Volume 63 — Maryland Reports

This case was tried before the Court, (Stewart, J.,) without the aid of a jury, upon an agreed statement of facts, and the pleadings. The case is sufficiently stated in the opinion of this Court. The Superior Court rendered a verdict for the defendants, and entered judgment on the verdict. The plaintiffs appealed.

Gross-Appeals from the Circuit Court of Baltimore City. The Court below decreed that the Mayor and City Council of Baltimore should pay to the Metropolitan Savings Bank of Baltimore the sum of $5700, with interest till paid, on $4000 thereof, from the 20th of July,. 1876, to the 13th of November, 1876; on $4500 thereof, from the 13th of November, 1876, and on $5700, the whole thereof, from the 29th of November, 1876, less the amount of interest or dividends shown to have…

<p>Construction of sec. 1, of Art. 91, of the Code — Counter-Security.</p> <p>Where application is made in virtue of section 1, of Article'91, of the Code, to the Orphans’ Court, to require counter-security to be given by an executor or administrator, it is the imperative duty of the Court to so order, the word “ may ” being peremptory.</p>

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

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

<p>Account between Mortgagor ancl Mortgagee, the latter being in possession — Annual Bests — Insurance—Bill of Sale of a Steamer held to be a Mortgage.</p> <p>As between mortgagor and mortgagee, where the latter is in possession in the acknowledged character of mortgagee, the principles are plain and well defined, and are applied for the mutual benefit of both parties. But where the possession is held adversely to the mortgagor, with denial of the right of redemption, the principles of the account are quite different, and are applied with more or less rigor against the wrong-doer, according to the circumstances of the case.</p> <p>In the ordinary case for redemption, where the mortgagee is in possession, acknowledging his true relation to the property, he is required to account for all issues and profits thereof, so that they may be applied, after deducting all reasonable expenses and allowances, towards the discharge of the debt and accrued interest. And the usual decree in such cases, against the mortgagee in possession, is for an account “ of what he has received, or what he might have received without his own wilful default.”</p> <p>By taking possession of the property, the mortgagee is bound to keep it in good ordinary repair; and for all such proper and necessary repairs placed upon the property by the mortgagee, he is entitled to receive allowance in the settlement of his accounts; and the amount so allowed will be added to the principal of the mortgage debt, if not liquidated by the rents and profits charged.</p> <p>But where the mortgagee in possession repudiates his character and true relation to the property, and claims to hold as real, absolute owner, and denies all right of redemption, he thereby disentitles himself to be treated with the favor of a mortgagee in possession as such, and is treated as a wrong-doer from the time of the disclaimer or repudiation of his true character.</p> <p>A transaction wherein there had been a transfer, of a steamer from one steamboat company to another, was under proceedings in equity held to be a mortgage, and not an absolute sale. The mortgagee was decreed to account for the mortgaged property, and the profits and hire thereof; and in defining the principles upon which the account should be taken, it was Held :</p> <p>1st. That thp amount to be allowed the mortgagor for the use or hire of the steamer, from the day when she was surrendered to the possession of the mortgagee, to the time when the character of mortgagee was first openly disclaimed, and the right of absolute ownership asserted, must be adjusted to the value of the steamer at the date of the surrender.</p> <p>2nd. That taking^nto consideration the nature of the property, one-third of said value was a proper amount per annum to be allowed the mortgagor during said period for said use or hire; subject however to an allowance to the mortgagee for all necessary and reasonable repairs placed upon the steamer during the same period.</p> <p>3rd. That the rate of allowance per annum for the use or hire of the steamer, from the time of the disclaimer of the character of mortgagee to the time of the conversion of the steamer by sale, must be one-third of her entire valuation at the date of the disclaimer. But that no deduction from this, allowance was to be made for any repairs placed upon the steamer, during the time she was adversely held and claimed by the mortgagee.</p> <p>4th. That the sale of the steamer having been made without reasonable opportunity to the mortgagor to redeem, and without advertisement at public sale, it was made at the risk of the mortgagee, and the mortgagee must account for the full value of the steamer at the time the sale was made, irrespective of the price actually received.</p> <p>5th. That in fixing the value of the steamer at that time however, it must not be enhanced by reason of any improvement in her condition, by way of repairs placed upon her after the date of the disclaimer ; but an estimate must be made of her value as she was, or would have been, at the time of the sale, by ordinary careful use without such repairs.</p> <p>6th. That the annual sum thus ascertained to be due for the use or hire of the steamer while in the possession, of the mortgagee, to the extent of the excess over and above the current interest on the mortgage debt, must be applied to sink the principal; and for the purpose of so applying the income arising from the use or hire of the steamer, the account must be stated with annual rests.</p> <p>7th. That from the time that the mortgage debt should be paid off, or extinguished by the -application of the annual proceeds of the hire of the steamer, the account must continue to be stated with annual rests, in order to give the mortgagor the benefit of interest on the sums total, ascertained to be due from the mortgagee at each of such rests, in respect of its holding and finally dis230sing of the mortgaged property.</p> <p>8th. That as against any balance that may be found to be due the mortgagor on account of the steamer, the mortgagee will be entitled to a credit for any unsecured indebtedness it may have against the mortgagor.</p> <p>Subsequent to the date of the mortgage, the 2>olicies of insurance on the steamer were taken ont in the name and for the exclusive use of the mortgagee. There was no contract as between the mortgagor and the assured that the 2>olicies should be procured for common or mutual benefit, nor was the mortgagor under any obligation to the mortgagee to keep the steamer insured. Held :</p> <p>That the mortgagee had no right to have added to the mortgage debt the premiums it had 2>aid for insurance, effected by it without the privity of the mortgagor.</p>

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

<p>JIxecution — Motion to quash — Fieri facias — Scire facias— Gestui que use of a Judgment — Venditioni exponas — Variance — Amendment—Insufficient groimd to set a Sale aside.</p> <p>A motion to quash an execution does not open an inquiry into supposed errors or irregularities involved in the rendition of the judgment.</p> <p>If the judgment upon which the execution has been issued be not. final in its character, or if it be not executionable by reason of a. stay, or lapse of time, or such like causes, such defects in the issual of the execution may be taken advantage of by motion to quash. But in all cases the execution must conform to the judgment upon which it is issued, and not be variant therefrom.</p> <p>Where a fim'i facias is sued out after a scire facias on a judgment, the fieri facias must be grounded on, and contain a proper recital of,, the judgment on the scire facias, even though the scire facias was sued out unnecessarily.</p> <p>Where the scire facias is on a supersedeas judgment, the supersedeas. judgment and the revival thereof have an independent operation, so far as the running of the Statute of Limitations and the process-of execution are concerned.</p> <p>Except where the legal plaintiff on the record may die, and the cestui que use is authorized by statute to prosecute the action, or to revive the judgment in his own name, the name of a mere cestui que use " of the judgment is never used as legal plaintiff in the body of the execution.</p> <p>It is unnecessary to incumber the writ of venditioni exponas, with long recitals of the proceedings, prior to the issuing of the fieri faciasupon which it is founded. It should simply recite the former writ and return, and command the sheriff to make sale of the property remaining unsold.</p> <p>The judgment on which an execution was issued, as recited in the-writ, was for so much debt, so much damages, and costs; and the command to the sheriff was to make those respective sums. The judgment upon the record showed that the damages were to be released upon the payment of the debt, with interest thereon, and. costs. On appeal from an order overruling a motion by the execution purchaser to quash the writ of venditioni exponas, it was Held r</p> <p>1st. That this conditional release of the damages was an essential part of the judgment, and should not have been omitted in the. recital of the judgment in the execution.</p> <p>2nd. That such variance, however, did not render the process void, but only voidable.</p> <p>8rd. That being judicial process, there was an inherent power in the. Court to amend and correct the writ, so as to make it conform to the record.</p> <p>4th. That in order that the right and benefit of amendment might be obtained in the case, the order appealed from would be reversed, but the motion to quash or set aside the writ, would be refused, and the case remanded to the Court below, where the motion to amend might be made.</p> <p>The amount of the taxes due on the property was made known at the-time and place of the sale, and the property was expressly sold subject to such taxes. Held :</p> <p>That the sale of the property subject to said taxes, was not a ground for setting aside the sale at the instance of the defaulting tax-payer.</p>

Appeal as upon Writ of Error from the Circuit Court for Anne Arundel County. The case is stated in the opinion of the Court. A demurrer was filed to the indictment in this case, and was sustained hy the Court below; whereupon this appeal as upon writ of error was taken hy the State.

<p>Attachment — Section 14, of Article 10, of the Code, as amended hy the Act of 1880, ch. 28 — Practice—Appeal.</p> <p>Whether the last clause of section 14, of Article 10, of the Code, as amended by the Act of 1880, ch. 28, is to be construed as making the failure of the garnishee to answer interrogatories, equivalent to proof of “ the debt ” as well as the amount of assets, or merely makes it an admission of assets, so that the plaintiff can take his judgment, provided he adduces such proof of his claim as the preceding clause requires, Quaere ?</p> <p>Pending a motion to quash an attachment, the case was continued to the next term, with the plaintiffs’ consent. Held :</p> <p>'That while this may not have prevented the filing of interrogatories to be answered by the garnishee, yet having consented to a continuance, the plaintiff could not demand judgment, and thus have the case decided in its favor during the term at which it stood so continued; and the garnishee had the right to file its answer to the interrogatories at or before the commencement of the next term, although more than twenty days may have then elapsed since the service of the interrogatories.</p> <p>Whether an appeal lies from the refusal of the Court below to enter judgment under the Act of 1880, ch. 28, (Code, Art. 10, sec. 14,) against the garnishee for refusal to answer the interrogatories provided for by that Act within the time required, Quaere?</p>

<p>Certificate of Deposit — Panics, and Panic Officers — Principal and .Agent — Wotiee—Practice in Equity — Subrogation — Mistalce—Evidence.</p> <p>S. S. deposited a sum of money in bank and received a certificate of deposit, setting forth the deposit of the money by him, and stating that the same was payable to the order of himself, or of E. S., on the return of the certificate. Before the money was withdrawn, S. S. died. After his death, E. S., who was his wife, presented the certificate, and drew from the bank the amount of the deposit. Held:</p> <p>1st. That the certificate of deposit did not authorize the payment of the money to E. S. after the death of 8. 8.</p> <p>2nd. That notice to the paying-teller of the bank, of the death of S. S., received prior to the payment by him to E. S. of the amount of the deposit, was notice to the bank.</p> <p>3rd. That if he in making the payment, after such notice, mistook the law, the bank whose agent he was, must suffer the consequences.</p> <p>4th. That the paying-teller was acting clearly within the scope of his authority as agent of the corporation.</p> <p>The bank filed a bill in equity, to enjoin the prosecution of an action at law against it for the money deposited by S. S., brought by his-executor; and to have the certificate reformed, as not having been drawn in conformity with the agreement of the parties. The evidence failed to establish a case for the reformation of the certificate, but it was developed in the proof, that a part of the money-drawn by E. S. went directly to the payment of the debts and. funeral expenses of S. S. On appeal it was Held :</p> <p>That the Court below committed no error in retaining the bill, and under the prayer for general relief, allowing the bank a credit for the amount oí the money drawn by E. S., that went directly to pay the debts and funeral charges of S. S., and for which the-executor had obtained a credit in his administration account.</p> <p>Before a Court of equity will undertake the diflicult and delicate-task of reforming an agreement in writing, it must be satisfied beyond a reasonable doubt by the proof, that the agreement so-sought to be reformed was not the agreement that the parties intended and wished to make; and it must be equally well satisfied,, what was the agreement contemplated at the time of the execution, of the writing.</p>

Tlris was an action brought by the appellant to recover from the appellee, a sum claimed by her as the widow of Benjamin R. Yoe, deceased. The deceased had been a member of the defendant association; and by one of its •articles, a sum based upon the number of members, was payable on the death of each member to his widow, child •or children, &c. The sum to which the plaintiff claims to be entitled under this article is the subject of this •action.

This suit was brought by the appellee against the appellant in the Court of Common Pleas, to recover abalance of |828.00, alleged to be due for wages earned by the plaintiff while employed by the defendant. After issue joined, the defendant filed a suggestion that he could not. have a fair and impartial trial in the Court where the case was pending, and prayed that the record of proceedings, might be transmitted to some other Court, and of a different, circuit.

This was an amicable proceeding instituted by Mrs. Bailie O. Gunn and her husband, by petition against her trustees, the appellees, in the case wherein the trust was ■administered, for the purpose of having a construction of the will of her father, Dr. Thomas H. Wright, as it affects her share of his estate.

The case is stated in the opinion of the Court. Upon the demand of the defendant, the plaintiff furnished the following hill of particulars of her claim: Estate of Sophia E. Stimpson, To S. J. S. Trahern, Dr. 1868, To cash overpaid from the estate of James FT. Stimpson, hy error of Jas.

<p>Pleading — Railroad Company — Excursion Tielcet — Expulsion of Passenger.'</p> <p>Where the replication fails to trayerse the facts stated in the plea, the plaintiff is held to the admission of their truth.</p> <p>"Where an excursion ticket is sold by a railroad company to a passenger at a reduced rate, and upon special conditions, the terms of which are printed on the ticket; and one of the conditions is that it shall be used “ for a continuous trip only,” and “ is not good to stop off,” — the purchaser who accepts and uses it, is bound to take a train which will carry hirp. continuously through from one station to the other, both in going and returning, and not to stop off at an intermediate station while going either way.</p> <p>If the passenger on his return knowingly takes a train which does not go as far as the station at which he purchased his ticket, and with the intention of stopping off at an intermediate station, the officers of the company are justified in refusing to accept the return coupon of the ticket for his fare, and in putting him off the train on his refusal to pay the regular fare demanded, or to produce a proper ticket .to the station he intended to stop at.</p> <p>And it is no excuse for his refusal, that he went to one of the gate keepers at the station where he took the train, who examined his ticket and negligently assigned him to the wrong train.</p> <p>In the absence of proof that the gate, keeper had authority to vary the terms of contracts for the company, the passenger cannot get rid of the conditions of his contract by showing that he relied on the actual or implied direction to take the train, given either through the belief of the gate keeper that the ticket was good for the train, or through his negligence, ignorance or mistake.</p>

Appeals from the Court of Common Pleas. Charles E. Kemp and wife, obtained a judgment on the 5th of October, 1882, against the Baltimore City Passenger Railway Company, for $10,000 for personal injuries to the wife. This judgment was affirmed by this Court on appeal, at October Term, 1883, (61 Md., 74.) The appellant, a judgment creditor of the husband, issued an attachment on her judgment and laid it in the hands of the Baltimore City Passenger Railway Company.

<p>Conflicting Legislation — Repeal by Implication — Act of 1876, ch. 273, inhibiting the Sale of Spirituous Liq%t,or to Minors — Act of 1882, ch. 112, commonly called the “Local Option Law."</p> <p>When, there are two Acts on the same subject, the rule is to give effect to both, if possible. But if the two are repugnant in any of their provisions, the latter Act, without any repealing clause, operates, to the extent of the repugnancy, as a repeal of the first.</p> <p>The special provisions of the Act of 1876, chapter 273, prohibiting the giving or selling of spirituous liquor to minors within the corporate limits of the City of Annapolis, are superseded, by the more comprehensive and stringent prohibition of the Act of 1882, chapter 113, commonly called the “ Local Option Law.’1</p>

<p>Wife Beating — Aet of 1882, ch. 120 — Competency of the Wife as a Witness — Proof of Marriage.</p> <p>On an indictment under the Act of 1882, cb. 120, against a husband for beating his wife, the wife is a competent witness to prove the beating, and also to prove their marriage.</p> <p>Proof by her that the marriage ceremony was performed by a ‘Justice of the Peace in the State of Pennsylvania, is sufficient without proof of the authority of that officer to perform the marriage rite.</p> <p>■On an indictment under the Act of 1882, ch; 120, the marriage may b& prima facie established by presumptive evidence, such as reputation and cohabitation.</p>

This suit was instituted by the appellant against the appellee in the Court of Common Pleas, on the 2nd of December, 1882, on two promissory notes, each for the sum of fifty dollars, and dated respectively the 18th of November, 1881. One was payable six months after date, the other twelve months after date.

This action was brought by the appellee against the appellant under Article 65, of the Code, to recover damages for the injury caused to the equitable plaintiffs by the killing of their mother, Hannah Queen, by an engine and train belonging to the defendant. The case is stated in the opinion of the Court. First Exception, abandoned. Second Exception. — At the trial, the plaintiff offered the five following prayers: 1.

The appellant was tried and convicted in the Court below, on an indictment for committing rape. The case is further stated in the opinion of this Court.

The case is stated in the opinion of the Court. The mortgage under which the sale excepted to was made, was executed hy parties who derived their title under a. deed in fee from William Towson, trustee under the will of the testator in this case, and Philip H. Coaldey and Sarah Coaldey his wife, they being the persons named in the clause of the will of said testator, which is set out at length in the opinion of the Court.

This case and the one immediately following, were before this Court on a former occasion, and are reported in 61 Md., 381, They were remanded under section 28 •of Article 5, of the Code, without affirming or reversing ‘the decrees appealed from, that the • same might he amended, and the causes proceeded with according to the usual practice of the Court.

The decree from which this appeal was taken, is-nearly identical with the decree from what the appeal in the case of the same appellants against Foley, immediately preceding this case and argued with it, was taken. The lease in this case which the defendants were decreed to accept, was for the term of ninety-nine years from the 2nd of August, 18?6, renewable forever. The case is further stated in the opinion of this Court.

The bill of complaint in this case, filed on the 19th of' December, 1883, by the appellants against the appellee, alleged that the latter held three mortgages upon the property of the former of different dates; that the first two had been paid but not released; that usurious interest had been paid thereon, and that upon a proper accounting, it would appear that a large amount had been paid in excess of the principal due under said first two mortgages, with legal interest…

This is an action of assumpsit brought by the appellants against the appellee, James J. Corner, trading as James J. Corner & Co. The case is stated in the opinion of the Court. First Exception.- — Sufficiently stated in the opinion of the Court. Second Exception. — All the testimony in the record is contained in the first exception.

The case is stated in the opinion of the Court. Held: the words, took effect as a valid reservation. 2 Greenleaf’s Cruise on Beal Property, 649, and note.

. The case is stated in the opinion of the Court. Exception. — At the trial the plaintiffs asked the following instructions: 1. That the deed offered in evidence by the defendant from Adam Waltemeyer to James Blair, is no bar to the recovery of the plaintiffs in this case. 2.

<p>Criminal practice — Motion in arrest of Judgment — Writ of Error — Alteration of Indictment by the Grand jury.</p> <p>A person was indicted for bigamy, and upon trial was found guilty. A motion was made in arrest of judgment, and in support of the motion affidavits of the Clerk and State’s Attorney, and a statement of the Judge were filed, showing that after the indictment had been returned, duly indorsed by the foreman “ true bill,” it was on the application of the foreman and the State’s Attorney and by permission of the Court taken back to , the grand jury room, and the name of the person to whom the accused was alleged to have been married the second time, was inserted in a blank space, which had been left for that purpose, and which through inadvertence was left unfilled when the indictment had been first returned to the Court; and the indictment thus corrected was again on the same day returned to the Court by the grand jury. On an appeal as upon Writ of Error, taken from the overruling by the Court below of the motion in arrest of judgment, it was Held :</p> <p>1st. That the affidavits and statement constituted no part of the record, to which alone this Court is confined in reviewing any judgment of an inferior Court upon writ of error.</p> <p>2nd. That a motion in arrest, must be founded upon some error apparent upon the face of the record; and extrinsic or foreign matters not so appearing, are wholly unavailable for this purpose.</p> <p>3rd. That if the matters alleged, and shown by the affidavits and statement rendered the indictment substantially defective, advantage should have been taken of them by a motion to quash or to set it aside before pleading not guilty, or by some form of proceeding other than a motion in arrest.</p> <p>4th. That even if the question had been open for review, the objection to the indictment could not be sustained, as what the grand jury did, was substantially the same thing as finding and returning a new indictment in the form in which the old indictment as corrected stood.</p>

This was an action at law on a policy of fire insurance,, brought by the appellant against the appellee. The case is sufficiently stated in the opinion of the Court.

The case is stated in the opinion of the Court. Verdict and judgment were rendered for the plaintiff for $476.48 with interest and costs. The plaintiff appealed. Held: in the case of App. Tax Court vs. West. Md. B. B. Co., 50 Md., 214, at page 295, that the State, by electing to tax the shares of stock in the hands of the shareholders, was precluded from levying and collecting taxes from the corporations in respect of .their real and personal property.

The case is stated in the opinion of the Court. A party doing an act which is criminal or otherwise ac■cording to the intent or purpose with which it was committed, will, if a competent witness, be allowed to testify as to what was his actual purpose in doing the act.

The case is stated in the opinion of Judge Bryan. If a horse race is not a game of chance, and not forbidden by law, and betting on a horse race is not prohibited by the Maryland statutes, then it is contended that the use of a black-board to register such bets is not a violation •of our statutes relating to gaming, and the appellants were improperly convicted.

Appeals from the Circuit Court of Baltimore City. John H. Ehlen of the City of Baltimore executed his last will and testament and a codicil thereto, which, after his death, in the year 1864, were duly admitted to probate.

This action was brought by the appellee to recover of the appellant for the loss of the earnings of the plaintiff’s wife in her business, in consequence of injuries to her person produced by the fall of the defendant’s canning-house ; for expenses incurred for her medical treatment, and for nursing her while she was confined to her hed. The plaintiff attributed the fall of the canning-house to the defendant’s negligence.

Appeai. from the Court of Common Pleas. The case is stated in the opinion of the Court. First Exception stated in the opinion of the Court. Second Exception.- — This exception was taken by the defendant to the rejection of his prayers, nineteen in number, and to the following instructions given by the Court (Phelps, J.) to the jury: 1.

The case is stated in the opinion of the Court. I. The writ of injunction to restrain the violation of a contract for the sale of chattels is a remedy not favored by the Court and hut sparingly resorted to in extreme and exceptional cases. It is a negative and specific enforcement of the contract; and specific performance of contracts for the sale of goods is seldom granted, for the reason that adequate compensation for the breach of such contract may be had at law.

That the profits derived from the testator’s share in the partnership belonged to the life-tenant as income, and did not constitute a part of the corpus of the testator’s estate. Appeal from the Circuit Court for Baltimore County, in Equity. The hill in this case was filed by Mary Clare Ross Littig and her husband, to obtain an accounting between all the parties, inter sese, as to the estate of Charles H. Ross, who died in January, 1861, leaving a widow and six children.

<p>Appeal from the Circuit Court for Baltimore County, in Equity.</p> <p>This appeal was taken from a decree dismissing the bill of complaint. The case is stated in the opinion of the Court.</p>

The hill of complaint in this case was filed hy the appellee to have reformed a written agreement entered into-by him and Jacob E. Smith, the appellant’s testator, in April, 1862. The case is# stated in the opinion of the Court.

This was an action of tresspass guare clausum fregit brought by the appellee against the appellant, in the Circuit Court for Baltimore County, and thence removed at the instance of the defendant to the Circuit Court for Carroll County, where it was tried. The insertion of the numerous prayers offered on both sides, is deemed unnecessary. The jury rendered a verdict in favor of the plaintiff for $250, and judgment was entered accordingly. The defendant appealed.

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

The-appellant was sued hy the appellee to recover certain salary alleged to be due.

<p>Bills of Exception — Ground for Refusal to Dismiss an Appeal — Public way — User for Ttoenty years — Presumptive dedication — Navigable river — Public landing — Proprietary rights of the Owner of the Soil of an ordinary Highivay.</p> <p>In the absence of a special rule of Court prescribing the time for-preparing bills of exception, the general rule of practice is, that the exception must be taken and noted at the time of the ruling made; but the reduction of the exception to form may and should be deferred to some more convenient time after the trial, but during the same term of Court, when the exception should be presented for the signature and seal of the Judge.</p> <p>Delay in the preparation of an exception ought never to be allowed beyond the duration of the term of the Court at which the trial takes place, except it be by-the express permission of the Court given during the term.</p> <p>If an exception be presented to the Judge after the term, and without an order for the extension of time, he can only sign the exception by the consent of the parties.</p> <p>Where it appears that it was by the consent of the parties that a bill of exception was signed by the Judges at the time it- was actually signed by them; that the attorneys of the appellee participated actively in settling the facts of the exception, and had incorporated therein such facts as they desired; and that it was at their instance that the exception was submitted to the three Judges for their correction and approval; and all this without the slightest intimation that they were objecting, or intended to raise an objection, to the right or power of the Judges to sign the exception, thus prepared and presented, the appeal will not be dismissed on the ground that the bill of exception was not signed in due time, such objection being raised for the first time in the Appellate Court.</p> <p>The existence of a public way may be established by evidence of an uninterrupted user by the public for twenty years; the presumption being that such long continued use and enjoyment by the public of such way had a legal rather than an illegal origin.</p> <p>At the common law, however, the principle of presumptive dedication, or quasi prescription, does not apply to give rise tp a right in the general public to use the land of an individual on a navigable river, as a public landing, and place of deposit of wood and other articles of property for an indefinite time.</p> <p>The existence of an ordinary highway over the land of an owner, whether it had its origin by condemnation, dedication or prescription, does not divest him of the property in the soil. In such case he has full dominion and control over the land, subject to the easement in the public, and he may recover it in ejectment, or bring an action for trespass against any person who deposits wood, stones or rubbish upon the soil, or otherwise infringes upon the ordinary proprietary rights of the owner of the soil, in a manner not in the use of the easement as a highway.</p>

The case is stated in the opinion of the Court. Three exceptions were taken hy the defendants, one to the admission of certain evidence, one to the ruling of the Court (Brown, C. J.,) in granting the plaintiffs’ prayer and rejecting the defendants’ prayers, save the first, which was conceded by the plaintiffs; and the third to the rejection •of their special exceptions to the granting of the plaintiffs’ prayer.

The case is stated in the opinion of the Court. Exception. — The plaintiff offered five prayers, the first and second of which, having been refused by the Court, are omitted. The others are as follows : 3.

The case is stated in the opinion of the Court. The judgment by default was recovered by Reuben Marshael, the appellee’s testator.

The Court below (Fisher, J.,) ou the 24th of March, 1884, passed a decree vacating and setting aside the deed ■of conveyance made by Ernault H. Williams, the complainant, to George Hawkins Williams, the defendant, in trust, dated the 31st of May, 1882; and requiring the defendant to pay the costs of the proceedings. From this decree the defendant appealed. The opinion of this Court ■and the dissenting opinion of Judge Miller, furnish a sufficient statement of the case. 1.

<p>Billiard table — License—Bvidence.</p> <p>A billiard table accessible to any one wbo may choose to play a game on it, is a table kept for public and not for private use.</p> <p>A billiard table kept for private use, is one kept for the use of the owner and of such persons as he may invite to play thereon.</p> <p>The owner of a billiard table, kept for public use, also kept a bar, and it was understood' between the owner of the table and' the players, that at the end of every game, the loser should treat the winner from the articles of merchandise sold at the bar. Such articles were sold to the players and to those who did not play at the same price. Hbld :</p> <p>That such billiard table was really kept for profit, and it was requisite that a license should be taken out by the owner.</p> <p>Under an indictment for keeping a billiard table without a license, evidence on the part of the State showing that the “ table was accessible to any one coming into the place to play thereon,” js admissible to prove that such table was not kept for private, but for public use.</p>

This is an appeal taken from an order dismissing the bill of complaint, with costs to the defendants. The case is stated in the opinion of the Court. In order to charge the general debts or personal engagements of a married woman upon her separate estate •as a lien in equity, it is necessary that it should affirmatively appear that her contract was made with direct- reference to her separate estate, and that it was her intention to charge the same.

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

<p>Corporation — Indictment—Act of 1882, ch. 112, Mown as the “Local Option Law” of Anne Arundel County — Refusal of Witness to answer — Privilege of Witness — When Witness may claim his Privilege.</p> <p>An indictment will lie against a body corporate for violating the provisions of the Act of 1882, ch. 112, the Act in terms expressly declaring that all corporations or associations violating the law, shall be liable to indictment and punishment.</p> <p>Section 3, of the Act of 1882, ch. 112, known as the “ Local Option Law ” of Anne Arundel County, declares that it shall not be lawful for any person or persons, house, corporation, company or assoeia- ' tion, to sell, directly or indirectly, at any place, or to give away at his, her, their, or its place of business, any spirituous, fermented or intoxicating liquor’s, of whatever origin, or alcoholic bitters,” after the 30th day of April, 1883. By section 4, it is declared, “That if any person or persons, house, company, corporation or association, or body corporate, shall sell, directly or indirectly, at any place, or give away at his, her, their, or its place of business, any spirituous or fermented liquors, or alcoholic bitters, or intoxicating drinks of any kind, within the limits of Anne Arundel County, after the 30th of April, 1883, he, she, or they shall, on conviction thereof, forfeit and pay,” &c. And in the conclusion of this section it is provided, “ that in case of any violation of any provision of this Act by any company, corporation or association, each or any member of such company, corporation or association, shall be liable, and shall suffer imprisonment as prescribed in this Act for persons violating the same.” By section 5, it is provided, “ that no person or persons, company, corporation or association, shall deposit or have in his, her, their or its possession, any spirituous or fermented liquors, or alcoholic bitters, or intoxicating liquors of any kind, with intent to sell, or give away the same at his, her, their, or its place of business, in violation of law, or with intent that the same shall be sold or given away by any person, in violation of law, or in aid of any person or persons for such purposes; ” any such persons to be subject to like punishment as that prescribed by the fourth section of the Act. The Chesapeake Club is a body corporate, incorporated under the general incorporation law of the State. The objects of the incorporation professedly being for literary, dramatic, musical and social purposes. A constitution and set of by-laws were adopted by the association, and thereby provision was made for the admission of new members, and a number of members, in addition to those originally incorporated, were introduced into the association. The regular place of meeting of the Club, and for the transaction of its business was in Annapolis. The Club was indicted for violating the provisions of the “ Local Option Law ” of Anne Arundel County. The seventh count charged that the Club “ unlawfully did have in its possession certain spirituous and fermented liquors, to wit, whiskey and lager beer, with intent unlawfully to sett the same at the county aforesaid.” And the eighth count charged that the Club “ unlawfully did have in its possesion certain fermented and spirituous liquors, to wit, whiskey and lager beer, with intent unlawfully to give away the same at its place of business, at the county aforesaid.” Liquors purchased with the funds of the Club were kept in the club room, and dispensed to the members upon application, by a steward regularly appointed by the corporation. Held :</p> <p>1st. That the Club was guilty of a violation of the provisions of the Local Option Law of Anne Arundel County, under which the indictment was framed, in providing and keeping in its possession, at its club rooms, spirituous and fermented liquors, with the intent and for the purpose of supplying the same to its members, either by sale or gift, as such liquors might be called for or desired.</p> <p>2nd. That a member of the Club, being liable as such to prosecution for any participation in the violation of the statute, could not be compelled to testify to facts that tended to prove the guilt of the association.</p> <p>The privilege accorded to a witness of declining to make any disclosure chat might be used for his crimination, is a personal privilege, and must be claimed by him upon oath, and neither the party to the cause, nor the counsel engaged, will be permitted to make the objection.</p> <p>The mere statement of the witness on oath that he believes that the answer to the question asked will tend to criminate him, will not suffice to protect him from answering, if from all the circumstances surrounding the case the Court be satisfied that the answer will have no such effect as that claimed by the witness. It is for the Court to decide whether the privilege is well and Iona fide claimed or not.</p> <p>After a witness has been sworn he may claim his protection at any stage of the inquiry, and upon his so doing he cannot be compelled to answer any additional question that would tend to criminate him.</p>

Appeals from the Court of Common Pleas. The cases are stated in the opinion of the Court. Exception. — The defendant prayed the Court to rule as follows in each case, the cases being tried before the Court without a jury, upon an agreed statement of facts: 1.

<p>Creditors’ dill — Parties defendants — Multifariousness.</p> <p>Where a debtor conveys all his property in distinct parcels to separate parties and dies, a creditors’ bill to set aside said conveyances for fraud, may join all the grantees in the several deeds as defendants, in order to bring all the property within reach of the creditors’ claims.</p> <p>There is no rule of universal application as to the doctrine of multifariousness, and much must be left to the discretion of the Court in particular cases.</p> <p>A guardian died, owing his ward a considerable sum of money, and leaving an estate insufficient for its payment. A., B., and C., were the sureties on his guardian’s bond. Of these A. was dead, having in his life-time conveyed all his property to his two children by two voluntary conveyances. B. was also dead leaving a widow and children, and C. died after obtaining his discharge under the insolvent laws. A bill in equity was filed by the ward, after arriving at age, to have said voluntary deeds set aside, and to have the property embraced in them, subjected to the payment of her claim. The administrator of the deceased guardian, and the widow and children of B. were joined as defendants with the grantees under said voluntary deeds. On demurrer to the bill by the grantees in the deeds, it was Held :</p> <p>1st. That under the circumstances the joinder of the other defendants with the grantees under said voluntary deeds, did not lay the bill open to the objection of multifariousness.</p> <p>2nd. That it was not a fatal objection that the bill was made to assume the shape of a creditors’ bill against the estate of A</p>

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

The case is stated in the opinion of the Court. The verdict and judgment being for the defendant, the plaintiff appealed.

This case, an action of ejectment brought hy the appellant against the appellee, was submitted to the determination of the Court below upon the following agreed statement of facts, both sides reserving the right to appeal from its judgment: 1st. The property sued for in this case, and described in the declaration, was held and owned on the 16th day of May, 1873, by Francis Haley, who held the same hy a good and indefeasible title. 2nd.

This suit was instituted in the • Circuit Court for Allegany County, by the appellees to recover damages from the appellant for injuries sustained by the plaintiff Elizabeth through a defective sidewalk in the town of Frostburg. On the suggestion of the plaintiffs the cause was'removed to the Circuit Court for Washington County, and thence, at the suggestion of the defendant, was removed to the Circuit Court for Garrett County where it was tried.

This appeal was taken from an order of the Circuit Court dissolving the injunction previously granted, sustaining the demurrer to the bill and dismissing the bill. The case is stated in the opinion of this Court.

<p>Further inquiry — Affected with Notice.</p> <p>The bill in this case charged that in November, 1870, the complainant held in the Sunrise Building Association ten shares of stock which, under the regulations of the Association, stood in the name of J. S. as her trustee; that upon these shares she received an advance of a thousand dollars from the Association, and as collateral security therefor executed a mortgage upon butcher’s stall No. 1, in Belair market, belonging to her, and occupied by her in her • business;' that the stall was transferred from her name to the Building Association upon the books of the City Comptroller; that the loan had been fully paid, and she had requested the re-transfer of the butcher’s stall on the Comptroller’s books to her, but that the same was never done. The bill also charged that the complainant had continuously occupied the stall carrying on her business, after the transfer to the Building Association under the mortgage, as before it was so transferred, and that notwithstanding such occupancy by her, and her right to have the-stall transferred back to her on the Comptroller’s books, the Building Association, which the complainant was informed had ceased to do business in 1874, had through its former officers under its seal, transferred the stall to the Border State Savings Institute; that such transfer was beyond the scope and purposes of the Association and therefore void. The bill charged further that the complainant had received notice from the Savings Institute to quit the stall; and that she was informed legal proceedings to eject her were about to be resorted to. The bill prayed an injunction, and that the Savings Institute might be required to transfer the stall to her. The answer of the Savings Institute averred ignorance of the complainant’s shares in the Building Association, the loan to her on them, and the mortgage of the butcher’s stall to secure it, and did not know whether the complainant had been in possession of it or not; but averred that these facts could not affect respondent’s rights to the stall; that it had no means of knowing the relations of the complainant and the Building Association, and had no means of knowledge except that the stall stood on the Comptroller’s books as belonging to the Building Association, and they knew of no other claim except that of J. S. The answer denied that the complainant was the rightful owner as against the respondent. The answer averred that in February, 1876, J. S. applied for a loan, and offered the stall as security, and that after inquiring as to the value of the stall, the respondent agreed to make the loan, being informed by J. S. that the Building Association held the stall as security for a loan made to him, and that he would have the Association transfer said stall directly to the respondent, which was done; that J. S. paid the interest on the loan until recently and had paid $200, of the principal, and that upon the failure of J. S. to pay the interest on the balance of the loan, the respondent proceeded to take action and for the first time learned of the complainant’s claim. Held :</p> <p>1st. That the books of the City Comptroller were the only place where the respondent was bound to look, and whatever they disclosed was notice.</p> <p>2nd. That there was sufficient disclosed by those books, in conjunction with the notorious possession by the complainant of the stall in question, to put the respondent upon further inquiry and affect him with notice. /</p> <p>3rd. That the complainant was entitled to the stall, and to have the same transferred to her on the books of the City Comptroller, upon the payment of such balance as might be found to be due from her to the Building Association upon the loan made to her by that Association.</p>

<p>.Ejectment — Construction of Deed — Description—Road-bed.</p> <p>The owner of a large tract of land called H. divided it into lots, with roads running along their sides, and between them. By valid conveyances S. became entitled to lots on each side of one of these roads. Subsequently the road was closed. The deed to S. for one of said lots described the lot as beginning at a certain stone planted in the presence of S., J. C., and C. R. C., on the south-west side of a certain road and running from said stone, along and with the said road so many degrees, &c. to another stone planted in the presence of said parties on the south-east side of another road, then with the said last mentioned road, &c., to another stone planted on the north-east side of another road, thence with said last mentioned road, &c., to a stone, &c. The deed stated that the description was taken from an original plat which it identified; and also stated that the roads mentioned in the lot as sold to S. were laid out for the accommodation of the purchasers of the H. property, and that the said plat showed the location of said roads. The corners of the lot were distinctly marked by stones, and the lines connecting the corners were run in straight courses. The number of acres conveyed was stated with the qualification “ more or less,” and the consideration was stated to be so much per acre. In an action of ejectment against S., it was Held:</p> <p>That by a fair application of the authorities to said deed, the beds of the roads were not included in it.</p>

<p>Letters of Administration — Irregularity—Revocation—Real estate JDevisedto be Sold — Jurisdiction of Orphans’ Court— Jurisdiction in Equity — Sec. 66, of Art. 16, of the Code— Act of 1865, eh. 162.</p> <p>The granting of letters of administration de bonis non, with the will annexed, to a person who has no claim to the administration or interest in the estate, upon a mere ex parte application, without legal notice or summons to those entitled tb administer, is an irregularity, and such letters may properly be revoked by the Court which granted them.</p> <p>To authorize the grant of letters of administration de bonis non, there must be something remaining to be done to complete the administration of the estate of the deceased, or some function to be performed in regard to it; otherwise such letters would be simply nugatory.</p> <p>A testator devised certain real estate to his wife for life, and after her death that the same should be sold by his executor named in the will, and the proceeds divided as therein directed. The party named as executor died in the life-time of the testator’. Held :</p> <p>1st. That the Orphans’ Court had no jurisdiction over the matter of the sale of the real estate devised to be sold.</p> <p>2nd. That the only jurisdiction competent to supply a trustee to execute the power of sale, was that vested in a Court of equity by section 06, of Article 16, of the Code.</p> <p>3rd. That if the person named in the will as executor had survived the testator, and become clothed with the power of sale and then died without executing the same, it would have been lawful for the Orphans’ Court, upon petition of any party interested, to appoint an administrator de bonis non, with the will annexed, to exercise the power of sale conferred upon the person named as executor in the will. (Act of 1865, ch. 162.)</p>

This appeal was taken from an order overruling the exceptions of the purchasers to the ratification of the sale of certain real estate made and reported by the trustees in the cause, and finally ratifying said sale. The case is stated in the opinion of the Court.

The appellant was indicted, tried and convicted for selling whiskey to a minor, in violation of section 93 of Article 12 of the Revised Code. The case is further stated in the opinion of the Court.

This suit was instituted in the Circuit Court for Baltimore County, and at the suggestion of the defendant it was removed to the Superior Court of Baltimore City, where it was tried. The case is stated in the opinion of this Court. The exceptions to the rulings of the Court below upon questions of evidence are also set out in the opinion of this Court. Seventh Exception. — -The plaintiff offered four prayers which the Court (Phelps, J.,) rejected, and the same are omitted.

The case is stated in the opinion of the Court. First Exception.- — At the trial of this case, Charles B. McLean, county surveyor of Baltimore County, a witness produced and examined on the part of the State, was asked: “ Do you know a part of the York Turnpike, situated in the eighth election district of Baltimore County, and between the twelfth and sixteenth mile stones on said turnpike road, and near the lane leading to Ash-land, and about three hundred yards south of…

<p>Probate — Jurisdiction of Orphans’ Oourt.</p> <p>A paper-writing purporting to contain the last will of S. was admitted to probate in common form by the Orphans’ Oourt. The will bore certain interlineations and erasures in ink, and also certain alterations, erasures and additions in lead pencil, made by the testatrix. After considerable lapse of time certain persons filed their petition, setting- forth the various modifications of the will, and averring that none of the changes made in pencil were to be-considered as operative parts thereof, and setting forth certain constructions of certain provisions of the will as the true and legal effect of the same, and praying “ that the true text of said last will and testament for the disposition of the personal estate of the said testatrix (there being no real estate) may be ascertained and declared, and the bequests in their favor, or in favor of any of them, may be secured to them, and that the petitioners may have such further or other relief in the premises as they may be entitled to, and that W. (one of the administrators, 'with the will annexed, and a legatee interested in maintaining the will in its entirety as propounded,) may be required to answer the petition.” W. by way of answer, pleaded to the jurisdiction of the Orphans’ Court to try and adjudicate the questions presented by the petition; and the Court decided that at the time of admitting the will to probate, it did in that act establish the true text of the will, and that as to-determining and establishing any rights that might arise thereunder, by construing the will and codicils, it was beyond its jurisdiction, and dismissed the petition. On appeal from the order dismissing the petition, it was Held :</p> <p>That the petition was properly dismissed.</p>

<p>Executor — Caveat to a Will — Devisee—Jurisdiction of Orphans’ Court — Counsel—Action at Law.</p> <p>After the filing of a caveat to a will, an agreement in writing was entered into by the widow and sole devisee of the testator to pay a retaining fee of $600 to the counsel employed to defend the will, and an additional fee of $1500 in the event that the will should be sustained. The retainer was paid. A compromise was subsequently entered into and the caveat was abandoned on the payment of a specified sum to the caveator. The widow consented to the compromise, and agreed that eight hundred dollars should be paid to the counsel in view of such compromise, instead of fifteen hundred dollars, the amount originally stipulated. On a petition by the executor asking authority from the Orphans’ Court to pay the sum of eight hundred dollars to counsel as agreed upon, and that he be allowed for the same in his next account, it was Held :</p> <p>1st. That it was not a case in which services of counsel were rendered to an executor in resisting a caveat to a will, but one in which the • services were rendered for, and to be paid by, the devisee named in the will; and the Orphans’ Court had no jurisdiction to enforce an agreement thus made.</p> <p>And. That the remedy of counsel was by an action at law against the party with whom the agreement as to compensation was made.</p>

Appeal as upon Writ of Error, from the Criminal Court of Baltimore.