Volume 60 — Maryland Reports

<p>Frayers and Instructions to the Jury — Costs—Construction of the Act of 1874, oh. 16, relating to Costs in the City of Baltimore, in Actions independent of Contract.</p> <p>Whore instructions granted by the Court give to the party tire benefit of all the law asked by his own prayers, he cannot be heard to object to such instructions because they do not give more.</p> <p>An action at law for wrongs, independent of contract, brought in one of the Courts of Baltimore City, was removed to and tried in the Circuit Court for Anne Arundel County. The verdict being in favor of the plaintiff for one cent damages, the Court, under the Act of 1874, cl). 167, adjudged the costs to the defendant. On appeal it was Held :</p> <p>That there was error in awarding any part of the costs against the plaintiff. The Act of 1874, ch. 167, applies exclusively to the Courts of Baltimore City. In the Circuit Courts for the Counties, in cases at law, the rule still is that the costs follow the verdict.</p>

<p>Action of trespass quare clausum fregit — Possession—Acts of trespass — Ouster—Practice in regard to Survey ivhere Location is in dispute — Art. 75, secs. 53 and 54, of the Code — Where the statement of a Surveyor is inadmissible — Effect of erroneous Instruction, where no harm results from it.</p> <p>Where a person holds under a paper title, apparently good, to a parcel of land described by name, courses, and distances, and is in the actual e.nd undeniable possession of a part of the land; in such case possession of part is a possession of the whole of the land covered by, or embraced in his title papers ; and such title, with such possession, are sufficient to maintain the action of trespass qua/re clausum fregit.</p> <p>Where all that the defendant had done was to dig sand on and from the land from time to time, and sell the same; his entries thereon for that purpose were but successive acts of trespass against the true owner, if he was not owner himself.</p> <p>To work an ouster the acts must be such as indicate to the world a claim of right to the land; acts of exclusive and continuous possession, open and notorious, and unless under color of title, must have continued for twenty years.</p> <p>Whenever there is a dispute about the location of lands, the practice is to have a survey, in order that the question may be settled. The necessity for such survey in such case is not done away with by the Code, but is preserved for cases of this kind, where the dispute is over location and boundaries. (Code, Art. 75, secs. 53 and 54.)</p> <p>JSTo statement of a surveyor as to what land is included in a patent,— unless the patent was located by actual survey, (by plat exhibited to the Court,) whereby it appeared that such survey was made upon legal proof of the beginning bounder, or other well established bounder, whereby the beginning could be found ; and that such survey was made in accordance with law and conformable to a proper construction of the title paper located, — can be held sufficientC(to show title out of the plaintiff, and in another.</p> <p>An erroneous instruction furnishes no ground for a reversal if the appellant suffers no injury from it.</p>

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

<p>Principal and agent — Liability of Corporations for the Fraud of their Agents.</p> <p>Strictly speaking, corporations, -while acting within the scope of the-powers delegated to them, cannot be guilty of wilful fraud; yet it is settled by a great number of decided cases, that corporations carrying on trade or business of any kind, are equally, and to the same extent, liable for the frauds and wrongs of their agents, perpetrated in the course of their employment, as individual principals would be under like circumstances.</p> <p>A railroad company provided certain blank certificates to be used in funding its overdue mortgage coupons, and to be issued to the holders of such coupons desiring to fund them. These certificates contained the terms of the funding scheme, and stated that the coupons for which each certificate was given were placed in the eustod3r of the Safe Deposit and Trust Company of Baltimore, as the property of the holder of the certificate, to be held by it in accordance with the terms stated. Such certificate was required to be duly signed by the president of said company, and attested by the signature of the secretary under the seal of the corporation. Attached to the certificate was a schedule of the coupons, under which was a receipt to be signed by the treasurer of the Safe Deposit and Trust Company of Baltimore. There was a book of these printed forms, from which all the certificates were taken, and there was a stub to correspond with each certificate, showing the party to whom the certificate issued, the number of the coupons, with their amounts, and other description ; and which was required to be signed and sealed by the depositor of the coupons; and which receipt contained an assignment in these words: “ And I hereby assign to the persons who may be the bearers of the said certificate, the said coupons, and my liens and remedies upon the same.” J. S. H., Jr., was a regularly employed clerk in the office of the railroad company, his father being its treasurer. During the absence of the treasurer his son was charged with the duties of refunding the coupons, and especially charged at all times during his employment. with the duty of receiving coupons from the holders, and issuing to them refunding certificates for the same. Ilia regular ■course of proceeding was to receive the coupons and take them, together with a certificate regularly' signed and sealed, filled up with the number and description of the coupons, to the Sale Deposit Company, and procure the signature of that company to the printed receipt at the foot of the schedule of coupons; and deliver the certificate thus signed to the owner of the coupons, upon the latter signing the receipt and assignment in the certificate book at the oflico of the company. Certain of said certificates duly signed by the president and treasurer of the company, and with the corporate seal of the company attached by the treasurer, were left with J. S. H., Jr., with the knowledge and assent of the president, to be filled up and used by him in the usual manner, during an anticipated prolonged absence from the office, of the president and treasurer. Three of said certificates, instead of being properly used, were falsely and fraudulently filled up, the name of the treasurer of the Safe Deposit Company forged to the receipts, and the certificates disposed of by the clerk. Snell like certificates wore, at the time, being regularly bought and sold in the money and stock market of Baltimore, and were treated, by those dealing in them, as passing tiile by delivery. The three fraudulent certificates were acquired from J. S. H., Jr., in a regular course of business, bona file, and for value; the parties so acquiring them being ignorant of the fraud and forgery, and without suspicion; but they all knew that J. 8. II., Jr., was in the employ of the railroad company, and they all knew the nature and scope of liis employment. IIkud :</p> <p>1st. That it was within the employment, and scope of the duties of J. 8. II., Jr., to act officially as the agent of the railroad company> in receiving coupons, and filling up and supplying certificates to the owners or depositors of such coupons.</p> <p>2nd. That when he issued such certificate and delivered it to a third party, who acted without knowledge and in good faith, paying value for it, such party had a right to act upon the presumption that the representations of such certificate were truthful, and not false and fraudulent.</p> <p>3rd. That, having confided to him the special trust of executing that business, the agent was held out to the public as competent, faithful, and worthy of confidence; and though ho deceived both his principal and the public, by forging and issuing the false certificates, it was but reasonable that tbe principal wlio placed him in the position to perpetrate the wrong should bear the loss.</p> <p>4th. That the facts that the certificates happened to be in the hands of a party who was an agent of the company, or that they happened to represent on their face that the coupons had been deposited by such person, were not sufficient of themselves to discredit the certificates, or to require of innocent third parties to act upon the presumption that they were false and fraudulent.</p> <p>This case distinguished from the case of The Baltimore and Ohio Railroad Go. vs. Wilhins, 44 Md. 11.</p>

Appeals from the Circuit Court of Baltimore City. The case is stated in the opinion of the Court. The clause of the will of the testator, hy which the residue of' his ■ estate was given in trust for his two daughters is as follows: “ And secondly.

<p>Execution of a poioer — Specific performance of a Contract — r Ambiguity — Contract to execute a Will — Poioer—Attempted execution by Will.</p> <p>There can be no execution of a power when the purpose for •which it was created has been accomplished.</p> <p>Where ambiguity exists as to the intention of the contracting parties that there should be an extinguishment of the power, in that event, the ambiguity in which that intention is involved presents an insuperable obstacle to the passage of a decree enforcing the execution of a contract under which the power was created.</p> <p>When there is an application for specific performance, the proof of the intention of the contracting parties must be clear, and the contract • certain in its terms, and free from all shade or color of ambiguity.</p> <p>There can be no doubt of the legal right of one, having the exclusive ownership of property, to enter into a contract to execute a will in favor of the other contracting party. And if a will executed. under these circumstances be subsequently cancelled, the aid of a Court of equity can be invoked.</p> <p>But where the power of disposition by will is given to a person having no reversionary interest, an attempted execution of the power by a will made in conformity with the terms of an alleged contract, is invalid. The power is not thereby exhausted, and such will is revoked by a subsequent will duly admitted to probate.</p>

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

George Bailey, who died in 1863, by his last will and testament, disposed of his property in the following manner : “I give, devise and bequeath all my property, real,, personal and mixed, to my wife Margaretta S. Bailey, for and during her life, if she shall so long, remain my widow and unmarried, hut not otherwise; and in the event of the death or marriage ol my said wife, whichever shall first happen, the property hereby bequeathed to her shall he equally divided between…

<p><Jurisdiction in Equity — Act of 1853, ch. 305, giving Eines imposed for keeping houses of Ill-fame, to Dispensaries in the City of Baltimore.</p> <p>The Act of 1853, ch. 305, provides, that all fines imposed by the Criminal Court of Baltimore City on persons convicted of keeping houses of ill-fame, shall be divided equally between such dispensaries of said city as shall have had under their charge during the year preceding, at least fifteen hundred patients. On demurrer, for want of jurisdiction, to a bill filed by a Dispensary in the City of Baltimore against a former sheriff, for a discovery and payment into Court of the sums collected by him from fines imposed under said Act, in order that the same might be distributed among the several Dispensaries entitled to the fund, it was Held :</p> <p>That the complainant was entitled to the relief prayed for, and the demurrer to the bill was properly overruled by the Court below.</p>

The appeal in this case was taken by the plaintiff from the judgment of the Court below sustaining a demurrer to his declaration, filed by the defendant. The case is stated in the opinion of the Court.

<p>Jurisdiction — Faith and credit given to a Decree of a Virginia Court, in the Courts of this State — Decree malting Assessments upon Unpaid subscriptions to Capital stock — Stockholders — Bight of plaintiff to sue — Statute of Limitations— Pending suits no bar to a llecovery- — Plea in Abatement— Plea in bar.</p> <p>The National Express and Transportation Company was organized in 1866, under a charter granted by the Legislature of Virginia in 1865, subject to the general laws of the State relating to corporations or joint stock companies. Among the provisions of such general laws upon the subject, there is one which declares that upon every subscription for shares in any joint stock company, there shall be paid upon each share two dollars at the time of subscribing, and the residue thereof as required by the president and directors; and if any money which any stockholder has to pay upon his shares, be not paid as required by the president and directors, the same, with interest thereon, may be recovered by-warrant or action, according to amount, &c. The authorized capital stock of the Express Company was §5,000,000, (with the privilege of increasing it to §10,000,000,) divided into shares of one hundred dollars each, on which two dollars per share were payable at the time of subscription, and the balance as called for by the president and directors. Of this capital stock 40,044 shares were subscribed. On the stock subscribed, calls or assessments were made to the extent of about twenty per cent.; but a considerable proportion of the calls was never realized. The company soon became embarrassed, and determined to suspend its operations; and on the 20th of September, 1866, under and by virtue of an order and resolution of the board of directors, the president of the company executed a deed of trust to three trustees, for the benefit of the creditors of the company. That deed or assignment conveyed all the property of the corporation, including the balance unpaid on subscriptions to the stock. In December, 1871, a creditors’ bill was filed in the Chancery Court of the City of Richmond in the State of Virginia, where the corporation was located and had its principal office, against the corporation and certain of its officers, and against the trustees named in the deed of assignment. To this bill an amendment and supplement were filed in August, 1879, praying that the trustees named in the deed of assignment be removed and others appointed in their place; that an assessment on the unpaid capital stock be made; that the debts of the corporation be ascertained and paid, and for general relief. Upon this bill and amendment such proceedings were had as resulted in a decree of the Court, passed on the 14th of December, 1880, whereby the original trustees in the deed were, upon their own request, displaced, and J. G. appointed in their stead; an account of the debts due from the corporation taken and adjudged to be paid, and an assessment of thirty per cent, on the unpaid subscriptions to the capital stock made, with authority and direction to J. G. as trustee, to proceed, by suit or otherwise, and in such jurisdictions, as he might be advised, to collect such assessment. By virtue of the power and authority thus conferred upon J. G., an action was brought by him on the 9th of April, 1881, against J. S. W. and H. W., to recover of them thirty per cent, of their subscription to the capital stock of said Express Comp>any. On demurrers to the pleading, it was Held :</p> <p>1st. That the Chancery Court of the City of Richmond by proper process acquired jurisdiction of the cause as against the National Express and Transportation Company and the trustees, and the decree as against those parties was entitled to full faith and credit in the Courts of this State.</p> <p>2nd. That the Court had power and jurisdiction to make assessments upon the unpaid subscriptions to the capital stock of the corporation to raise funds with which to pay its debts, and the decree of the Court determining and making an assessment upon the capital stock for such purpose, was binding and effective upon the stockholders who were not, in their individual capacities, parties to the cause. '</p> <p>3rd. That the plaintiff was legally appointed a trustee in the place of those- removed, and was fully invested with the right and power to sue in his own name as trustee.</p> <p>4th. That it was not competent to the defendants to plead and rely upon the Statute of Limitations of this State, as a bar to the various debts due from the corporation, and which had been found to be owing, and adjudged to be paid, by the decree of the Richmond Court, and for tlie payment of which the assessment upon the unpaid subscriptions to the capital stock was ordered.</p> <p>5th. That the Statute of Limitations began to run only from the time of the assessment made by the decree of the Court in Virginia, and could form no bar to the right to recover in this action.</p> <p>(ith. That the institution and pending of other suits in equity, not by the plaintiff, but by other parties, and in several respects for different purposes, could form no legal bar to the recovery in this action.</p> <p>Matters in abatement and matters in bar cannot be pleaded together; the pleas in bar supersede those in abatement.</p> <p>To constitute a good plea in bar, the matter pleaded, must, if tiue, afford a full and complete answer to the action, and show that there is no right of recovery.</p>

Appeals from the Circuit Court of Baltimore City. The hill of complaint in this case was filed against Martha'A. Cowman, and Samuel Kirby by Thomas B. G-hequiere, Alice E. Colquhoun and others, the only grandchildren of the late Robert Carey Long, together with the husband of one of said grandchildren.

<p>Statute of Descent— Who entitled under the Statute to the Real estate of a decedent — Who not entitled to file a Bill for the Partition of a Decedent’s real estate — The true issue in a Proceeding for the Sale of a decedent’s Real estate, as not susceptible of Advantageous division — Order of Publication — • Article G6, section 33, of the Revised Code — Effect of a Decree for a Sale and partition of a Decedent’s real estate, as to persons not proper parties defendant.</p> <p>A bill was filed by parties claiming as next of kin of G-., on the pari of his mother, for the sale of the decedent’s real estate, as not susceptible of advantageous partition, and a division oí the proceeds among his maternal heirs. The bill asked for an order of publication giving notice of the substance and object of the Dill to the unknown heirs of G, on the part of his father. The order was granted as prayed for. On the 10th of March, 1881, upon the mere certificate of the publication of said order, and without affidavit of the existence or non-existence of the unknown heirs of G., or of their non-residence, an interlocutory decree against the non-resident defendants was passed, and an em parte commission to take testimony was issued. On the 28th of the same month, the return of the commission and the testimony taken thereunder, was filed. On the 2nd of May, 1881, a final decree was passed for the sale of the property, which was sold, and the sale finally ratified on the 8th of July, 1881. On the 80th of the same month, the auditor’s report and expense account was ratified. Subsequently, before there was a distribution of the fund, petitions were filed by alleged heirs in the paternal line of G-. The petitioners were allowed to file a bill of review, wherein it was alleged that the comjfiainants in the original bill had no interest in common with the paternal heirs of G., in the estate of which he died seized; that the Court could not decree a sale for partition, where the title of the parties applying for such decree was questioned; and that upon a bill for partition, or for sale for partition, the title to real estate could not be adjudicated and settled. To this bill of review, the complainants in the original bill, filed a general demurrer. Held :</p> <p>1st. That under the statute of Descent in this State, the heirs of a decedent in the paternal line, if such exist, are entitled to his real property, to the entire exclusion of his relatives on the maternal side, who have no interest whatever in his real estate, except upon the contingency of there being no paternal heirs living.</p> <p>2nd. That if G. left heirs on the part of his father, which was admitted by the demurrer, the complainants in the original bill, had no more right in fact to his realty, or to file a bill for the partition of it, than absolute strangers.</p> <p>3rd. That the real issue in a proceeding instituted simply for the sale of real estate, based upon a supposed right to the'partition of it, because not susceptible of advantageous division, was not to try titles, not to determine who were the owners of the estate as between adverse claimants ; but whether as among those entitled in common, it should be sold instead of being divided.</p> <p>4th. That a bill for partition could not be made to serve as an action of ejectment, and was not designed to settle adverse rights, but only to subserve the convenience of those whose interests in the subject-matter were conceded.</p> <p>5th. That the order of publication, published by the complainants, heirs in the maternal line, was not authorized by section 33, of Article 65, of the Revised Code.</p> <p>6th. That the heirs of G. in the paternal line were not concluded by the decree for a sale and partition, under the original bill.</p>

Aiteal from the Circuit Court of Baltimore City. The bill in this case was filed against the appellee by the appellants, who are the children of Mary C. Marriott, the testatrix in this case, and Franklin Wilson, as their substituted trustee, to have a deed of mortgage made to the appellee, by John McKim Marriott, the father of said children, now deceased, as their trustee, and in his own right as life tenant, under the will of the testatrix, and also a confirmatory mortgage…

The appellee sued the appellants as editors, proprietors and publishers of a newspaper called “The Herald and Torchlight,” published in… Held: which was attended b.y all the republican members of said Senate, including the plaintiff, and that at such caucus Enoch Pratt was nominated as the republican candidate for State Treasurer, at the election so to be held, and are further satisfied that at the election of Treasurer thereafter held, the ballots were cast and counted,…

<p>Application by a Wife for a Divorce a mensa et thoro — Death of Husband before Final deeree — Application by Wife for an Allotuance for Counsel fees in a .Divorce suit — Right of Wife to such allowance — Fjfect of death of either party before Decree in Divorce proceedings.</p> <p>Where pending a suit by the wife for a divorce a mensa et thoro, the husband dies before a final deeree, the Court cannot, after the death of the husband, require his executor to become a party to the suit, to answer the demand of the wife for an additional allowance for counsel fees for services rendered in the cause during the life time of the husband, nor pass an order requiring such executor to pay the same.</p> <p>A wife has the right, independently of the actual merits of the case, to require her husband, when she is living apart from him, and without means of her own, to defray the expenses of prosecuting her suit for a divorce, — the Court exercising its sound discretion as to when and to what extent, such allowance shall be granted.</p> <p>A divorce suit being a personal action, the death of either party before decree abates the divorce proceedings; and this effect extends to whatever is identified with those proceedings.</p>

The bill of complaint in this case was filed by Benjamin W. Lusby, for the purpose of obtaining contribution from his co-sureties on certain bonds executed by James Lusby, with his sureties, as collector of State and county taxes in Anne Arundel County, for the year 1875.

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

A bond was executed by the appellant on the 31st of March, 1873, to John A. Ahl in the penalty of $37,000, ■conditioned for the payment of $18,500, in five annual instalments, the whole amount to bear interest from the 1st of April, 1873. John A. Ahl assigned the bond to the appellee on the 8th of March, 1877.

This was an action of ejectment, brought by the appellant on the 18th of September, 1881, to recover from the appellee one undivided fourth part of a lot of ground, and the improvements thereon, situated at the intersection of Cornhill street and Market Space, in the City of Annapolis, and also for mesne profits, by way of damages for the detention of the said property from the plaintiff.

Appeal front the Court of Common Pleas. The following issues were raised in the Orphans’ Court of Baltimore County, and by said Court were directed to be tried in the Circuit Court for said county, between the appellees as plaintiffs, and the appellant as defendant.

<p>(Jommissions allowed to an Executor or administrator — Appeal— Ownership of property Assessed to pay Paving tax — Inability for Paving tax — Eebt due Testator — Executrix.</p> <p>The rate of commissions allowed to an executor or administrator by the Orphans’ Court, in the exercise of their discretion, within the limits prescribed by the Code, (Art. 93. sec. 5,) is not a subject of review on appeal.</p> <p>A testator cannot by anything put in his will, in anywise affect the commissions which the law allows his executor; and where there has been a full administration, even the Court has no power to deprive him of the minimum amount which the law gives him.</p> <p>An Ordinance of the City of Baltimore directed the repaving of a part of Calvert street, and provided that one-third of the cost should be paid by the City and the other two-thirds assessed upon the owners of the property binding on the portion of the street directed to be repaved, in proportion to the front feet owned by them respectively. The contract for such repaving was signed on the 27th of May, 1881, a few days before the death of the owner of a dwelling house and lot fronting on the part of the street directed to be repaved. The deceased devised this property to his wife, who, as executrix, claimed credit for $100, retained for bill for repaving Calvert street. On exception to the allowance of this claim, it was Htci.d :</p> <p>That ownership at the date of the contract, under which the work of repaving was afterwards actually done, should fix the personal liability for the tax, and as the testator was the owner of the property at the date of the contract, his executrix had the right, to retain the money to meet the paving bill.</p> <p>An executrix is not entitled to commissions on a debt due her testator, and by him specifically bequeathed to her.</p>

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

Appeals from the Orphans’ Court of Baltimore County. Pending litigation in respect of the validity of a paper propounded for prohate as the last will of John Tolley Johns, deceased, Anne R. Caldwell, by her husband and next friend, on the 6th of September, 1882, filed her petition in the Orphans’ Court of Baltimore County, asking for an order authorizing and requiring Henry V. D. Johns and Sarah W. Hodges, who had been appointed administrators pendente Hie of the said…

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

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

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

This is an appeal from a pro forma order of the Circuit Court of Baltimore City, overruling the appellants’ demurrer to the bill filed by the appellee, to restrain them from proceeding to collect the State and city taxes for 1882, upon certain rentals of the appellee, derived from portions of the “Masonic Temple.”

The case is stated in the opinion of the Court. Eirst and Second Exceptions. — Stated in the opinion of the Court. Third, Exception. — At the close of the evidence the caveatee offered the six following prayers: 1.

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

The appellee sued the appellant for money payable by him, as register of wills of Baltimore City, to the State in excess of the sum, which, as register, he was entitled to retain in each and every year, as salary or compensation for the discharge of his duties, and for the expenses of his office, between the 26th of November, 1879, and the 1st of December, 1882. The defendant pleaded not indebted as alleged.

The appellant was the owner of the fee in a certain lot of .ground, on Eastern Avenue, in the City of Baltimore, subject to a lease of ninety-nine years, renewable forever, on payment of $350 per annum, in half-yearly instalments of $175, each on the' first day of January and July. The leasehold interest, subject to a mortgage of $1100 held by the appellant, became by sundry mesne conveyances, vested in Edward Rohlfing.

<p>Husband and wife — Injunction—Execution.</p> <p>On a bill filed by a married woman for an inj unction to restrain an execution issued against her husband, and levied upon personal property which she claimed to be hers, it was Held :</p> <p>1st. That the husband, being in apparent possession and active control of the property, dealing with it as his own, it was incumbent upon the wife, in order to defeat the rights of the creditors of the-husband, to establish by clear and undoubted proof, a bona fide right and title to the property.</p> <p>2nd. That the simple assertion of title as against the husband or his. creditors would not do; there must be clear affirmative proof to show how the property was acquired, and, if purchased, that it was paid for by the money, or purchased upon the credit of the-wife exclusively.</p> <p>3rd. That her claim to the property on the ground that if was paid for out of the profits of a business conducted upon a place leased by her, could not be maintained, unless the business was. in fact conducted at her expense, and for her benefit.</p> <p>4th. That conceding that the husband was acting as the agent of the wife, and that the note upon which the judgment was founded, and the execution was issued, was given for cows purchased for her use, and taken to her farm, such cows became her property, and it was but equitable and just that she should pay for them, and the execution ought not to be enjoined at her instance.</p>

<p>Lessor and lessee — Clause of re-entry for non-payment of rent— Effect of such re-entry upon a Mortgage of the leasehold estate — Injunction—Construction of section 15, of Article 64, of the Code of Bub. Gen. Laws — Mortgages in Baltimore City — Husband and wife — Section 4, of Article 45, of the Code.</p> <p>A lease from F. L. S. to G. F. contained the following proviso: “ And provided further, that if the said rent shall be in arrear for one year, then the said F. L. S. his heirs or assigns, may re-enter upon the premises hereby demised, and hold the same as if this lease had never been made.” An assignee of the leasehold interest mortgaged the same, and subsequently abandoned the property as worthless. The rent having been eighteen months in arrear, the then owner of the reversion instituted proceedings in ejectment against the original lessee only, and under a writ of habere facias possessionem was placed in actual possession of the property, and paid the taxes and erected buildings thereon. On a bill filed by her and her husband to restrain a sale under a decree obtained by the mortgagee of the leasehold interest, it was Hisld :</p> <p>1st. That even if the leasehold interest conveyed by the mortgage could be regarded as still subsisting, and the mortgage consequently of some virtue as against the same, the preliminary injunction granted should have been continued until an adjustment was had between the mortgagee and the complainant, as to the claims of the latter for rent in arrear and the taxes paid by her.'</p> <p>2nd. That the fact too that the only real value attaching to the leasehold interest, supposing it still to exist, was from the houses erected by the complainant after she took possession of the lot, and that these improvements were made in good faith, would be a further ground for continuing the injunction until such adjustment.</p> <p>3rd. That the well grounded apprehension of a cloud upon the complainant’s title, under the circumstances, should the trustees uuder the decree be permitted to sell, was an additional reason for the interposition of the injunction.</p> <p>4th. That sec. 15, of Art. 64, of the Code of Public General Laws, relates by its own terms to sales of mortgaged premises made under that particular Article ; and is not applicable to decrees of sale passed upon mortgages framed with reference to the special provisions of the Local Laws of Baltimore City.</p> <p>5th. That' the mortgagee of the leasehold interest took it subject to all the conditions and covenants of the lease; and her failure to pay the rent, and keep the taxes paid up, was equally a default in her as in the original lessee.</p> <p>6th. That the rent having been allowed to remain unpaid for more than one year, and the landlord having by reason of that default, and in the assertion of her right as landlord, secured an actual and peaceable repossession of the premises, which in fact she found deserted, the lease became absolutely forfeited, and the mortgage, so far as it affected the premises, fell with it.</p> <p>7th. That the actual re-entry of the landlord, following the perfected right to re-enter, worked the forfeiture of the lease, and whatever technical error there may have been in making the original lessee the defendant in the ejectment suit, was immaterial.</p> <p>The provision in section 4, of Article 45, of the Code, authorizing a married woman to sue by her next friend for the security or recovery of her separate property, was intended simply to enlarge her legal privileges, and not to take away the pre-existing common law right to sue jointly with her husband in cases where such joinder was either necessary or proper.</p>

This appeal was taken from a pro forma decree requiring the respondent, Jacob S. Rosenthal, specially to perform the wi’itten agreement entered into by him with the complainant, Samuel Ruffin, and filed in the cause, for the purchase of certain property described in the proceedings, and carry out the terms thereof; and the said Ruffin •to make, execute, and deliver to the said Rosenthal, a deed in fee simple of said property, free, clear and discharged from all claim of the…

The case is stated, in the opinion of the ■ Court. The appeal was taken from a decree dismissing the hill of the complainants, without prejudice to any future proceedings which they might consider proper to institute.

<p>Appeals from the Circuit Court for Anne Arundel County.</p> <p>The cases are stated in the opinion of the Court.</p>

<p>Pleading and Practice — Demurrer—Arrest of Judgment.</p> <p>Where the demurrer is to the whole declaration, and is sustained, the defendant Is entitled to judgment, unless the plaintiff asks leave lo amend. Tf, however, the demurrer be to some of the counts only, and is sustained, the plaintiff may amend the declaration by the addition of other counts, or he may stand on the counts admitted to be good.</p> <p>The defendant is entitled to judgment on the demurrer to the defective counts, but the usual practice is merely to strike out the bad counts, unless the defendant insists on judgment as to such counts.</p> <p>Where a demurrer to the second count of a declaration is sustained, and file count is stricken out without objection, by drawing a pencil mark across flic face of it, and the case is tried on the issue joined to the first count, and judgment is rendered for the plaintiff, such judgment will not be arrested because the plaintiff did not amend his declaration, and no judgment was entered on the demurrer to the second count.</p>

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

The case is stated in the opinion of the Court. The jury rendered a verdict for the plaintiff on the second count of the declaration for §105.43, and found for the defendant upon the first and third counts. Judgment was entered upon the verdict. The plaintiff appealed.

<p>Ignorance of the Law — -Admissibility of evidence — Turnpike company — Conditional right to Increase tolls.</p> <p>Ignorance of the law will not excuse the offender, and consequently evidence of such ignorance is inadmissible.</p> <p>If the stockholders of a turnpike company accept a charier, coupled with the condition and privilege to increase the tolls, provided they complied with certain pre-requisites, and at a certain time, the company has no right to increase the tolls without first complying with such pre-requisites, and at the time designated.</p>

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

<p>Appeal from the Circuit Court for Allegany County.</p> <p>This action was brought on the 4th of October, 1881, by the appellant against the appellee, on his testamentary bond, as surviving executor of Edward McCarty, deceased, to recover wliat she claimed as her share, as legatee and devisee of the estate of her father, the said Edward McCarty. On the 22nd of October, 1881, a rule, “ security for costs,” was laid upon the plaintiff. The case was brought forward by regular continuances to the January Term, 1883, and was marked for trial on the docket, at the call of the docket on the first day of the Term ; and afterwards the defendant’s attorney asked the plaintiff’s attorneys for a continuance of the case, which was agreed to by them, hut it was not then called to the attention of the Court, and was not entered “ continued ” on the docket; and it was also agreed, at the same time, that the case might he tried on the original records from the Orphans’ Court, as evidence, instead of copies. On the 2nd of January, 1883, the defendant’s attorney asked for a judgment of nonpros. for want of security for costs. The judgment was entered. On the 9th of February, 1883, the plaintiff filed her petition and affidavits, praying the Court to strike out the judgment of non pros., and to grant leave to defend the motion for the same, because the rule, security for costs, had been duly and regularly complied with. It was testified by D. 'J. Blackiston, Esq., in his affidavit that he was one of the attorneys for the plaintiff, and had a clear and distinct recollection that the plaintiff' complied with the rule, “ security for costs,” laid upon her; that he remembered distinctly that the security was given in open Court, and that James W. Wilson was offered and accepted as the security. James E. Ellegood, Esq., also of counsel for the plaintiff, by his affidavit, testified that he remembered calling on Mr. James W. Wilson in open Court, to enter security for costs for the plaintiff, and that, according to his recollection and positive belief, the said James W. Wilson did then and there enter and become security for the costs. On the 10th of February, 1883, the Court overruled the motion’to strike out the judgment of non pros., and judgment was entered for the defendant for costs. The plaintiff appealed from the judgment of non pros., and from the order of the Court ovenmling the motion to strike out the judgment.</p>

. ■ Four exceptions were taken hy the defendant, the first and second of which sufficiently appear in the opinion of' the Court; the third and fourth are as follows: Third Exception. — The defendant, hy his counsel, to maintain the issues joined on his part, called John Cook Mobberly, the defendant, to the witness stand, and offered to prove hy him title to said property in controversy in this cause in himself, by adverse possession.

<p>Contested will — Forgery vel non — Admissibility of declarations of the Deceased as Corroborative Evidence — Time allowed for Appeal on trial of lssv.es from Orphans’ Courts.</p> <p>A certain paper-writing, unattested, purporting to be a will of personal property, was alleged to be a forgery, and the issue of forgery 'eel non, was transmitted for trial to a Court of law. IImijd :</p> <p>That after the introduction of direct proof of the genuineness of the ■ hand-writing, met by direct proof to the contrary, declarations of the deceased, corroborative of such direct proof, were admissible in evidence for either party.</p> <p>An appeal from rulings of a Court of law upon the trial of issues sent from the Orphans’ Court, is not an appeal from an order or decree of an Orphans’ Court, but from a “ determination of a Court of law,” from which an appeal may be taken within nine months from its date, and the record transmitted within six months after the appeal, as provided by Rule 2, (29 Md., 1.)</p>

Aiteac from the Circuit Court for Frederick County. This suit was brought to recover damages for-personal injuries sustained by the appellee by being run into by an engine of the appellant. The case is stated in the opinion of the Court. The jury rendered a verdict for the plaintiff, for $4416, and judgment was entered accordingly. The defendant appealed. The following are the prayers of the plaintiff, referred to in the opinion of the Court: 2.

<p>Polling the Jury in a Murder Case — Void verdict.</p> <p>Where' the jury is polled in a murder case, it is the duty of each juror to say for himself whether he finds the prisoner guilty of murder in the first, or second degree.</p> <p>Where the response of each juror in such case is simply “guilty,” without a designation of the degree of guilt, such verdict is a nullity. And the fact that the clerk, immediately after polling the jury, called upon them to hearken to the verdict as the Court had recorded it — “ your foreman saith that J. W. the prisoner at the bar is guilty of murder in the first degree, and so say you all” — does not affect the question.</p>

The case is stated, in the opinion of the Court. Exception. — At the trial the plaintiff offered the three following prayers: 1. That if the jury find the contract offered in evidence .was made by the parties to this cause, and that if.

<p>Article 93, section 241, of the Code — Orphans’ Court — Appeal.</p> <p>An appeal lies from an order of the Orphans’ Court revoking the letters of a joint administrator, upon the application of his co-administrator, under sec. 241, Art. 03, of the Code.</p>

' The case is stated, in the opinion of the Court. First and Second Exceptions stated in the opinion of the Court.

This action was instituted by the appellee against the appellants. The case is stated in the opinion of the Court.

<p>Instrument propounded as a Will — Admissibility of Parol evidence to show Purpose of Testator.</p> <p>The following paper was propounded as a will: “ Baltimore, July 20th, 1882. In anticipation of my departure from the City of Baltimore, and to provide for possible contingencies, I hereby give, bargain and sell and transfer unto my daughter Ann O. Kelleher, her personal representatives and assigns, all my machinery, horses, wagons, goods, chattels and effects, which I now have, or may hereafter acquire, or possess,'and all moneys, claims and demands to which I am, or may be hereafter, entitled, reserving to myself the use of the same, and the right to dispose of the same otherwise, if I deem proper. Witness my hand and seal this twentieth day of July, 1882.</p> <p>his</p> <p>Owen -j- Kebnan, [seal.] “Witness: — James McColgan.” mark</p> <p>The maker was nearly eighty years old. He made the expected trip, returned safely, and died shortly afterwards. Held :</p> <p>1st. That the paper ought to be admitted to probate as a will.</p> <p>2nd. That parol proof respecting the testator’s purpose and efforts to provide for his daughter, in anticipation of his trip, was admissible, for the purpose of determining whether that condition of mind, which the law regards as testamentary, existed.</p>

The case is stated in the opinion of the Court. .First and Second Exceptions, stated in the opinion of the Court. Third Exception. — The plaintiff offered the seven following prayers: 1.

Cross-Appeals from tlie Circuit Court of Baltimore City. The bill in this case was filed by Ira C. Canfield, and William B. Canfield, the former of whom has since died, against Thomas Welsh, for the settlement of the partnership business of a firm composed of the complainants and the defendant. In the course of the proceedings certain accounts were stated by tlie auditor, and these appeals are taken from the action of the Court below, upon questions raised by said accounts.

Appeals from the Circuit Court of Baltimore City. On the 16th day of December, 1881, Robert' W. L. Rasin, as general partner in the firm of R. W. L. Rasin & Company, of which Edward K. Cooper was recited to he the other and a special partner, executed to the appellee a deed of trust of all- the property of said firm, and all his individual estate, for the full and equal benefit of the partnership and his individual creditors, according to their respective rights.

The questions involved in this appeal arise upon the following exceptions filed by the appellant, as purchaser, to a sale of real estate, made by the appellees, under a power contained in' the will of John Nugent, deceased: The purchaser, William S. Rayner, excepts and objects to the ratification of the above sale of the property reported as sold to him by the administrators, and assigns the following reason-, therefor: That the said Nugent acquired title to the said…

The appellee together with the appellants, were co-partners In the business of manufacturing and dealing in metals, in the City of Baltimore, under the firm name of Shannon, Wright & Co. A hill was filed by the appellee against the appellants, asking for an injunction and the appointment of a receiver. The case is further stated in the opinion of the Court.

The case is stated in the following opinion of Judge Stone pronounced in the Court below, and concurred in by Judge Ford : “ This is a bill filed by Margaret A. Brooke, claiming to be the widow .of Henry Brooke, deceased, for dower in the real estate left by said Henry Brooke. The defendants in their answers deny the marriage of complainant to Henry Brooke, and the important question- for us to decide is, whether such marriage did, in fact, take place.

Appeal Rom the Circuit Court for Washington County. The case is stated in the opinion of the Court. First, sixth, and eighth exceptions, abandoned. Second arad tenth exceptions sufficiently stated in the opinion of the Court. Third and fourth exceptions taken to the rejection of proof offered by the plaintiffs, the nature of which is stated in the opinion of the Court.

This action was brought under Article 65, of the Code of Public General Laws, in the name of the State, for the use of the widow and children of John R. Barnard, deceased, to recover damages for the killing of the said Barnard, alleged to have been occasioned by the negligence of the agents of the railroad company. After the evidence was in, the plaintiff offered seven prayers, and the defendant nineteen.

<p>Act of 1864, eh. 269 — Compulsory vaccination — Liability of County Commissioners to compensate Physician.</p> <p>Under the Act of 1864, ch. 269, entitled "An Act for the protection of the people of the State from the small-pox,” it is made the duty of the County Commissioners to pay the physician for every child ho vaccinates, whose guardian or parents are too poor to pay for the service, the fee prescribed by the Act for the same.</p> <p>And it is immaterial whether the child be presented voluntarily without suggestion, or after suggestion or invitation from the physician. If tlio work bo done, the county is bound to pay, provided the guardian or parents’ inability to pay be sufficiently established.</p>

<p>Title to the Personal estate of a Decedent — Administration— Limitations — Letters of Administration — Executor de son tort — Sale of Personal Properly — Defence—Payment to the True owner by a Vendee, as a Defence to an Action by the Vendor without Title.</p> <p>Title to the personal estate of a decedent can be transmitted only through the instrumentality of letters of administration. The appointment of an administrator is indispensable to the derivation of title to a decedent’s personal estate.</p> <p>Limitations do not begin to operate before letters of administration are taken out.</p> <p>An executor tie son tort cannot sell the chattels of a decedent and pass a good title to the purchaser as against the subsequently appointed lawful administrator, such purchaser not being a creditor of the estate and not taking the property in discharge of any debt due him by the decedent.</p> <p>An executor de son tort or other wrongful intermeddler cannot be permitted to deal with and dispose of the estate of a decedent, in a mode expressly forbidden to the lawfully appointed executor or administrator. A sale which is void and passes no title, if made by the latter, cannot be valid and pass a good title when made by the former.</p> <p>The vendee of property of an intestate, purchased of his widow who had not taken out letters of administration upon the estate of the deceased, having paid part of the purchase money and given his note for the balance, can plead as a sufficient defence to an action on the note by the vendor, that he paid the amount due thereon to the lawfully appointed administrator of such deceased, who made demand on him therefor and threatened to take possession of the property as administrator unless he did so pay.</p>

<p>Construction of Article 47 of the Code in respect to the Bight of Election.</p> <p>Under proceedings in equity, a commission was issued in accordance with Article 47 of the Code to five persons to value and divide the land of an intestate. The report of the commissioners, which was confirmed, showed that the estate consisted of two farms and a house and lot, and would not admit of any other division than the actual parcels in which the property was found. The oldest son of the intestate, who was entitled to elect, by written election duly filed, elected to take all the estate at the valuation of the commissioners. On the appeal of the next oldest son, from an order overruling his exceptions to said election, and declaring the election rightful, it was Held :</p> <p>That the Court below committed no error in deciding that the right of election extended to the whole estate, notwithstanding its division into parcels less than the number of heirs.</p> <p>The right of election- is in no event confined to the right of choice between parcels, but is a right to take the whole estate, if indivisible among the heirs; and to take all or any parcel or parcels, if divided into parcels less than the number of heirs.</p>

<p>Instrument not a Promissory note — Assignee of a Written agreement to pay money — Bight to Declare as Assignee — Promissory Note.</p> <p>A written promise to pay a specified sum of money two months after date, and if not paid when due, to pay all costs and charges for collecting the same, with interest, is not, in legal contemplation, a negotiable promissory note, forasmuch as the costs and charges of collection, part of the sum agreed to be paid, are uncertain and contingent.</p> <p>But while such instrument is not a valid negotiable promissory note, it is a contract for the payment of money, and the indorsee of the instrument may declare on such contract or agreement as assignee thereof.</p> <p>A promissory note is a written promise, not under seal, to pay a certain sum of money unconditionally. If the note be wanting in this-element, while it may be a valid specific agreement, and negotiable' under the provisions of the Code, it cannot be treated as a valid negotiable promissory note to be passed by endorsement.</p>

<p>Appeal — Mortgage—Construction of the Act of 1876, ch. 327, {Code, Art. 16, see. 125,) providing fora Decree in personam against the Mortgagor ; and practice thereunder.</p> <p>A decree was passed for the sale of certain mortgaged premises. Before the date of the decree the mortgagor disposed of his equity of redemption. An appeal from the decree was taken by him, he disclaiming, however, all purpose or desire of affecting the rights of the piurchaser under the decree. Held :</p> <p>That the appeal must be dismissed, the appellant having no interest in the reversal of the decree in respect to any remaining interest in the mortgaged premises.</p> <p>The principles of justice, as well as good practice would seem to require in all cases under the Act of 1876, ch. 827, (Code, Art. 16, sec. 125,) that as preliminary to the decree in personam, upon the motion or application of the complainant, an order nisi should be passed and served on the defendant, requiring him by a day certain'to show cause against the decree sought against Mm.</p> <p>And upon such notification to the defendant the Court would be required to hear and determine any defence that could be made in an action at law upon the covenants in the mortgage.</p> <p>Where the mortgage has not been executed under the seal of the mortgagor, the decree under the statute cannot be maintained.</p>

<p>Construction of seos. 1 and 2, of Art. 83, of the Code, relating to the sale of Equitable estates under Execution — Habere facias possessionem — Sales under aji.fa.— Void and Voidable Execution — Sheriff’s return.</p> <p>Under secs. 1 and 2, of Art. 83 of the Code, relating to the seizure and sale of equitable estates under execution, and the rights of purchasers at such sales, if the equitable title be one which includes possession of the property, there can be no doubt that the writ of habere facias possessionem is applicable to give the purchaser possession.</p> <p>Where the land sold under the execution had been mortgaged by tbo judgment debtor, who bad not been dispossessed under the mortgage, but was possessed of the land, the writ of habere could properly go to put the purchaser in possession, provided the judgment was valid and the sale regular.</p> <p>'The averments relied on as constituting “ good cause ” why a writ of habere /acias possessionem should not issue, must be sustained by evidence.</p> <p>The pendency of ejectment suits in the Circuit Court of the United States for the same land, furnishes no ground for denying the writ, even if there were sufficient evidence of the pendency of such suits (between the same parties) for the trial of the title to the land in question.</p> <p>The purchaser under the execution takes subject to any right of possession or title which antedates the judgment upon which the execution issued, and which could be enforced against the judgment debtor at the time the judgment was entered.</p> <p>Right to immediate and present possession is all that is settled by the habere proceedings, which right may be subject to overthrow by ejectment.</p> <p>Where a judgment in rem upon an attachment is described in the execution issued upon it as a judgment in personam, and the same error was committed in the venditioni exponas, the writ of execution is. void, and not voidable merely, and cannot be amended, as it might have been if voidable only.</p> <p>It is only when the Court can see by inspection of the judgment and execution, and by such facts concerning them as would be admissible, that execution was properly issuable, that it, and a sale- , under it can be supported.</p> <p>The doctrine'that where property is sold on several executions, and . only one is valid, the purchaser will take title, may be subject to some qualification in the interest of a - purchaser who is a stranger-to the whole proceedings.</p> <p>If the irregularity rendering the execution void be in the execution on the judgment first entitled to payment, then the sale sometimes, will not be supported, because though on a valid execution, it is on a junior lien.</p> <p>But conceding this distinction good, and proper to be observed in certain cases, there is no occasion to enforce it in a case where-although the void execution was upon the older judgment, that judgment was in favor of the purchaser himself, and he asks that the sale be sustained. In such case no harm can result from granting him the relief, he asks; the superior lien being his own.</p> <p>Certain land was seized and scheduled under an attachment by way of execution, and a judgment of condemnation was rendered against it. ti.fi.fa. was issued on this judgment directing the sale; of the specific land affected by the judgment. The sheriff’s return to the writ was “ property on hand and unsold.” Held :</p> <p>That this return was sufficient to sustain the vendí, subsequently ordered; as by the “property on hand ” was evidently meant the property mentioned in they?, fa. as already seized and condemned; . and when the return says the property was “ unsold,” proper intendment in support of the process, and the presumption that the . officer did his duty, supply the reason that it was for want of buyers.</p>

<p>Appeal — Liability for Costs — Personal judgment — Bights of Assignee of Mortgaged property.</p> <p>In December, 1817, S. purchased of R. certain leasehold property-subject to a balance due on a mortgage thereof. • In August, 1880, A. H. R. became the assignee of this mortgage, and on pioceed.ings instituted by him, a decree was passed for the sale of the mortgaged premises. Subsequently, in June, 1881, an auditor’s account was stated, ascertaining the balance due on the mortgage, including all interest and costs to that date, and this account was finally ratified by an order of the 7th of October, 1881. The amount thus ascertained, after deducting a small sum conceded to be in excess, was duly paid by S. as assignee of the mortgaged property or equity of redemption. From the order of ratification R., the original mortgagor, appealed, but S. did not join in the appeal. The appeal was dismissed with costs to the appellee. Subsequently, on the petition of A. H. R. an order was passed requiring R. or S. to bring into Court the costs awarded the petitioner in the Court of Appeals, and in default thereof, it was adjudged that the order previously passed restraining the sale of the mortgaged premises be rescinded. Thereupon S. filed his petition praying that the attempted sale of the mortgaged property be restrained, and the original decree entered satisfied. The Court dismissed the petition of S. and denied him the relief prayed. On the appeal of S. it was Hki.d :</p> <p>1st. That the order dismissing the petition of S. and denying him the relief prayed, was a proper subject of appeal.</p> <p>2nd. That S. who was not a party to the appeal, was not, nor was the property previously purchased by him of R. bound for the costs awarded against the latter.</p> <p>3rd. That the judgment for costs on the appeal of R. was a personal judgment that in no manner bound the property previously sold and conveyed to S., and for which he had fully paid.</p> <p>4th. That having fully paid the entire balance of the mortgage debt, with all interest and costs included in the auditor’s account to that date, S. was not only entitled to have the attempted sale of the mortgaged property restrained, but to have the original decree for the sale entered satisfied.</p>