Volume 67 — Maryland Reports

Appeal as upon Writ of Error, from the Circuit Court for Charles County. ■ In this case there was a general demurrer to the indictment, and the Court entered a pro forma judgment on the demurrer for the defendant, and thereuppn an appeal as upon writ of error, was taken by the State. The case is further stated in the opinion of the Court.

<p>Evidence — Confession of Guilt — When and how Admitted— Practice.</p> <p>A confession is not admissible in evidence against the prisoner unless it is freely and voluntarily made.</p> <p>Where the confession is made by the prisoner to the committing magistrate after the latter has told him that it “ would be better for him to tell the truth and have no more trouble about it,” it is inadmissible, and ought to be excluded from the jury.</p> <p>Before permitting the witness to testify in regard to the confession the Court ought to ascertain, first whether any inducement at the time or prior thereto, had been held out to the prisoner, and in the next place whether he was influenced by such inducement in making the confession.</p> <p>The preliminary question as *to the admissibility of a confession is one which ought in all cases to be decided by the Court, before it is permitted to go to the jury.</p>

-Mary’s County. This was an action of ejectment brought by A. Nicholas Combs and others, heirs-at-law of George, H. Combs, the son and devisee of Alexander Combs, deceased, against James N. Combs, to recover certain tracts of land in St. Mary’s County, which the latter claimed and held under a devise contained in the will of the said Alexander Combs. The devise will be found in the opinion of the Court.

<p>Proceeding by Mortgagee to have Mortgaged premises Sold— Usury — Equity pleading and practice — Deed and Lease held to be merely a Security for the Loan of Money — Bedding a case as between (Jo-defendants — Evidence.</p> <p>M., being the mortgagee of real estate under a deed of mortgage from 0., filed a bill in equity against 0., and T. as devisee of G., claiming that a deed of said land from O. to G., under whom T. claimed, and a cotemporaneous lease of the same land by G. to 0., made prior to said mortgage, were in effect a mortgage to secure a loan from G. to O. at a usurious rate of interest, and that she was entitled to have the true nature aud effect of said deed and lease declared, and if any amount were still due on account of said loan, that it should be ascertained under the direction of the Court; and praying for a sale of the mortgaged premises, and that the proceeds of sale be applied to the payment of incumbrances according to their legal priorities. Htjld :</p> <p>1st. That it was not necessary under the circumstances for M. to allege or show that she would be affected by the strict legal operation of the deed or lease, or that the leasehold estate would not be sufficient to satisfy her mortgage.</p> <p>2nd. That if the contention of M. in regard to the nature and effect of the deed and lease was correct, she was entitled to treat them simply as a prior incumbrance to her own mortgage, and have whatever might be due T. ascertained, and paid out of the proceeds of sale of the mortgaged premises.</p> <p>3rd. That this being a proceeding by a mortgagee to have the mortgaged premises sold, in order to determine what might be sold and what might be applied to the discharge of the plaintiff’s mortgage, it became necessary to determine the question of the validity, and the true nature and effect of the deed and lease which stood ahead of the plaintiff’s mortgage, and that question must be determined not only as between the plaintiff and the defendant T., but as between the co-defendants T. and 0., and they would be bound by the determination.</p> <p>4th. That as the amount really due T. was unknown to the plaintiff, an offer in the bill to redeem by a tender of the amount so due was impracticable, and the only equitable requirement of her, was to express her willingness, which she did, to allow Whatever was actually and fairly due.</p> <p>5th. That the evidence showed that the original transaction between G. and C. was a loan of money at a forbidden rate of interest, and that the deed and lease were adopted as means to evade the law; they were intended as security for the loan and nothing more', and such being the case, it was immaterial that the transaction was made to assume the form of a sale and lease of the land.</p> <p>If the transaction be really a borrowing and lending of money at an unlawful rate of interest, no ingenuity can give it a form that will shield it against impeachment and judicial investigation.</p> <p>As a general principle of equity procedure, if the plaintiff can plainly and with certainty get at his rights and have them determined without trying and deciding a case as between co-defendants, the Court will not enter into such case. But it will enter into and decide such case, as between co-defendants, whenever it is necessary for the fair determination of the plaintiff’s case; and the co-defendants will be bound by such determination.</p> <p>A witness being requested to produce any letters he might have relating to the matter in controversy, produced his letter-press book containing two letter-press copies of letters addressed to M., since deceased, and he supposed that the originals were duly mailed to M. On objection taken to these copies, the originals were produced taken from among the papers of M. and bearing upon their envelopes the post-marks or stamps, and postage stamps, showing the dates of their passage through the post-office, and in every particular corresponding with the letter-press copies. Held :</p> <p>That the letters thus proven and identified, were properly admissible in evidence.</p>

Appeals from the Baltimore City Court. The case is stated in the opinion of the Court. Plaintiffs’ First Exception is stated in the opinion of the Court. ’ Plaintiffs’ Second Exception is to the granting of the defendant’s first and second prayers, which are set forth in the defendant’s third exception. Defendant’s First and Second, Exceptions are not reviewed hy the Court. Defendant’s Third Exception. — At the trial the plaintiffs offered the three prayers following: 1.

<p>Mortgagor and Mortgagee — Fixtures—Constructive annexation — Injunction—Irreparable injury — Evidence—Acts and declarations of a Grantor made Subsequent to Ms Deed.</p> <p>A mortgage of a farm, “ together with the buildings and improvements thereupon, and the rights, roadways, waters, privileges, appurtenances and advantages thereto belonging or in anywise appertaining,” is broad enough to cover everything that the law would, as between mortgagor and mortgagee, determine to be a fixture.</p> <p>Machinery used in the canning business, parts of which are attached to the soil, and other parts are necessary to the use of the parts so attached, is a fixture, and as between the mortgagor and mortgagee of the land upon which it is erected, will pass to the latter.</p> <p>Where in the case of machinery, the principal part becomes a fixture by actual annexation to the soil, such part of it as may not be so physically annexed, but which if removed would leave the principal thing unfit for use, and would not of itself and standing alone be well adapted for general use elsewhere, is considered constructively annexed.</p> <p>The owner 'of a farm having thereon a large canning establishment in full operation, with a large growing crop of corn to be canned, is entitled to an injunction to prevent an attempted sale and removal of the canning machinery.</p> <p>An injury may be said to be inseparable when it cannot be measured by any known pecuniary standard. •</p> <p>The acts and declarations of a grantor subsequent to the deed cannot be received to invalidate his own deed.</p>

This is an action at law brought by the appellee, an infant, suing by next friend, against the appellant. The case is stated in the opinion of the Court. Exception. — At the trial, the plaintiff offered six prayers, the first and sixth of which as follows, were granted ; the others were rejected and not having been passed upon by the Court, are omitted: 1.

The case is stated in the opinion of the Court. The leasehold interest in the land mentioned in the opinion as conveyed to J. Alexander Preston, was, subsequently, and before the institution of the suit, acquired by the appellant. The case was tried before the Court below upon an agreed statement of facts.

<p>Appeal — Aet of 1886, eh. 184, relating to Pleadings and Practice in the Courts of Baltimore City — Practice in the Court of Appeals — Bill of Exception — Intendments in favor of a Verdict and Judgment — Practice—Exception.</p> <p>In an action against partners on a partnership note brought in the City of Baltimore under the Act of 1886, ch. 184, where the plaintiff’s cause of action verified by affidavit is filed with the declaration, no appeal will lie from the refusal of the Court below to allow one of the defendants, after the time allowed for pleading to the declaration has elapsed, to file an amended plea denying the existence of the partnership, and the authority of his co-defendant to bind him by the note sued on.</p> <p>Where the defendant had filed in proper time pleas verified by affidavit, but which did not deny the existence of the partnership nor the genuineness of the note sued on, it would be error to allow him at the trial to introduce evidence to the effect that no partnership existed as charged in the declaration.</p> <p>Where the fact of the exclusion of such evidence is certified, in the only exception taken, as part of the history of the case and trial, preceding the application to amend the pleas, but no exception is certified to that ruling orto any other ruling but the refusal of leave to amend, the propriety of such exclusion of evidence cannot be questioned on appeal.</p> <p>The bill of exception can be resorted to for no other purpose than to. judge of the questions presented by it for review.</p> <p>Where the record certifies a verdict for a specified amount, and that judgment was entered on the verdict, this is all that can be looked at by this Court, so far as the appeal is to be regarded as a simple appeal from the judgment.</p> <p>All intendments will be made to support such verdict and judgment, and this Court must and will presume that there was sufficient evidence upon which the verdict was based which formed the ground for the j ud gmen t entered.</p> <p>Where the question which tRe appellant seeks to raise is a supposed error in the conduct of the trial in allowing judgment to go with-' out sufficient evidence, or without any evidence, the point should have been made in the Court below and exception taken, to justify its consideration on appeal.</p>

At the instance of John O. Ferrall, trading as John O. Ferrall & Co., claiming to be a creditor of Ferdinand H Sieward, trading as F. H. Sieward & Co., an attachment was issued and laid in the hands of said Sieward and on certain leasehold property, and in the hands of Charles T. Farnen, trustee under a deed from said Sieward conveying all the property and estate of the grantor for the benefit of his creditors, and in the hands of others.

The case is stated ia the opiaion of the Court. First Exception. — At the trial the plaintiff offered the following prayer: 1.

<p>Dower — Equitable estate of Husband — Fraudulent conveyance to Defeat claim to Dower.</p> <p>On the 10th of November, 1879, G., who in June, 1879, had married his second wife, purchased a farm at a trustees’ sale, and paid the purchase money to the trustees. Before the sale was ratified he procured an order from the Court by which C., a grand-niece of his first wife, was substituted as purchaser in his stead. Th'e sale was afterwards ratified as made to C., and the trustees thereupon exe-' cuted a deed conveying the land to her absolutely and' unconditionally. On a bill filed by the second wife of G. after his death, to have dower laid off and assigned to her in said land, and claiming that the substitution of C. in the place of G. as purchaser and having the deed made out to her, was done with the fraudulent intent to deprive the complainant of her dower, it was Held :</p> <p>That the fraudulent intent on the part of G. was established by the evidence, and the complainant was entitled to dower.</p> <p>Whether it was necessary to prove that O. had knowledge of such fraudulent intent at the time the farm was conveyed to her, and participated therein. Quaere?</p>

This is an action brought by the appellee against the appellant to recover money claimed to be due her. The case was tried before the Court upon an agreed statement of facts, and a verdict and judgment pro forma were rendered in favor of the plaintiff. The defendant appealed. The case is stated in the opinion of the Court.

Court of Baltimore City. The appellants filed their bill against the appellee, an incorporated beneficial organization, asking for an injunction to restrain the appellee'from using any part of the funds contributed by the appellants, then in the hands, of said appellee, or which were in its hands at the time it ceased to have the right or power to act as a constituent of District Grand Lodge, No. 5, and as a part of the General Order, while the connection of the said…

<p>Loan — Gift—Debt.</p> <p>P. drew Ms check for $3800 in favor of R. and delivered it to him. P. at the time the check was drawn, made this memorandum on the stub in Ms check book: “No, 4274, 1st Oct., 1884, Charles D. Reid, loaned $3800.” There was also entered on the stub a credit to R. of about $1600, his share of the profits left after what he had drawn for that year. P. anil R. were partners in business. All checks were drawn by P., and he used the same check book for those drawn on his private account, and those on the business of the firm. R. purchased a house out of the money realized from 'the check, and received a deed for it and occupied it as a dwelling for his family. R. was living in the county, and it was much more convenient both to him and P., that he should reside in the city. In discussing the matter together, P. said to R., “get a house, and I will give you the money.” On occasions subsequent to the purchase of the house, P., in referring to the matter, stated that he had furnished the money to pay -for a house for R., and that he would never claim it back from him; and that he had to give the money to him; that there was no use in lending it. On other occasions he spoke of the money as loaned; and in January, 1886, in making out a schedule of his investments, and money due him, he included the sum of $2400 principal, and $100 interest, as a debt due by R. Held :</p> <p>That the.transaction was not a gift of money to R., but a loan, and R. was liable to the estate of P. for the amount, less the credit thereon.</p>

Appeals from the Circuit Court of Baltimore City. The decree from which these appeals are taken provided for a sale of the entire tract of land in controversy, the improved as well as the unimproved portions, making to the owners of the improved portions a proportionate allowance for the value of all beneficial, permanent improvements of the said property, according to its present improved condition, and a proportionate allowance for all such taxes and insurance as may have…

Appeals from the Circuit Court of Baltimore City. The order of the 9th of November, 1885, was a final ratification of the auditor’s report as to the claim of Francis P. Stevens, and others, to which no exceptions had been filed.

' Appeal from the Baltimore City Court. This was an action brought by the appellee against the appellant, to recover his fees as sheriff of Baltimore City, in serving subpoenas duces tecum, on the clerk of the Superior Court of Baltimore City, to bring into Court the registration books in the matter of petitions to have names stricken off the books of registration under the Act of 1882, ch. 22; and for serving subpoenas on the registers of voters of the different wards of…

<p>Trial upon Agreed statement of Facts — Joint stock Companies — Liability for calls for Unpaid subscriptions for Stock as between Assignor and Assignee — Transfer of Stock — Implied, promise — Virginia Code of 1873, ch. 57, sec. 26, relating to Shares of Stock not fully Paid up.</p> <p>Where a case is tried before the Court upon an agreed statement of facts, the Court decides as upon a special verdict or upon á demurrer.</p> <p>Although by the statute law of Virginia, each and every assignor and assignee of stock remains liable to the company for the calls that may be made upon the stock until the full par value be paid; yet as between the assignor and assignee of the shares, there is no implied promise or obligation on the part of the assignor to pay calls made subsequent to his transfer of the shares, for the relief of a prior assignor, though the latter may have been required to pay such calls to the company.</p> <p>Section 26,. chapter 57, of the Virginia Code of 1873, provides in regard to joint stock companies in that State, that “ no stock shall be assigned on the books without the assent of the company, until all the money which has become payable thereon shall have been paid; and on any assignment, the assignee and assignor shall each be liable for any instalment which may have accrued, or which may thereafter accrue, and may be proceeded against in the manner before provided.” A subscriber for twenty shares of the capital stock of a Virginia corporation, of the par value of $100 each, upon which only $15 per share had been paid, sold his stock to H. & Co., to whom it was regularly transferred on the books of the company. A new certificate was-issued to H. & Co., for one hundred shares, in which were included these twenty shares and eighty shares purchased from other persons, so that the identity of the twenty shares was merged. The one hundred shares were subsequently sold by H. & Co., in two separate lots of fifty shares each, and were regularly transferred on the books of the company. After the sale of the stock by H. & Co., a call for the payment of thirty per cent, was made upon it, which the original subscriber was sued for, and required to pay, with costs. In an action brought by him against H. & Co., to recover from them the amount he had thus been required to pay, it was Held :</p> <p>1st. That H. & Co., having transferred the stock prior to the call, were not liable.</p> <p>2nd. That H. & Co., were under no implied obligation or promise that the shares transferred should not be embraced in a certificate with other shares, or sold in different parcels.</p>

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

<p>Instruction — Insufficiency of Evidence to Sustain action.</p> <p>Where from the testimony in the case, a verdict in favor of the plaintiff could be based only upon vague suspicion or irrational conjecture, it is the duty of the Court to instruct the jury that there is no evidence legally sufficient to sustain, the action.</p> <p>A. was injured on the B. and Y. Turnpike Road, and E. became his counsel to sue the company for damages. The agreement between them was, that E. should receive for his services one-half of what might be recovered. The suit was brought, the damages claimed in the narr. being $10,000. Afterward A. compromised with the company upon receiving $500, and'executed to them a release, which was filed, and E. thereupon entered the case “ off.” Subsequently E. sued B., a stockholder of the company who had been instrumental in'bringing about the compromise, to recover damages on the ground that B. with knowledge of the contract between E. and A. for a contingent fee in the suit against the Turnpike Company, and with malice towards E., induced A. to compromise that case, and break his contract with E. Held :</p> <p>That there was no evidence in the case legally sufficient to sustain the action, and the Court below was right in thus ruling.</p>

<p>Injunction — Legal title — Jurisdiction in Equity.</p> <p>The plaintiffs filed a bill in equity to restrain the defendant from erecting a house partly upon ground claimed by the plaintiffs, and from using the wall of the plaintiffs’ house as a party wall. The defendant resisted the application and set up a title in himself. On appeal from a decree of the Court below, making the injunction perpetual, and thereby prohibiting the defendant from erecting his building, and requiring him to remove the building materials from the ground in dispute, and the joists, &c., inserted in the wall of the plaintiffs’ house, it was Held :</p> <p>1st. That the Court below erred in undertaking to determine the legal title in controversy, and in making the injunction perpetual.</p> <p>2nd. That there should be a temporary injunction prohibiting the defendant from proceeding with the erection of his building until the title had been decided in a Court of law: but as the plaintiffs neglected to apply for an injunction until the work had progressed for some time, and as a Court of equity could not ascertain the legal rights of the parties, he should not be required to remove that part which had already been erected, unless it should appear to the Court on proof, that the safety of the plaintiffs’ wall was endangered.</p> <p>3rd. That everything should, as far as possible, remain in the condition existing when the proceedings were instituted, unless the defendant should elect to remove his unfinished structure; in which case he should be required to do so without injury to the property of the plaintiffs. ’</p> <p>4th. That the plaintiffs should be required to institute immediately an action at law with a view to have their title determined ; and if they failed to do so, or having done so, were unsuccessful in maintaining their title, the injunction should be dissolved.</p> <p>5th. That if the decision of a Court of law was adverse to the claim of title set up by the defendant, the injunction should be made perpetual.</p>

Thomas H. Gaither on the 1st of December, 1886, filed bis petition in the case of the Bank of Monroe, doing a banking business in the City of Rochester, in the State of New York, against the Duffy Malt Whiskey Company of Baltimore City, a corporation under the laws of Maryland.

<p>Construction of a Will — Intermediate rents and profits, or income of Contingent Residuary devise or bequest — Accumulation of Income.</p> <p>The will of a testator, after making disposition of part of his estate, including a provision in favor of his son J. E. H., proceeds as follows: “and the rest and residue of my estate both personal and real is to be invested safely; and in the event of said J. E. H. marrying and having children, after his decease the whole shall revert to said children; but if he die without marrying, then the whole of said estate, (less, &c.,) shall revert to the three children of my brother L. H., deceased, and to the child or children of M. H., also my brother.” After the death of the testator, J. E. H., who was his only child and heir-at-law, married, and had children. On a bill filed by J. E. H. for a construction of the will, and claiming the interest or income of said residue during his life, it was Held :</p> <p>1st. That there was no ground for implying the existence of a life estate in the son of the testator in the residuary fund, or the income therefrom.</p> <p>2nd. That whether said fund was derived from real or personal estate, or from both, it should be invested, and the interest and profits therefrom should accumulate until the death of J. E. H., when it would appear to whom such fund, with the accumulated interest, would be payable under the residuary clause of the will.</p> <p>A general residuary bequest of personal property, contingent in terms, carries the intermediate income or interest; and such income or interest will be required to accumulate and form part of the residue, for the benefit of the party that may be ultimately entitled to such residue.</p> <p>A blended gift or devise of a residuary real and personal estate, though contingent in terms, carries the intermediate rents and profits of the real estate as well as the income of the personal estate.</p>

<p>Executory contract — Alleged non-performance of Contract— fiction for Damages.</p> <p>An instrument of writing under seal, purporting to be a lease, provided that it should not be binding on the lessee in any way until he should be appointed and installed by the proper officers of the Baltimore and Ohio Railroad Company, as freight and ticket agent of the said company at a particular station. The lessee, although not appointed by the officers of the railroad company as such agent, elected that said lease should be binding on him, and demanded possession of the demised premises from the lessors. They refused to deliver possession, and in consequence of such refusal, they were sued by the lessee to recover damages. The defendants demurred to the declaration. Held :</p> <p>'That the contract was to become binding upon both parties only when the plaintiff obtained the appointment of freight and ticket agent which he was seeking, and as that contingency, which was dependent upon the action of third parties, had not happened, the plaintiff was free from all obligations intended to be created by the instrument under seal, and was therefore in no position to maintain a suit against the defendants for the alleged non-performance of a contract by which he was not bound.</p>

<p>Judgment of a Justice of the Peace — Compliance toith Statutory requirements — Presumption—Validity of Judgment called in question Collaterally — Sale under Void judgment — Ratification of Sale.</p> <p>A judgment rendered by a Justice of the Peace is invalid, where it does not appear affirmatively on the face of the proceedings that the requirements of the statute giving such Justice of the Peace a limited and special j urisdiction, have been complied with. There can be no presumption of a compliance with such requirements.</p> <p>Where a judgment is rendered by a Justice of the Peace, and it does not appear affirmatively that a summons has been issued and served upon the defendant, such defect in the proceedings renders the judgment invalid, and its invalidity may be relied on in an action of ejectment where the defendant in such action seeks to rest his title upon an alleged sale made under an execution issued upon such judgment. „</p> <p>Where under a judgment of a Justice of the Peace, void upon the face of the proceedings, an execution is issued and property is levied on and sold, and a report of the sale is made by the constable to the Superior Court of Baltimore City, and an order is passed by the Court ratifying the sale, such order of ratification does not make the judgment valid.</p>

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

<p>Railroad company — Construction of Charter — Eminent domain — Act of 1876, eh. 242 — ‘Injunction—Practice in Court of Appeals — Remedy of Railroad by Amendment of its Charter, and not by Bill for Injunction.</p> <p>The general railroad law of the State — -Act of 1876, ch. 242 — provides that the certificate of incorporation of a railroad company, shall specify the name of the places of the termini of said road, and the county or counties, city or cities, through which it shall pass; and further provides that, whenever any railroad company shall find it necessary, for reasonable causes, to change the location or grade of' any portion of its road, it shall be authorized to make such changes of grade and location; not departing from the general route prescribed in the certificate of such company. The Piedmont and Cumberland Railway Company, was organized under this general law, and its charter certified that the corporation so formed was for the purpose of constructing and operating a railroad in Maryland, beginning at a point in Alleghany County, in said State, opposite the junction of the West Virginia, Central and Pittsburg Railway Company, with the Baltimore and Ohio Railroad Company, above Piedmont, in West Virginia; running thence through, or near to, the town of Westernport, in Alleghany County, Maryland, to a convenient point below Keyser, in West Virginia, where it may cross the north branch of the Potomac River into West Virginia, and also from a convenient point on the north branch of the Potomac, at or near the City of Cumberland, in Alleghany County, Maryland, to another convenient point adjacent thereto, all of the said road passing through Alleghany County, in the State of Maryland. Held :</p> <p>That the meaning of the charter of the Piedmont and Cumberland Railway Company, was that at a convenient point below Keyser, it should cross the Potomac into West Virginia, and run down on the West Virginia side of the river until near Cumberland, when it should recross into Maryland, and find its southern terminus near that city, and that its charter was valid, and the company had full power and authority to condemn a right of way over the Cookerly farm, in Alleghany County.</p> <p>Where after an injunction had been obtained enjoining a railroad company from going on the land of which the complainant had a « lease, the company not having agreed with him as to compensation, and not having condemned his interest in the land, he assigns his lease, and such fact is shown at the hearing of the case in the Court of Appeals, the order for the injunction will be reversed and the bill dismissed.</p> <p>And where the assignment of this lease was obtained for the sole purpose of throwing obstacles .in the way of the completion of the railroad, the assignee being the president of a rival road, a Court of equity will not, at the instance of such assignee, enjoin the railroad company from entering upon the leased premises to lay its railroad track over or through the same, but will leave the complainant to assert his rights, whatever they may be, in a Court of law.</p> <p>Where the lessee of land through which a railroad company desired to have a right of way, refused to sell, and the railroad company attempted to condemn the interest of such lessee and failéd to do so, the company is not entitled to an injunction to prevent a party, who, in the intéresfc of a rival company, has obtained an assignment of the lease, and refuses to sell, from obstructing its entering on the land. If the railroad company supposed it had no right to condemn, and no agreement could be reached, its only remedy was by an amendment of its charter.</p>

The appellant being arrested on the charge of murder, was taken to the office of the marshal of Police, between whom and the prisoner certain conversation took place. Finally, the prisoner confessed to the marshal that Perry had told him about ten weeks before that if he were in his place lie would make fifteen dollars.

This suit was brought by the State to recover from the Central Savings Bank of Baltimore, certain State tax on the deposits of the defendant invested in ground rents; such tax being claimed under the Act of 18*74, ch. 483. The case was tried before the Court, (Phelps, J.,) without the aid of a jury, and judgment was given for the defendant. The plaintiff appealed.

<p> Peremptory Challenge.- </p> <p>The right of peremptory challenge is a right, not to select, but simply to remecí jurors, without cause assigned.</p> <p>Where the accused has exercised the right of peremptory challenge in respect to any member of the panel, and the juror, thus challenged, has retired from the box, the Court will not allow the challenge to be recalled or withdrawn.</p>

<p>Evidence — Original entries or Memoranda — Verification of Memory of Witness.</p> <p>On the trial of certain judges and clerks of an election precinct, charged with having conspired and combined together to make false and fraudulent returns of votes cast at a municipal election held in the City of Baltimore, and with having caused to be falsely-entered on the books of the polls for said precinct at said election, large numbers of names of persons who did not vote at said election. a material question in the case wasNvliether certain persons named in the indictment as the persons whose names had been falsely entered in the poll-books as having voted at the election, did in fact vote." The State called a witness, C. who testified that he was a challenger at the precinct polls, and had a duly certified copy of the registration poll-book for that precinct, in which he checked off the names of all persons who voted; that he was at the polls all day, except at two periods of half an hour each; and that during the time of his absence he left the book in the hands of F. and'H., who acted in his place. He further stated that he checked off the names of all but one of those who voted at the polls while he was there, and that he could identify nearly all of the checks made by him in the book. The State also called F., . who stated that when C. left the polls each time, he gave said book into the custody of himself (the witness) and H., and that they returned it to O. each time when he came back; that during O’s absence, H. held the book, and that he, F., was present with H. all the time, and saw him check off the name of every man who voted. A summons was issued for H., but was returned non. est. Held :</p> <p>1st. That while said"'book would not have been admissible'as independent evidence, it was admissible, with the checks made therein, in connection with the testimony of said witnesses.</p> <p>2nd. That said book derived its importance and effect as evidence from the fact of its use, and the checks or marks that were made therein, at the polls during the progress of the election.</p> <p>3rd. That said checks or marks were to be regarded as original entries or memoranda, made cotemporaneously with the transactions to which they related.</p> <p>4th. That it was no sufficient reason for excluding said book, that C.. could not identify each and all the marks or checks placed in it by himself, and distinguish them from those made by H. or F.</p> <p>During the examination of 0., said book was offered in evidence by the State for the purpose of showing that the witness O., and F. and H., had checked off on it the name of every person who had voted at that election; and the State had further offered to follow up the proof by evidence of F. and H. as to what marks had been put in the book during the hour when it was not in 0’s possession. A.n objection to the admission of said book having been made at the time when it was offered in evidence, and overruled by the Court, — on a subsequent motion to exclude said book from the consideration of the jury, because all three of the men who held it at the polls (H. not testifying) had not been produced, in conformity with the original proffer by the State, it was Held :</p> <p>That the failure to produce H. as a witness was no cause for excluding the book from the consideration of the jury, in view of the testimony of F. who had testified that he was present and saw the name of every man who voted during the absence of C. checked off by H., and that the book in that condition was returned to C..</p> <p>Íf a witness swears that he made an entry or memorandum in accordance with the truth of the matter, as he knew it to exist at the time of the occurrence, whether he retains a present recollection of the facts or not, such entry or memorandum is admissible in evi- | dence, as a means of verification or confirmation of what the wit- / ness states from memory.</p> <p>The admissibility of such eutry or memorandum does not depend upon the distinction made in the law between primary and secondary proof</p>

<p>Rape — Evidence—Complaint of Prosecutrix — Declarations— Excluding Witnesses from Court Room — Effect of Disobedience of Order of Exclusion.</p> <p>On the trial of a prisoner charged with the commission of rape, it is competent to prove, on the examination in chief, that the party alleged to have been injured made complaint while the injury was recent; but the details and circumstances of the transaction cannot be proved on such examination by her declarations.</p> <p>At the beginning of a trial of an indictment for rape, the Court ordered that the witnesses on both sides should be excluded from the Court room, and a material and competent witness for the accused; in disobedience of the Court’s order, remained in the Court room during the examination of the witnesses. Por this reason the Court refused to allow the witness to testify. On appeal it was Held :</p> <p>That the traverser could not be deprived of the benefit of the testimony of such witness because of his misconduct in disobeying the order of the Court.</p>

<p>Jury — Striking names from List of Jurois — Joint Defendants— Challenge to the Array or Polls.</p> <p>The Code (Art. 50, secs. 9, 13,) provides that in “ all civil cases,” tried before a jury, and “ in all criminal cases where the right of peremptory challenge is not allowed,” the names of twenty persons drawn *by ballot by the clerk from the panel of petit jurors, shall be written ujion two lists, aud one of said lists shall be forthwith delivered “ to the respective parties or their counsel in the cause, and the said parties or their counsel may each strike out four persons from the said lists, and the remaining twelve persons shall be immediately impanelled and sworn as the petit jury in such case.” Held :</p> <p>That under this provision of the Code where,two persons are tried together, they constitute but one party, and can only strike out four names from the list, the privilege of striking out not extending to each individual.</p> <p>The parties, however, have the right to challenge the1 array or polls for favor or cause, and to have their cause of challenge heard and determined before the list is drawn from the box.</p>

<p>Railroad — Private Crossing — Failure to ring Bell or blow Whistle — Fvidence—Negligence.</p> <p>The failure to ring the bell or blow the whistle of a locomotive at a private crossing in the open country, guarded by gates on either side, where there was no station for passengers or freight, nor any side track, and where no trains ever stopped; where for more than twenty years no whistle had ever been sounded, nor whistling post put up, nor any request therefor made by the owners of the property entitled to use the crossing; and where the line of the railroad on either side was nearly straight, is not evidence to go to the jury of culpable negligence on the part of a railroad company.</p>

This suit was brought against the appellant by the appellee, to recover the amount of certain water bills, which she had paid to the Water Registrar of the City of Baltimore, for the running of an hydraulic elevator used in the “Albion Hotel,” which she had rented of the appellant. The casé is further stated in the opinion of the Court.

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

<p>Constitutional law — Fourteenth Amendment — Bastardy.</p> <p>The Maryland bastardy law, as embodied in the Code of 1860, provides that any magistrate upon receiving information that “ any white woman” has given birth to an illegitimate child, “may issue his warrant” for her apprehension, and when she is brought before him, “ require her to give security to indemnify the county from any charge that may accrue by means of such child, and upon neglect or refusal, shall commit her to the custody of the sheriif of the county, to be by him kept until she shall give such security;” but if she discloses on oath the father of the child, then it is made the duty of the magistrate “ to discharge her, and to cause the father to be arrested, and to give security to indemnify the county from all charges that may arise for the maintenance of the child.” It also provides that every constable having knowledge of “ any white woman having an illegitimate child, shall give information thereof to some justice of the peace of the county; and that the person •charged as being the father may be proceeded against as in other criminal cases, and may be sentenced to give security, or, in default thereof, be committed to custody, &c. On the prosecution of a person for being the father of an illegitimate child of a white woman, it was Held :</p> <p>That said law was constitutional and valid, and not in conflict with the fourteenth amendment to the Constitution of the United States, and could be enforced.</p>

<p>.Assailing a Deed, for Fraud — Insufficiency of Evidence to prove Contention of Complainants — Agreements to Allay Strife — Family Compromises.</p> <p>T5. by her will, after making certain devises and bequests, devised and bequeathed all the rest and residue of her estate, both real and personal, to her grandchildren, equally. Subsequently to the making of her will, she conveyed to W., one of said grandchildren, a farm worth double her share under the will. After the death of B., a dispute arose between W. and the other grandchildren, the latter claiming that the farm should be brought into hotchpot for distribution; and a bill to compel this was filed by them against W. .and her husband. Pending this suit, H., the mother of the grandchildren, addressed a letter, suggesting a compromise to the attorney of W., wherein she agreed to leave W. in her will an equal •share of her estate with the other children, provided W. brought the farm into hotchpot for equal distribution; and also suggesting that a compromise could be made on the basis that W. should keep the farm and allow the rest of her grandmother’s estate to be divided among the other grandchildren. An agreement was thereupon entered into,' whereby W. was to keep the farm and be excluded from any participation in the residue of the estate, real or personal, of her grandmother. Nothing was said or alluded to in the agreement in respect to any contract to secure to W. a share in her mother’s property. Afterwards the mother, in consideration of natural love and affection, made a deed conveying the greater portion of her real estate to four of her children, other than W. On a bill filed by W. and her husband against the mother and her said grantees, assailing said deed for fraud, it was Held :</p> <p>1st. That agreements entered into to allay strife, and secure the peace of" families, will be supported and enforced in equity at the instance of any of the parties who are to take a benefit under the arrangement, even though the party seeking to enforce it may not have contributed any portion of the consideration.</p> <p>2nd. That the prima fade case as disclosed in the-written evidence was clearly against the complainants; and the parol evidence offered, supplementary to the written evidence, to prove that it was a term or ingredient in the compromise arrangement that W. should share equally with the other children in her mother’s estate, was insufficient to establish the contention of the complainants.</p> <p>Wherever doubts or disputes have arisen with regard to the rights of different members of the same family, and fair compromises have been entered into to preserve the harmony and affection, or to save the honor of the family, those arrangements have been sustained by Courts of equity, albeit perhaps resting upon grounds which would not have been considered satisfactory if the transaction had occurred between mere strangers.</p>

The defendant filed six pleas, the third and sixth of which are as follows: 3.

Appeals from the Baltimore City Court. The case is stated in the opinion of the Court. Exception. — The petitioners prayed the Court to grant the following prayers: 1.

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

The case is stated in the opinion of .the Court; hut it may be observed that the verdict for $108.75 embraced the ■amount ($93.75) on which the suit was brought, and interest thereon as calculated by the jury.

The case is stated in the opinion of the Court. Exception. — The plaintiff offered the following prayer: If the jury find that the defendant executed and delivered to the plaintiff the paper sued on, for the purpose of inducing the plaintiff to discount the note of the railroad company offered in evidence, and that upon the faith and credit of said paper so executed and delivered by the defendant, the plaintiff discounted the said note of the railroad company, the proceeds…

<p>Deed of Partition— Construction — Reservation of Water-righL</p> <p>The owner of a mill and the owner of a tract of land adjoining, through which the mill race flowed, claimed title under a deed of partition which reserved to the then owner of the mill, the entire water-right as then enjoyed' by the mill, with free, ingress and egress for the repairs of the dam and race, and a sufficiency of earth for said repairs. Suit was brought by the owner of the mill to recover damages for injuries to the banks and to the race, alleged to have been caused by the cattle of the owner of the adjoining tract of land, while standing in and crossing the race. Held :</p> <p>That the parties to the suit were entitled to the same rights as enjoyed by those under whom they respectively claimed, at the time the deed of partition was executed, the plaintiff to the entire water-right, and the defendant to drive his cattle across the race, or to suffer them to stand in it.</p>

<p>Railroad Relief Association — Constitution—Reasonableness of a Provision in it — Defence to Claim by Beneficiary— Pleading.</p> <p>A provision in the constitution of a Railroad Relief Association, that in all cases where death is the result of an accident, the Association will not pay the amount due to' the beneficiary of the member killed, before the person legally entitled to recover damages on account of the accident, shall release the railroad company from all claim to damages, is not so unreasonable that a Court can declare it void.</p> <p>Where a member of such Relief Association designated his mother in his application for membership, as his beneficiary, in case of his death, and upon his death, his wife and infant child, the persons legally entitled to damages if the death was the result of negligence on the part of the railroad company, not releasing the railroad company, brought suit, and recovered damages by a compromise, the mother cannot recover the benefits from the Relief Association.</p> <p>In an action against such Relief Association by the mother, the designated beneficiary, to recover the insurance, the defendant pleaded the provision of its constitution referred to, and averred that certain parties eutitled to damages on account of the accident had brought suit against the railroad company, and had recovered damages, and had not released the company. The plaintiff replied that the death was not caused by negligence on the part of the railroad, and that the parties, the wife and child of the deceased' were not entitled to recover damages unless there was such negligence. Held :</p> <p>That this replication was no answer to the plea, and the demurrer to it was properly sustained.</p>

<p>Husband and Wife — Agreement by Wife in respect of her Separate estate — Action against Husband and Wife.</p> <p>An action at law against a married woman and her husband, to recover for professional services as an attorney, performed by request of the wife in respect to her separate estate, cannot be maintained as against the wife, it not being shown that any written contract or agreement was ever entered into by the parties.</p> <p>A simple assent on tbe part of tbe husband to an agreement by his wife to pay for professional services to be rendered by an attorney, in regard to her separate estate, cannot be taken as a promise on his part to pay for such services.</p> <p>A wife employed an attorney to institute proceedings in equity to foreclose a mortgage belonging to her separate estate. Pending the suit, the wife proceeded to collect, and did receive from the mortgagor the whole amount of the mortgage debt, and by a written order, signed by both husband and wife, procured the proceedings to be entered satisfied. The wife received the money in full satisfaction of the mortgage debt. A suit was brought by the attorney against the husband and wife to recover compensation due him for his services. The declaration contained counts for moneys had and received to and for the use of the plaintiff. Held :</p> <p>That as the moneys belonged to the separate estate of the wife, were received by her and not by her husband, there could be no recovery against him.</p>

This appeal was taken from an order of the Court helow overruling exceptions to an auditor’s account, distributing the proceeds of an intestate’s real estate. The case is stated in the opinion of this Court.

<p>Scire facias — Heirs and Terr e-tenants.</p> <p>The proceeds of the sale of lands belonging to the children of a deceased judgment debtor, and which they inherited from their aunt, cannot be subjected to the payment of such judgment by virtue of a scire facias against them as heirs and terre-tenants of such judgmenf debtor.</p> <p>Appeal from the Circuit Court for Washington County. The understanding of this case will be facilitated by reference to the immediately preceding case of Kendallvs. Mondell, et al.</p> <p>Exception. — The plaintiffs asked the Court on the agreed statement of facts in the case, to find a verdict for the plaintiffs for the amount of money in the hands of the garnishees belonging to the defendant. The Court (Syester, J.,) refused the instruction, and the plaintiffs excepted and took this appeal.</p>

<p>Testamentary paper — Aet of 1884, eh. 293, requiring at least Two witnesses to Bequests of Personal estate — Obligation for the Payment of money.</p> <p>An instrument in the following form was made and delivered to the person therein named:</p> <p>“Md., September 4, 1884.</p> <p>“At my death, my estate or my executor pay to July Ann Cover three thousand dollars.</p> <p>Witness: . David Engel, of P., [seal.]</p> <p>Columbus Cover.”</p> <p>In an action of debt on this instrument, as a writing obligatory, after the death of the maker, against his executor, it was Held :</p> <p>That it was a testamentary paper and not an obligation for the payment of money, and no recovery could be had thereon.</p> <p>And this construction cannot be affected by the fact, that the instrument, being testamentary in its character, must fail of effect, because of insufficient witnesses, under the Act of 1884, ch. 293, which requires at least two witnesses to bequests of personal estate.</p> <p>To create a valid obligation for the payment of money the relation of debtor and creditor must be created and subsist in the life-time of the jDarties to the instrument, although the time of payment may be deferred until after the death of one of the parties.</p>

. Anna L. Shaw and Granville C. Shaw, her husband, executed a deed of trust to Erastus M. Chapin and Robert. S. 'Werden to secure the sum of $5000, due by Mrs. Shaw to Thomas Weaver.

<p>Mechanics’ lien — Release.</p> <p>Certain material-men contracted to furnish brick to be used in the erection of certain dwelling-houses in the City of Baltimore; some of said dwelling-houses being on Broadway, and others on St. Joseph street. A lien claim was filed on the 1st of December, 1885, against a house on Broadway.' The first four items were for bricks delivered from the 8th of October, 1884, to the 4th of December, 1884; but there was another item for paving bricks delivered from the 10th of December, 1884, to the 16th of June, 1885. All the paving bricks furnished within six months prior to the filing of the lien claim were delivered-at and used for the houses on St. Joseph street, and not for the house on Broadway, against which the lien claim was filed. On or about the 15th of October, 1885. the lienors released their lien claim against the houses on St. Joseph street. Held: <</p> <p>That the lienors, having released all claims against the houses on St. Joseph street, could not enforce a lien against the house on Broadway for paving bricks furnished for the houses on St. Joseph street; the claim, as a lien for paving bricks furnished for the houses on St. Joseph street, had been extinguished by the release.</p>

<p>Malicious prosecution — Probable Cause — Decision of lower Court — Evidence.</p> <p>An action will lie in some cases for the malicious prosecution of a civil suit without probable or reasonable cause, although there is some conflict as to the cases embraced within the rule. But such suits are not encouraged.</p> <p>The plaintiff in an action for malicious prosecution offered in evidence the record of a proceeding in a Circuit Court of the United States to restrain an alleged infringement by him of certain patent rights, in which, on proof taken, and after argument by counsel of the respective parties, the Court was of the opinion that said patent rights had been infringed and that the plaintiff in the suit in the United States Circuit Couit was entitled to the relief prayed, but this judgment was reversed on appeal to the Supreme Court. Held:</p> <p>That the judgment thus rendered, ought to be considered conclusive as to the question of probable cause, although it was-afterward reversed on appeal, and the plaintiff was not entitled to recover.</p>

<p>Construction of Will — Contingent estate — Proceedings in Equity — Mistalce—Petition to Rescind Auditor's account, Ratified through Mistalce.</p> <p>A testator gave all his property to his wife during widowhood, but if she married again he gave her only what the law allowed her; and then provided as follows: “ and the residue of my estate I give, devise, and bequeath absolutely to all my children, to be equally divided between them,>share and share alike, the issue or descendants of any deceased child or children to take per stirpes, and not per capita, the share such child or children would have respectively taken had such child or children survived.” The widow having married again, it was Held :</p> <p>That upon her marriage the surviving child of a son of the testator who died after the testator’s death and before the widow’s re-marriage, became entitled by virtue of the will, to the share of the estate which his father would have been entitled to had he survived that event; and that no conveyance, assignment, or incumbrance placed upon the property by his father in his life-time could affect that right.</p> <p>After the testator’s death a bill was filed for a sale of the property left by him-, to which bill said child of testator’s deceased son was made a party defendant, and being an infant, answered by guardian. A decree for a sale was passed, and sales were made of different parcels, which were reported and ratified. Several accounts distributing the proceeds were stated and ratified, the last ratification having occurred in September, 1882. In these accounts no portion of the proceeds of sale was distributed to said child, but the whole of his share was allotted to S. who was the purchaser of the property, and claimed this share under a mortgage of h'is interest in the property made by the father of said child. In February, 1887, the child, by his next friend, filed his petition in the case against S. praying that the several audits be rescinded and that the petitioner might be allowed his share of the proceeds 0f sale, with interest. Held : That the case was one where the Court, through mere inadvertence ■ or mistake, and without having its attention called to the subject, ratified the accounts assailed by the petition, and the petition ought to be sustained.</p>

On the 23rd of December, 1884, Alfred Prince executed to Samuel Pinover a deed of trust for the benefit of creditors, whereby he conveyed “all his property and estate of any and every kind and description, except what may by law be exempted from execution.” On the 13th of February, 1885, the appellants, creditors of the grantor, caused an attachment on original process to be issued against him and laid in the hands of Pinover.

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

<p>Will — Construction of — Certainty—Bequest for a Sunday School.</p> <p>A testator bequeathed a sum of money to a Church, “ the income, interest, or proceeds thereof, to be applied to the Sunday School belonging to or attached to said Church.” The Church was a corporate body, but the Sunday School was not. Held :</p> <p>That as the Sunday School was shown to be an integral part of the Church organization, and therefore embraced within the scope of the corporate functions and work of the Church, the bequest was sufficiently definite and certain, and capable of being enforced.</p>

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

This suit was brought by Signiund. Rosenheim to recover from Lazarus Stern, trading as L. Stern & Co., for ■a breach of the following written contract; Baltimore, March 24, 1886.

Appeals from the Superior Court of Baltimore City. J. Willcox Brown and Charles D. Lowndes, co-p.artners, trading as Brown & Lowndes, sued out of the Superior Court of Baltimore City an attachment on original process, and had it laid in the hands of the Farmers and Merchants’ Rational Bank of Baltimore, on the 9th of August, 1882, to cover any moneys which might be in its hands belonging to Frank A. Thomas and Samuel K. Thomas, co-partners, trading as James P. Thomas & Co.,…

Appeal as upon Writ of Error, from the Circuit Court for Baltimore County.

<p>Appeal from the Circuit Court of Baltimore City.</p> <p>The appellants filed their hill of complaint, against the appellees, praying that an injunction might issue to restrain the defendants, their agents, servants and attorneys, from manufacturing or selling, or offering for sale plugs of tobacco of the kind described in the bill of complaint, having affixed thereon the designatory marks or tags entitled the “ Golden Chain,” or any other tags or marks so nearly resembling those of the plaintiffs filed with the bill of complaint, as to deceive persons purchasing said articles, until the matter could be heard and determined in equity. The bill also prayed that the defendants might make true and full disclosures of the sales made by them, of the amount of goods manufactured by them imitating the goods of the plaintiffs, and that they might be decreed to account therefor in full. And the bill prayed for such other and further relief as the circumstances of the case might require. Upon the bill of complaint an injunction was issued and served on the defendants. The defendants answered. Issue was joined and testimony taken; and after argument by counsel, the Court, (Dennis, J.) passed a decree dissolving the injunction previously granted, and dismissing the bill of complaint. From this decree the complainants appealed.</p>

<p>Contract of Siring — Indefinite Siring — Siring at Will— Practice in the Court of Appeals — Presumption—Svidence.</p> <p>In this country, an indefinite hiring is prima fade a hiring at will; and a hiring at so much a week, month or year, no time being specified, is, in the absence of a mutual understanding to the contrary, only an indefinite hiring.</p> <p>In an action against a corporation to recover damages for the wrongful discharge from its service, the plaintiff claimed to have been hired for a year from 1st of April, or 1st of May, 1886. The defendant asked the Court to instruct the jury that if they found that the hiring was for an indefinite length of time, and that no subsequent contract fixed a definite time, then they must find for the defendant. This instruction the Court refused, but instructed the jury that, “ to enable the plaintiff to recover he must satisfy the jury that he entered upon said employment for a year, commencing on the 1st of April, or the first of May, 1886, upon the mutual understanding and agreement of himself and defendant that it should continue for a year.” Held :</p> <p>That the refusal of the instruction furnished no ground for a reversal.</p> <p>Where the contract of hiring is for a year, and the parties do not disagree, and the service continues, the presumption is that it is under the same contract; but such presumption may be rebutted by evidence of a change of contract.</p>

<p>Contract under Seal — Action of Covenant — Claim for Extra work — Assumpsit—Inadmissib le evidence.</p> <p>Where in a sealed contract for doing work on a public avenue, it is stipulated that no claim for extra work shall be allowed under the contract, unless the same is done by written order signed by the engineer and approved by the examiners, the contractor in an action of covenant upon the contract, cannot recover for extra work, unless he alleges and shows the written order of the engineer for such extra work, and the approval of the same by the examiners.</p> <p>In an action of covenant upon a sealed contract, recóvery can only be had in accordance with the terms and stipulations therein contained.</p> <p>Where the extra work is done by the order of the defendants and accepted by them, and they expressly.promise to pay for it, having waived the written orders for such extra work and the approval thereof, the plaintiff, while not allowed to recover for such extra work on the original sealed contract, may recover for the value of such work in an action of assiOnpsit.</p> <p>Proof which is in conflict with the allegations of the pleadings in a cause, is inadmissible.</p>

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

Replevin for “ seven large shoats.” The facts of the case are these: One Pennington who was tenant of a farm, executed on the 19th of January, 1877, to his landlord, Miers, a chattel mortgage including, among other personal property, “fifteen shoats” to secure the payment of $967 with interest on the 19th of January, 1879.

<p>Justice of the Peace — Jurisdiction—Appeal to the Circuit , Court — Finality of Judgment of Circuit Court — Act of. 1882, ch. 355 — Landlord and Tenant.</p> <p>Where jurisdiction is given to a justice of the peace, and an appeal to the Circuit Court, the judgment of the Circuit Court is final; and no appeal lies therefrom to the Court of Appeals. An exception to this rule is found in the case of a justice of the peace who had no jurisdiction over the case tried before him.</p> <p>The Act of 1882, eh. 355, which gives to a single justice of the peace jurisdiction to hear and determine cases between landlords, and tenants holding over after the expiration of their terms, requires that the complaint shall be made to the justice in writing, and shall state, in substance, that the landlord had rented certain property to the tenant for a term that has then ended; that he had given the tenant notice in writing to quit, such as the law required, and that the tenant had not complied with it. When these allegations are made, jurisdiction to hear and determine the case is vested in the justice.</p>

<p>Practice in Equity — Right to file Bill to Vacate Peed for Fraud — Parties—Equity pleading —Charge of Fraud— Evidence — Art. 16, sec. 144, of the Code — Examiner—Right to have Cleric — Equity Rules — Multifariousness—Laches.</p> <p>The son of a deceased grantor has the right to file a bill to vacate the deed of such grantor for fraud, where, if the deed is vacated, he is entitled under the will of the grantor to an interest in the property embraced in the deed ; and his brothers and sisters, who also will have an interest under their father’s will in the property covered by the deed, if it is vacated, and the grantee in the deed, together with her husband, are proper parties defendant to the suit.</p> <p>No rule of equity pleading requires the pleader in charging fraud to set out the proof by which heexpects to maintain the charge; and while the law requires the fraud to be proved by clear and satisfactory testimony, it allows a broad scope for the introduction of facts and circumstances bearing even remotely upon the question.</p> <p>In a suit against the grantee in a deed to vacate the same for fraud, the Court having decided, after hearing the case on its merits, that the deed should be set aside, gave the complainant leave to amend the bill by making the grantee, who was also the executrix and trustee under the will of the grantor, a party in these capacities. After the bill was amended, the grantee appeared and answered the same as executrix and trustee, but objected to all the proof already taken, and claimed that she was not bound thereby, because she was not originally made a party as executrix and trustee. The Court refused to delay the passage of the decree or to allow further evidence to be taken in the case. On appeal it was Heed :</p> <p>That the Court was right in refusing to allow further testimony to be taken, as the grantee had ample opportunity, of which she availed herself abundantly, to take testimony in support of her title as grantee, and needed none to sustain that of executrix and trustee if the deed was set aside..</p> <p>In a suit to set aside a deed for fraud, important admissions in regard to the fraudulent obtention of the deed, contained in letters written sometime after the date of the deed by parties to the suit, are admissible in evidence.</p> <p>Under sec. 144 of Art. 16 of the Code, the examiner before whom testimony in equity cases is taken, has the right to have a clerk to write it down, but the examiner must be present when the testimony is taken. -</p> <p>After a cause was at issue, on application of the complainant, leave was granted to the parties in the usual form to take testimony before any one of the standing examiners. The examiner who was originally notified to take the testimony being too sick to act, the complainant took some testimony before another examiner, and subsequently before a third examiner. The authority of the third examiner to act having been denied by a witness, the Court on petition of the complainant -passed an order directing the testimony theretofore taken to stand as taken regularly, and authorizing the third examiner to continue taking the testimony under the original order. The solicitors of the defendants were present at the taking of all the testimony prior to the passage of this second order, and cross-examined the witnesses. Urcí,D :</p> <p>That the Court, in passing this second order violated no provision of the equity rules, nor any general rule or principle of equity practice.</p> <p>A bill seeking to have a deed vacated for fraud, is not rendered multifarious by also asking that the grantee be required to account for the rents and profits of the property she has held under the deed.</p> <p>Where a bill to have a deed vacated for fraud, is filed within three years after the date of the deed, and only about sixteen months after the death of the grantor, laches cannot be imputed to the complainant in the assertion of his right.</p>

<p>Will— Vested Estate in Remainder — Life Estate.</p> <p>L. died' in 1872, leaving a will. The testator after disposing of a part of his property, gave all the rest and residue of his estate to two persons in trust, to divide the same into two equal parts, one part to be held in trust for certain persons, the other one-half of the said rest and residue he gave to his executors, in trust to pay to his aunt during her natural life the annual sum of $600, in semi-annual payments, and the balance of the income to distribute among her children and their heirs, share and share alike; and from and after her death, to distribute the whole of the said net income among the children, during their natural lives, respectively, and from and after the death of any child of his said aunt, he gave the share of such child, to the child or children of such deceased child absolutely ; but if any of the children of his said aunt should die without issue or descendants, he gave the part or portion to which the person so dying was entitled, to the Baltimore Asylum for the Blind. The aunt had daughters, one of whom Mrs. Bailey, had two children, a son, Chancellor Bailey, and a daughter, Mrs. Love. The latter died in the life-time of her mother, intestate and without issue. Upon the death of Mrs. Bailey, the husband of Mrs. Love filed a petition for a division of the property that Mrs. Bailey was supposed to have under the will, and claimed that, as his wife had died intestate and without issue, he was entitled, as surviving husband, to the one-half of the estate. Chancellor Bailey denied this right and claimed the whole. Held :</p> <p>That Mrs. Bailey was not entitled to a vested estate in remainder under the will, but was only entitled to a life estate; and that on her death, Chancellor Bailey, her then only surviving child, took the whole share she would represent.</p>

<p>Probable cause — Evidence.</p> <p>Wheve a party obtains a judgment or decree against another, and is afterwards sued for malicious prosecution, the judgment or decree is ordinarily conclusive evidence of probable cause. But if it be shown that the judgment or decree was obtained by fraud, it is no evidence whatever of probable cause. Per Bryan, J.</p>