Volume 62 — Maryland Reports

The case is stated in the opinion of the Court. At the trial of the case below, a suggestion of the death of John Robinson, one of the defendants, was made in open Court before the jury was sworn.

<p>Construction of Will — Gift to a Class — Distribution per capita.</p> <p>W. B. died in the year 1828, leaving a will, by which he gave to his two daughters, Mary and Elizabeth, life estates in all his property, real, personal and mixed, with a remainder over in favor of Mary-after the death of Elizabeth. The will then proceeded as follows:: “ Item. Upon the decease of both of my daughters, Mary and Elizabeth, it is my will and desire that the property hereby bequeathed to them for their use and benefit, shall be equally divided among the lawful issue of my son John, lately deceased, and the lawful issue of my two daughters, Mary and Elizabeth, aforesaid, or the survivors of their issue; but in case the property hereby bequeathed cannot be equally divided, then and in that case I hereby direct my executors hereafter named, to sell the same and distribute the proceeds thereof, share and share alike, among the lawful issue of my above named son and daughters or the survivors of them, the said issue.” Both of the daughters died. Mary left surviving her three children and four grand-children, the children of three deceased daughters. Elizabeth left one daughter; and John’s descendants who were living at the decease of the last surviving daughter of the testator, were five grand-children, the children of' a deceased daughter. Held :</p> <p>That the objects of the testator’s bounty, after the death of his two daughters, were not divided into classes with a share of the estate to each class; but they were all comprehended in one class, and were to receive separately equal interests with each other.</p>

The hill of complaint in this case was filed hy George Warner, Annie C. Ward and William J. Ward, her husband, the said George and Annie being children of George Warner, Jr., deceased. The object of the bill was to procure a construction of the will of said George Warner, Jr.,, and other papers affecting the title to property claimed by the complainants, George and Annie, and for the appointment of a receiver of said property until their rights were adjudicated.

This was an action of ejectment, instituted on the 11th of April, 1882, by the appellants against the appellee. The case was tried upon an agreed statement of facts, which are sufficiently set forth in the opinion of the Court. By consent a pro forma, judgment was entered in the Court below in favor of the defendant, with the right of appeal by the plaintiffs.

This is an appeal from a decree dismissing the bill of the complainants, which was filed for the partition or sale of certain real estate in Baltimore City, described in the last will of Kennedy Long, deceased, as his “dwelling place.” The case is stated in the opinion of the Court.

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

This was an action brought by the appellant to recover ■damages for being required to leave a train of cars on the railroad of the appellee, between Perryman’s Station and the City of Baltimore. The case is stated in the opinion of the Court. The plaintiff presented four bills of exception; the first, second and third were to rulings of the Court (Fisher, J.,) upon questions of evidence, and the fourth was to the Court’s rulings upon the prayers offered.

Cross-Appeals from the (circuit Court for Prince George’s County. The bill of complaint in this case was filed in the name •of the State of Maryland for the use of William Z. Edelen, •and of William Z. Edelen, assignee of Della A. Edelen, against William B. Bayne and Elizabeth Bayne his wife.

The appellant sued the appellee in the Circuit Court for Baltimore County to recover the amount assessed upon the defendant for the construction of Wilkins avenue, a public road, contiguous to the property of the defendant. The cause was removed to the Circuit Court for Carroll County, and there tried before the Court upon an agreed statement of facts which are sufficiently set forth in the opinion of this Court.

<p>Mistake — Injunction— Contract — Specific performance — Agency — Jurisdiction at law and in Equity — Trespass—License— Estoppel — Quare clausum fregit — Boundaries—Measure of Damages for Mining coal — Punitive Damages — Unwitting trespasser.</p> <p>D. and the Maryland Coal Co., by deed of exchange conveyed to each other certain adjoining parcels of coal land. D. afterwards conveyed by deed to the Atlantic and George’s Creek Consolidated Coal Co., the same land obtained by him from the Maryland Coal Co. Subsequently the M. C. Co. sued the A. and G. C. C. C. Co. for mining coal on the land conveyed to the M. C. Co. by D. Whereupon the A. and G. C. C. C. Co. filed a bill against the M. C. Co. for an injunction to restrain the prosecution of said suit, and for specific performance, and other relief. The A. and.G. C. C. C. Co. claimed that the land conveyed to D. did not contain the quantity and quality of coal it was intended he should receive, and that by mistake the land conveyed to D., as described in the deed of exchange, did not include the bous in quo, and that by a true location the alleged trespasses complained of in the suit at law, were committed on the land that should have been originally conveyed by the M. C. Co. to D. It was alleged by the complainant that it had been agreed that the M. C. Co. by R., its agent, should survey and lay off for D. the land to be conveyed to him, and that in conducting its operations after the purchase from D., the boundaries of the land not being sufficiently mai'ked by visible calls in R.’s survey, S. the complainant’s engineer, applied to R. to show him the outlines, in order that no trespass might be committed, and that R., (since dead,) in the capacity of agent of the M. C. Co., pointed out the lines, and that the coal which was the subject of the action of trespass was taken within the lines of the complainant’s lands as so pointed out by R., and that if in fact there was a trespass, it was due to the acts and statements of said R. The mistake was denied by the M. C. Co. On appeal from an order dissolving a preliminary injunction which had been granted, it was Held :</p> <p>1st. That in such a case as this, averring a mistake to have been made in the deed of exchange, and setting up a verbal contract differing from the deed, (which expressed the consideration to be the exchange of the lands described therein,) and asking a specific performance of the verbal contract, the law was well settled that the terms of the contract must be accurately stated in the bill, and the proof must in every essential particular correspond with the terms of the contract thus set up.</p> <p>2nd. That the contract set up by the complainant was not, upon the proof, satisfactorily made out.</p> <p>3rd. That the question of R’s agency, vel non, in making the alleged designation of boundaries to S., wa,t clearly within the jurisdiction of the law Court to determine.</p> <p>4th. That the effect of his acts, if they could be relied on by the complainant, would be in the nature of a defence under a license, or by way of estoppel, which were legal defences in an action of tresjDass, and'could be set up in the suit at law, and to the extent of their legitimate protection could be made available in that suit.</p> <p>5th. That as to their constituting a reason for equitable relief and injunction, on the ground that the M. C. Co. should be restrained from proceeding at law, because of the rule of damages which must there prevail, and that the Court of equity must take jurisdiction of the question' of damages, giving only such as were measured by the value of the coal in its native bed; the Court knew of no principle for such jurisdiction on the facts of this case.</p> <p>A Court of equity has no inherent power to ascertain the amount of damages by reason of tortious acts unattended by profits to the wrong-doer. There must be some joint interest, or interest in common of the parties in the property for a Court of equity to assess the damages.</p> <p>In a case of trespass where no such relations exist, there is no ground upon which a Court of equity can set up any other rule of damages than that which prevails at law.</p> <p>The right to maintain the action of quarre clausum fregit exists in this State, whether the defendant committed the trespass unwittingly, or wilfully and wantonly.</p> <p>The owner of adjoining property is held to know the boundaries between him and his neighbor. If he has made a mistake bona fide as to his title or boundaries, in mining coal, the lowest measure of damages applicable is the value of the coal immediately upon its conversion into a chattel, without abatement of the cost of severance.</p> <p>If the trespass has been committed through negligence or design, punitive damages in addition may be recovered.</p> <p>An unwitting trespasser, merely as such, could not change the amount of his liability by simply changing the forum. No lower measure of damages for trespasses not negligent nor wilful could be substituted in equity for that fixed at law on general principles for such trespasses.</p>

This was an action of ejectment brought by the appellant against the appellees to recover the parcel of land described in the declaration. Issue was joined on the plea of not guilty, and the case was tried by consent before the Court, (Fowler, J.,) a jury trial being waived. Prayers were offered on both sides. The Court refused those of the plaintiff, and granted those of the defendants. The ■plaintiff excepted.

<p>Infant — Proehein Ami — Attorney—Appeal— Costs.</p> <p>An infant brought a suit by her pi'ochein ami, in a Court of law. Afterwards she employed an attorney, and requested him to dismiss the suit, which was accordingly done. A motion was subsequently made in the name of the infant by her proehein ami, asking the Court to strike out the entry of “ off,” which had been made in the case, and re-instate it on the docket for trial. On appeal from the order of the Court overruling this motion', it was Held :</p> <p>1st. That the infant, until she reached the age of twenty-one years, was incompetent to appoint an attorney, or to take any step in the suit which could bind her rights.</p> <p>2nd. That the appointment of an attorney by her being nugatory, his dismissal of the suit was simply void.</p> <p>3rd. That the Court below was therefore in error in refusing to re-instate the case.</p> <p>4th. That an appeal could be taken from such refusal.</p> <p>5th. That it was not in the power of the infant, after attaining the age of twenty-one years, to ratify and approve the act of her attorney.</p> <p>Where an infant sues by prochein ami, the latter i^ the only person who is authorized to prosecute the suit, and is responsible for the costs.</p> <p>While it is competent for the Court, after the infant has arrived at the age of twenty-one years, to discharge the prochein ami, and give the infant control over her suit, it must make such equitable order as will protect the prochein ami from costs already incurred, and relieve her from liability in the future.</p>

This suit was brought by the appellee against the appellant, to recover damages for a breach of contract. The case is stated in the opinion of the Court.

Mary’s County. This suit was brought hy the appellees, commission merchants, doing business in the City of Baltimore, against the appellant, to recover a balance due on a certain draft, drawn on and accepted hy the appellees, and signed hy John Dillahay, for whose accommodation it was drawn, and by James Dillahay, the appellant’s intestate, as surety for said John.

This action was brought by the appellant against the appellee, on an agreement under seal, to recover for certain reaping and mowing machines delivered by the former to the latter for sale on commission. The declaration contained four counts. The defendant demurred to each and every count. The demurrer was ruled good, and judgment was entered for the defendant. The plaintiff appealed. The case is further stated in the opinion of the Court.

<p>Construction of Contract of Agency, as to its duration.</p> <p>'The B. & W. Co., engaged in the manufacture of steam boilers in the City of New York, entered into an agreement with M. “in regard to selling boilers in Baltimore and vicinity,” signed by both parties, " and dated December 9th, 1881, and containing the following terms: “ Mr. M. to open an office in Baltimore to represent the B. & W. Co., and work for their best interest in everything. On all sales made by him, he is to take charge of erecting, and collecting money and remit same to ns; all contracts to be subject to the approval of home office. The B. & W. Co. to pay office rent and incidental expenses of same, necessary travelling expenses, and twenty-five dollars iter week to Mr. M., charging the same to Baltimore- office; five per cent, on all sales, by Mr. M. to be credited to Baltimore office, and any surplus credits at end ofjjmp to be paid to Mr. M.” Held :</p> <p>That this contract is to be construed as Continuing for a year, and the Company had no right to discharge M. during that time, merely because the sales effected in the Baltimore district, did not, in their judgment, warrant a continuance of his employment for that period.</p>

The appellant and appellee are owners of adjoining mill property situated upon the Gunpowder river in Baltimore County. The appellant has a cotton factory upon its property which it operates in the manufacture of cotton goods. The appellee has a paper mill upon his property, and is, and for many years has heen, engaged in the manufacture of paper therein.

In the year 1882, during the recess of the Senate, the Governor of Maryland appointed the appellee to be Inspector of Tobacco at Warehouse No. 2, in the city of Baltimore, to fill a vacancy caused during such recess, by the resignation of one Alexander Somerville ; and on the 3rd of January, 1884, the same being within thirty days after the next meeting of the Legislature, the nomination of the appellee, thus appointed, was sent to the Senate, in accordance with section 11…

<p>Admissibility of a Letter in Evidence — Evidence inadmissible as calculated to Mislead the Jury.</p> <p>‘On the trial of J. G. on a charge of larceny, the State offered in evidence a letter purporting to have been written by the accused. As a foundation for its introduction, the State proved that it had been received by the person to whom it was addressed, from M. K., who was proven to be engaged to the accused; and then called M. K. as a witness, and asked her the question “ who wrote that letter ? ” to-which she replied, “ J. G.; I told you that before.” The witness beiDg then asked on cross-examination whether she knew the letter was in G’s hand-writing, replied, “ It looks like G’s hand-writing, but I would not swear to his hand-writing unless I saw him write.” The cross-examination was not pressed further, but upon the said answer of the witness, the prisoner objected to the admissibility of the letter. Held :</p> <p>That the letter was admissible in evidence.</p> <p>The prisoner offered to prove by his mother, and other witnesses, that for about three years prior to the alleged offence, and since he had been in jail, he had been subject to fits, which he proffered to show were epileptic, and that they had weakened his mind, and which would tend to account for contradictory statements made by him about the possession of the money when he was arrested; but upon objection the Court below rejected the evidence, unless the prisoner would assure the Court that he would -follow it up by proof to show that such fits rendered him irresponsible for his acts. This assurance the prisoner declined to give, and the proffered evidence was consequently rejected. On appeal it was Held :</p> <p>That the evidence was properly rejected, being well calculated to-mislead the jury.</p>

This appeal was taken from a decree of the Circuit Court (Fisher, J.) dismissing the hill of the complainant. The case is stated in the opinion of this Court.

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

The case is stated in the opinion of the Court. The first eleven exceptions are unnecessary to he stated. Twelfth Exception. — At the close of the testimony the plaintiff offered the three following prayers, the first of which the Court, (Brown, J.,) granted, but rejected the second and third: 1.

<p>Pleadings in the Orphans’ Court — Demurrer to Petition — Proceedings under Sections 238 and 239 of Article 93 of the Code — Appeal provided by Section 240 of Article 93 of the Code — What is required to malee out a case against an Administrator under Sec. 239 of Art. 93 of the Code.</p> <p>A demurrer to a petition in tbe Oprbans’ Court must be regarded and treated as an answer, or an objection to tbe jurisdiction of tbe Court, or as an exception to tbe sufficiency of tbe averments of tbe petition to make out a case against tbe exceptant under any provision of tbe testamentary law.</p> <p>The appeal provided by section 240 of Article 93 of the Code, to the Circuit Court of the County or the Superior Court of Baltimore City, applies to all and every proceeding instituted under either of the two preceding sections, and is exclusive of all other appeals; so that in no event can an appeal in any such case be taken to this Court under section 39 of Article 5 of the Code.</p> <p>In order to make out a case against an administrator under section 239 of Article 93 of the Code, it must be alleged and proved that he is himself the party concealing or omitting to return property which he has in his own hands, or that he is pa/rticeps criminis, or acting in collusion with some other party by and through whom the concealment, or possession and retention of the property is actually effected. If such collusion exists, he is just as responsible as if he were alone the guilty party.</p> <p>It is not a sufficient allegation of collusion or connivance on the part of the administrator, to state that he has failed to charge himself in his inventory of cash on hand with a sum of money of which his intestate died possessed, “ and which is retained, and concealed by the widow of the deceased.”</p> <p>There is no provision in the testamentary law by which an administrator can be compelled by the Orphans’ Court to charge himself with money “ retained or converted ” by a third party without any collusion, connivance, or guilty knowledge on his part.</p>

<p> Insufficient ground for Injunction. </p> <p>An action was brought on certain notes on the 8th of September, 1881, and N., the defendant, was duly served with process, and he appeared to the action, but interposed no defence; and on the 10th of October, 1881, judgment was entered for want of plea. This-judgment was extended for $967.10, with interest and costs. A payment was made on the judgment, and at the time of such payment, it was agreed between the parties to the judgment that the-lien of the judgment should be waived and deferred to a subsequent mortgage made by N. of his property, which was accordingly done, and it was then and there agreed that the balance of the judgment should be soon thereafter paid. The payment was not made as promised, and the plaintiff in the judgment sued out execution on the 4th of October, 1882. On the 2nd of January, 1883,. nearly fifteen months after the judgment rendered, N. filed a bill for an injunction to restrain the collection of the balance due on the judgment, upon the ground that there was usury in the debt upon which the judgment was recovered. The answer swore away all the equities of the bill, and the averments of the answer were not overcome by proof. The bill did not allege with any exactness, the amount of the usury over and above the principal sum advanced, with legal interest thereon, or the real amount due, principal and interest, after deductifig the usury retained. There was no pretence that the complainant was not fully aware of all the facts of the case from the commencement. There was no offer to bring into Court the amount of principal and interest that might be actually due on the judgment after deducting the alleged usury. Hbld:</p> <p>That the case was not such as to entitle the complainant to an injunction to restrain the execution of the judgment.</p>

This suit was brought by the appellees, owners of ground, binding on Covington street, in tbe city of Baltimore, for an injunction to restrain the appellants from enforcing certain special taxes and assessments, levied for the grading, curbing and paving of said Covington street,, from a point at or near Warren street to Cross street.

This appeal was taken from an order ratifying account H, and rejecting accounts, D, E, and F, of the auditor, and directing the appellant to bring into Court, on or before the first Monday in September, 1883, the sum of $227.51, the same being the amount due the appellee, together with the costs of the proceeding as taxed by the clerk of the Court, amounting to $48.45.

<p>Bawdy-Rouse— General reputation— Evidence.</p> <p>•On the trial of a party accused of keeping a bawdy-house, evidence as to the general reputation of the house is inadmissible to prove • the offence.</p>

<p>Indictment under the Act of 1882, ch. 92, Imown as the Local Option Law for Harford County — “ Of the County” and “ for the County ” — Sec. 29, of Art. 3, of the Constitution, requiring the subject of an Act of Assembly to be described in its Title — Judicial notice of Public Local Laws.</p> <p>In an indictment under the Act of 1882, ch. 92, known as the Local Option Law for Harford County, it is sufficient to charge that the accused did unlawfully sell or give away a certain quantity of spirituous liquor, “ contrary to the form of the Act of Assembly in such case made and provided.”</p> <p>In an indictment under the Act of 1882, ch. 92, it is not necessary to allege that said law became operative through the observance of all the formalities prescribed therein as precedent to its going into effect.</p> <p>The words “ of the County ” and “for the County,” as applied to the Circuit Courts and to the clerks thereof, are used interchangeably and with like propriety.</p> <p>The subject of the Act of 1882, ch. 92, entitled, “An Act to enable the qualified voters of Harford County to determine by ballot whether intoxicating liquors, or alcoholic bitters shall be sold therein,” is sufficiently described in its title; and the law is valid within the provision of section 29, of Article 3, of the Constitution.</p> <p>It is the duty of the Courts to take judicial cognizance of public local laws, within the sphere of their operation, equally with public general laws.</p>

The appellant was indicted in the Court below for a violation of the Act of 1882, ch. 92, known as the Local Option Law for Harford County, in selling and giving away certain spirituous liquor.

<p>Appeal — Amendment—Affidavit—Proceedings, in Insolvency— Section 24, of the Act of 1880, ch. 172.</p> <p>No appeal will lie from an interlocutory judgment overruling a demurrer to a petition seeking to have a party adjudicated an insolvent.</p> <p>A demurrer to such petition was ruled good by the Court below, but the Court at the same time gave the petitioners “ leave to make such amendments as will effectuate that provision of the law.” Held :</p> <p>1st. That as the ground upon which the Court below sustained the demurrer, was that there was a defect in the'affidavit to the petition, the giving the leave to amend, necessarily meant a leave to amend the affidavit.</p> <p>2nd. That the allowance or refusal to allow an amendment was a discretionary power, and not the subject of review in this Court.</p> <p>3rd. That the amended petition was not to be treated as an original petition, requiring to be filed within sixty days from the commission of the alleged act of insolvency.</p> <p>4th. That where the defect in the original petition was the merely formal one, that the affidavit did not show affirmatively that the affiants were members of the creditor firms, this defect was remedied where the subsequent part of the record showed that they were such in fact.</p> <p>5th. That the petitioners having complied with the legal requirements to give the Court jurisdiction, the jurisdiction attached at the date of the original petition, and the amended petition therefore referred back to that period, and was within the time limited by law.</p>

<p>Orphans’ Court — Jurisdiction-^-Sections 238 and 240, of Article 93, of the Code — Superior Court of Baltimore City— Appeal.</p> <p>A petition framed under section 238, of Article 93, of the Code, was filed in the Orphans’ Court of Baltimore City by the administrator of J. D., which alleged that E. G. had obtained possession of certain bank books of the petitioner’s intestate, and had applied for and received from said banks the money therein deposited by the intestate in his life-time, and had taken the same into his exclusive custody. The petition then charged that although requested, E. G. refused to deliver up said money or inform the petitioner where the same was, and was therefore concealing it. E. G. answering under oath admitted the possession of the money claimed by the administrator, but denied all concealment of the same, and claimed it as his own property. He denied the right of the administrator to receive the money, and also the jurisdiction of the Orphans’ Court to decide as to their respective rights. The Orphans’ Court decided that it had no jurisdiction, because it could not decide a question of title, and thereupon dismissed the petition. Erom this decision of the Orphans’ Court the administrator appealed to the Superior Court of Baltimore City under section 240, of Article 93, of the Code. The Superior Court reversed the order of the Orphans’ Court and decided in favor of the administrator. On appeal from the order of the Superior Court, it was Held :</p> <p>1st. That as the Orphans’ Court had no jurisdiction, the Superior Court had none, and its order on the appeal was unwarranted.</p> <p>2nd. That as the Superior Court exceeded its jurisdiction, the appeal from its order was properly taken to this Court.</p>

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

<p>Master and Servant — Tort.</p> <p>A master is not responsible for the acts of Ms servant, unless the latter was engaged in the performance of the service for which he was employed.</p> <p>Where a person placed his mare at livery, and instructed a servant of the proprietors of the stable, to take her out for exercise, such, however, being no part of the contract of livery, and while the servant had her out for such purpose, she died, the proprietors of the stable cannot be held liable to the owner, though the mare was injured by, and died in consequence of, the immoderate riding, and carelessness of their servant.</p>

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

This action was brought by the appellees against the appellant, to recover damages for ejecting the female plaintiff from a car on its road. Exception. — The testimony being closed on both sides, the plaintiffs offered the two following prayers : 1.

This was a proceeding instituted before a justice of the peace, under the provisions of the Act of 1882, ch. 355, by the appellee, to obtain possession of certain premises in the Oity of Baltimore, from the appellant, as tenant holding over after the expiration of his term. The justice rendered judgment of non pros for want of jurisdiction, .and awarded costs to the defendant.

<p>Trustee’s Commissions waived — Estoppel.</p> <p>A trustee, by waiving certain commissions allowed him by the decree appointing him trustee, is not thereby estopped from claiming and receiving commissions subsequently earned.</p>

On the 26th of January, 1870, Edward Jacob and wife •executed a mortgage to Susan M. Jacob, to secure the payment of a debt of $1,566.00. On the same day he executed to his wife a mortgage on the same property, to secure to her the payment of $2,311.00; and both were recorded at the same time. Susan M. Jacob filed her hill in equity on the 28th of May, 1872, to forclose her mortgage, and to obtain priority over that which had been executed to Mrs. Jacob.

<p>Orphans’ Court — Costs—Appeal.</p> <p>The Orphans’ Court in a case of issues sent to a Court of law for trial, has discretionary and exclusive power in the matter of awarding costs; and its judgment thereon is final, and no appeal lies therefrom.</p>

The case is stated in the opinion of the Court. First Exception. — After the testimony was closed on the part of the plaintiff and the garnishee, the plaintiff prayed the Court to rule as follows : If from the evidence the Court find that the defendant being indebted to the plaintiff as charged in the writ of attachment and affidavit in this cause, did, prior to said attachment, assign, dispose of, or conceal his property, or some portion thereof, with intent to defraud his…

The appeal in this case was taken from an order of the Orphans’ Court of Caroline County, directing certain issues growing out of the caveat, and additional caveat to the last will and testament of Mary Belle Taylor, deceased, and the answers thereto, to he transmitted to the Circuit Court for Caroline County for trial. The case is stated in the opinion of the Court.

<p>Bill to redeem Mortgage — Foreclosure proceedings under the Act of 1836, ch. 249, relating to Mortgages in the City of Baltimore — Misnomer of the Mortgagee in the Advertisement of sale of the Mortgaged premises.</p> <p>This Court has nothing to do with the policy or expediency of tho Act of 1836, ch. 249, relating to mortgages in the City of Baltimore ; and however anomalous and extraordinary some of its provisions may be, yet if they have been fairly and substantially complied with, the rights of bona fide purchasers under it must be pro- ' tected.</p> <p>The Act of 1836, ch. 249, in defining the requirements of the notice of sale to be given by the mortgagee provides, “ that every such notice shall specify the name of the mortgagor, and of the mortgagee, and the last assignee of the mortgage, if any; the date of the mortgage; the amount claimed to be due thereon,” &c. A mortgage containing the power of sale authorized by this Act was foreclosed by the mortgagee. Prior to the notice of foreclosure the mortgage had been assigned by the mortgagee as collateral security for a debt, which debt was paid before the notice was published. Held :</p> <p>1st. That the debt, to secure which the assignment was made, having been paid, the assignee had no interest in the mortgage at the time of the publication of the notice of sale.</p> <p>2nd. That the mortgagee being, in fact, the owner of the mortgage debt, was the proper person to execute the power of sale upon the failure, of the mortgagor to pay the debt at the time prescribed in the mortgage.</p> <p>3rd. That he being the original mortgagee, it was unnecessary in the notice of sale to set forth the assignment by him of the mortgage and its re-assignment to himself.</p> <p>4th. That being the mortgagee, and as such entitled to the proceeds, the mere failure to set forth the assignment by him, could not under such circumstances prejudice in any manner the interests of the mortgagor.</p> <p>The name of the mortgagee was J. C. W. The notice of sale specified J. W. as the mortgagee. The date of the mortgage, the name of the mortgagor, and the description of the mortgaged premises, were correctly given, and the name of J. O. W. was signed at the bottom of the notice of sale. Held :</p> <p>That in the absence of any pretension that the J. W. named in the body of the notice as mortgagee, and J. O. W. whose name was signed at the bottom, were in fact different persons, the mere omission of the initial letter from the- name, was no ground to justify a Court in setting aside the sale.</p> <p>The amount stated in the notice as that claimed to be due on the mortgage, was $4,345.22, it. turned out that the sum actually due was $200 less. Held :</p> <p>That all the law required was that the mortgagee should state in his notice the amount claimed to be due him. And if this was done in good faith, the mere fact that there was an error in the amount thus claimed, was not such a mistake as would render the side void.</p> <p>The Act of 1836, ch. 249, provides that “in order to entitle any person to foreclose a mortgage according to the provisions of this Act, notice that the same will be foreclosed by a sale of the mortgaged premises shall be given by publishing the same,” &c. The notice of sale was as follows: “ Mobtgage Sale. By virtue and in pursuance of a mortgage made and delivered by H. C. McC. to J; W., bearing date the eighth day of December, eighteen hundred and forty-seven, the undersigned will sell,” &c. Held :</p> <p>That the notice sufficiently indicated that the mortgage was to be foreclosed by a sale of the mortgaged premises.</p>

<p>Indictment for Perjury — Judicial character of Proceeding before Officers of Registration — Defective indictment for Swearing falsely before an Officer of Registration — Meaning of “Infamous crime,” as used in section 2, of Article 1, of the Constitution — Dow offence charged in an Indictment must be stated.</p> <p>In an indictment for perjury under the statute, (Art. 30, sec. 155, of the Code,) it is sufficient to charge that the traverser swore “ wilfully, knowingly, maliciously and falsely.” It is not necessary to aver that he swore “ corruptly.”</p> <p>The Legislature having devolved upon the officers of registration, as well as the judges of election, the duty of exercising judgment in the discharge of their functions, their office is in its nature judicial ; and the proceeding before the officer of registration is quasi judicial.</p> <p>An indictment charging that the traverser, in answer to the questioning of an officer of registration, had falsely sworn that he had not been convicted of an infamous crime, and had not been pardoned by the Governor of the State, is defective in not sufficiently averring the offence of perjury. It should have averred that the accused was convict of some specific crime which was “ infamous,” and which subjected him to the constitutional disability of ever voting in the State, and to the punishment for peijury for having falsely denied the same on oath.</p> <p>The statement of the offence charged in an indictment, must be clear, distinct and exact, so that the accused may be fully informed of what he is charged with, and wherein his conduct has been supposed to be indictable, so that he may be able to refute it if he can.</p> <p>The Constitution in providing for the exclusion from suffrage of any person convicted of an “ infamous crime,” must be understood to have intended, by the language used, such crimes as were “ infamous ” at common law, and are described as such in common law authorities.</p>

The case is stated in the opinion of the Court. Exception — White and Shipley asked the following instructions to the jury : 1.

<p>Necessity to Condemn street, though laid doion on Poppleton’s Plat — Injunction to restrain Collection of Assessments for the Expense of paving a Street— When the City of Baltimore acquires Title to the bed of a Street — Absence of right in the City before acquiring Title, to enter upon the Property to make Improvements.</p> <p>The fact that a street has already been designated as a street on Poppleton’s Plat of the City of Baltimore, does not render a condemnation thereof unnecessary.</p> <p>By a special ordinance approved the 17th of May, 1881, the City Commissioner was directed to have all that part of Caroline street, between John street and Boundary-avenue, graded, paved and curbed in pursuance of the Act of 1874, ch. 218, and according to the provisions of ordinance No. 44, of the 4th of June, 1874, so far as the same were applicable, the expense thereof to be assessed, as provided by said ordinance No. 44, upon the owners of property binding on said street, in proportion to the number of front feet owned by them respectively. The second section of the Act of 1874, ch. 218, authorized the Mayor and City Council of Baltimore, to provide by ordinance for the grading, paving and curbing of any street, lane or alley in said city, then condemned, ceded or opened as a public highway, or which might thereafter be condemned, ceded or opened; and for assessing the cost of any such work, in whole or in part, pro ro.ta, upon the property binding on such street, lane or alley, and for collecting such assessments as other city taxes were collected. In advance of the condemnation of Caroline street as a public highway, between the streets indicated in the aforesaid special ordinance, the City Commissioner proceeded to have said part of Caroline street, graded, paved and curbed, and to assess the cost of such work upon the property binding on said street, in proportion to the frontage; and issued his warrant authorizing and directing the City Collector to proceed to the collection of said assessments. On a bill filed by the owners of property binding on said Caroline street, asking that the enforcement of the payment of said assessments be enjoined, it was-Held :</p> <p>That as the assessments for grading, paving and curbing Caroline street, aforesaid, were determined and imposed in advance of the condemnation of said street as a public highway, they were illegal and void, and their collection should be perpetually enjoined.</p> <p>The City of Baltimore acquires no title to the bed of a street until it has been regularly condemned as a public highway, and the amount of the damages awarded therefor to the owner, been paid or tendered by the city authorities.</p> <p>And until such title is acquired, the city cannot lawfully enter upon the land and assess the adjoining owners for the expense of grading, paving and curbing the street.</p>

The case is stated in the opinion of the Court. First Exception. — Stated in the opinion of the Court. Second Exception. — The plaintiffs prayed the Court to instruct the jury as follows: 1.

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

The case is stated in the opinion of the Court. First Exception. — At the trial, upon the issue of nul tiel record, the defendant offered in evidence to the Court the original papers and docket of the Superior Court of Baltimore City in the short note case and the attachment case of Thomas O’Connell against George H. H. Condon, in said Court, including Kilpatrick & Co’s motion to quash said attachment.

<p>Larceny — Promissory note — Silver Certificate — Evidence—Section 101, of Article 30, of the Code.</p> <p>Section 101, of Article 30, of tlie Code, provides for the punishment of any one who shall steal any “ bond,” “ bill of exchange,” “ bank note,” “ promissory notes,” “ checks,” and “ certificates granted by or under the authority of this State or of the United States.” An indictment under this section charged the traverser' with stealing- “ certain promissory notes for the payment of money,” and to suj>port this charge, the State offered in evidence a “ silver certificate ” of the denomination and value of twenty dollars issued by the authority of the United States. Held :</p> <p>That such evidence was inadmissible to prove the offence as laid in the indictment.</p> <p>A “ silver certificate” issued by the United States is not a promissory note, within the meaning of section 101, of Article 30, of the Code.</p>

Appeals from {lie Orphans’ Court of Baltimore City. The appeal of two of the residuary legatees under the will of Elizabeth Cunningham, deceased, was taken from the order of the Orphans’ Court of Baltimore City, dismissing their petition and overruling their motion to rescind and set aside the previous order of the Court granting certain issues at the instanee of the appellee, and sending them for trial to the Baltimore City Court, and from the final judgment entered on the…

<p>Wife’s Counsel Fees in suit for Divorce — Liability of Estate of deceased Husband for such Fees at suit of Counsel, and Non-liability at suit of Widow.</p> <p>A widow cannot maintain an action against the administrator of her deceased husband, for the amount of the fees charged by her counsel for prosecuting a suit-against him for a divorce a mema et thoro, pending which suit he died.</p> <p>But counsel themselves are entitled to recover from the administrator of the deceased husband, reasonable fees for services rendered the wife in a suit against the husband for a divorse, if it be made to appear affirmatively that the suit was reasonably and justifiably instituted.</p>

The case is stated in the opinion of the Court. The appellant excepted to the auditor’s account, ratified hy the Court below, for the following reasons: 1st. Because it allows to Wm. Pinkney Whyte and Benjamin F. Horwitz, trustees, one-half of five per cent, on $10,426.18, which was in their hands as principal, and five per cent, on $1,039.62, which was received from Hall, former trustee, and which came into their hands as principal. 2nd.

<p>Need of Trust or Mortgage by the Annapolis and Wkridge Railroad Company — Construction of the Act of 1872, eh. . 425, empowering the Annapolis and Wkridge Railroad Company to Borrow money on Mortgage, as affecting the Lien of the State upon the property of said Company under its Charter — Briority of Lien of Bondholders under the Need of Trust of the Railroad.</p> <p>'The Annapolis and Elkridge Railroad Company was incorporated by the Act of 1836, ch. 298. Under the provisions of the eighth section of the Act, the State subscribed for stock to the amount of $300,000; but by the ninth section it was provided that before any subscription should be made by the State, the said railroad should enter into a covenant with the State to pay it semi-annually out of its profits, a sum equal in amount to the sum of six per cent, per annum on the subscription, which should be made on the part of the State; and that these payments should continue to be made until the clear annual profits of the company should be adequate to a dividend of six per cent, per annum to all the stockholders; and that thereafter the State, in reference to its stock subscribed, should be entitled to receive a proportional dividend upon the profits, as declared from time to time, and no more. The railroad company executed the covenant as required, and the State paid the amount of its subscription; and became entitled to have three directors in the board, according to the fourth section of the Act of 1836. A change was made in the charter of the company by the Act of 1872,. ch. 425, entitled “an Act to amend the charter of the Annapolis and Elkridge Railroad Company, by authorizing the said company to-extend its road to the harbor of the city of Annapolis, to borrow money upon a mortgage of its property and franchises, and regulating the number and election of the directors of the said company.”' By the second section the company was authorized and empowered to borrow money, and to issue bonds or certificates of indebtedness under its corporate seal, and to secure the payment thereof with interest thereon, by a mortgage or deed of trust “ upon all or any of its property, real and personal, together with the franchises of said company.” Under the authority thus given the company executed a deed of trust of all' its property and franchises to certain trustees, to secure the payment of certain bonds which it proposed to issue under the authority of said Act; which bonds were issued and were described as first mortgage bonds. On a bill filed by the-State against said company, and the substituted trustees under said deed of trust, to restrain the sale of the railroad by said trustees, it was Held :</p> <p>1st. That by force of the second section of the Act of 1872, ch. 425, the State subordinated its rights (whatsoever their nature might be) to the rights which should be acquired under the deed of trust or mortgage authorized by that section.</p> <p>2nd. That the power to borrow money and to secure its payment by a mortgage or deed of trust, was given by the. said Act of 1872, in general and unqualified terms, without restriction to any particular-purpose.</p> <p>3rd. That there were three different purposes had in view in the-passage of said Act, as declared in its title, and these were effected in three separate sections, which were in no wise made to depend upon each other; and the lien created by the deed of trust could not be restricted to the bonds used for the purpose mentioned in the first section of the Act.</p>

<p>Partners — Deed for benefit of Creditors — Surviving Partner adjudged an Insolvent debtor — Effect of such Adjudication — Attachment by Eoreign Creditor — Assets not subject to Attachment — State Insolvent law — Extent of operation of such lato.</p> <p>R. and 0., partners, trading as R. & Co., being embarrassed and in failing circumstances, conveyed to L. and others, their individual and partnership property in trust, for the benefit of their creditors. These conveyances were absolutely null and void as to creditors. After their execution, certain creditors of R. & Co., on the 13th of February, 1882, filed petitions in the Court of Common Pleas, praying to have the said R. and C. individually adjudged insolvent debtors. Pending these proceedings, and before adjudication had on the same, C. died. Subsequently, on the 15th of November, 1883, R. the surviving partner, was adjudged an insolvent debtor, and G. was duly appointed his permanent trustee, and gave bond as such according to law. Prior to such adjudication, on the 13th of March, 1882, P., a foreign creditor, obtained a judgment against R. & Co., and on the following day an attachment was issued on this judgment, and laid in the hands of L., trustee. L., as garnishee, pleaded, and moved that the writ of attachment be quashed. P., the plaintiff, replied, and L. demurred to the replications, and issue was joined on the demurrer. G., the trustee in insolvency of R., also intervened, claiming title as such trustee to the property attached. Held:</p> <p>1st. That the adjudication of R., the surviving partner, as an insolvent debtor, transferred to G. his permanent trustee, the partnership assets of R. & Co.</p> <p>2nd. That this transfer was binding on the plaintiff, although a nonresident creditor, and the property thereby transferred was not sub-, ject to attachment, either in the hands of the permanent trustee of R., or in the hands of L. as garnishee.</p> <p>A State may pass an insolvent law discharging the person of the debtor and his future acquisitions of property from the payment of bis debts, so far as it concerns contracts between citizens of tbe State, made within the State, after the enactment of such laws.</p> <p>Such laws, however, do not apply to contracts between citizens of one State and citizens of another State.</p>

This was an action of replevin instituted by a narr. by Susan E. Cunningham, a married woman, by her husband, as next friend, against John Emig, Jr., and Lewis H. Robinson, to recover certain goods and chattels, being the sole and separate property of the plaintiff Susan, which had been taken by the defendants for rent due the defendant John, by the husband of the plaintiff Susan.

This was an amicable suit brought by the appellees against the appellants for the purpose of determining the question of the right of the former to the use of an alley in the rear of their premises, as a way and as a drain. The case is stated in the opinion of the Court. The following plat will facilitate the understanding of the matters in controversy:

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

This case was instituted in the Superior Court of Baltimore City, whence it was removed to the Circuit Court for Howard County, and thence to the Circuit Court for Baltimore County, where it was tried. The nature of the case, and of the exceptions taken, are sufficiently set forth in the opinion of the Court.

This appeal was taken from the decree of the Court below, dismissing the hill of the complainants with costs. The case is stated in the opinion of this Court.

The appellant brought an action of ejectment against the appellee for a tract of land situated in Carroll County. The plaintiff offered in evidence a deed from Jacob Reese and wife to John Lammott conveying the lands in controversy; and also a deed for the same lands from John Lammott and wife to William Cock.

This was an action brought by the appellee against the appellant, to recover damages for injuries sustained by the former through the alleged negligence of the latter.

Appeal as upon Writ of Error, from the Circuit Court for Carroll County. On a former trial of this case a judgment was rendered for the plaintiff, the present appellee. On an appeal hy the defendant, the present appellant, the judgment was reversed and a new trial awarded. (Vide, 59 Md., 291.) A new trial was had, and hy agreement it was submitted to the Court, without the intervention of a jury.

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

<p>Construction of a Will — Limitation over in Case of Marriage.</p> <p>-A testator, after the devise in fee of certain portions of his real estate, devised certain other portions of his real estate, to his daughter E. A. P., widow of J. P., “ so long as she remains a widow; also all the furniture and fixtures of which I am now possessed, in the notel in which I now live, (with the exception of the furniture and fixtures contained in room number six, in said hotel,) to have and to hold the same furniture and fixtures to her own use and behoof forever; but if the said Elizabeth should, at any time after my decease, get married, then it is my will that all the gifts and bequests herein named and granted to her, with the exception of the hotel furniture aforementioned, shall go to my grandson W. J. P., the son of the said B.” He then adds, but should it so happen, that the said E. should survive and outlive the said W., “ then it is my will and desire, that all the bequests and gifts hereinbefore granted to her, shall revert back to the said E., her heirs, executors, administrator's and assigns, to her.and their use and benefit forever.” The testator then devised to his housekeeper E. B., certain real estate for life, and the furniture and fixtures in said room number six, in the hotel absolutely, and then devised to his grand•son the said W. J. P., the reversion in the real estate which he had given to the said B. B. for life. By a residuary clause, the testator •directed that all the rest and residue of his estate should be equally divided between his daughter E. A. P., and his grandson W. J. P. The testator’s daughter E. A. P., after his death, married a second time. On appeal from an order of the Orphans’ Court, distributing the personal estate of the testator, it was Held :</p> <p>1st. That the furniture and fixtures in the hotel, were not affected by the limitation over in case of marriage.</p> <p>2nd. That those in room number six were given to E. B. absolutely, and the others were expressly excepted from that limitation, and were given to the daughter E. A. P., for her own use and behoof forever.</p> <p>3rd. That the limitation over in case of the marriage of the daughter applied only to the gifts or devises of the several parcels of real estate devised to her.</p> <p>4th. That the whole scheme of the will was to give all the testator’s personal property to the several legatees thereof absolutely, and to make the devises of real estate to his daughter, alone, subject to the limitation over.</p>

The case is stated in the opinion of the Court. First Exception. — At the trial the plaintiff offered in evidence the hill of sale from Frederick Schneider to Samuel Fernbieimer referred to in the opinion of this Court. The Court (Fowler, J.,) on objection to its admission — it being admitted that Frederick Schneider was dead when this suit was instituted — refused to permit said hill of sale to be given in evidence. The plaintiff excepted.

of Baltimore City. John T. Crow, late of Baltimore City, who had been twice a widower, intermarried in February, 1881, with Susan W. Hubard, and on the 23rd of March of the same year died suddenly, leaving his widow, the said Susan, and Ida Crow, a daughter by his second marriage. John T. Crow left a will made in January, 1874, which, was admitted to probate on the 5th of April, 1881.

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

The case is stated in the opinion of the Court. First Exception. — At the trial the defendant proved by Captain Delanty, of the Baltimore Police force, and by other witnesses, that prior to April, 1882, the mother of the plaintiff resided in Baltimore; that they knew her three or four years ago, and that her reputation for truth and veracity in the neighborhood in which she resided, was bad, and that from that reputation they would not believe her on oath.

The bill of complaint in this case was filed by the appellant against the appellee, asking for an injunction to restrain the appellee from enforcing the payment af a tax assessed upon the gasometers and gas mains or pipes of the appellant, and from assessing and taxing said property as though the same were in fact assessable and taxable as real estate.

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

<p>Incomplete Will of Personalty — Caveat—Second set of Issues.</p> <p>A man in a dying condition undertook to dictate his will to an amanuensis, and while this dictation was in progress, his mind gave way before he had time to complete what he evidently deemed an important part of it. Held :</p> <p>That while the authorities had gone very far in admitting unfinished or incomplete papers as good wills of personal property, no Maryland decision had gone to the extent of holding that in such a case, the part of the instrument which he dictated while in possession of his mental faculties, could be set up as his will.</p> <p>On a caveat to a paper writing purporting to be a will of personalty, issues were granted by the Orphans’ Court, raising the question of the testamentary capacity of the deceased as affecting the entire paper. These issues were tried before a jury who found adversely to the will. Before the Orphans’ Court had acted on this verdict, by refusing probate of the instrument, one of the original caveatees. applied for a second set of issues to try the question, whether the instrument was not good down to the last clause, but void as to that clause by reason of the mind of the deceased having suddenly given way before said clause was written, or the instrument was signed. On appeal from the refusal of the Orphans’ Court to grant said issues, it was Held :</p> <p>1st. That assuming this new set of issues could have been granted if they had been applied for at the proper time, it was too late to ask for them after a trial and verdict on the first set.</p> <p>2nd. That the appellant had knowledge, or means of knowledge in his possession, of all the facts and circumstances upon which his application was founded, at the time the first issues were granted, and should then have obtained the issues subsequently asked for, if they could have been granted at all.</p> <p>It is only in cases where the issues are totally different throughout,, that successive sets of them can be allowed, and successive trials had.</p> <p>If the question of capacity is once raised on a caveat to a paper purporting to be a will, the issues must be so framed in the first instance as to present it, so far as the law will permit, in every aspect, and with reference to every part of the paper which the circumstances demand or the parties desire.</p>