Volume 65 — Maryland Reports

This is an action instituted by Daniel Frazier, the appellee, against Alexander H. Horner. The defendant died pending the proceedings, and the appellants, as his executors, were substituted as defendants. The case is stated in the opinion of the Court. First Exception. — Stated in the opinion of the Court. Second Exception. — The plaintiff offered the three following prayers: 1.

This case arises upon a bill filed by the appellant against Charles Abergh and Annie E. Abergh, his wife, the appellees. The complainant, as trustee under a deed made to him by John R. Marchant of all his property, for the benefit of his creditors, files the bill for the sale of 'a house and lot, which said Marchant had conveyed to said Annie E. Abergh by deed made prior to, but not recorded till after, the recording of the deed to the complainant.

The appellant as indorsee, brought this action of assumpsit against the appellee as maker of the promissory note sued on. The case is stated in the opinion of the Court.

This suit was brought by the appellee to recover the purchase money of a refrigerating machine sold by Robert Portner to Elias E. Adler and Paul Mulliauser, co-partners, trading under tbe firm name of Adler & Mulbauser. The claim for the purchase money was assigned by Portner to the plaintiff. Prior to bringing suit, tbe partnership between Adler & Mulhauser was dissolved. The case is further stated in the opinion of the Court.

<p>Voluntary payment — Letters patent — Action for Money had and received.</p> <p>Where a party with full knowledge, actual or imputed, of the facts, voluntarily, without duress, fraud or extortion, pays money upon a demand, though not enforcible against him, he cannot recover it back.</p> <p>A. relying wholly on the representations of B. made without fraud, contracted to pay and did pay B. a fixed sum for the privilege of operating under a certain patent of which he was the owner. It afterwards turned out that the patent was void. Held :</p> <p>That A. could not maintain an action for money had and received, against B. to recover back the money paid under said contract.</p>

The declaration in the case against Howard, charges that John Glenn, trustee, as hereinafter set forth, sues George W. Howard for money due and owing by the defendant to the plaintiff; for that the said defendant heretofore subscribed for twenty-live shares of the capital stock of the National Express and Transportation Company, a body corporate of the State of Virginia, duly incorporated under the laws thereof, and thereby undertook and promised to pay to the said company…

The appellee in this case was a subscriber for twenty-five shares of the capital stock of the National Express and Transportation Company, and a certificate .for the same was issued to him. Under the decree of the 14th of December, 1880, an assessment of thirty dollars per-share was levied on the stock of the appellee, and the .amount he was required to pay was seven hundred and fifty dollars. The case is further stated in the opinion of the Court.

The petition of Elizabeth H. Collins and Richard Bernard, administrators of John Eschbach, with the will annexed, and trustees thereunder, stated that at the death of the decedent he was surety in the penal sum of $12,000 for the performance of a certain contract by John E. Eschbach, one of the sons of said decedent, who was. also one of the devisees and legatees under said will; that a judgment had been recovered on said bond against them, in their capacity of…

This appeal was taken by the defendant in the case, from the following decree : “It is thereupon, this 30th day of June, 1885, by the Circuit Court of Baltimore City, adjudged, ordered and decreed, that the plaintiff is entitled to relief in the premises, and to specific performance of the agreement entered into between the plaintiff, and James D. Smallwood and Henry Y. Attrill, representing, the defendant, as set forth in the bill of complaint; and that by force of said…

Elizabeth Hubbard, George W. Hubbard and Mary J. Hubbard, his wife, and Thomas J. Hubbard, an infant under twenty-oneyears of age, suing by his next friend, filed their bill of complaint against William A. Dunnington. The object of the bill was to set aside a deed which purported to convey to the defendant certain real estate belonging to complainants.

The case is stated in the opinion of the Court. The appeal was taken from a decree directing the defendant to transfer upon its books to the name of the complainant, Alice Mali, two thousand seven hundred and eighty shares of its capital stock, and to issue to her, in her name, a certificate or certificates for the same.

In this case the appellants claimed to have a mechanics’ lien against the bridge, abutments, &c., belonging to the appellee, built across the Big Gunpowder River in Baltimore County, on the line of the railroad of said appellee between Baltimore City and Philadelphia, for certain machinery, engines and-other materials furnished by them to the Hoopes Artificial Stone, Cement and Paint Company, the contractor for the building of the abutments and piers of said bridge, and used…

This appeal was taken by the complainant from a decree of the Court below dismissing her bill of complaint.

This was a suit by the appellant to recover tolls for the use of its road hy the appellee. The particular gate, being No. 9, was on that part of the road which lies between Frederick and Middletown. The appellee was a mail-carrier between these places, using the road daily, and the arrangement was for the gate-keeper to charge the foils and collect them at the end of each month.

Mary’s County. An action of ejectment was brought by the appellants against the appellee. At the trial which was before only one of the Judges of the Court, certain exceptions were1 taken to the. rulings of the Court on prayers offered by counsel for the instruction of the jury. On the 31st of March, 1885, the jury rendered a verdict for the plaintiffs.

This ease was submitted to tbe Court below, without tbe aid of a jury, upon an agreed statement of facts. Tbe plaintiff was duly appointed as Eire Marshal of Baltimore City, on tlie 19tb of February, 1883, under ordinance No. 1 of that year, and qualified. By the provisions of said ordinance his term of office was to continue for two years.

Benjamin Maitland died in April, 1884, leaving a last, will and testament duly executed on the 23rd of June, 1879, by which he appointed Charles E. Phelps and John Y. L. Eindlay his executors. The estate was fully, administered, except as to that portion of it which has given rise to the present controversy. The testator bequeathed to his son, Lindley H. Maitland, the sum of six thousand dollars.

This action was brought by the appellees against the appellant to recover on its policy of marine insurance. The case is stated in the opinion of the Court. •Exception. — At the trial below, the evidence being closed, the plaintiffs asked the following instructions : 1.

<p>Proceedings of the City Commissioner to Establish the Grade lines of Streets in the City of Baltimore — Notice—Damages.</p> <p>From the terms of the Act of Assembly relating to that subject (1874, ch. 218,) as well as from the character of the work itself, the establishment or chango of grade lines of streets in the City of Baltimore, is a matter wholly independent of the condemnation or opening of the same; and may be done at anytime before such condemnation, or after it, and before the work of grading and paving is actually completed.</p> <p>By ordinance No. 44, of 1874, of the Mayor and City Council of Baltimore, the City Commissioner was required before establishing or changing the grade of any street, to “ give live days notice in three daily papers of the application made, and that he will appear on the premises on the day to be named in said notice, for the purpose of determining on such application.” Application having been made for the change of grade of a portion of a street, the record of the proceedings thereunder showed that notice of the application had been duly advertised in three daily papers, and then sets forth that the “ City Commissioner met the City Surveyor on the premises May 29th, 1882, at four o’clock, p. m., and adjourned until June 10th, 1882, at twelve o’clock, m., at the City Commissioner’s office, and further adjourned until June 17th, 1882, upon which day the City Commissioner established the grade as follows,” &c. Held :</p> <p>1st. That the records showed a compliance with the requirements of the city ordinance and of the statute under which it was passed.</p> <p>2nd. That the City Commissioner when ho attended on the premises, was not required to make up his mind and announce his determination then and there; and no other announcement of his determination was required than the recording of the grade, as finally calculated and determined on, in the record book kept in his office, to which all parties interested could have access.</p> <p>3rd. That the final determination rested with the Commissioner alone, but it was not declared when or where he should make or announce it, and the failure to state the time of day and place of meeting,under the last adjournment did not vitiate the proceeding oí make the grade illegal.</p> <p>• The owner of land abutting on a street in the City of Baltimore, which has been graded and paved in front of his lot, before said street had been legally condemned and opened as a public highway, cannot recover against the city as a trespasser, the costs he may be put to in filling up his land in order to utilize it for building lots upon said streets as thus graded and paved.</p>

The case is stated in the opinion of the Court. Exception. — at the trial the plaintiff offered the two following prayers: 1. If Alfred Bennett was one of the executors of the estate of Charles Hoffman, and as such, together with Ann Hoffman, William Gf. Bansemer and Eiggin Buckler, executed the bond in evidence, and Alfred Bennett and Greo.

This was an action of slander brought by the appellant against the appellee.

<p>Construction of Contracts — Breach of Contract — Question of Brand — ¡Evidence—Province of Jury — Setting aside Verdict and Granting New trial — Province of Court of Appeals as to the Correctness or Incorrectness of a Verdict.</p> <p>In the construction of contracts, Courts look to the language employed, the subject-matter, and the surrounding circumstances,, and are' entitled to place themselves in the same situation in which the parties were who made the contract, so as to view the circumstances as they viewed them, and to judge of the meaning of the words, and of the correct application of the language to the things, described.</p> <p>A Railroad Company contracted to purchase of B. large quantities of coal, the same to be delivered daily, of such quality as should be satisfactory to the company’s master of transportation and master of machinery; the deliveries to commence on a certain day and to continue for three years. After a considerable quantity of the. coal had been delivered, the Railroad Company refused to receive any inore because it had been condemned as unsatisfactory by its masters of machinery and transportation. In an action by B. against the Railroad Company to recover damages for breach of the contract, it was Held :</p> <p>1st. That while the decision of the question of the acceptance of the coal was committed to the judgment of the officers designated by the company, the law required them to exercise a fair, just and honest judgment on the subject; and if they made their decision against the coal in good faith, the defendant would not be obliged to accept it, but if they fraudulently rejected it, their judgment would be without effect in law, and the defendant would not be . excused by it.</p> <p>2nd. That under the contract the plaintiff had a right to tender coal to the defendant every, day during the time embraced in the contract; provided, it was of a quality satisfactory to the officers designated, and ho had a right to the honest exercise of their judgment every day during this period, and they could not deprive him of this right by condemning the coal once for all.</p> <p>3rd. That on the question of fraud it was proper that the evidence should take a wide range. It was competent to show to the jury what knowledge, and what means of knowledge of the coal from the plaintiff’s mine, the defendant had, before, and at, the time of the contract; and every fact and circumstance that would show what expectations it might reasonably and justly form in respect to its fitness for the purposes to which it was to be applied. It was proper also to show whether the coal fulfilled those expectations, and whether the officers who were to decide on its rejection knew or had the means of knowing its quality; and whether there were any circumstances which might induce them to make an unjust decision in the interest of the defendant. It was proper also to prove acts, declarations or statements of these officers which would show what opinion they really had of the merits of the coal.</p> <p>4th. That although the evidence for the plaintiff was strongly opposed by the countervailing evidence for the defendant, it was not in the power of the Court to withdraw it from the jury, who had a right to consider it in connection with the other facts and circumstances proved before them, and to draw from it such inference as they thought it would justly authorize.</p> <p>After a verdict is rendered, the Judge before whom the case is tried, may, in his discretion, set it aside and grant a new trial, if justice so require; hut the Court of Appeals has no right to decide on the correctness or incorrectness of the verdict of a jury.</p> <p>The cause was argued before Alvey, O. J., Stone, Robinson, Ritchie, and Bryan, J.</p>

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

This appeal is taken by a creditor of the firm of T. Robert Jenkins & Sons, from a pro forma decree of the Court below, (Phelps, J.) ratifying an auditor’s count allowing the wife of T. Robert Jenkins, as an individual creditor of her husband, a large sum of money out of the individual estate of the latter. The case is stated in the opinion of the Court.

Patrick Kernan was indicted in the Criminal Court of Baltimore for killing one Thomas Kernan. The prisoner pleaded “not guilty,” and upon his suggestion and affidavit, the case was removed for trial to the Circuit Court for Anne Arundel County.

The appellee filed his bill on the 24th of November, 1884, in which he alleged in substance that the appellant was engaged in erecting his house on Mount Yernon Place, in violation of law, in that the entrance thereto extended- on the pavement in front thereof beyond the distance jJrescribed^, by law.

<p>Mortgage of Indemnity — Untry on Mortgaged premises by Mortgagee before Condition broken — Action on the case by Mortgagee against Sheriff — What is required to entitle Mortgagee to maintain an Action on the case for a Wrongful injwy to the Mortgaged premises — Bents and Profits of the Mortgaged property.</p> <p>A mortgage was given expressly to indemnify the mortgagee against certain specified liabilities as surety for the mortgagor, and for no other purpose; and the condition of the mortgage was, that if the mortgagor should pay, or caused to be paid, all the notes, judgments, or other' obligations, for which the mortgagee had become surety, on or before the 5th of November, 1885, and should indemnify and save harmless the mortgagee, from all loss -or payment of money by reason of such suretyship, then the mortgage to be void, otherwise to be and remain in full force. The mortgagee took possession of the mortgaged premises sometime after the execution of the mortgage, and while the mortgagor was confined in jail, and was proceeding to gather and ship the crop of strawberries until stopped by the levy and sale under an execution against the mortgagor. On the 30th of June, 1885, the mortgagee brought an action of trespass on the case against the sheriff for levying upon and selling, by virtue of said execution, a crop of onions, and a crop of strawberries, growing on the mortgaged premises. Down to the time of bringing the suit, the mortgagee had not been required to pay any. portion of the debts for which she was surety for the mortgagor. Held :</p> <p>1st. That the mortgagee was not entitled, by the terms and condition of the mortgage, to enter upon and assume possession of the land before the condition was broken; that is to say, the failure of the mortgagor to pay all of the indebtedness for which the mortgagee was surety, on or by the 5th of November, 1885, or • to indemnify and save harmless the mortgagee from all loss or payment of money, by reason of such suretyship, before that day.</p> <p>3'nd. That consequently the mortgagee was not entitled to maintain an action on the case against the sheriff for seizing and selling the emblements growing on the land.</p> <p>Where from the nature of a mortgage and the terms employed, the fair and reasonable implication is, that it was intended that the mortgagor should remain in possession until default made, the mortgagee has no right of entry, or to the exclusive possession, until the time designated in the mortgage. Until then the mortgagor is regarded both at law and in equity, as the substantial owner of the property.</p> <p>Although the mortgagee, while not having such possession as will enable him to maintain trespass for a wrongful or fraudulent injury to the premises, may have an action on the case against the mortgagor or other person who has committed the wrongful act, yet, to entitle him to maintain such action, it is essential to allege and prove that the mortgage security has been in fact impaired, and that the security in consequence of the injury is insufficient to secure the mortgagee against loss.</p> <p>So long as the mortgagor is entitled to the possession of the mortgaged premises, the rents and profits thereof belong to the tenant in possession, whether such tenant be the mortgagor or a third person claiming under him.</p>

The case is stated in the opinion of the Court. Charles E. Lanver, one of the administrators of Margaret Reister, deceased, and Samuel A. Lanver, one of the sureties on the administration bond, were not joined as defendants in the action, for the reason that they did not reside in Baltimore County. A verdict was rendered for the plaintiff for $1,816.91, and judgment was entered accordingly.

The case is stated in the opinion of the Court. Exception. — At the trial the plaintiffs offered the six following prayers: 1. That there is no evidence in this cause from which the jury can find that the contracts for the purchase and sale of wheat made in Chicago, testified to by the witnesses Walter F. Cobb and Henry P. Darlington, were not bona fide and lawful contracts. 2.

The bill in this case was filed by Milton B. S. Bussard, as administrator of Henry Bussard, deceased, for the foreclosure of a mortgage made by William H. B. Dorsey and Fannie Y. E, Dorsey his wife, and assigned to said Bussard, by whom it had been released. It was claimed in the bill that the mortgage had been released by mistake, and that the complainant was entitled to a foreclosure notwithstanding the release.

The case is stated in the opinion of the Court. The case was tried below upon an agreed statement of facts, •and judgment was entered for defendant’s costs of suit. The plaintiff appealed.

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

This appeal was taken from a, pro forma decree dissolving the injunction theretofore granted, and dismissing the bill of complaint. The case is stated in the opinion of the Court.

<p>Instructions to the Jury as to the legal Insufficiency of Evidence— Warrant of Arrest — Distinctions between Actions for Malicious Arrest, and for False Imprisonment.</p> <p>The power and duty of a Court in a proper case, to instruct the jury as to the legal insufficiency of evidence to prove a particular fact sought to be proved by it, has been too often determined to admit of further question or doubt.</p> <p>A paper containing no command to arrest, but simply a recital of a charge made on oath by the affiant against certain named parties, is totally void on its face as a warrant of arrest, and affords no protection whatever, either to the constable who acted under it, or to the magistrate who issued it.</p> <p>The distinction between an arrest by an officer under a warrant legally issued and coming to his hands in a lawful manner, and one made without warrant, or under process from a Court having no authority to issue it, is that in the one case the officer is protected ; in the other ho commits a trespass for which he and his abettors are liable in damages.</p> <p>The action for false imprisonment is a suit for trespass, and that for malicious prosecution is an action on the case. The former can be maintained only when the arrest is made without legal process; and the latter when the process of the law has been perverted and improperly used without probable cause, and for a malicious purpose.</p> <p>In malicious prosecution the officer issuing the process or making the arrest under it incurs no liability; the whole responsibility is upon the party procuring it In false imprisonment, the arresting officer, and the party inducing the arrest, and the magistrate assuming to issue the unauthorized warrant, are all liable as joint trespassers.</p> <p>In malicious prosecution, malice and want of probable cause must be alleged; in false imprisonment neither is a necessary averment, but probable cause may go in mitigation of damages, although not in bar of the action.</p> <p>It is not any formal defect or irregularity, even though appearing on its face, that will be sufficient to vitiate the writ and render the magistrate or constable liable in damages for issuing it or acting under it. On the contrary, the defect must be so glaring and palpable that any person of ordinary intelligence by merely looking ■ at and reading it, will at once pronounce it null and void, and of no effect as a warrant.</p>

<p>Equity Pleadings and Practice — Equity Buies numbers 17 and 33 — Article 16, section 117 of the Code — Multifariousness — General demurrer to Bill — Election—Statute of Limitations.</p> <p>Under the seventeenth Equity Rule as prescribed by the Judges of this Court, a defendant may by special leave of the Court at any time after the bill is taken pro confesso, and before final decree! either answer, plead or demur to the bill; but to entitle Mm to do so, he should assign some satisfactory reason in his application for leave, why the delay, and failure to appear and answer have ■ occurred, and the facts should be verified by his oath.</p> <p>But the sufficiency of the reasons assigned are not reviewable by this Court, nor are the terms upon which the party may be allowed to answer, plead or demur. These are matters of practice properly within the sound discretion of the Court or Judge to whom the application is .made. That discretion, however, should always be exercised so as to prevent delay and to promote justice.</p> <p>The seventeenth Equity Rule does not, in any manner, .repeal or change the requirements of section 117, of Article-16 of the Code; it only extends the provisions of that section to the right to plead or demur, as well as to answer under oath.</p> <p>A bill filed in the year 1884, sought by appropriate allegations to . obtain a decree, for a sale of the real estate mentioned, of which W. J. B. died seized and possessed, for purposes of partition among the parties entitled, under section 99, of Article 16 of the Code, and also sought the enforcement and foreclosure of a certain mortgage of the same real estate, held by the complainants as assignees of the mortgagee, the said mortgage having been made by W. J. B., the intestate, on the 18th of April, 1856, payable five years after its date. On general demurrer to the bill, and a plea of the Statute of Limitations, both filed by leave of the Court after a decree pro confesso had been passed against the defendant, it was Held :</p> <p>1st. That the bill was multifarious; and the demurrer should have been sustained, and the complainants put to their election as to which subject-matter for relief they would proceed, and the bill, as to the matter misjoined, should have been dismissed under Equity Rule 33.</p> <p>2nd. That the p'lea of the Statute of Limitations was not precluded by the passage of the order taking the bill as confessed.</p> <p>3rd. That the leave to plead or answer to the bill, entitled the defendant to avail himself of any defence to which the case made by the bill w'as subject; and the defence of the Statute of Limitations was equally open to the defendant as that of any other defence which he could set up by plea or answer.</p> <p>4th. That the Statute could be availed of as a defence by demurrer to the bill, where, as in this case, there were no facts or circumstances alleged to relieve the mortgage claim from the operation of the Statute; and such being the case, the defence of Limitations properly arose under the general demurrer to the bill.</p>

<p>Rule relating to Appeals — Right of Cleric — Duty of Appellant — Dismissal of Appeal. . .</p> <p>The neglect, omission or inability of the clerk of the lower Court to transmit the record of a case to the Court of Appeals, within the time prescribed by the rule, will not be presumed, it must be shown by the appellant.</p> <p>The clerk has the right to retain the transcript until the costs of making it out are paid, and is not bound to transmit it before they are paid.</p> <p>It is the duty of the appellant to ascertain when the record is made out, and pay for it, in time for its transmission to this Court before the expiration of the three months.</p> <p>It is not the duty of the clerk to notify the appellant or his counsel when the record is completed, and demand payment therefor.</p> <p>If the failure to transmit the transcript within the time required, be due to the non-payment of the costs for the same by the appellant,^ the clerk is not in fault, and the ajipeal will be dismissed.</p>

The case is stated in the opinion of the Court. Exception. — The plaintiff offered the following prayer : If the jury find that the letter of the 20th of August, 1883, was by the defendant given to the plaintiff as the contract of employment of the plaintiff by the defendant, and was assented to by the plaintiff, then the contract was for one year; and if the jury find that the plaintiff entered into the employment mentioned in said letter, and so continued up to the 20th of…

<p>Writ of '.Error — Belay in Applying for Writ — Bismissal •of \ Writ — Rule 28, Relating to Appeals.</p> <p>Rule 27, Relating to Appeals, requires appeals in civil cases to bo taken within two months from the date of the judgment. Rule 28, provides that “ the aforegoing rule shall not apply to criminal cases, but in all such cases the appeal or writ of error allowed by law, shall be taken -without delay, and the transcript of the record shall, forthwith, or as soon as the same can be made out, be transmitted to the Court of Appeals.” A demurrer to an indictment was sustained and the indictment quashed on the 10th of March, 1886. On the 1st of April following, the State sued out a writ of error to. have the case reviewed by the Court of Appeals. On a motion to dismiss the writ of error, upon the ground that it was not taken without delay, it was Held :</p> <p>That the delay of twenty-one days in suing out the writ after judgment rendered, was an infraction of the rule, and the motion to dismiss should prevail.</p>

<p>Writ of Error — Delay in applging for Writ — Dismissal of Writ — Rule 28, Relating to Appeals.</p> <p>Whore on a demurrer to an indictment, the Court gave judgment sustaining the demurrer on the 10th of March, 1886, and a wilt of error was not applied for until the 17th of April following, the writ will be dismissed by the Appellate Court, for the reason that the delay of thirty-seven days between the judgment and the application for the writ, was an infraction of rule twenty-eight, Delating to Appeals, which requires that in criminal cases the appeal or writ of error allowed by law, shall be taken icithout delay.</p>

The case is stated in the opinion of the Court. The Orphans’ Court of Baltimore City in sending issues to the Court of Common Pleas, to be tried by a jury, ordered that Martha Ann Taylor and others should be plaintiffs, and William Brown, Senior, and others should be defendants. First and Second Exceptions sufficiently stated in the opinion of the Court. Third Exception. — The defendants offered the five following prayers: 1.

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

Exception. — The plaintiff asked the following instruction : If the jury find that the defendant signed, sealed and delivered the agreement dated the 80th of November, 1874, between himself and the plaintiff, which has been offered in evidence, and purchased, upon the terms therein mentioned, a combined reaper and mower of the plaintiff, and prior to the first day of August, 1875,’sold the same to Richard Thomas, and took from said Thomas the promissory note offered in…

On the 14th of October, 1870, William Holmes and wife, leased to the Peabody Heights Company, for ninety-nine years, certain property in Baltimore County, near the limits of Baltimore City, at an annual rental of $9,000.

The case is stated in the opinion of the Court. The plaintiff excepted to the ruling of the Court upon the instructions ashed. The jury found for the defendants for the sum of $26.66. The defendants entered a remittitur for the amount so found hy the jury in their favor. The Court (Lynch and Yinson, J.) subsequently ordered that the plaintiff pay the costs of the suit. The plaintiff appealed..

The case, together with the first, second, third ixnd fourth exceptions, are stated in the opinion of the Court. Fifth Exception. — The plaintiff offered the three following prayers, which the Court (Full Bench) granted: 1.

The case is stated in the opinion of the Court. Exception. — ¡The plaintiffs offered the two following prayers: 1. That if the jury believe from the evidence that the words charged in the declaration were spoken of and concerning tlie said Jane E. Sweeting, by the defendant, Leah J. Padgett, then the plaintiffs are entitled to recover in this action. 2.

The case is stated in the opinion of the Court. The-interlocutory decree of tbe 9th of December, 1882, therein referred to, is as follows: “It is, this 9th day of December, 1882, adjudged, ordered and decreed, that Thomas Owings, Esqr., be, and he is. hereby, appointed trustee, to 'receive from the complainant the sum of four thousand dollars, with interest, and securely invest'the same, paying to the respondent, Josephine Plummer, the income thereof during her life, and…

Tbe bill in tbis case was filed by William J. Pool against Jacob S. Rosenthal. The case is stated in tbe op'inion of tbis Court. Tbe Court below (Brown, C. J.) passed a decree requiring tbe defendant to pay to tbe complainant the sum of $2542.00, with interest from the 24th of June,' 1884, and annulling and setting aside.a release executed by tbe said complainant to tire said defendant, and others as tbe administrators of Thomas Dorney, deceased.

<p>Will — Bequest for a Church and Parsonage — Certainty— Valid bequest.</p> <p>A testator by Ms will, directed that his trustees should expend $50,000 in the purchase of a suitable lot of ground in or near Brooklyn, in Anne Arundel County, and should build thereon a Presbyterian Church and parsonage, $80,000 to be used for the church, and $20,000 for the parsonage and grounds. And the said trustees were authorized, empowered and directed, upon the completion of said church and parsonage; to. make a good and sufficient conveyance of said church, parsonage, and grounds, and to turn over any balance of said sum of $50,000, remaining in their hands, to such organization, or society, or association, of the Presbyterian Church, in the State of Maryland, as they in their judgment might see fit and deem best, to be used for the promotion of the worship of God, according to the forms and ceremonies of the Presbyterian Church, and for no other use whatsoever. And by a codicil it was provided: “ In explanation to the bequest to the church, in case it being carried out, I wish and desire it to be a branch of the Central Presbyterian Church, Reverend Joseph T. Smith, pastor at the present time.” The bequest was legalized by an Act of the General Assembly of Maryland. The Central' Presbyterian Church of the City of Baltimore, js a body corporate, under the laws of Maryland, and Reverend Joseph T. Smith was at the date of the execution of 'said will pastor of that church, which at the date of the execution of the will, and thereafter was known by the name of the Central Presbyterian Church, in the State of Maryland. Held :</p> <p>That the object of the bequest, as explained by the codicil was legal, and sufficiently definite, and the bequest was valid.</p>

<p>Private Corporation — Stools owned by one Person — Mortgage of Corporate property — Assignment of Stoclc — Equitable lien — Record.</p> <p>When one person becomes the sole owner of all the stock of a private corporation, he may renounce his rights under the Act of incorporation, and may conduct the business as a private individual, without corporate formalities.</p> <p>While the purchase by such person of all the stock in the corporation and all its property, does not necessarily work a surrender of the company’s franchise, it virtually, for the time being, suspends its operations as a corporation, until the election of new officers, through new stockholders purchasing from him.</p> <p>While such sole owner, he may, individually, make a valid mortgage of all the property of the corporation, and the persons who afterwards take stock from him, and participate in perpetuating the operations of the corporation, will hold subject to the mortgage.</p> <p>And with such mortgage of record, persons dealing with and trusting the corporation afterwards, will be affected with knowledge of the mortgage and be subordinated to it.</p> <p>If the sole owner of the property of the corporation, from the moment of becoming such, had concluded to conduct the business as an individual, and without corporate formalities, the mortgage executed by him would have created a valid equitable lien on the property enforceable against him and his representatives; and the execution, or attempted execution thereof by the corporation, would be wholly disregarded.</p> <p>As a general rule when the charter and by-laws require transfers of stock to be entered in the books of the company to create membership of the corporation, the old membership is not wholly destroyed, and a new membership perfected, until the transfers are so entered on the corporation books; but as between assignor and assignee of the stock, the assignee becomes the equitable owner immediately on the assignment and delivery to him of the certificate.</p>

The case is stated in the opinion of the Court. The first four exceptions are sufficiently stated in the •opinion of the Court. Fifth Exception. — Captain James E. Griggs, a witness produced by the defendant, stated in his examination-in-chief, that he was a pilot by profession, and had been since 1844, and was in command of the Ice Boat Maryland. That he had had opportunities of knowing about his character, capacity and skill as a captain of a tug.

<p>Trust deed — Legislative power — Diversion of Property from Uses declared — Reverter—Intention—Article 34 of Bill of Rights — Covenant of General Warranty — Bquity—Purchaser — Doubtful title.</p> <p>■Where a deed conveys to certain uses, and not an indefeasible title, and in consequence of the diversion of the property from the uses to which it was conveyed, any reverter thereof would occur to the grantor and his heirs-at-law, an Act of the Legislature authorizing the grantees to dispose of the property absolutely, cannot have the effect of divesting vested rights of individuals, and thus make the alienation pursuant to the Act, effectual in confirming a good and indefeasible title.</p> <p>The intention of a deed must be gathered from the expressions of the whole instrument; and it is to be construed most beneficially for the grantee. But it cannot be supposed an intention existed to grant what the cestuis que trust could not take under the prohibition of the Declaration of Bights, (Article 34.)</p> <p>The covenant of general warranty is to be construed with reference to the estate and interest which is described as conveyed; and which the habendum clause limits; and the obligation to assure which is thereby created, can and should only be held to be an obligation to assure the precise estate granted in the deed, and nothing more. Being co-extensive with the estate granted, it ceases when that ceases.</p> <p>The introduction of the word “ grant ” into' a covenant of warranty, cannot enlarge the operation of the covenant beyond that for which it was introduced and was intended, viz., to assure the particular estate granted; it cannot make it a new granting clause.</p> <p>Equity will not compel a purchaser to take a title which is not free from reasonable doubt, and which might in reasonable probability expose him to the hazards' of litigation.</p>

<p>Married woman — Sec. 1, of Art. 45 of the Gode — Earnings of Wife — Evidence—Gode—Evidence Acts — Prochein ami— Administrator — Entry of Judgments under see. 21, of Art. 29 of the Gode.</p> <p>Where a married woman brings an action, by her husband as next, friend, for the recovery of money due as the earnings of her work or labor, and which under section 7, of Article 45, of the Code, is. secured to her “sole and separate use,” the plaintiff, in order to recover, must show that she rendered the services sued for, as an independent person, on her own account, and not conjointly with, her husband or for his benefit.</p> <p>Where the suit is brought against the administrator of the person to. whom the services were rendered, the husband, as next friend, being merely a nominal party, is a competent witness under the Evidence Acts.</p> <p>The twenty-first section of Article 39 of the Code, provides, “ that in any suit against an administrator, the Court shall enter judgment against the defendant for the penalty of the bond, or damages laid in the plaintiff’s declaration and costs of suit, if the Court shall so direct, to be released upon payment of the sum ascertained to. be paid by the verdict.” Held :</p> <p>1st. That it is error to enter judgment for the penalty of the bond when the bond is not in suit. ■</p> <p>3nd. That if the bond is in suit the judgment must be for the' penalty of it; and if not, then for the damages laid in the declaration, to. be released on payment of the amount of the verdict.</p>

The appeal in this case was taken from a decree of the Court below making perpetual an injunction previously issued, restraining the appellant from tearing down the building- erected upon the lot in the proceedings men- ■ tioned. The case is stated in the opinion of the Court.

<p>A ction for .Damages — Negligence—Evidence.</p> <p>The defendant, a railroad company, was the owner of a pier which was used for the accommodation of-those engaged in traffic with it. The ground abutting on the pier also belonged to the defendant, and upon it were constructed tracks for the running of cars and engines, for the purpose of conveying articles of merchandise to and from the pier, and other piers and wharves adjacent thereto. There was also a trestle, with railway tracks on it, and a gangway on the side, on which persons could walk. At the end towards the pier the ascent to, and desoent from, this trestle was by a stairway. In descending this stairway, the plaintiff, who was a steward upon a vessel lying at the pier by permission of the defendant, was injured by a fall occasioned by the broken condition of the steps. In an action to recover damages, on the ground that the injury was caused by the negligence of the defendant in not keeping the said steps in proper condition to afford a safe transit, it was Hkkd :</p> <p>1st. That under the arrangement between the defendant and the company owning the vessel, persons employed on board the vessel had a right of transit over the property of the defeudant.</p> <p>2nd. That if there was no particular road or pathway designated and set apart for their use, they were constrained to seek such route as they found open and convenient, and the only obligation resting on them was the observance of due care and caution in the avoidance of danger.</p> <p>3rd. That the defendant, however, had a right, if it saw fit, to inhibit the use of the trestle, and restrict the passengers to the use of the ground below.</p> <p>4th. That the testimony of a witness who said that a custom-house officer had directed Mm to go over the trestle, was inadmissible; it not appearing that the officer was an agent or employe of the defendant, and the direction being given not to the plaintiff but to a stranger to the cause.</p> <p>5th. That the plaintiff’s condition of health many years anterior to the accident, was inadmissible to prove his physical condition at the time of the accident.</p> <p>6th. That the defendant was entitled to prove that the steps were constructed for the use of its employes.</p> <p>7th. That it was competent for the defendant to show for what purpose the trestle was constructed, and how it had been used before it was condemned, as also that during the afternoon previous to the accident to the plaintiff, persons leaving the ship had been cautioned not to pass up the trestle.</p>

<p>Vendor and Vendee — Action on Promissory note for Purchase money — Defence—Purchaser with Notice.</p> <p>In an action on a promissory note given in part payment of the purchase money of a house, the vendee .may sot up as a defence, that the gable wall was at the time of the purchase, defective and unsafe; and may also sue the vendor to recover damages sustained by reason of his misrepresentations in regard to the wall.</p> <p>If the plaintiff, who purchased the note from the vendor, knew when ho bought it, that the vendee had sued the vendor to recover damages by reason of the latter’s misrepresentations in regard to the wall, he must be considered as a purchaser of the note with full knowledge of its infirmity.</p>

<p>Vacating judgment — Clerical JSrror or Misprision — Bill of JSxeep tion — App eal.</p> <p>Judgments should never he vacated for any other than substantial causes, and to prevent injustice made plainly to appear.</p> <p>The failure to enter a judgment in the original trial docket before entry thereof in the judgment record, a record book kept for the permanent registration of all judgments .and decrees, is nothing more than a mere clerical error or misprision, that would at once be corrected by the Court upon application for that purpose.</p> <p>The right of appeal is of no avail without the bill of exception regularly settled and signed; and its preparation is in no way dependent, upon the entry of the judgment.</p>

The case is stated in the opinion of tbe Court. The first four exceptions are taken to tbe refusal of tbe Court to exclude testimony offered by the plaintiffs to show the dangerous character of the railroad crossing; and the fifth exception was to the refusal of the Court at the conclusion of the plaintiff’s testimony, to instruct the jury that the plaintiffs had offered no evidence legally sufficient to entitle them to recover.

The case is stated in the opinion of the Court. Exception. — At the trial the plaintiff's offered three ■prayers, the third of which defining the measure of damages, was conceded and is omitted, the first and second are as follows : 1.

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

David Cassell having died, leaving a last will and testament, which was duly admitted to probate in the Orphans’ Court of Carroll County, letters testamentary thereon were granted to Abraham Cassell and Peter Engel, the executors named therein, who qualified as such with Peter Baile and Henry Baile as securities upon their bond. Abraham Cassell, one of the executors died before the filing of the declaration in this suit. The case is further stated in the opinion of the Court.

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

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

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

This suit was brought by the appellees against the appellant to recover damages for injury sustained by the female appellee who was a passenger on the road of the defendant. The case is stated in the opinion of the Court. Exception. — The plaintiffs offered the two following prayers: 1.

This appeal was taken from a decree of the Court below dismissing the bill of complaint. The case is stated in the opinion of this Court.

<p>Bedding of Oysters — Riparian rights — Aet of 1862, ch. 129— Improvements into Navigable waters — Non-resident—Limitation as to JExtent of Oyster lots — Privilege of Locating Oyster beds — License—Power of State over License — Right of Property in the Oysters deposited during the Continuance of the License.</p> <p>The bedding of oysters is not “an improvement” within the contemplation of the Act of 1863, chap. 129, defining the riparian rights, of owners of land bounding on the navigable waters of the State.</p> <p>The improvements which, under section 38, of Article 54 of the Code, as enacted by the Act of 1863, ch. 139, a proprietor of land bounding on navigable waters is entitled to make into the same, and which, with the other accretions provided for, shall pass to the successive owners of the land to which they are attached as incident to their respective estates, are such structural improvements as are subservient to the land, and which, used in connection with the land, enhance its value, or enlarge its commercial or agricultural facilities, or other utility, to an extent the land alone would be incapable of, and in this way improve it, — such as wharves, piers and landings.</p> <p>A non-resident of the State, whether he be sole or part owner of land in the State, is incapacitated from holding a lot for the planting of oysters.</p> <p>The limitation to any one person, citizen of the State, of five acres, of land nndcr water for the purpose of bedding oysters, cannot be indirectly evaded, as by transfer from original locators, so as to aggregate in the same person more lots than is by the statute allowed to one person.</p> <p>The privilege of locating oyster lots has no elements of a grant by patent, but is simply a liceiise, revocable at the pleasure of the Legislature; it is merely a personal privilege to the recipient, neither inheritable nor assignable.</p> <p>The oysters deposited by the holder of a license during its continuance, remain his personal property, with the right of selling or otherwise disposing of them; but the territory continues subject to the control of the State.</p>