Volume 64 — Maryland Reports

This was an appeal from a decree refusing the injunction prayed for in the bill of complaint, and dismissing the bill. The case is stated in the opinion of the Court.

<p>Construction of secs. 3 and 1 of Act of 1871, ch. 218, relating to Paving streets, &e., in the City of Baltimore— Tenant for life — Trustee— Guardian.</p> <p>A tenant for life of property fronting on a street in the City of Baltimore, is not the owner thereof within the meaning of section three of the Act of 1874, ch. 218, which declares that the Mayor and City Council of Baltimore shall have power and authority “to provide by general ordinance for the grading, gravelling, shelling, paving or curbing, or for the regrading, regravelling, reshelling, repaving ■ or recurbing of any street, lane or alley, or part thereof in said city without the passage of a special ordinance in the particular case, whenever the owners of a majority of the front feet of property binding on such street, lane or alley, or part thereof, shall apply for the same,” &c.</p> <p>Where a person signs such application as trustee, without being then trustee, or having the legal title to the property for which he signs, vested in him as such, the Court has no power to convert his signature as trustee into a signature as guardian of his children who owned the property he professed to represent, though he may have been such guardian, and as such authorized by section 4, of the Act of 1874, ch. 218, to make the application for them.</p>

This appeal was taken from an order refusing an injunctioh and receiver as prayed in the bill of complaint. The case is stated in the opinion of the Court.

<p>Witness — Practice.</p> <p>In a trial for murder, a witness for tlie defence was asked on cross-examination tliis question : “ State if you have ever been confined in Baltimore City jail ? ” The counsel for the prisoner objected, but the Court overruled tlie objection- and allowed the question. But the Court instructed the witness that she was not obliged to answer the question, and she thereupon refused to answer. On appeal from the action of the Court in allowing the question, it was Held :</p> <p>1st. That in notifying the witness that she was not obliged to answer, the Court was as liberal to her and to the accused as any recognized rule could require.</p> <p>2nd. That there was no error in allowing the question to be put.</p>

<p>Appeal as upon Writ of Error from the Circuit Court for Anne Arundel County.</p> <p>The case is stated in the opinion of the Court.</p>

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

<p>Removal of Causes to the United States Courts — Plea in Abatement — Practice in the Court of Appeals — Qualification of Jurors — Construction of Acts of 1867, ch. 329, and 1870, ch. 410, relating to the formation of Juries, as affected by the Fourteenth amendment of the Constitution of the United States — Colored persons as Jurors.</p> <p>A negro was indicted in the Circuit Court for Baltimore County for rape, and on his arraignment pleaded not guilty. Upon suggestion and affidavit of the prisoner, the record was transmitted to the Criminal Court of Baltimore. Before proceeding to trial, the prisoner filed his petition for removal of the case to the United States Circuit Court, on the ground, that under the statutes of Maryland, prescribing the qualifications arid' mode of selecting jurors, there was a partial exclusion of colored persons, as such, from jury service; that in the Circuit Court for Baltimore County, it had been the practice to select no colored persons to serve as jurymen, because of their race and color; and that the grand jury which found the indictment, was composed exclusively of white persons. This petition was refused. Whereupon the prisoner asked leave to withdraw the plea of not guilty, that he might plead in abatement the same objection asserted in his petition for removal, of alleged discrimination against colored persons as jurymen by the laws of Maryland. This leave was also refused. Upon appeal as upon writ of error, after verdict and judgment against him, it was Held:</p> <p>1st. That in so far as the allegation of the actual exclusion by the Circuit Court of colored persons from the jury, because of their race and color, appeared in. the petition for removal to the United States Court, it was clear the Court below did not err in overruling the application for removal on that ground.</p> <p>2nd. That the refusal of the Court below to admit the plea in abatement was not open to review by this Court.</p> <p>3rd. That there was nothing in the record indicating that the Court acted outside the legal discretion in refusing the application to let in the plea.</p> <p>Under the Act of 1870, ch. 410, being a re-enactment of the Act of 1807, ch. 339, providing the present system of forming juries, the Judges of the Circuit Court, from two lists furnished them, first select a given number of names, and from that number draw the forty-eight requisite for the two juries, and from these forty-eight, after designating one of them as foreman, draw out twenty-two others to constitute with the foreman the grand jury; the twenty-five remaining names composing the petit jury. One of these lists is made up from the tax book after each general election next before the drawing, of “ the white male taxable inhabitants of the county,” &c.; the other list contains all the names on the x>oll books of the several districts of the county returned and filed in the clerk’s office likewise after such general election next before the drawing. From the list of the taxables and the names on the poll books, the required number of names are to be impartially selected, with no other test or standard of fitness than that the selection shall be made “with special reference to the intelligence, sobriety, and integrity of such persons, and without the least reference to their political opinion.” Held :</p> <p>1st. That the confining the list of taxables to those only who are voters, taken together with all the other provisions of the law, does not operate as an obstacle to the free selection of colored persons as jurors.</p> <p>3nd. That if the list of taxables were the only source from which jurors could be selected, the objection that a discrimination was made against colored persons as jurors would be well founded; but as the poll books are likewise furnished on which the white taxables , also appear under the more comprehensive classification of voters, together with all the colored voters of the county, practically the distinction appearing on the list of taxables is merged or lost.</p> <p>3rd. That the possibility that there might be colored tax-payers who would be selected because of their “ intelligence, sobriety and integrity,” for the juries, if on the list of taxables, who are not on the-poll books, where every male entitled to vote presumably, is, and therefore are excluded from jury duty, is too remote and conjectural to support an allegation of exclusion of colored persons from jury duty, because of race and color, by the laws of Maryland.</p> <p>The circumstance that a jury may be composed entirely of white men, is not in itself a violation of the rights of colored men. Their constitutional right is, not to be kept off the jury because they are colored men.</p>

<p>Statute of Limitations — Non-residents.</p> <p>The real estate of a deceased person, was sold for the payment of his debts. The plea of Limitations was successfully interposed by some of the heirs against the first of the claims presented in order of priority, and the same plea was also successfully interposed by some of the heirs against the next claim in order of priority. Those not availing themselves of the plea as against the first of said claims, were not the same who failed to plead it against the other claim. ‘ Held :</p> <p>1st. That as the plea of the Statute only enured to the benefit of those who pleaded it, each of said claims respectively was entitled to the distributive shares of those of the heirs who had not pleaded the Statute against it.</p> <p>2nd. That the next claim in order of priority, and which was not barred by the Statute, was payable out of the distributive shares of the other heirs.</p> <p>There is nothing in the language of the Statute of Limitations which denies the privilege of pleading it to persons living in other States.</p>

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

This was an action of trespass vi et armis, removed from the Baltimore City Court. It was brought by the appellee to recover for his alleged, forcible expulsion from one of the trains of the appellee. The case is stated in the opinion of the Court. Exception. — At the trial the plaintiff offered three prayers, and the defendant nine; but their insertion is deemed unnecessary, as the opinion of the Court gives their substance.

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

The case is stated in the opinion of the Court. The will of Jacob Keller contained, among others, the following provisions: * * * I give, devise and bequeath unto my dear wife, Catharine, all my real and personal estate of which I may die seized and possessed of, the interest or income arising therefrom to be for her separate use and support, and to be at her own disposal as long as she lives and remains a widow : should she again marry, then I order and direct that the sum…

<p>Corporation — Acceptance of Charter — Invalidity of acts done in another State than that by which the Corporation is Created — Corporators and Directors.</p> <p>A charter was granted to the S. V. M. Co. by the Legislature of North Carolina, on the 15th of February, 1861, for the purpose of conducting the mining operations therein mentioned. The corporators named in the charter held their first meeting in the City of Baltimore, on the 5th of March, 1861, and on the next day they accepted the charter at a meeting held by them at the same place. No official meeting either of the corporators, stockholders, or directors, was ever held in North Carolina until the spring of 1882. In the year 1879, an assessment was imposed upon the shares of stock of the company, by a resolution of the directors passed at a meeting held in the City of Baltimore; and in the year 1880, a stockholder, whose shares had been forfeited for non-payment of said assessment, filed a bill against the company in the Circuit Court of Baltimore City, to procure his re-instatement in the possession and enjoyment of said shares. Hmld :</p> <p>1st. That the mere granting of the charter, it not appearing upon the face of the incorporating Act, or otherwise, that the named corporators had applied for it, did not create a corporate body. — there must be at least an acceptance of the grant by a majority of the corporators before its corporate life and existence could begin.</p> <p>2nd. That this was not a case in which acceptance was to be presumed or inferred from the assumption and exercise of the corporate powers granted, as the proof clearly showed when, where, and how the charter was accepted.</p> <p>3rd. That although the named corporators were empowered by the charter to manage the affairs of the corporation, and to exercise all such rights as the charter granted, “ as directors,” until others were elected, yet the two capacities of corporators and directors were distinct, and they could not do in the latter those acts which the law required them to do in the former capacity.</p> <p>4th. That there was nothing in the charter which dispensed with the necessity of its acceptance, and of organization under it, by them as corporators, and certainly nothing which authorized them, even if the grant of such authority would in any case be valid, to do those acts in another State.</p> <p>5th. That the supposed corporation had no existence at the time the complainant became the holder of what purported to be a certificate of -its stock, and his bill should therefore be, dismissed.</p> <p>A charter can be accepted and the corporation organized only within the limits of the State creating it; and this rule should be applied and enforced, when a proper case for its application arises, in the tribunals of the State in which the unauthorized acts were done or the suit was instituted, as well as by the Courts of the incorporating State.</p>

This appeal was taken from a decree of the Circuit Court of Baltimore City, passed the 28th of November, 1884, which declares two judgments rendered by the Court of Common Pleas of Baltimore City in favor of John H. Lowekamp, the appellant’s testator, against Francis A. Greshoff, and Julia, his wife — the one on the 8th of April, 1875, for §894.59 and costs, and the other on the 4th of April, 1877, for §656.60 and costs — to be utterly null and void as against the interest…

This is an appeal by the plaintiff from a judgment for the defendants on a general demurrer to the declaration.. The case is stated in the opinion of this Court.

Appeal form the Superior Court of Baltimore City. The- case .is stated in the opinion of the Court.

This was an action of ejectment brought by the appellees to recover a lot of ground, the leasehold interest in which was bequeathed to them and a certain Mary Beho, in the proportions of one-half to one of the plaintiffs for life, and one-half to the other of the said plaintiffs and said Mary Beho, share and share alike.

This suit was brought by the appellees to recover damages of the appellant for the alleged illegal seizure of the plaintiffs’ goods.

The declaration in this case contained only the common counts; but on demand of the defendants, the appellees, a bill of particulars was filed, which will be found sufficiently set out in the opinion of this Court. The defendants on the trial of the case objected to the admissibility of the testimony offered by the plaintiff in support of his bill of particulars, on the ground that the same was by parol, and the agreement was invalid, because it was not in writing.

The appeal in this case was taken from a decree dissolving the injunction previously granted, and dismissing the bill of the complainant. The case is stated in the opinion of this Court.

The nature of the case is stated- in the opinion of the Court. Six exceptions were taken by the plaintiffs. Five were to the admissibility of evidence, and the sixth was to the rulings of the Court upon the prayers. The third exception was abandoned. The first exception is stated in the opinion of the Court; and as the second, fourth and fifth exceptions are regarded by the Court as standing upon the same footing with the first, it is not deemed necessary to report them.

This was an appeal from an order of the Court below sustaining the demurrer to the answer of the defendant, and directing a mandamus to issue. The case is stated in the opinion of the Court.

<p>Bill in Equity by an Administrator, against his Go-administrator — Jurisdiction—Parties—Proceedings against delinquent Administrators — Sections 225, 239 and 241, of Article 93, of the Code.</p> <p>A bill in equity was filed by W. H. W. as one of the administrators of J. TV. against J. A. TV. individually, and as the other administrator of said J. TV., to compel the defendant to account for and pay. over to the estate an amount alleged to be due on proper accounting between them. An amended and supplemental bill was afterwards filed, simply reiterating the allegations of the original bill and adding as plaintiffs, TV. H. TV. in his own right, and Mrs. G. and her husband, as distributees of the estate of J. TV. deceased, and making other distributees defendants, with J. A. W. in his own right, and as one of the administrators of the deceased J. W. The bill charged that J. A. W. was indebted on account as between the estate and himself in a sum stated, but that he had failed and refused to make return thereof to the Orphans’ Court as he should have done; and that J. A. TV. under the name of the M. G. Works, had filed a large claim against the estate, and had obtained part payment thereof, but that said claim was in excess of what was really due, and sought a discovery in regard thereto. It was also claimed in the bill that the estate of J. W. would be entitled to set-off, as against what might be found to be due on the claim of the M. G. Works, the amount really due from J. A. W. to the estáte of J. W. It was also alleged in the bill that all other debts from the estate had been paid. A decree was passed for an account between the parties, and requiring J. A. W. to pay the balance, if any, due by him on such accounting to the administrators of J. W. deceased. On appeal from the decree, it was Held :</p> <p>1st. That the case was In no sense a general administration suit for the administration and settlement of the estate of the deceased, nor was it a suit for the recovery of distributive shares of the estate by distributees against the administrators upon full administration of the estate; but it was a suit in respect of counter claims as between debtor and creditor, and where one of the administrators was the alleged debtor to the estate of the creditor.</p> <p>2nd. That to such a controversy as the bill and answer presented, the distributees were not proper parties; and the fact that they had been introduced into the case by supplemental bill did not at all relieve the case of the difficulty of litigating the matter in’controversy between the co-administrators, the only legal representatives of the estate.</p> <p>3rd. That sections 225, 239 and 241, of Article 93, of the Code, made provision for proceeding against delinquent administrators or co-administrators in the Orphans’ Court.</p> <p>An executor or administrator cannot file a bill in equity against his co-executor or co-administrator, in order to compel the latter to account for and pay over to him certain claims alleged to be due from the defendant as debtor to the estate of the deceased.</p>

<p>Attachment — Married woman as Garnishee — Default—Injunction.</p> <p>An attachment was laid in the hands of a married woman as garnishee, returnable before a magistrate. She failed to appear, and a judgment of condemnation was rendered against her for the amount of the debt, $63.76, with interest and costs. Between the time the attachment was laid and the judgment was rendered, the husband of the garnishee died. On a bill filed to restrain the execution of the judgment, it was Held :</p> <p>That having failed to appear, as it was her duty to do, in person, or by agent or attorney, and avail herself of any defence which she might have, whether of coverture or other, she had no standing in a Court of equity to obtain relief against a judgment rendered against her by her own default, in the absence of clear proof of fraud or surprise, unmixed with negligence or fault on her part.</p>

Appeals from the Circuit Court of Baltimore City. The case is stated in the opinion of the Court. The order of appeal, to which reference is made in the opinion of the Court, after titling the case, is as follows: “Mr. Brewer: — Enter an appeal from the .decree passed in the above cause on the 30th of December, 1884, on behalf of Jacob Tome. Marshall & Hall, Solicitors for Jacob Tome.”

The bill in this case was filed by the appellants against the appellees, to obtain the construction of a clause in the will of Mrs. Eliza C. Henderson, making disposition of certain leasehold property. The appeal was taken from the decree of the Court below giving a construction to said clause. The case is stated in the opinion of this Court.

<p>Will — Execution of Power — Costs.</p> <p>The donee of a power may execute it without referring to it, and without taking any notice of it, provided the intention to execute it really appears.</p> <p>If there is no express reference to the instrument creating the power, there should be some special reference to the subject on which it is to operate, or some circumstance leading to the conclusion that its execution was intended.</p> <p>Under the wills both of the father and mother of M. L. P., real and personal property was devised to trustees in trust ibr the said M. L. P. during her life, with the power to her of disposing of the same by will. M. L. P. died leaving a will in which, with the exception of certain specific bequests of articles of personal property, all the property disposed of is described as “ all the rest, residue and remainder of my estate, real, personal and mixed, wheresoever situated and to which I am in any manner whatever entitled.” A bill was filed by said trustees, seeking among other things a construction of said will. The bill contained an averment that the said M. L. P. at the time of her death had, besides that held in trust for her, other property, both real and personal, which she held in her own right absolutely and in fee simple; and no proof was offered tending to show that there was no other property upon which her will could operate, except that subject to the power created by the wills of her father and mother. Hkld :</p> <p>1st. That as there was no reference in the will of M. L. P. to the power created by the wills of her father and mother, nor to the subject on which the power was to operate; and as it was averred in the bill of complaint and no where denied, that she had other property, her will would be operative without the aid of the power, and could not be regarded as an execution of said power.</p> <p>2nd. That the property held in trust, under the wills of her father and mother, must be held and distributed in conformity with the provisions of those wills.</p> <p>3rd. That as the trustees desired and invoked a judicial construction of the will in question, the costs should be paid out of the funds in their hands as trustees.</p>

Appeals from the Circuit Court for Anne Arundel County, in Equity. Two appeals have been taken in this case. The first was taken by the State of Maryland from an order of the Court below refusing its application for leave to file an amended bill. The original bill was filed in the year 1884. The second appeal was taken by the trustees from an order refusing their motion to dissolve the injunction, and continuing the same until the final hearing.

The case is stated in the opinion of this Court. It was tried in the Court below (Brown, C. J.,) without the intervention of a jury.

This proceeding was instituted in the Court of Common Pleas by the filing of a petition, by the appellees, creditors of the appellant, praying the Court to adjudicate the appellant an insolvent.

<p> Evidence suppressed or destroyed. </p> <p>Where it is shown that evidence of the indebtedness of a party to the estate of a decedent, has been suppressed or destroyed by the debtor, or some one acting in his interest, such indebtedness may be established- by testimony which, under ordinary circumstances, would be regarded as too vague and indefinite.</p>

The case is stated in the opinion of the Court. The demurrer to the plaintiff's first and second replications to the defendant’s ninth and eleventh pleas was ruled good, and judgment was entered in favor of the defendant for costs. The plaintiff appealed.

Appeals from tbe Superior Court of Baltimore City. The case is stated in the opinion of the Court.

This suit was instituted by the appellee against the appellant.

<p>Sunday — Judicial notice — Judgment — Mistalce in date — Amendment.</p> <p>The Court is bound to take judicial notice that a given day of the month in a given year fell on Sunday.</p> <p>A judgment actually rendered on Sunday is nugatory, and will not support an execution.</p> <p>A mistake in tlie date of a judgment may be corrected by the Court, even after the expiration of the Term at which it was entered.</p>

<p>Appeal — Rehearing—Fraudulent conveyance — Fvidence of fraudulent intent — Burden of proof.</p> <p>No appeal lies from an order of a Court of equity dismissing a petition for a rehearing.</p> <p>In order to justify the annulment of a deed as void under the Statute of 13 Eliz., chap. 5, because made with intent to delay, hinder, or defraud the creditors of the grantor, it is necessary to prove a fraudulent intent.</p> <p>The intent with which a grantor executes a deed, must be gathered from the deed itself, and from his acts and the surrounding circumstances. And when those circumstances are of such a character as to lead to the inference that there has been a fraudulent intent, the onus of disproving fraud rests on the parties to the transaction.</p> <p>Z. and his wife made a joint and several single bill to M. On making application for payment, M. was told by Z’s wife that she intended to convey the property in question to her son, an infant. A deed for the property was in fact so made by her and Z. on the 20th of December, 1881, which was not recorded until the 11th of August, 1882. Neither of the grantors had any other property at the date of the deed, and after the conveyance they still continued in possession. On a bill filed by M. against the grantors and grantee to have the deed set aside for fraud, it was Held :</p> <p>That these facts imposed on the defendants the onus of proving a sufficient consideration, to sustain the validity of the deed.</p>

<p>Removal of a Case — Discretion of Court.</p> <p>A cause originating in Allegany County, was upon the suggestion of the plaintiff, removed to Washington County for trial. In the Circuit Court for Washington County, on the application of the . defendant to have the case removed to some other Court of the same Circuit, the Court passed an order for its removal to Garrett County-Before the record was actually transmitted to the Circuit Court for Garrett County, and during the term, at which the order for removal was passed, the Court changed its order, and directed the record to be transmitted to the Circuit Court for Carroll County. During the same term, the defendant hied a petition, asking the Court to strike out Carroll, and re-insert Garrett in the order for removal. This petition the Court dismissed, and overruled the motion to strike out Carroll and re-insert Garrett. On appeal from the order of the Court changing the order for removal by striking out Garrett, and inserting Carroll, and from the order dismissing the petition of the defendant to restore the order to its original form, it was Held :</p> <p>That as the case had not been actually transmitted to the Court for Garrett County, to which it was removed, the jurisdiction of the ' Court passing the order was not ousted by the order, but continued, and the rescission of the order already passed, and the passage of a new order sending the case to another Circuit, was a proper exercise of the Court’s powers and discretion, and such action was not subject to review on appeal.</p>

This appeal was taken, from a pro forma order of the Circuit Court, sitting in equity, passed on the 30th of May, 1885, in accordance with an agreement of counsel, sustaining the exceptions filed by the appellee to “ Account A, No. 1,” and rejecting the said account, and overruling the exceptions filed by the appellants to “Account C, No. 3,” and ratifying said account.

The case is stated in the opinion of the Court. The declaration demurred to contained the four following assignments of breach of the condition of the bond sued on: And said State, for assigning a breach of said condition of said writing-obligatory, says, that said Barney, as administrator as aforesaid, received and took possession of all the personal property and assets of said Joseph, which remained at the time of his death, and sold the same, and received the money…

The case is stated in the opinion of the Court. Exception. — At the trial the plaintiffs offered eight prayers as follows : 1.

The bill in this case was filed by D. Hopper Emory in his own behalf, as also in behalf of other holders of certain mortgage notes secured by a mortgage made to two trustees by “ The Trustees of Towsontown Station of the Methodist Episcopal Church,” claiming to act as a body corporate, who should come in and contribute to the expenses of the suit.

<p>Fquity proceedings — Final order — Appeal—Building association — Mortgage— Usury — Dissolution of Association— Relation of Debtor and Creditor.</p> <p>A ruling of the Court below in an equity proceeding, must, in order to'form the proper basis for an appeal, be so far final as to determine and conclude the rights involved, in the action, or to deny to the party who seeks redress by an appeal “ the means of further prosecuting or defending the suit in the Court of original jurisdiction.”</p> <p>An appeal lies from an order passed in a proceeding for the foreclosure of a mortgage, which determines that the plaintiff is not entitled to the relief prayed for in its bill of complaint, and directs the auditor to state an account simply as between debtor and creditor.</p> <p>By the terms of a building association mortgage weekly payments on a loan were required to be made, which amormted to more than six per cent., the rate of interest fixed by statute. The phraseology of the mortgage indicated that such payments were for interest, expenses, &c. Held :</p> <p>That the transaction was tainted with usury; and the combination of interest with other payments was evasive and intended to avoid the operation of the statute.'</p> <p>A. and B. members of a building association holding four shares of its capiital stock, obtained an advance of six hundred dollars from the association, that being the par value of their shares; and delivered to the association a mortgage of real estate as security for the payment of twenty-five cents every week upon each of said four shares of stock, until such weekly payments increased by the mortgagors’ proportional part of the profits accruing from the transaction of the business of the association should aggregate a sum equal to the amount of the loan. The mortgage also provided for the payment of a weekly sum of twenty-five cents on each $150, advanced for interest and expenses, with a reduction of twenty-five cents in the weekly interest upon each payment of $150 in duos. Subsequently the association, without the consent of A. and B. resolved to close its afiairs, and practically suspended business. Thereupon A. and B. refused to make farther payments. On a bill filed by the association against A. and B. for the foreclosure of the mortgage, it was Held :</p> <p>1st. That a condition had been created by the action of the association which was tantamount to a dissolution; and the mortgagors were released from the peculiar obligations created by the articles of the association or by the mortgage, and the existing relation between the parties was that of debtor and creditor.</p> <p>2nd. That in such event equity would not sanction the retention by the mortgagors of the sum of money obtained from the mortgagee, but would enforce its repayment with interest.</p> <p>3rd. That A. and B. were to be treated simply as mortgagors, and were entitled to have the mortgage released upon payment of the sum justly due.</p> <p>4th. That in stating the account they ought to be allowed not only for the sums paid by them as weekly dues, but also for what they .paid as interest; while they were to be charged interest, at the rate of six per cent, per annum, on the sums advanced by the association, and' so, from time to time, on the balance of such sums, after deducting therefrom the moneys paid by them for weekly dues and interest.</p>

This was an action of replevin brought by the appellees to recover a piano from the appellant. The case is stated in the opinion of the Court. Exception. — The plaintiffs offered three prayers which were rejected. The defendant offered the following prayers: 1.

<p>Administrator — Non-resident—Widow—Revocation—Insufficient ground for Withholding letters of Administration, or Revolting letters already granted.</p> <p>The non-residence of a person otherwise entitled does not of itself constitute disqualification for the office of administrator.</p> <p>Where a widow declines to apply for letters of administration upon the estate of her deceased husband, and they are granted to the father of the intestate, he being next in order entitled to administer, such- letters will not be revoked upon the application of the widow residing beyond the limits.of the State. Although, if she had made application for letters before they were actually granted, she would clearly have been entitled to receive them upon complying with the requirements of the law in other respects, notwithstanding her non-residence.</p> <p>Where the deceased had an interest in his grandfather’s estate which was in litigation, and which existed before the suit was instituted,, an administrator should have been appointed to represent such interest in the suit taken to affect that right.</p> <p>Where a party is entitled in order of preference to administer upon a decedent’s estate, the fact that he is accountable as trustee for the fund upon which he is required to administer, furnishes no sufficient cause for either withholding letters from him, or for revoking letters already granted him, before he commits some default in the course of the administration of the estate that may legally require the revocation of his letters to make place for some other person, who may be supposed would be more faithful in the . administration of the trust reposed in him.</p>

<p>Indictment for Receiving Stolen property,'* Knowing it to have been Stolen — Irrelevant testimony.</p> <p>On the trial of a party indicted for receiving a barrel of whiskey, knowing it to have been stolen, without any effort on the part of the traverser, who testified in the case, to show that the whiskey had not in fact been stolen, or that he had any good reason for believing that it belonged to the party selling it, except the declaration of the latter that he and his brother owned a barrel of whiskey that they wanted to sell, or without attempting to explain why the revenue tax mark and the serial number on the barrel had been effaced, the defence placed on the stand a witness, and proposed to prove that some four days before the whiskey was stolen, the party from whom the traverser received it, offered to sell to the witness, without any effort at concealment, a barrel of whiskey, which he, the witness, would have bought, but did not, because he had not the money to pay for it. On exception, it was Held :</p> <p>That the proffered testimony was wholly irrelevant and therefore inadmissible.</p>

Joseph B. Bryan filed a hill in equity, in which he alleged as follows: That he was the holder of two promissory notes made by one Robert K. Elliott, and that they amounted together to the sum of fifteen hundred dollars, and were over-due and wholly unpaid; that at the time the said indebtedness was contracted by Elliott he was the holder of a policy of insurance on his own life for the sum of ten thousand dollars, which had been issued to him by the Equitable Life Assurance…

<p>When Equity will not Relieve — Irreparable mischief — Injunction — Destruction of the Inheritance.</p> <p>Equity never interferes where there is a plain and. adequate remedy at law; and the mere allegation in a bill that irreparable damage will ensue, is not sufficient, unless facts be stated which will satisfy the Court that the apprehension of such injury is well founded.</p> <p>A bill which prays for an injunction to restrain the defendant from maintaining an embankment erected on his own land as a protection against the overflow of an unnavigable stream dividing his land from that of the complainant, but which fails to state how often this stream has overflowed its banks by reason of heavy freshets, or how much of the complainant’s land has been or is liable to be overflowed at such times in consequence of the embankment, does not present a case entitling the complainant to equitable relief.</p> <p>Where all that can be inferred from what the complainant states in his bill, is, that when a heavy freshet may happen, the stream will, if the embankment complained of remains, overflow a portion of his land, and thereby destroy the crops, if any there be growing thereon at the time of such freshet, such a case is not made out as will warrant an injunction to restrain the defendant from maintaining the embankment.</p> <p>Such an occasional overflow of a few acres of land, part of a farm of more than a hundred acres, does not work a destruction of the inheritance, noi' justify the granting of an injunction in order to prevent irreparablq mischief.</p>

<p>Bill to set aside a Deed as void under sec. 7, of Art. 48, of the Code — Mortgage—Mortgagor in Insolvency — Trustee of Insolvent — Conventional Trustee — Rquity of Redemption.</p> <p>In a bill brought to set aside a deed as void under section 7, of Article 48, of the Code, it is necessary to charge that the deed was executed for the purpose of defrauding the creditors of the grantor, or giving an undue preference, and the omission to so charge will be fatal on demurrer.</p> <p>As a general rule, where a mortgagor goes into insolvency, and a trustee is appointed for him, such trustee will supersede a conventional trustee named in a mortgage of the insolvent debtor to make sale of the property mortgaged, in case of default, and is the proper person, as representing all creditors, to sell to the exclusion of the conventional trustee. It is the equity of redemption that passes to the trustee in insolvency; but where he does not apparently take the equity of redemption, and may or may not succeed in a suit asserting title to it, he ought not to supersede the conventional trustee who can proceed without delay and who must proceed to sell in the end, if the trustee in insolvency fail in his suit.</p>

The case is stated in the opinion of the Court. First Exception. — Frederick Boye, a witness on the part of the State, testified that on the 21st of November, 1884, on board the oyster boat, Eva, the accused kicked Meyher several times; Meyher then cried out; the captain laughed and wont away; the captain pushed him down twice on that occasion and also hit him; took hold of him by the breast, and struck him several times on the breast.

■ The appellants on the 24th of July, 1816, executed a mortgage in favor of the appellee, Albert Small, which on the 1st of June, 1881, he assigned “to his wife, Alice A. Small, for her sole and separate use.” On the 28th of October, 1884, Albert Small as attorney, filed his bond in the Circuit Court for Washington County, and proceeded to sell the mortgaged property. He reported a sale to the Court and exceptions were taken thereto. The exceptions were sustained.

<p>Removal of Executor or Administrator — Orphans’ Court— Claims against Decedent’s estate — Appeal from the Orphans’ Court.</p> <p>In this State, an executor or administrator can only be removed for legal and specific causes, and after citation, and an opportunity to bo heard in opposition to the motion.</p> <p>The act of an executor in having transferred to himself individually, on the books of a bank, shares of stock of such bank belonging to the estate of his decedent, and selling the same without authority from the Orphans’ Court, is such a dereliction of duty as will justify the revocation of his letters of administration.</p> <p>The determination of the Orphans’ Court is not final and conclusive as to claims against the estates of decedents. If the claim is disallowed, the claimant may seek his remedy in a Court of law or equity; and if it is allowed, the executor or administrator may refuse to pay it. The allowance of a claim by the Orphans’ Court operates only as a protection to the executor or ad üñistrator, if he should pay it out of the estate of his decedent.'</p> <p>The decision of the Court of Appeals on an appeal from an order of the Orphans] Court, is not final and conclusive with respect to the litigating parties. The original jurisdiction being < y prima facie, “ the exercise of the appellate jurisdiction does not increase its effect.”</p>

<p>Local Option laic — Act of 1870, ch. 188, and Act of 1880, eh. 107 — Repeal by Implication.</p> <p>Where by an Act of Assembly submitting the question to the voters of the several election districts of Caroline County, whether or not spirituous or fermented liquors should be sold therein, a majority of the votes in the third election district of the county w'as cast “against the sale of spirituous or fermented liquor ” therein, and by a subsequent Act of Assembly a new election district was established out of the said third election district, the prohibition will continue to apply to the inhabitants of the new district, there being nothing in the latter Act at all inconsistent with the provisions of the former Act.</p> <p>The repeal by mere implication of a former by a subsequent statute, is never favored by the Courts, and it is only where they are clearly irreconcilable, and not susceptible of any such fair interpretation as will allow of their standing together, that such repeal will be declared.</p>

<p>Criminal law — Instruction —Exception— When erroneous Ruling will not he Reversed.</p> <p>While the Court may decline to instruct the jury although asked, yet if it does instruct, and does so erroneously, and exception is taken, and the jury have manifestly followed the instruction to the plain injury of the accused, he is entitled to have the injury remedied on appeal.</p> <p>On an appeal in a criminal case, the ruling of the Court below, although erroneous, will not be reversed, it being manifest that the accused was not injured by such ruling.</p>

■ The case is stated in the opinion of the Court. The jury rendered a verdict in favor of the plaintiff for $500, and judgment was entered accordingly. The defendant appealed.

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

<p>Deed from Husband to Wife — Constructive notice — Putting on Inquiry — Recital—Mortgage—Affidavit as to Consideration — Agent—Purchase money Mortgage — Subrogation.</p> <p>While the wife may under the Code acquire property directly from the husband during coverture, provided it be not in fraud of the rights of creditors, yet the voluntary conveyance to the wife is in itself sufficient knowledge to put a purchaser upon the inquiry, and if he fails or refuses to make the inquiry, he is chargeable with the knowledge of such facts as the inquiry would necessarily have disclosed.</p> <p>When a deed from a husband to his wife is assailed on the ground of being in fraud of the rights of his creditors, the declaration of the husband on the face of the deed that he has property sufficient to pay his debts, cannot be considered even as prima fade evidence of the truth of the statement thus made.</p> <p>A mortgage bore the certificate of a justice of the peace to the fact that H., “ agent of the within named mortgagee,” appeared, &e., and “made oath in due form of law, that the consideration set forth in the foregoing mortgage is true and tona fide,” but he did not certify that H. made oath that he was the agent of the mortgagee. Hkld :</p> <p>1st. That the mere declaration on the part of the justice of the peace that H. appeared before him as the agent of the mortgagee, could not be construed as meaning that H. made oath that he was the agent.</p> <p>2nd. That as the Code requires the agent to make this oath such a certificate was not a substantial compliance with the statute, and the mortgage was fatally defective.</p> <p>H. in consideration of love and affection conveyed certain real estate to his wife, it being at the time incumbered by a purchase money mortgage. At the request of H. and his wife, T. advanced money to pay the mortgage which was then due, and took from H. and wife a mortgage on the same property as security. H. subsequently became insolvent, and*upon a bill filed by the trustees of the insolvent, the conveyance to the wife was set aside as in fraud of his subsisting creditors. The property was afterwards sold by the order of the insolvent Court. In a contest as to whether T. was entitled to the proceeds of the sale as against the creditors of H., it was Held :</p> <p>That although the mortgage of T. was fatally defective as against the creditors of H., yet having at the request of H. and wife advanced the money to pay the purchase money mortgage, he was entitled as against said creditors to be substituted to the rights of the prior incumbrancer, there being no intervening rights or incumbrances.</p>

By agreement of counsel in the Court below, a jury trial was waived, and the case was tried before the Court. The case is stated in the opinion of this Court. Exception. — So much of the exception as relates to the admissibility of evidence is sufficiently stated in the opinion of the Court. The plaintiff offered the four following prayers, in addition to others which were conceded or granted, and are therefore omitted: 2.

<p>Municipal Corporation— Common Sewer — Dedication—Acceptance — Adoption—Liability of City for Damages arising from Failure to Repair, or Negligence in repairing a Common sewer passing under Private property — Notice— Charter of the City of Baltimore, sec. 835, of Art. 4, of the Code of Public Local Laws.</p> <p>The City of Baltimore has by its charter, Code of Public Local Laws, Art. 4, sec. 835, “full power to pave and keep in repair all necessary drains and sewers, to pass all regulations necessary for the preservation of the same, and to authorize any person by them appointed for that purpose, to enter upon the lots, grounds and possessions of any person or body politic, through which the common sewers run or ought to run, to regulate, make or repair the same.” Por more than twenty years the city used and controlled a stream within its limits as a common sewer, appointed an officer to see to its being kept in repair, and repaired it as wrell where it ran under private property as where it passed across or along public streets, without objection by owners of private property or interference on their part; and the stream had been made a complete and continuous arched, covered and under-ground drain or sewer, completely under the control and management of the city. Held:</p> <p>1st. That the legal results arising from this state of facts were, that the city had acquired the right thus to use the stream wherever it ' crossed or flowed along the streets, which were from time to time laid out over the land through which the stream ran, by virtue of its power to open a.nd condemn streets, and by adoption wherever it passed through private property, and where the arching or covering of it may have been originally done by private owners.</p> <p>2nd. That it must be presumed that such private owners had surrendered, devoted or dedicated their rights in the bed of the stream to the public for the purposes of a public sewer, and that the city and public had accepted such dedication or surrender, and that in consequence of its having thus become a public sewer the city was bound to keep it in repair, and was responsible for injuries resulting from negligence in making necessary repairs, as well as from the negligent or unskilful manner in which the work of repairing was actually done.</p> <p>3rd. That the city under the clause of its charter above cited had undoubted power to acquire by dedication, adoption and acceptance, the right thus to use said stream where it flowed through or under private property.</p> <p>4th. That in' order to make the city liable in an action for damages occasioned by a defect in a public work of this character, the plaintiff must prove that the corporate authorities had notice of it, or knew of its existence, or show lapse of time or other state of circumstances from which notice could be implied.</p> <p>Where a municipal corporation undertakes in the discharge of its duties to construct or repair such a work, it is responsible for damages caused by the negligent, careless or unskilful manner of performing the work.</p>

•The case is stated in the opinion of the Court. The record contains the following agreed statement of facts: It is admitted in this case that Artemus Donelson, the defendant, became the assignee of the leasehold interest created by the lease from Robert M. Polk and wife to John J. Kennedy, on the 17th day of June, 1873, by deed of assignment from John S. Tyson, trustee, and as such assignee remained in possession of said property, receiving the rents', income and profits…

<p>Mortgage bondholders — Coupons—Friority of Lien.</p> <p>As against bondholders who presented their coupons at the office of the company for payment and not for sale, and who had the right to assume that they were paid and extinguished, a person who advances the money to take them up, under an undisclosed agreement with the company that the coupons should be delivered to him uncancelled as security for his advances, is not entitled to an equal priority in the lien, or the proceeds of the mortgage by which the coupons are secured.</p>

<p>Insurance — Life policy — Assignment—Creditors—Act of 1878, eh. 200 — Fraudulent MU of sale — Limitations.</p> <p>Under the Act of 1878, ch. 200, a voluntary assignment of a life policy made by a father to his four sons, is valid, and free, and clear of all claims of Ms creditors.</p> <p>The execution by a father to his son, of a bill of sale absolute on its face, but admitted to be a mortgage to secure a debt much less than the value of the property thereby conveyed, the limited means of the grantee, he not being in a condition pecuniarily, to justify the conclusion that he was able either to loan or become a creditor of the grantor to the amount of the alleged debt, the voluntary assignment about the same time by the grantor of a life policy to his sons, and the utter insolvency of the grantor, are facts which taken together, and in the absence of any evidence whatever on the part of the grantee to explain them, show that the bill of sale was fraudulent.</p> <p>Although limitations may be a bar.to an action at law on a promissory note, referred to in a mortgage, after the lapse of three years from the maturity of the note, yet if the mortgage contains a covenant to pay the debt, an action will lie on the covenant at any time within twelve years from the default.</p>

<p>Executor and Administrator — Commissions.</p> <p>The right to commissions for administering upon a decedent’s estate, does not in any sense arise from contract, but is founded only in statutory enactment.</p> <p>An executor passed two administration accounts, on which he was allowed commissions as authorized by the then existing law. Prior to the stating of his third account an Act of Assembly (1884, ch. 470) was passed changing the rate of commissions to be allowed executors. Herd :</p> <p>That the allowance of commissions on the third administration account was to be determined by the later statute; but that the commissions allowed on the first and second administration accounts, passed prior to that statute, could not be disturbed.</p>

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

This appeal was taken from an order modifying an injunction which had been previously issued. The case is stated in the opinion of the Court.

<p>Sale of Shares of Stoelc — Purchaser—Failure of Purchaser to have Stoelc transferred on boolcs of Company — Liability of Purchaser — Assessment on Stoelc — Reimbursement—Evidence — Boole entries — Practice—Prayer.</p> <p>Where there is a sale of shares of stock of an Express Company, partly paid up, and the purchaser neglects to have the same transferred to himself on the books of the company, and the company through its assignee having called for an assessment on said shares, the seller is compelled by legal proceedings to pay the same, he is entitled to be reimbursed by the purchaser. ¡</p> <p>On a sale of certain shares of stock in an Express Company, partly paid up, the purchaser neglected to have the same transferred to himself on the books of the company, and the company through its assignee having called for an assessment on said shares, the seller was compelled by suit to pay the same. In an action against the purchaser by the seller to recover the amount paid by him, he olfered in evidence certain equity proceedings which showed that an assessment of thirty dollars per share payable to a trustee had been made on the stock of the company, and also that a judgment had been recovered against him for the same, and that said judgment had been satisfied. On objection by the defendant to the admission of these proceedings, it was IIf.i.d :</p> <p>That it was necessary for the plaintiff to show that he had been compelled to pay the money in invitum, and in what way he had been compelled; and the decree in equity was the initial point in the course of proceedings which culminated in the judgment against him. He was bound to show by competent proof every step in . these proceedings; and the certified copy of the decree was evidence that it had been rendered, and for such purpose it was admissible.</p> <p>The defendant having testified that he bought and sold stock in 18GG, through T., a broker, and -through no one else, the entries in the books of T. are admissible as evidence on behalf of the plaintiff to show that T. in the year 1806, purchased certain shares of stock which were the property of the plaintiff, and that the purchase was made for account of the defendant, such entries being of the nature of original evidence and not hearsay.</p> <p>Where objection is taken to evidence in gross, and a part of it is admissible, the objection must be overruled.</p> <p>Where a prayer cannot be granted in its entirety, it is properly rejected.</p> <p>Where a declaration contains several counts, and there is a general verdict, one good count will sustain the judgment.</p>

On the 30th of January, 1885, the following petition, which was sworn to, was filed in the Orphans’ Court of Washington County: The petition of John H. Stouffer and Daniel B. Stouffer respectfully shows unto your Honorable Court, that Mrs. Eliza Stouffer departed this life on the 15th day of January, 1885, and that your petitioners are her sons, and the only two children of the said deceased and her nearest of kin, and are entitled under the Testamentary Laws of the State of…

<p>Principle in Expounding Deeds — Life estate — Ultimate limitation in Deed — Pee simple — Buie in Shelley’s Case— Heirs — Statute of Uses — Peofment—Legal estate — Pguitable or Trust estate.</p> <p>In expounding deeds the intention of the parties shall prevail, if not repugnant to some principle or maxim of the law; and the intention is to he gathered by considering the whole deed, and each and every part thereof. And in construing deeds of conveyance of a freehold estate, the Court will, if appropriate terms be employed, treat them either as deeds of feofment or deeds of bargain and sale, as will best subserve the objects and purposes in contemplation of the parties.</p> <p>The terms of conveyance in a deed for a parcel of ground were, “ do give, grant, bargain and sell, alien, enfeoff, and convey unto the said parties hereto of the second part, and the survivor of them, and the heirs of such survivor, in special trust, that the said Ann McKim bo permitted and suffered, during the term of her natural life, to have, hold, use, occupy, possess and enjoy, tie described premises, and the rents, issues and profits thereof to receive, take and apply to her own separate use and benefit, whether she be sole or covert, so that neither the ground, or any part thereof, nor the rents, issues or profits of the same, should, in any manner, be liable, or subject to the control, power or disposition of any future husband the said Ann might have, or be in any wise liable for his debts; and that the receipts of the said Ann alone, whether sole or covert, should be good and effectual acquittances for such rents and profits; and from and immediately after the decease of the said Ann, then in trust, for the child or children that she might have, his, her or their heirs,” &c. “But in case the said Ann McKim shall depart this life without leaving a child or children, or descendants of the same, living at the time of her death, then to the use and benefit and behoof of such person or persons as would, by the now existing laws of the State of Maryland, he entitled to take an estate in fee simple in lands hy descent from her." Held :</p> <p>That the life estate limited to the cestui que trust in this deed, was not enlarged to a fee simple estate by the ultimate limitation therein to such person or persons as would he entitled to take an estate in fee simple hy descent from the said cestui que trust, the operation of the rule in Bhdley's Case being excluded by the absence of the word heirs from the limitation.</p> <p>In a subsequent deed to the trustees named in the former deed, for another parcel of ground, the terms employed in the granting clause were, “ do grant, bargain and sell, alien, enfeoff, release, assign, and convey unto the said parties hereto of the third part (the grantees,) and the survivor of them, and the heirs of the survivor, all that piece or parcel of ground,” &c. The property was conveyed in trust for Mrs. Ann McKim Handy, then a feme covert (she having intermarried with Samuel J. K. Handy), for and during her life, and for her sole and separate use, with the usual provisions excluding all right and control of her then or any future husband, or liability for his debts. And in default of child or children, or their descendants, then to the right heirs of the said Ann, and their assigns forever. Mrs. Handy never had children and survived her husband.- Held :</p> <p>1st. That allowing the clearly expressed intention of the parties to this deed its legitimate effect, the statute of uses did not operate to execute the use or 'trust declared by the deed for the sole and separate enjoyment of the cestui que trust for life, and to that extent at least, the trustees took and held the legal estate, and consequently the separate use limited to the cestui que trust, was but an equitable or trust estate.</p> <p>2nd. That .treating this deed as a feoffment, and to effectuate the plain intention of the parties, the ultimate use limited to the right heirs of the cestui que trust was executed by the statute, and thus became a legal estate in remainder to such right heirs, — the term heirs being used as a mere descriptio personarum.</p> <p>3rd. That the cestui que trust acquired no estate under either of the deeds that she was competent to dispose of by will.</p>

<p>Appeal — Appeal by Defendant after Death of Plaintiff— Scire facias — Mat.</p> <p>Where after the trial of a case in the lower Court, and entry of judgment, the plaintiff dies, and an appeal is taken by the defendant, the same will be dismissed, though taken within the time limited by law, there being no living party to the record against whom the appeal could be prayed.</p> <p>Nearly two years after the obtention of a judgment in the Court below, the administrator d. S. n. of the plaintiff appeared to the case and sued out a scire facias against the defendant to revive the judgment, and obtained a fat. On a second appeal by the defendant from the original judgment, more than two years from the date thereof, a previous appeal therefrom having been dismissed for the reason that the appeal was prayed against a dead man, the appellee having died between the date of the judgment and the entry of the appeal, it was Held :</p> <p>1st. That the appeal was taken too-late, as the law then required that an appeal must be taken within nine months from the date of the judgment, and not afterwards.</p> <p>2nd. That the death of the appellee, the original plaintiff, did not suspend the running of the time within which the appeal should have been taken.</p>

<p>Consideration in a Deed — Evidence—Vendor’s lien.</p> <p>Where a sum of money is the consideration named in a deed, evidence tending to show that the consideration was a gift from the grantor to the grantee, is inadmissible.</p> <p>A vendor’s lien for the unpaid purchase money, will be enforced not only against the vendee, but against all persons claiming under him, except Iona fide purchasers for a valuable consideration, without notice.</p> <p>A vendor’s lion will be enforced against the grantee of the vendee, the consideration for the conveyance being natural love and affection.</p> <p>One claiming a vendor’s lien on property amply sufficient to satisfy the lien, is not entitled to have declared void as against such lienor as a creditor, a conveyance from the vendee of other property.</p>

The case is stated in the opinion of the- Court. The words charged in the first count of the declaration to have been spoken by the defendant to or concerning the plaintiff, were : “ You are discharged for stealing fish, nuts, and breaking off car doors and taking them home those charged in the second count to have been spoken, were: “You have been seen eating nuts and herrings.” Exception.- — The plaintiff offered the four following prayers : 1.

This is an appeal from a decree of the Court below sustaining a demurrer to the bill of complaint, and dismissing the same. The case is stated in the opinion of the Court.