p>The trustee of the estate of a lunatic died, and a new trustee was appointed in her place, who filed his petition verified by affidavit, asking that a part of the real property of the lunatic might be sold for the payment of taxes in arrear on his property, and of a debt incurred for his support. The petition set forth the facts showing the necessity for a sale, and designated the property which the trustee deemed it most advisable for the lunatic to sell. Held :</p> <p>1st. That taxes were a necessary incident attaching to the property of the lunatic, and were a part of the necessary expenses which his trustee was bound to pay.</p> <p>2nd. That this petition presented a case that warranted the Court below in ordering a sale, without the formalities prescribed by section 83, of Article 16.</p>

<p>Creditors under the Statute of 13i7t Flizabeth, eh. 5—Judgment creditor in an action of Trespass—Injunction—Application-by the alienee of a Judgment debtor for cm Injunction to-restrain the Judgment creditor from proceeding on his Judgment against the land aliened—Bight of the Judgment creditor, attaching the Conveyance as fraudulent, to have the question of Fraud tried by a Jury—Jurisdiction in Fquity— Sufficiency of Pleadings for presenting the question of Jurisdiction on appeal—Fquitdble discretion in respect of an Injunction.</p> <p>The Statute of'13th Elizabeth, ch. 5, is, sufficiently comprehensive in. its terms to embrace, and does embrace, not only creditors technically so, but “ all others who have cause of action, or suit, or any penalty or forfeiture; and embraces actions of slander,'trespass and other torts.”</p> <p>The judgment creditor in an action of trespass, has a judgment for such a cause of action as justifies his attacking any conveyance of" the defendant made pending the suit, in some form, as fraudulently made and executed against him, if he has cause so to suppose; and should not be prevented by injunction from putting himself into such position that he may have the question of the bona fides of the grantee’s purchase tested in a Court of law and before a jury, through an action of ejectment.</p> <p>The granting or refusing an injunction rests in the sound discretion of a Court of equity, and is not a matter of absolute right; nor will equity interpose by such an extraordinary remedy if the law will afford adequate relief.</p> <p>Pending an action of trespass brought by W. against H. P. S., the latter conveyed certain land to W. S. The action of trespass resulted in a judgment in favor of W., who caused execution to be issued thereon, and levied upon said land. W. S. filed a bill for an injunction to restrain the execution, and prevent a cloud being cast upon his title. The judgment creditor answered the bill, setting up fraud in the title of W. 8., and alleging that the sale to him was not bona fide, but was made with intent to defraud the respondent of the fruits of his judgment. On appeal from a final decree enjoining said execution, it was Held :</p> <p>1st. That W. S. ought not to have been awarded an injunction to stop W. from selling, as he desired, in order that the question of fraud in the title of W. S., as charged, might be tested at law.</p> <p>2nd. That W., being the person who claimed to have been defrauded by the conveyances under which W. S. took title and possession, he was entitled to select the tribunal in which he would have his grievances" inquired into, and redressed, if he was "entitled to redress.</p> <p>3rd. That although it might be within the province of the Court of equity to interfere if it appeared that he was fraudulently setting up this claim for the purpose of wantonly injuring W. S., as charged in the bill, yet inasmuch as there was not the slightest evidence in support of that allegation, and there was no reason to suppose he was doing otherwise than making an honest endeavor to secure his legal rights, the Court could not sanction the arrest of his proceed-, ings in that direction by injunction.</p> <p>4th. That, so far as this could be regarded as a pure question of jurisdiction, it was sufficiently presented by the pleading, to have been raised on the motion to dissolve, which had been made immediately on filing the answer; but that it was not so much a question of jurisdiction, as of the proper exercise of the equitable discretion in respect to granting the injunction.</p> <p>5th. That although the complainant had no present remedy at law, and could only wait to be sued, and stand on his title and possession under it, the fact that W. might long delay his suit did not especially commend the complainant to the Court’s interference by injunction upon W.</p>

This was an application by the appellant for a mandamus to require the appellee to deliver to the petitioner possession of the office of Inspector of tobacco for Warehouse number two in the City of Baltimore, together with the said warehouse, and all the tobacco, hooks, furniture and appurtenances of every kind whatever, pertaining to the same.

<p>Preliminary or provisional Injunction—Riparian rights—Nuisance—Bill for an Injunction to restrain the Pollution of a Stream used to supply water for the City of Baltimore— Insufficiency of the Allegations in respect of one of the causes of Pollution, to justify a Preliminary injunction, and Sufficiency as to others—Mode of procedure in suoh cases—Act of 1872, ch. 157—JEvidence.</p> <p>Where application is made for a preliminary or provisional injunction, the right of the complainant to such immediate interposition of the Court depends entirely upon the sufficiency of the facts charged in the bill; and if the facts as stated upon the face of the bill, be not full, and sufficiently definite and clear in support of the right asserted, and of its violation in the manner charged, the Court will not order the defendant to be restrained before he is heard in his defence.</p> <p>The Mayor and City Council of Baltimore, under an authority conferred by statute, purchased certain lands adjacent to, and including a portion of the bed of the Gunpowder river, and constructed a dam across said stream, thereby forming a Lake, the water from which was conducted into the City of Baltimore, and distributed to various points therein, in order to supply the inhabitants with pure water for drinking and other necessary purposes. A bill was filed by the Mayor and City Council of Baltimore for an injunction against the defendants to restrain them from polluting said .river, and charged, that the defendants, a body corporate, owned and conducted a certain cotton factory-“ situate near the Gunpowder river, or one of the tributaries thereof, above the said lake and dam, and that they discharge, or knowingly suffer and permit to be discharged into the said stream, whence the same necessarily flows into the said lake, refuse water from the said factory, impregnated with diners-injurious ingredients and substances, put into the same by the defendants at said' factory, whereby the water of the said natural stream is rendered less pure and less fit for use by man as drinking water.” And as a distinct cause of defilement or pollution of the stream, it was charged that the defendants “ have erected and do keep, maintain, and use, divers large privies and hog-pens at or near said factory, the excrement and filth whereof the defendants cause or wilfully suffer and permit to be discharged into the waters of the said Gunpowder river, above the said dam and lake, whereby the water of the stream so flowing into, and received by the said lake is greatly polluted.” Held :</p> <p>1st. That assuming that the land was acquired as authorized by the statute, the complainants were riparian proprietors in the strictest sense, in respect_ to the property purchased and held by them on the stream in question; and entitled to all the riparian rights to which the parties under whom they claim, and from whom they purchased the land, were entitled at the time of the purchase.</p> <p>■2nd. That unless derogated from by grant or user ripened into prescription, they were entitled to all the rights of riparian proprietors, and among others to have the stream to flow into and through the lake in its ordinary natural purity and quantity, without any unnecessary or unreasonable diminution or pollution of the same by the proprietors above.</p> <p>3rd. That if therefore the defendants, being upper riparian proprietors, and as such entitled to the ordinary use of the water, including the right to apply it in a reasonable way to the purposes of trade and manufacture, are using the water of the stream in an unreasonable manner, and have defiled the same in such manner, and to such an extent as to operate an actual invasion of the rights ■of the complainants, the latter are clearly entitled to redress by action at law, and, in case the nuisance be continued, to summary relief by injunction.</p> <p>4th. That as the facts are jrresented on the face of the bill, that part of the case that relates to the refuse water discharged from the factory of the defendants, is not stated with sufficient certainty to justify an injunction on the statements of the bill alone, which does not state how such refuse waters are impregnated, by what substance or material, and to what extent; nor the distance of the factory from the lake, or the volume of water of the stream.</p> <p>5th. That it would be impossible to grant the injunction in the terms of the prayer of the bill, as that would put the defendants to the peril of determining what would be a prohibited pollution of the stream.</p> <p>6th. That the real question was, whether the water in the lake was really impaired in its fitness or value for the ordinary uses of life, by reason of any foreign substance imparted thereto by artificial means, and whether such pollution arose from the acts or permission of the defendants.</p> <p>7th. That the burden of establishing these propositions was upon the complainants, and if they be made out by the facts to the satisfaction of the Court, the right to relief could not be defeated otherwise than by the establishment of an adverse right by grant or prescription.</p> <p>8th. That if the right by grant or prescription, so to pollute the stream, be shown to exist, the only recourse which the complainants could have to avoid the cause of the pollution, would be the acquisition of the right by purchase or condemnation, as provided by statute.</p> <p>9th. That inasmuch as the allegations of the bill in respect to the alleged pollution produced by the discharge of the refuse water from the factory into the stream, were not sufficiently definite, without the aid of evidence upon which to found an order for a special injunction, the Court below was right in refusing to grant an injunction as to that ground of complaint.</p> <p>10th. That the complainants might obtain leave, however, to take testimony, under the provisions of the statute of 1872, ch. 157, to be used upon.motion for an injunction; or they might wait the coming in of the answer of the defendants, and move upon the merits confessed therein, if merits be confessed; but otherwise an interlocutory injunction as to this part of the case should not be ordered. ,</p> <p>11th. That with regard to the other ground of complaint, that is to say, the existence of the privies and hog-pens on the stream above the lake of the complainants, the allegations of the bill were more definite, and this source of pollution should be restrained; and even though there might be other sources of pollution, or other persons were committing the same sort of nuisance, it formed no reason why this particular cause or source of pollution should not be restrained.</p>

The hill in this case was filed hy the guardian of the appellant, for a construction of the will of Benjamin Brooke Nyce. The nature of the question presented .is stated in the opinion of the Court. The decision of the Court helow (Dobbin, J.) being adverse to the appellant, he appealed.

<p> Trustee’s sale—A private Sale made under a Decree directing a Public sale. </p> <p>A decree for the sale of property directed the trustee to sell at public sale. The property was offered at public sale and withdrawn, the highest bid being $65 per acre. The trustee, who was himself one of the parties interested in the property, afterwards sold it privately to K. without the assent of the other parties in interest, for the price at which it had previously been withdrawn. None of the other parties were consulted'.by the trustee in regard to the sale, and all of them when informed objected to its ratification. The trustee in his report of sale informed the Court that a Iona fide offer of a larger price was made to him by a responsible party on the day after the acceptance of the offer of K. All the testimony in the case, including that of the trustee himself, showed that the property was sold for much below its actual value, and the trustee further testified “ that he is convinced that considerably more than $65 per acre can be obtained for the property if offered at public sale.” On exceptions filed to the ratification of the sale, it was set aside by the order of the Court below, and on appeal from that order it was Held :</p> <p>1st. That the Court must necessarily act upon the case as actually presented by the record, upon the facts then made apparent to the Court, and not confine its attention merely to the consideration of what might reasonably have been the judgment and opinion of the trustee at the time he accepted K’s offer.</p> <p>2nd. That if, from information afterwards obtained by him, and made known to the Court when its action was invoked, it appeared that injustice would be done to the parties who alone were interested in the property, by ratifying the sale, it ought not to be ratified.</p> <p>3rd. That if this sale had been made in conformity with the terms prescribed by the decree, nothing that appeared in the record would justify the Court in setting it aside.</p> <p>4th. That although a provision in the will of the testator of the property, directing that the property should be sold at public sale, did not deprive the Court of all discretion over the sale, yet it was not to be disregarded altogether in passing upon the question of the ratification of the sale reported.</p> <p>5th. That the order of the Court below, setting aside the sale, ought to be aflinned.</p>

<p>Writ of Error—Qualification of Grand and Petit Jurors— Motion in arrest—Exemption^—Disability—Drawing of Jurors—Insufficient reason for Disturbing the verdict, or Arresting the judgm ent— Construction.</p> <p>A writ of error will not lie where it is based on facts not in or on the record.</p> <p>The fact that one of the grand jury indicting a person, and one of the petit jury which tried and convicted him, were over the age of seventy years, does not form proper ground for a writ of error.</p> <p>An objection of this sort, made by motion in arrest of judgment, is made too late to be of any avail.</p> <p>A proper construction of the several provisions of our law on the subject of the qualifications of jurors, gives an exemption to persons over seventy, and does not create a disability.</p> <p>The general method prescribed for drawing jurors is mandatory, and substantial compliance with the provisions thereof in respect to the selection and drawdng of jurors is necessary to make the jury a legal one; and unless the selections are made by the Judge in the manner pointed out by the statute, exception at the proper time and in the proper way may be successfully taken to a jury improperly chosen or drawn.</p> <p>The weight of authority is strongly in support of the doctrine, that the duty imposed on the Clerk of the Commissioners about the list of male taxables, not known to him to be under twenty-five years, and upon the Judge in respect to the selection of persons from the box over twenty-five and under seventy, is directory only.</p> <p>The statute ought to be understood as only granting an exemption and not creating a disability, as to persons over seventy years.</p> <p>If by mistake an exempted person is drawn on the grand or petit jury, and he choose to waive his privilege, and give no information of his age or cause of excuse, and preferring to serve, does serve, this is no reason for anybody’s complaining, nor is there any sound reason for disturbing the verdict, or arresting the judgment because of the presence of such person on the jury.</p> <p>A law must be accorded such construction as will most reasonably accomplish the legislative purpose.</p>

Appeals from the Court of Common Pleas. One of these actions was brought by the appellant against the appellee, and the other by the appellee against the appellant. In each case the claim arose out of the dealings between the parties in regard to certain sales of barley. The cases are stated in the opinion of the Court.

Appeals from the Circuit Court for Anne Arundel County. The appellees filed a petition in the Circuit Court for Anne Arundel County, contesting the election of D. Claude Handy, John W. Williams, John W. Shipley, George N. Potee and Thomas H. Arnold, as County Commissioners.

<p>Exceptions to Mortgagee’s Sale—Receipt—Assignment—Effect of payment of a Mortgage by a person not under any Obligation to pay it—Subsequent Assignment to the party making the payment—Inadequacy of price—Sufficiency of notice of Sale under the terms of the Mortgage of the description— Sufficiency of the' property—Effect of Mortgagee not taking possession, on Default, before Selling the property, where the Mortgage authorized such taking.</p> <p>L. the purchaser at a mortgage sale, two days after the purchase, paid the holder of a prior mortgage on the property, the full amount of principal and interest then due on his mortgage, and something was then written on the original mortgage which was signed by the mortgagee, and the instrument was then delivered to L. On the same day, this writing was erased at the instance of L., and a formal assignment written on the mortgage, and signed by the mortgagee. The sale under the junior mortgage was after-wards set aside, and L., as assignee of the first mortgage, and under a power contained therein, sold the property, and himself became the purchaser. On exceptions to this sale, filed by the purchaser of the equity of redemption at sheriff’s sale, under a judgment against the mortgagor, subsequent to both mortgages, it was Held:</p> <p>1st. That the testimony taken touching the nature of the erased writing did not show that it was a release, or that it was anything more than a receipt to the effect that the mortgagee had received from L. the full amount of the mortgage debt.</p> <p>2nd. That such a receipt was mere evidence of the payment of the money, and had no other force or effect.</p> <p>3rd. That if the payment of the money operated a discharge or extinguishment of the lien of the mortgage, the subsequent assignment, whether made on the same day or afterwards, could not avail against the exceptant who was then the owner of the equity of redemption ; and if it did not so operate, the assignment was clearly valid.</p> <p>4th. That as a general rule, payment of an incumbrance by a party whose duty or obligation it is, by contract or otherwise, to pay, extinguishes it, but whether this effect follows in other cases depends upon the intention of the parties; and as to the question of intent in such cases, the interest of the party making the payment has a strong, if not controlling influence.</p> <p>5th. That L. not being a party to the mortgage was under no duty or obligation to have it paid or cancelled, and he having testified that his intention when he paid the money was to obtain an assignment of the mortgage and not to have it extinguished as a lien upon the land, and such being manifestly his interest at the time he made the payment, (the sale to him not having been ratified,) it did not under the circumstances of the case, amount to a discharge of the mortgage, but entitled L. to the assignment he subsequently obtained.</p> <p>fith. That the evidence to show inadequacy of price was not such as to justify the sale being set aside on that ground.</p> <p>The mortgage under which the sale by L. was made, provided that the sale might be made after giving twenty days notice by handbills or otherwise, of the time, place and manner of sale on the terms prescribed in said notice. Notice was given by advertise-' ment in a daily newspaper in the City of Cumberland, the land being situate a mile and a half from that city. Held :</p> <p>That this was a sufficient compliance with the terms of the mortgage even though no notice was given by handbills.</p> <p>The notice stated the day, hour, and place of sale, and prescribed the terms as “ cash on the day of sale,” and described the land by quantity, distance and direction from the City of Cumberland, with a reference to a recorded deed containing a description by metes and bounds, courses and distances. Held :</p> <p>1st. That in all this the requirements of the mortgage were followed and gratified, and the description given of the property was sufficient.</p> <p>3nd. That it was no objection to the validity of the sale that L. failed to avail himself of a clause in the mortgage, allowing the mortgagee and his assigns on default being made, “to take possession of the premises ” before proceeding to sell. '</p>

<p>Personal action—Death of defendant after Appeal—Abatement of Suit—Act of 1861, ch. 44.</p> <p>Where in an action for malicious prosecution, the plaintiff appeals from a judgment in favor of the defendant, and after the appeal taken the defendant dies, the suit will abate. Such action is not within the contemplation and meaning of the Act of 1861 j ch. 44, amending Article 98, of the Code of Public General Laws.</p>

<p>Construction of the Act of 1880, eh. 20, relating to Taxation of stock—Taxation of shares of Non-resident stockholders—Real property in another State held by a Domestic Corporation, to be included in the Valuation of its stock—Effect of a Levy not completed till after the time named in sec. 4, of Art. 28, of the Code—Liability of Corporations to be sued for the Tax levied upon the Shares of its stockholders—Duty of Court in respect of an Agreed statement of facts—Hmv questions of Pleading must be raised.</p> <p>The capital stock of a corporation was divided into 58,800 shares, of which 58,700 shares were owned by non-residents of the State, and 100 shares by a resident of Allegany County. The corporation was regularly assessed with its real property in Allegany County for the year 1880, and the tax assessed thereon was duly paid. The átate Tax Commissioner, under the Act of 1878, ch. 178, as amended by the Act of 1880, ch. 20, which took effect from the 25th of February, 1880, after deducting the value of the real estate so assessed from the aggregate value of the total number of shares of capital stock of the corporation, as directed by the statute, ascertained and determined the assessable value of each share of the stock, and of the whole number of shares, in addition to the assessed value of the real estate. The corporation was a coal mining company created under the authority of this State, and conducting its works and mining operations in Allegany County, within this State. It also owned real estate in the State of New Jersey, needed and used as a wharf for purposes of its business, which enhanced the market value of the stock of the company, and which market value, so made up, determined the assessable value of the stock, as fixed by the State Tax Commissioner. In an action by the County Commissioners of Allegany County against said corporation to recover the tax for the year 1880, claimed to be due said county in respect of the assessed value of all the shares of the stock of the defendant, as ascertained by the State Tax Commissioner, it was Held :</p> <p>1st. That the manifest design of sec. 151, of Art. 81, of the Code, as re-enacted with amendments by the Act of 1880, ch. 20, was, so far as the right of local taxation was concerned, to give to the City of Baltimore, and each of the counties, the full benefit of all the taxable property having either an actual or constructive situs within their respective limits; and this could not consistently be done upon any other construction than that adopted by the Court in the case of Baltimore City vs. The Pass. R. Co., 57 Md., 31, where it was held to be within the reason and purview of the statute that the Tax Commissioner should not only certify the number and value of the shares owned by residents, but should likewise certify to the county or city authorities where the corporations are situate and conducting their operations, as defined by the statute, the number and value of the shares owned by non-residents of the State, for purposes of local taxation.</p> <p>2nd. That the assessment of the stock of the defendant was not illegal because of its value being determined by including the real estate situate'in the State of New Jersey.</p> <p>The certificate of the State Tax Commissioner, as to the assessable valuation of the stock of the company for county purposes, was not furnished to the County Commissioners until about the 23rd of July, 1880; and it was not until immediately after its receipt that they charged the company with the assessable value of its stock thus ascertained and determined, and levied a tax on such assessable value, at the rate previously fixed by them for that year. The delay in furnishing the certificate was occasioned by an appeal taken by the company from the action of the State Tax Commissioner, which was not finally determined before the 22nd of July, 1880, the day before the certificate was transmitted by him to the County Commissioners. The Code, Art. 28, sec. 4, provides that the County Commissioners shall meet to make the annual levy of taxes previous to the first day of July in each year. Held :</p> <p>That under the above circumstances, showing no fault or neglect on the part of the County Commissioners, there was no sufficient ground'for saying that the tax in question was illegally assessed or levied.</p> <p>The declaration proceeded as for taxes levied upon the property of the corporation and therefore due from it, without reference to the assessment and levy upon the shares of the individual stockholders. The assessment of the tax was required to be upon the shares of the stock belonging to the individual stockholders as such, and not as upon property belonging to the corporation. The corporation however, was required by the statute to pay the taxes assessed upon the shares of stock, and when it should have paid such taxes, the same were directed to be charged to the account of the respective stockholders by the corporation. Held :</p> <p>1st. That the corporation was under no duty or obligation to pay the taxes assessed upon the shares of stock of the individual stockholders, except as provided by the statute. But the statute having created the duty and obligation to pay, when the shares of stock are assessed to the individual owners, that duty and obligation on the part of the corporation may be enforced by a proper action at law, the plaintiff in such case showing the right claimed to be within the provisions of the statute.</p> <p>2nd. That as there was no demurrer to the declaration, nor did it appear that there was any objection whatever taken in the Court below to the sufficiency of the pleading, and the case was submitted to the Court on an agreed statement of facts; upon such statement it was simply the duty of the Court to declare the law upon the facts thus admitted.</p> <p>3rd. That if parties desire to raise questions on the pleading, it must be done in some established mode, as by demurrer, motion in arrest, or by prayer that refers to and involves a consideration of the pleading. But on an agreed statement of facts, the Court is confined to declaring the law arising upon the facts admitted, and is not called upon for judgment as to the sufficiency of the pleading.</p>

Circuit Court for Harford County. The appellant in this case held a judgment against John M, Hopkins, upon which he caused an attachment to be issued, by virtue of which certain goods, in the hands of a third party, were seized by the sheriff. The appellee filed a petition under-oath stating that he was the owner of the goods, and claimed the same as his property.

<p>Irregularity in selecting a Grand Jury, and its effect upon an Indictment found by it—Construction of the Act of 1870, ch. 220.</p> <p>In the selection of a grand and petit jury for Baltimore County, under the provisions of the Act of 1870, eh. 220, one of the forty-eight names drawn for the general panel was that of a non-resident of the county. This name was not, however, among those which were drawn as grand jurors. Held:</p> <p>1st. That whatever weight the non-residence of the party might have had in determining his own qualification as a petit juror, it had no substantial bearing upon the qualifications or fitness of those actually constituting the grand jury. 6</p> <p>.2nd. That the statute was to be regarded mainly as directory in its multifarious provisions; and unless any irregularities incident to carrying out its directions in good faith, should be shown to materially violate it, or so affect the juries as to prejudice the rights of the citizen, these irregularities should, not be treated as fatal.</p> <p>:3rd. That the irregularity in this instance was no ground for a plea in abatement to an indictment found by said grand jury.</p>

<p> Privilege of Witness in respect of Questions, which tend, if answered affirmatively, to Degrade and disgrace him. </p> <p>Where a witness on cross-examination, being asked questions which, if answered affirmatively, would tend to degrade and disgrace Mm, avails himself of the privilege accorded him by the Court, and declines to answer, he cannot rightly be asked, “why do you decline to answer these questions ? ” When he has declined to answer he has done all that the rule of law requires him to do.</p>

<p>Appeals from the Orphans’ Court of Allegany County.</p>

‘Appeal from the Circuit Court for Talhot County. This was an action of ejectment brought, by the appellee against the appellant. The verdict and judgment of the Court below were in favor of the plaintiff, and the defendant appealed. The case is stated in the opinion of the Court.

This was an action of debt on a judgment rendered in the Court of Common Pleas of Washington County, Pennsylvania.

The appellees sued the appellant in an action of covenant upon an agreement under seal, the nature of which, and the facts pertinent to the question involved, are stated in the opinion of the Court.

The hill iu this case was filed hy the appellee against the appellant; and the appeal is taken from the decree of the Court below, (Lynch, J.) making perpetual the injunction asked for in the bill. The case is stated in the opinion of the Court.

<p>Appeal from the Circuit Court for Allegany County.</p>

<p>Appeal, as up on Writ of Error, from the Criminal Court of Baltimore City.</p>

<p>Duty of Assignee of Mortgagee or trustee-in Selling property, upon which Prior incumbrances rest—Sale by Assignee of Mortgagee tmder Power in mortgage—Duty of Assignee in respect to Sale—What required in respect of Statements made by Trustee at Sale—Misleading announcement by Trustee at gale—What required of Trustee in making Announcement at the Sale—Absence of Trustee from Sale—Act of 1825, chin, (Art. 5, see. 12, of the Code)—Art. 5, sec. 27, of the Code—Act of 1861, eh. 33.</p> <p>As a general rule, it is not the duty of the assignee or trustee in selling property, upon which prior incumbrances rest, to ferret out the exact state of such liens, and ascertain how much, if any, may be due upon them. The rule of caveat ernptor excludes such rigid exaction of a trustee. If the liens are very numerous or complicated, and the title clouded so that it may be doubtful if any valuable interest is to be sold, a creditor might file a bill for the purpose of removing the cloud, and having the property sold by decree, and the proceeds of sale marshalled; but such duty would not rest on the trustee.</p> <p>Certain property, was sold under a power of sale in a mortgage, by the assignee of the mortgagee. The mortgaged property was subject to the payment of an annual rent. At the time of the sale, it was stated “ that the rent charge being a prior lien to the mortgage, the property would be sold subject to the payment by the purchaser of so much of the rent in arrear as might ultimately be shown to be unpaid, and subject to the payment of four hundred dollars per annum during the lifetime of W.,” the annuitant. Exceptions were taken to the sale by a judgment creditor of the mortgagor. They substantially charged that the trustee offered the property subject to the accumulated arrears of the annuity or rent charge due W., without accurately indicating what was due on account of such arrears; so that the exceptant and others could not intelligently bid for the property; and that the trustee stated a sum as the possible amount of such arrears without stating that a certain judgment and mortgage were given on account thereof, whereas notice was given of such judgment and mortgage as if they were independent liens, when in fact they were additional security for the arrears of the rent charge; also, that the trustee in making the computation of what was probably due on the rent charge, included interest thereon, when such arrears did not draw interest at all; and that including the interest, the amount of arrears due would fall far short of the amount stated by the trustee as the amount subject to which 'purchasers would take. Held :</p> <p>1st. That the mortgagee, with power of sale to him or his assignee, or the assignee in making the sale under such mortgage, was but a trustee for all the parties in interest—his position being a voluntary assumed relation of trustee—and he was subject to the same rules of duty that belonged to other trustees.</p> <p>2nd. That if it were not the duty of the trustee to have ascertained the amount of the accumulated arrears of rent, and to have so announced, he was bound, if he undertook to make any statement respecting it, to see that such statement was at least, approximately accurate, and in nowise misleading.</p> <p>3rd. That the announcement made by authority of the assignee, that if the arrearages of rent exceeded four thousand dollars, the purchaser would not be held' to his bid, but up to that amount he would be, was clearly misleading, as the bidders might fairly'infer therefrom, that in bidding they were liable to pay, and would probably have to pay, in addition to their bid, the sum of four thousand dollars, or nearly that amount for such arrearages, when the proof showed that they did not nearly reach four thousand dollars.</p> <p>4th. That it was the duty of the trustee when he announced the existence of the judgment and mortgage, to have stated that they were on account of the arrears of the rent, and not independent or additional liens upon the property, as the bidders were entitled to ' all the information which he had on the subject, and this was most important to them ; and further, the unexplained statement of the fact of such liens was calculated to depress the sale.</p> <p>The fact that a trustee was not actually present when the property was sold, though he was in town, near at hand, and easily accessible, if needed for any purpose, is a circumstance that may be considered with others, of which an exceptant to the sale had a right to complain, as throwing discredit on the sale.</p> <p>The Act of 1825, ch. 117, (Art. 5, sec. 12, of the Code,) which prohibits the parties from urging in the Court of Appeals any point or question which does not appear by the record to have been raised or decided in the Court below, applies to cases at law, and not to cases in equity.</p> <p>Section 27, of Article 5, of the Code, applies only to defendants in a regular chancery proceeding, who, having been brought in, and submitted to the jurisdiction without question, will not be permitted to question the jurisdiction on appeal.</p> <p>The Act of 1861, ch. 33, interposes no obstacle to the consideration in the Court of Appeals, of an objection to a sale on the ground of the absence of the trustee when the property was sold, it appearing that no such objection was made by exception filed in the Court from which the appeal was taken. The consideration of such objection does not fall within the prohibitions of the Act.</p>

<p>Pire Department of Baltimore City—Sections 3 and 5, of Article 20, of the Baltimore City Code of 1879—Exclusive power of the Fire Commissioners to malee certain Appointments in their Department, and to Remove the appointees—When Mandamus will not lie at the instance of a Party removed from Office—Remedy of party Removed—Responsibility of the Fire Commissioners in respect of the party Removed.</p> <p>By section 3, of Article 20, of the Baltimore City Code of 1879, it is provided that the “ Eire Commissioners shall have the appointment of, and entire control over, all other employSs, and property of the Eire Department.” And the fifth section of the same Article is as follows: “ The Eire Department of the City of Baltimore, shall consist of five commissioners, one chief engineer, two assistant engineers, one clerk, seven engine companies, each consisting of one foreman, one engineman, one assistant engineman, one hostler, and eight firemen; and two hook and ladder companies, each consisting of one foreman, one tillerman, one hostler, and ten laddermen, all of whom shall be of good character, and except those especially provided for in this ordinance, shall be appointed by the Eire Commissioners, and shall be entitled to retain their respective positions for such time as they evince willingness and capacity to discharge the duties pertaining thereto efficiently, harmoniously with their associates, and satisfactorily to the Fire Commissioners; said employes shall not be subject to removal on account of any political,'religious or other sentiments entertained by them, so long as said opinion or sentiment does not interfere with the faithful and efficient discharge of their respective duties as employSs of the Eire Department.” On the 29th of November, 1878, O. was appointed by the Board of Eire Commissioners as foreman of an Engine Company in the Fire Department of Baltimore City, the appointment to take effect on the 2nd of December following. This position he held under successive re-appointments until the 21st of October, 1881. when he was dismissed by order of the Board for disrespect to his superior officer. On the 21st of April, 1882, 0. applied for a mandamus to compel the Board of Fire Commissioners, to restore him to his place, and to pay him the salary thereof. Held : <</p> <p>1st. That under the foregoing fifth section, the Fire Commissioners were solely invested with the power of determining whether their appointees were persons of good character, as by law required to be, whether they were efficient in the service, and whether they evinced proper willingness to discharge their duty “harmoniously with their associatesand the judgment and discretion exercised in the matter by the Fire Commissioners are not subject to the revision of another tribunal.</p> <p>2nd. That when the power of removal from office rests, by statute, in the discretion of any person, or body of persons, or depends upon the exercise of personal judgment as to whether the -cause for removal be sufficiently good, mandamus will not lie.</p> <p>3rd. That if the party removed has been illegally discharged from the service of the Fire Commissioners, and has not been paid his salary, his remedy is at law; and if the Fire Commissioners wilfully, maliciously or dishonestly exercised their power to remove him, they are answerable for their corrupt action.</p>

The case is stated in the opinion of the Court. Exception.—At the trial, among other evidence, Thomas E. Shepherd, the President of the plaintiff, testified that the defendant was a director in the Bank until two or three years after the death of Jonas Ecker, and he thought until 1874 or 1875; that the defendant told him frequently, at the meetings of the Board, that he, as executor, was, at all times, ready and willing to pay the amount ascertained to he due from his…

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

<p>When Equity will give relief by Restraining the execution of Judgments at law—How Corporation, incorporated under the laws of the State of Hew Yorlc, and doing business in Maryland, shall be Summoned when sued in the latter State—Act of 1868, ch. 471, sees. 209, 211—When a Court of Equity has jurisdiction to Perpetually enjoin the execution of Judgments at law.</p> <p>Where a party fails to avail himself of his proper defence at law, and is not prevented from so doing by fraud or accident, or the acts of the opposite party, unmixed with any negligence or fault on his part, equity will not interfere. But where a party is not in fault by failing to use reasonable diligence, and is prevented from de- ' fending the action at law by fraud or accident, or the acts of the -opposite party, equity will lend its aid and give relief.</p> <p>Sundry parties were sued before a magistrate, and upon being summoned, promptly employed counsel to attend to the suits. The counsel so employed, went to the residence of the magistrate, and after some conversation with him, the magistrate concluded to dismiss the cases, and then signed, sealed and delivered to the counsel a paper in which he stated that “ having become perfectly satisfied that the suits brought before me by H. W. against the following persons, to wit: (naming the defendants,) are vexatious, and without any color of claim or right, the same are hereby dismissed.” The counsel took this paper and gave it to one of his clients, and informed all of them that the suits had been dismissed. Shortly afterwards, without notice to the counsel or to any one of the defendants, the magistrate proceeded to enter up the judgments on his docket. No execution was issued upon any one of these judgments, until long after the time for appeal had elapsed; and neither the defendants, nor their counsel, had any knowledge of such judgments until nearly a year after they had been rendered. Held :</p> <p>That the foregoing facts abundantly justified the interposition of a Court of equity to relieve by perpetually enjoining the execution of the judgments.</p> <p>Where a corporation is incorporated under the laws of the State of New York, and transacts business in Maryland and in Frederick County, and has a principal office in Maryland, located in the City of Baltimore, and suit is brought in Frederick County against such corporation by a resident of the State of Maryland, and summons is duly served upon an agent of the corporation in said county, it is essential that notice of such process should be left at the principal office of said corporation in the City of Baltimore, and without such notice the service is incomplete and ineffectual, and the corporation is not summoned.</p> <p>Where a Court of equity has power to order the delivery up and cancellation of judgments at law, there can be no question as to its power to perpetually enjoin their execution.</p>

Section 138, of Article 4, of the Code of Public Local Laws, provided as follows : “ The Mayor and City Council have power to license and regulate hackney coaches, or other carriages kept for hire and employed within the city, and also draymen, wagoners, carters, porters, and watermen, residing and employed within the said city, with power to make all necessary regulations respecting the same.” By the Act of 1880, ch. 69, this section was repealed and re-enacted, so as to…

This was an application by John Henderson and others for a mandamus to compel John A. Robb, City Register, to give certificates that the assessments against the property described in Exhibit B, for the opening of Eden street, were paid by G-ustavus R. Henderson and others, ■owners of Henderson's rope walk, without claiming title to the property so assessed, also for a like writ against Henry S. Taylor, City Collector, to compel him to advertise and sell •the property…

The case is stated in the following opinion delivered hy Judge Miller, in the Circuit Court: “It appears from the proceedings in this case, that the complainant, Linthicum, and the defendant, Weir, on the 23rd of January last, signed an elaborate written agreement of partnership, hy which they agreed to become co-partners in the business of a retail grocery and provision store, to be conducted and carried on in the city of Annapolis. “ It is not necessary, at present, to…

The case is stated in the opinion of the Court. First four exceptions, not passed on hy the Court. Fifth Exception. The plaintiff offered eight prayers the fourth and seventh of which were rejected, and are omitted. Those granted are the following: 1.

The case is stated in the opinion of the Court. Exception. The evidence being closed on both sides, the plaintiffs offered the four following prayers : 1. That if the jury find from the evidence, that the debt sued for, was fraudulently contracted by the defendants, the plaintiffs are entitled to maintain the attachment in this case. 2.

This was an action brought by the appellee against John A. Allers, and the appellant bis wife, to recover on three promissory notes, dated the 1st of May, 1878, each for the sum of $679.31, signed by them as makers, and payable respectively at six, twelve and eighteen months. The case is further stated in the opinion of the Court.

The apjieal iu this case was taken from an order of the Court helow, (Dobbin, J.,) ratifying an auditor’s report and account. In the account the appellee was allowed its claim for an assessment upon the estate of Alexander Gould deceased, to defray the expenses of opening Hanover street.

<p>Question whether a Scire facias will lie to Revive a judgment in rem—Defects in the proceeding considered—Who must he notified—Act of 1861, oh. 70, subjecting certain Leasehold estates to the lien of Judgments—Ground of Demurrer to writ of Scire facias—Defective writ of Scire facias.</p> <p>A judgment was recovered in 1854 against S., which was revived in 1859, and again in 1874 upon proceedings begun in 1868. In the revival judgment of 1874, it was alleged that a judgment was obtained against B., as terre-tenant of S. A subsequent proceeding by scire facias was instituted especially intended to revive the judgment obtained in 1874, against the land of B. as terre-tenant. On demurrer to the writ it was Held :</p> <p>1st. That although as against the judgment debtor and his heirs or personal representatives, the scire facias proceeding, which culminated in a judgment of fiat in 1874, was a continuation of the original proceedings in which the judgment was obtained; yet as against terre-tenants, who are entire strangers, a scire facias intended to subject land claimed by them to the payment of a judgment against another, must be regarded as so far a new proceeding, that everything necessary to co-exist to affect their rights must appear in the writ. ,</p> <p>2nd. That conceding for the purpose of decision only, that a scire facias will lie to revive a judgment in rem,, without deciding that it does, the writ was defective in not showing how the judgment of condemnation was revived.</p> <p>3rd. That although the scire facias in question was intended, to be special in form in order to revive previous judgments of fiat against said B. and one 0. as terre-tenants, this should not have prevented the giving authority to the sheriff to notify all other terre-tenants, if there were any.</p> <p>4th. That by the Act of 1861, ch. 70, leasehold estates over five years in duration are subjected to the lien of judgments to the same extent as freehold estates; and the recitals in the writ showed that only estates in fee were by the judgments of fiat against B. and 0. subjected to the payment of the judgment against S. If at the time the judgment was entered against B. and 0., either of them had leasehold estates, such as are by the Act referred to, subjected to the lien of judgments, such leasehold property was as much subject to the payment of the judgment as estates in fee. And for that reason, supposing the judgment could be effectively rendered in that form, it should not have confined the fiat to estates in fee.</p> <p>5th. That the writ was demurrable because it did not assert that there were no other lands or terre-tenants chargeable with the judgment.</p> <p>6th. That although B. might plead in abatement if there were others, he might still demur for want of the averment that there were no others to be charged.</p> <p>7th. That the writ was fatally defective because the judgment it recited against B. or rather against the land in his possession, was one which could not be enforced through fieri facias, by reason of its containing no description of the land intended or sought to be affected by it.</p>

The case is stated in the opinion of the Court. First Exception.—The plaintiff having testified to the refusal of the defendant hy its officers to deliver to him certain heef, the plaintiff’s counsel then asked witness what effect did the refusal to deliver the heef have on his business. The defendant objected to the question and proof offered, hut the Court (Miller and Hayden, J.,) overruled the objection and permitted the question to he asked and answered.

The case is stated in the opinion of the Court. First and Second Exceptions.—Sufficiently stated in the opinion of the Court.

<p>Appeal from the Circuit Court for Washington County.</p>

<p>Question as to the Existence of a Partnership—Inability for the legal consequences of an Agreement—Merger of antecedent Negotiations An a Written Contract—Facts alleged, and not Conclusions of law, admitted by a Demurrer—Conclusion of lam—Construction of Agreement—Decree in personam— Trust—Fraud—Allegations not pertinent to the case made by the Bill—Bill for discovery not maintainable.</p> <p>A contract was made between E. and the Mayor and City Council of Baltimore, for the performance by E. of certain work for said corporation. The contract provided for the retention by the city of one-fifth of the money dhe upon the monthly estimates, until the work was completed and accepted. Subsequently a written agreement was made between B. and R. by which R. was to superintend the work, and to receive therefor from E. one-sixth of the net profits arising from the contract with the city. It was further stipulated by this agreement that R. should have the privilege of drawing a fixed sum per month, to be charged against said one-sixth net profits, and should have the privilege of inspecting the books of account relating to the work; but in the concluding clause it was expressly agreed that R. was not a partner with E. in said work, nor was he to be in any manner liable for any damages growing out of its prosecution, other than as such superintendent. A bill was filed by R. against E. and certain assignees of E’s interest in the contract with the City of Baltimore, and against the said city, for a discovery, and account, and a decree for the amount due him, and for a receiver to receive all sums payable by the city under its contract, and an injunction to prevent E. or his assignees from collecting, and the said city from paying to them, the sums due under said contract. On demurrer to said bill, it was Held :</p> <p>That in the facé of the provision in the agreement between E. and R. that R. should not be a partner, it could not be said that the other clauses of the agreement, by which it was stipulated that he should receive one-sixth of the net profits growing out of the contract, as compensation for his management and superintendence of the work, made him such partner.</p> <p>The bill alleged certain verbal negotiations antecedent to the written • agreement, and that complainant when the agreement was presented to him by E. objected to the clause which apparently denied their partnership, but finding all his protests unavailing, he finally signed the agreement as prepared, under the belief that the clause in question would not affect his rights in the premises. Held :</p> <p>1st. That as he signed the agreement with knowledge of its provisions, and did not by his bill seek to set it aside, or reform it, but stood upon it, and insisted that under it he was a partner, and made it part at least of the foundation of the relief prayed for, he must accept all the legal consequences flowing from this position ; one of which was that by the express terms of the agreement he was not a partner ; and another was, that all antecedent verbal negotiations or agreements were merged in the written contract, which stood and expressed the final and actual agreement of the parties.</p> <p>2nd. That although the case was presented upon demurrer, to the Bill, it was the facts alleged, not the conclusions of law sought to be'drawn from them, which the demurrer admitted.</p> <p>3rd. That in a case like this, the averment that a partnership existed, founded upon antecedent verbal negotiations, was a conclusion of law; the final written agreement stood in the way and compelled the Court to reject all such' averments.</p> <p>4th. That the written agreement was a complete answer to all of the averments of the bill, so far as they assert that a partnership was intended or created by previous dealings between the parties.</p> <p>5th. That the complainant, not being a partner, was by the agreement, simply employed by E. to manage and superintend the work for a compensation to be measured by one-sixth of the net profits, but having no lien upon the partnership effects, and having no more right than any other simple contract creditor to interfere with any disposition E. might choose to make of them.</p> <p>6th. That assuming that by virtue of this contractual relation, R. had a right to go into equity and call upon E. for an account, in order to ascertain the amount due, as provided in the contract, and that a Court of equity, having jurisdiction for that purpose, would go on and decree payment of the amount thus ascertained, such decree would simply be a decree in personam, having no more effect upon the moneys payable to him for work done under his contract with the city, than uqion any other property belonging to B.</p> <p>7th. That the averments of the bill did not disclose any facts upon which it could be held that this money was impressed with any trust in favor of the complainant, so that he could seize upon it in the hands of E., or follow it into the hands of his assignees, taking with actual knowledge of all the claims and pretensions set up by the complainant.</p> <p>8th. That assuming then that the assignees when they took the assignments from E. had notice of all the facts alleged in the bill, still the complainant was not entitled as against them to the relief which the bill prayed for.</p> <p>9th. That the allegations of the bill, if any there were, which might be regarded as charging fraud against the assignees or either of them, were not pertinent to the case made by the bill, it not being a creditors’ bill assailing the assignments upon the ground that they were executed in fraud of the creditors of E.</p> <p>10th. That as the complainant was not entitled under the bill to any relief against the assignees, it could not be maintained against them as a bill for discovery.</p>

<p>Construction of the Act of 1846, eh. 279—Limited jurisdiction of Orphans’ Courts—When executors and administrators authorised to convey Real estate sold hy Testators and intestates—Evidence—Effect of an order of the Orphans’ Court directing the Executors of a deceased Vendor of land to execute a deed to the Purchaser, where the Executors die without executing such deed.</p> <p>The Act of 1846, ch. 279, authorizing deeds to be made by the executors or administrators of persons making sale of real estate and dying before receiving the purchase money, or conveying the land to the purchaser, requires the executor or administrator of the person so dying to satisfy the Orphans’ Court that the purchaser had paid the full amount of the purchase money. On the petition of B. filed in the Orphans’ Court for Allegany County, and the answer of the executors of C. thereto, the said Court on the 14th of November, 1854,, passed an order directing the executors to execute and deliver to B. a deed in fee tor certain land described in the order; but the executors died without making such deed. On a bill filed by the G. C. Co., claiming title under B., against the heirs of C., for an injunction to restrain one of said heirs from prosecuting an action of ejectment for said land, and for the appointment of a trustee to convey said land to the complainant, and claiming that B. had purchased the land from C. and paid him for it in his life-time, although he had received no deed for it, it was Held:</p> <p>1st. That Orphans’ Courts in this State exercise special and limited jurisdiction, expressly conferred iy statute; and the Act of 1846, ch. 279, neither in terms, nor by implication, confers jurisdiction upon such Courts to hear and determine controversies in regard to sales of real estates by testators or intestates.</p> <p>2nd. That it merely authorizes executors and administrators to convey real estate sold by testators, provided they satisfy the Orphans’ Court that the purchase money has been paid; and satisfactory proof of such payment is a condition pn'ecedent to the exercise of the power.</p> <p>3rd. That the title of the purchaser is derived from the deed of the executor, and not from the order of the Orphans' Court.</p> <p>4th. That if the executor dies before the execution of the deed, his answer admitting the receipt by him of the purchase money, would no doubt be admissible in evidence to prove such payment, in a proceeding against the heirs at law of the testator for a conveyance of the property. And it may be that an order or minute of the Orphans’ Court, setting forth the fact that the executor had furnished to the Court satisfactory proof of the payment of the purchase money, would also be admissible.</p> <p>5th. That in this case, the answer of the executors being lost, and the order of the Orphans’ Court no where stating that the executors had furnished proof in regard to the payment of the purchase money by B., such order constituted no bar to the claim of title set up by the heirs at law of C.</p> <p>6th. That the order of the Orphan’s Court being out of the way, there was no proof whatever to support the allegations in the bill.</p>

This was an action instituted by the appellee, as holder, against the appellant, as maker of a promissory note. The case is stated in the opinion of the Court.

<p> Bona fide Bur chaser for value, without Wotiee of an Unrecorded agreement for a Lease—Mechanics’ lien. </p> <p>K. being the owner in fee of an unimproved lot of ground in the City of Baltimore, made a contract in writing, which was not recorded, with H., to give him a lease of said lot for ninety-nine years renewable forever, subject to a yearly rent of $3.50 per front foot. At the request of EL, G. agreed to, and did, furnish him materials to be used in the construction of a house on the lot, after knowledge of the terms of the agreement to lease, and relying on the final consummation of that agreement, and particularly of the condition that the rent to be reserved was $3.50 per front foot, and no more. Afterwards, while the house was in course of erection, K. executed a lease of the lot to EL, reserving a rent of $5.50 per front foot, and at the same time sold and conveyed the reversion to P., the latter having actual knowledge at the time that the house was not then completed. A bill was filed by G. to enforce a mechanics’ lien for the price of the materials so furnished by him, he claiming a prior lien not only upon the leasehold estate as actually created, but upon all the reversionary interest over and above the $3.50 per front foot, mentioned in the original agreement to lease. On a demurrer filed by P., it was Held :</p> <p>1st. That P. stood in the position of a tona fide purchaser of the reversion for value, and without notice of the agreement • upon which the supposed equity of the complainant was founded.</p> <p>2nd. That a party thus dealing with the owner of the reversion was only bound to look at the record to see the state of the title, and to see in what character the party in possession held title.</p> <p>3rd. That the fact that he knew that a building was in course of erection upon the property, did not in such a case as this require him to go further.</p> <p>4th. That as between the purchaser of the reversion and the material-man, the equity was with the former, and the bill could not be maintained as against him.</p>

<p>Statute of Limitations—Judgment of Condemnation in Attachment—Aet of 1715, eh. 40, sec. 3, and Art. 10,- see. 13, of the Code.</p> <p>The Statute of Limitations begins to run on a judgment of condemnation in an attachment case, from the date of the judgment, and is a bar to an execution issued thereon after the lapse of twelve years from such date.</p> <p>Tlie provision of the statute, (Act of 1715, ch. 40, sec. 3, and Art. 10f sec. 13, of the Code,) that the plaintiff cannot have execution on a judgment of condemnation in attachment within a year and a day,, without first giving bond conditioned to make restitution in case the defendant shall within said period come in and show that the plaintiffs claim has been paid or barred in whole or in part, was made for the security of the defendant only; and was not intended to prevent the issue of the execution. The plaintiff is at liberty to issue his execution as soon as he obtains his judgment.</p>

This suit, which subsequently was removed into and tried in' the Court of Common Pleas, was originally brought in the Baltimore City Court by the appellee against the appellant, upon a certificate of life insurance, issued by the latter on the 23rd day of December, 1879, to Nathaniel C. Robertson, to recover $5000 mortuary benefits, according to the terms of said certificate.

<p>Mechanics'’ lien claim—JEffeet of failure to state in the Claim the Name of the Owner or reputed owner of the building— Mechanics’ lien, the creation of Statute—Notice under sec. 11, of Art. 61, of the Code.</p> <p>"Where a material-man claiming in virtue of the provisions of Article 61, of the Code, relating to mechanics’ lien, to be.entitled to a lien on a certain building and lot attached, for lumber and materials furnished by him, and used in the erection of said building, omits to state explicitly in the claim filed by him, who was the owner or reputed owner of such building, such omission is fatal to the claim.</p> <p>A mechanics’ lien is the creation of statute law, and to enforce it, the requirements of the statute must be substantially complied with.</p> <p>Where the lumber and materials for which a claim under the mechanics’ lien law was filed, were furnished to F. and R. partners • in business, and under a contract which upon the face of the claim was made with the firm, F. alone being the owner of the house, in the erection of which the lumber and materials were used, the fact that F. was a partner of the firm with whom the contract was made, does not dispense with the giving to him as owner, the notice required by sec. 11, of Art. 61, of the Code.</p>

<p>Practice in Equity—When an Issue of fact from a Court of Equity to be tried by a Jury, should be allowed—Power and right of a Court of Equity to decide qtiestions of Law and Pact—Probate of wills—Testamentary acts—Mental condition of Testator—Presumption in support of the Validity of Testamentary acts—Lapse of time—Opinion of a Non-expert as to the Mental condition of a party—Testamentary construction.</p> <p>Where after answers to a bill in equity are filed, but before the testimony is in, or the Judge can know or see by examination what will be the state of the proof, whether doubtful or conflicting, and proper to be referred to a jury, an application by the complainants for issues to be framed and sent to a Court of law to be tried by a jury, cannot properly be allowed.</p> <p>An issue of fact from a Court of equity to be tried by a jury is not a matter of right, at any stage of the proceeding; and in the exercise of a discretion it should only be allowed where the proof before the Judge creates doubt, by reason of conflict, doubtful credibility of witnesses, or where from a mass of circumstances, it may be difficult to draw a proper conclusion. It is never allowed as a substitute for the failure of proof, or for omitted evidence.</p> <p>A Court of equity has full power and right to decide every question of law or fact which may arise out of the subject-matter before it, and over which it has jurisdiction; and the trial by issue forms no necessary incident’to the proceedings of such Court. It is resorted to simply as a means of informing the conscience of the Court,, and is not binding upon it.</p> <p>It is no part of the ordinary jurisdiction of a Court of equity to revise and correct the probate of wills.</p> <p>After the lapse of more than fifty years, with the readiest opportunity at all times to make contest of a codicil to a will, in the ordinary way of trial of such questions by caveat, it would be doing violence to every presumption in support of the validity of testamentary acts, and of the rights acquired thereunder, to open the door to mere speculative opinions as to the mental condition of the testator.</p> <p>Lapse of time operates with fitness and force, to secure from question and attack testamentary acts, .where their validity depends upon the mental condition of the testator, and the lapse of time has been such as to obscure and efface the accurate recollection of witnesses as to the influences operating upon, and the conduct of, the party at the time of the act in question.</p> <p>While a non-expert is allowed to express his opinion as to the mental condition of the party whose act is involved, that opinion is worth nothing as evidence unless supported by his own proof of facts sufficient to justify his conclusion.</p> <p>The will and six codicils of a testator were admitted to probate in 1828, soon after his death. By the will executed in 1823, the testator gave and bequeathed to his daughter H. A., during her life, all the rents then due, or which might thereafter become due, on a certain lot of ground, containing about twenty-one acres, which he had previously leased to one Y. D., and the estate in such lot after the death of H. A., he devised to his grandchildren, in fee simple, to be equally divided among them. He also gave to his •daughter H. A., sixty shares of bank stock. In the second codicil •executed in 1824, he recited that this bank stock had been adeemed, and he gave her in lieu thereof $3000, and he revoked the bequest of the stock. In the sixth codicil, made in 1826, he again revoked and declared void the clause in his will by which he had bequeathed the bank stock to his daughter H. A., and in lieu thereof he devised to her the twenty-one acres of land. In 1859, H. A. leased this lot of ground for ninety-nine years, renewable forever, to T. W. in consideration of $10,000, subject to an annual ground rent of $2,400. In 1869, for the consideration of $40,000, the lessor conveyed the reversion in fee to T. W. and others. On a bill filed in March, 1880, by some of the grandchildren of the testator, and others, against other of the grandchildren of the testator, and others, including the parties claiming under the conveyances made by H. A. for the purpose, really, though not professedly, of establishing the invalidity of the sixth codicil of the testator, it was Held :</p> <p>That while the testator did the unnecessary and useless act of repeating the revocation of the bequest of the bank stock, it did not follow from that unnecessary act, that he did not intend to give the real estate in addition to the $3000, in lieu of the bank stock adeemed;—it must be taken that he intended to devise the real estate in lieu of the bank stock, because he so expressly declared-</p>

<p> Waiver of Bight of Appeal—Sufficiency of consideration to-Support an agreement to Waive the right of Appeal. </p> <p>By an agreement, free from all shadow of fraud, mistake or surprise,, signed by counsel representing the executors, and others interested in the distribution of a testator’s estate, and filed in the case, the-right of appeal from a decree passed some six months previously, construing certain clauses of the testator’s will, was waived, and consent was given to the passage of a decree for the final distribution of the testator’s estate. Accordingly an order was passed for the immediate distribution of the residue. The consideration moving to K. one of the parties to .the agreement, to waive his-right of appeal, was the immediate possession of his share of the-residue of the estate without further litigation or delay. Held :</p> <p>1st. That the-agreement to waive his right of appeal, was binding,, being supported by a sufficient legal consideration, and K. was. concluded thereby from maintaining an appeal.</p> <p>Snd. That the waiver of the right to appeal from the decree, excluded the right to appeal from an order finally ratifying the-auditor’s report distributing the residue of the estate in conformity to the decree.</p>

The hill of complaint in this case was filed hy the appellee against the appellant to enforce the specific performance of a contract of sale of a farm in Howard County. The defendant answered the hill; and instead of taking testimony under a commission, the case was submitted upon an agreed statement of facts. The Court (Dobbin, J.) passed a decree for the specific execution of the contract. Erom this decree the respondent appealed.

The Court below, (Miller J.,) held that while the complainants were not entitled to a decree vacating the deed, they were, under the prayer for general relief, entitled to be paid the fifty dollars consideration money, with interest thereon from the date of the deed, and accordingly adjudged and ordered that if the defendants, or one of them, should, on or before the 1st of August, 1882, pay to the complainants, or bring into Court to be paid to them, the sum of fifty…

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

The case is stated in the opiniou of the Court. .Exception. At the conclusion of the evidence the plaintiffs offered the six following prayers: 1.

<p>Construction of section 1 of Article 45 of the Code—Relation of Debtor and Creditor betioeen Husband and wife—Right of Husband to prefer his Wife in a deed of Trust for the benefit of Creditors—Insufficiency of Suspicious circumstances to impute Perjury to ivitnesses and to establish Proud—Privileged Communications as between Attorney and client.</p> <p>A wife may become a creditor of her husband, and there is nothing in section one of Article 45 of the Code to prevent the husband from treating his wife like any other creditor, if the relation of debtor and creditor be proved to subsist between them.</p> <p>A husband may prefer his wife in a deed of trust for the benefit of creditors, or he may convey property to her absolutely in consideration and discharge of such debt, as he could in respect of a debt due by him to any other party.</p> <p>Although the existence of the debt due by the husband to his wife, and of the notes given therefor, may not have been known to parties dealing with and trusting the husband, and a long period intervened between the origin of the debt and the execution of the deed given to secure it, and. the husband made no attempt to secure it otherwise than by his notes, until he had contracted debts, and found himself in failing circumstances, yet these facts, while they are enough to arouse suspicion and subject what the witnesses who state them say, to careful scrutiny, they are not sufficient to justify the Court in imputing perjury to the witnesses, by declaring their testimony to be substantially false, and that the notes were fabricated for the purpose of enabling the husband to cheat and defraud Ms creditors.</p> <p>It is a common thing in this country for a party wishing to convey his property, to seek the advice of an attorney, and for the attorney not only to give advice, but to act as conveyancer in the preparation of the deed. Communications made by a client to his attorney thus employed relating to the subject-matter about which and for which advice was thus sought, are just as confidential, and just'as much privileged, as if they were made in reference to a litigation existing and in progress at the time.</p>

The case is stated in the opinion of the Court. First, Second, Third and Fourt Exceptions, not passed upon by the Court. Fifth Exception.—At the close of the evidence the plaintiff offered-.the seven following prayers: 1.

The case is stated in the opinion of the Court. First and Second Exceptions omitted as they were not passed upon by the Court.

The appeal in this case is taken from a decree of the Court below, setting aside and annulling a deed from John R. D. Thomas, the appellee, to Mary A.'Linthicum, one of the appellants, the wife of Samuel S. Linthicum, the other appellant,-and also declaring void an agreement between said John R. D. Thomas and Samuel S. Linthicum for an exchange or sale of certain property. The appellee was the complainant below, and the appellants were the defendants.

The appeal in this case was taken from a decree, passed by agreement of counsel, dismissing the hill of complaint. The cáse is stated in the opinion of this Court.

<p>Appeal from tlie Circuit Court of Baltimore City,</p>

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

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