Volume 68 — Maryland Reports

<p>Statutory construction—Sec. 1 of Art. 2, and Sec. 40, of Art. 75 of the Code—Ejectment—Continuance of Action until Infant arrives at Full age.</p> <p>Section 1 of Article 3 of the Code provides that “ no action of ejectment, waste, partition,” &c., “ shall abate by the death of either or any of the parties to such action.” Section 40 of Article 75, provides that, “where a party in any action brought to recover lands, or in which the title thereof is involved, shall die, and the proper person to be made a party in the place of the person so dying, shall be an infant, such action shall not be tried during such infancy unless the guardian or next friend of such infant satisfy the Court that it will be for the benefit, of the infant to have the action tried during his infancy; but the action may be continued till the infant arrives at age.” Held :</p> <p>That section I of Article 3, and section 40 of Article 75, of the Code, having both been taken from the Act of 1785, ch. 80—-the first from section one, and the second from section two of that Act—and having been re-enacted at the same time in 1860, when the Code was adopted, neither has superiority over the other, and they must be construed together, and both madQ,to stand as they did in the Act of 1785, the second section as an exception to the first.</p> <p>Section 40 of Article 75 of the Code, which authorizes the suspension of the prosecution of actions until the infant defendants, however young, attain full age, is contrary to the fundamental principles of right and justice, and is therefore unconstitutional and void. Per Alvey, O. J.</p>

<p>Ship-owner—Ship-broker— Contracts for Shipments— Expert testimony—Exclusion of Evidence.</p> <p>The “Lilburn Tower” sailed from Newport, England, for Montreal, on the eleventh of June, 1884, loaded with a cargo of iron rails. The usual time for her voyage was from twelve to fourteen days. The shijj-brolrer in Montreal, being advised of the probable date of her departure, made contracts with shippers of grain and cattle for a return cargo, for “June loading,” by which was meant the shippers could cancel the contracts if the vessel was not ready to receive their shipments during the month of June. The steamer was delayed on her voyage, and did not arrive until the 28th of June; and not being ready to receive her return cargo during that month, the cattle men refused to ship a€ the contract rates, or to ship at all, except at a greatly reduced rate of freight. The broker accepted the reduced rate, which was the highest then obtainable in that port for such cargo. The owner refused to pay the broker for the services rendered and the advances made by him on account of the steamer, objecting that he made the contracts with too early a cancelling date, and was therefore chargeable with negligence. To sustain this objection the owner in an action against him by the broker, called to the stand certain ship-brokers and shipping merchants, and putting to them the hypothesis that the “ Lilburn Tower,” sailed from Newport, England, for Montreal on the 11th of June; that it ordinarily required from twfelve to fourteen days to make the passage; that upon her arrival she would have to discharge her cargo, and then be fitted to load grain in her hold, and cattle on deck,— proposed to ask each of them whether or not, under such circumstances it would have been reasonably prudent for a broker, as consignee of said vessel, to engage outward cargo from Montreal for “ June loading ; ” would it or not be prudent for such a broker to-engage grain and cattle for “ June loading; ” and whether or not it was possible for that vessel to be loaded and sail from Montreal in June? Held:'</p> <p>That the questions were not allowable, it not' being a case for the admission of expert testimony.</p> <p>Expert testimony is not admissible upon a question which the Court or jury can themselves decide upon the facts. If the relation of facts and their probable results can be determined without special, skill or study, the facts themselves must be given in evidence, and the conclusions or inferences must be drawn by the jury.</p> <p>The telegrams by cable and letters by mail between the owner of the vessel and the ship-broker had been offered in evidence, subject to exception, and, after the testimony had been closed, the ship-broker’,, the plaintiff, prayed the Court to withdraw from the consideration of the jury all of the letters which he received from the defendant,, the owner, .after the sailing of the vessel from Montreal. This. prayer the Court granted, and on appeal this ruling was affirmed, the appellate Court holding that the duty of the plaintiff had been discharged when the vessel left Montreal homeward bound, and his-liability for negligence, if he had been guilty of any, was then fixed,. and neither his rights nor his liability could be affected by any communication he may have subsequently received from the de~ fendant.</p>

<p>Written Option to Purchase land—Verbal agreement to Pix-tend time for the exercise of Option—Nudum pactum— Continuing offer to Sell—Termination of Offer.</p> <p>A. agreed in writing, in consideration of five dollars, to give to C. the option of purchasing for a given price, a lot of ground in the City of Baltimore, on or before the 1st of November, 1886. Before the expiration of the time thus limited, A. verbally agreed to extend the time for the exercise of the option by C. to the 1st of December, j.880. About the 9th of November, 1886, A. sold and convoyed the lot in question to B. Subsequently, but prior to the 1st of Deber, 1886, C. tendered to A. the sum which had been agreed up-i r a m-mianded a deed of the lot which was refused. On a bill ! í". ¡ '-■st A. and B. for a specific performance of the con-</p> <p>■"*‘.h C. it was IlMirn :</p> <p>Thai ,- ,A u consideration for the verbal promise or agreement to q 1 ,i. the exercise of the option, such promise was a mere re*. , 'ind therefore not enforceable.</p> <p>After the first of November, 1886, the verbal agreement of A. operated simply as a mere continuing offer at the price previously fixed, and which offer only continued until it should be withdrawn or otherwise ended by some act of his; but he was entirely at liberty at any time, before acceptance, to withdraw the offer; and the subsequent sale and transfer of the property to B. had the effect of at once terruinating the offer to O.</p>

This suit was brought by the appellee against Mary E. Baumgartner, administratrix of Frederick C. Baumgartner, deceased, and Henry Gunther. Pending the suit, Henry Gunther died, and Elizabeth Gunther, his widow, was appointed his administratrix, and as such was made a party defendant to the suit. This appeal was taken from an order of the Court below, overruling exceptions to certain accounts of the Auditor and finally ratifying said accounts.

The plaintiff recovered a judgment for $3000, and the defendant took this appeal. The case is stated in the opinion of the Court.

<p> Construction of Contract—Demurrer—Waiver of Antecedent stipulations—Measure of Damages—Independent stipulations. </p> <p>B. and R. having bought and partitioned between them certain land in Baltimore County near the limits of Baltimore City, entered into a contract to grade and pave certain streets named, and particularly designated on a plat prepared for the purpose. The time within which each street was to be graded and paved was provided for by a distinct and separate clause of thecontract. .One of these clauses contained the stipulation, that the parties should within six years grade and pave Lanvale Street from Florence Street to Jordan Street. There was a tacit waiver in regard to the other streets named in the contract. When the time limited for grading and paving Lanvale Street was about to expire R. announced his readiness to comply with the obligation imposed on him by the clause in the contract relating to this street, and required of B. performance of his part of said contract. B. refused, and R. then proceeded to grade and . pave a portion of said street extending through his own property, the condition of this part being such that it had become a nuisance subjecting him to an indictment. When the work was done R. sued B. in assumpsit for the recovery of damages resulting from an alleged breach of the contract. Besides the money counts, the declaration contained two other counts specially setting forth the contract, and alleging the breaches. A demurrer to these two counts was overruled, and a trial was had, which resulted in a verdict for the plaintiff. On appeal, it was Held :</p> <p>1st. That there was no error in overruling the demurrer.</p> <p>2nd. That the mutual waiver of the antecedent stipulations in the contract did not impair the obligation of the stipulation sued on, there being nothing on the face of the contract making one stipulation a condition precedent to another.</p> <p>3rd. That one-half of the amount exjjended by R. in putting a part of the street in good condition, by grading and paving it, was the proper measure of the damages he was entitled to recover from B.</p> <p>Whether a contract must be sued on as an entirety, or is divisible, and can become the foundation of Separate suits, for the infraction of independent stipulations, depends on its terms; and, in order to arrive at a correct construction, due regard must be had to the intention of the contracting parties, as revealed by the language employed, and the subject-matter to which it has reference.</p> <p>On a failure to perform distinct and independent stipulations in a contract, there are as many causes of action as there are breaches.</p>

This appeal was taken from an order finally ratifying the report and account of the auditor which showed an overpayment by the appellee, James A. Hilleary, to the appellant. The case is stated in the opinion of the Court.

This suit was brought by Gottfried Ott to recover from Joseph Kaufman damages for assaulting and beating the plaintiffs wife, by which he lost her services and incurred expense in medical and other attendance upon her. Pending the suit the defendant died. His death was suggested, and Anna Mary Kaufman, by order of the Court,, was made a party defendant to the suit, as his executrix, and in her own right.

<p>County Commissioners—Jurisdiction— Opening roads—Act of 1878, eh. 35C>—Writ of Error.</p> <p>The exclusive jurisdiction in regard to the opening of public roads, possessed by the County Commissioners is given by the general law applicable to all the Counties in the State.</p> <p>The local law of 3878, ch. 356, relating to Harford County, does not confer jurisdiction, but merely designates the mode and manner in which the jurisdiction given by the general law shall be exercised in respect to the publication of notices and other papers. It does not apply to the petition and notice coming from persons applying for the opening, altering, locating or widening of any road ; and a non-compliance with its provisions will not affect the question of jurisdiction.</p> <p>The Act of 1878, ch. 356, is intended to apply to the publication of notices and other papers by the Commissioners of Harford County, after they have proceeded to exercise the jurisdiction conferred by the general law. And if in the exercise of such jurisdiction they deviate from the provisions of the local law with respect to the publication of any notice or other paper, they commit an error, that can be corrected on an appeal to the Circuit Court; but if the Circuit Court commit errors they cannot be examined and corrected in the Court of Appeals, as the statute which gives appellate jurisdiction to the Circuit Court, declares that its judgment shall be final and conclusive. And the same principle applies when the case is brought to the Court of A-ppeals by writ of error.</p>

This suit was instituted in the Baltimore City Court, and on suggestion was removed to the Circuit Court for Howard County. The case is stated in the opinion of this Court.

Appeal and Writ oe Error from the Circuit Court for Cecil County. The defendant in error sued the plaintiffs in error on the 14th of September, 1886, in an action of assumpsit. The declaration counted first upon a promisory note for $300, dated the 22nd of February, 1886, payable in six months with interest from date, and to this count were added the common counts for money had and received, for goods sold and delivered, and for money found due on an account stated.

<p>Bill of Review—Laches—Estoppel—Inadequacy of price— Counsel and Client—Actual or Constructive Knowledge— Parties.</p> <p>A subpoena was issued against a defendant corporation. Upon the writ the defendant’s solicitor entered admission of service, and subscribed it, and the sheriff returned the writ “ summoned.” The complainants asked for and obtained an interlocutory decree for want of appearance, took testimony under it, and asked for and obtained a decree, under which an interest in real estate was sold. The proceeds of sale were distributed among the parties, and the complainants received and some gave releases for their shares. The decree for sale was passed in April, 1874, the sale was made in October, 1881, and was finally ratified in April, 1883. On the 4th of April, 1885, some of the complainants filed a bill of review against their co-complainants who were living, the assignees of a co-complainant and the defendant, to set a side the decree on the ground that the defendant had not been summoned, and for other alleged irregularities. Held :</p> <p>1st. That both on the ground of laches and estoppel, the complainants were not entitled to the relief sought.</p> <p>2nd. That having claimed the benefit of the return of the sheriff, and acted under it in obtaining the decree for sale, and having required the sale to be made, and received their share of the purchase money, it required a very strong case of serious injury to the parties complaining to justify the Court in entertaining a bill of review.</p> <p>3rd. That the price for which the property was sold could have no bearing on the question whether the decree for a sale was right or wrong.</p> <p>4th. That the complainants had failed to file their bill of review within the time which practice in this Slate has thoroughly established as necessary.</p> <p>5th. That as to the irregularities, of which ignorance was averred, they must have been known to their counsel, or ought to have been, and the complainants were to be held as affected by his actual or constructive knowledge, in the absence of any fraud practiced on them by him.</p> <p>6th. That if the title of the purchaser under the decree were affected by any defect in the proceedings, the complainants were not the persons to seek to remedy it.</p>

The appellants filed a bill against the appellees, Joseph Logsdon, and his wife, for the foreclosure of a mortgage made by them purporting on its face to secure the payment of two. notes for $700, each, drawn by said Joseph Logs-don iri favor of the appellants, dated the 22nd of June, 1883, and payable respectively in six and eighteen months, with interest from date.

The ease is stated in the opinion of the Court. First Exception.—At the trial the plaintiffs offered the following prayer, which the Court (Hoffman and Syester, J.,) rejected: That if the jury find from the evidence that the defendant built the culvert or underground sewer spoken of by the witnesses, leading from a point on Bowery street opposite Charles street, diagonally across said Bowery street, and emptying on the south side thereof, and that said culvert or sewer was…

The appeal in this case was taken from the order of the Court below, dismissing, with costs, the petition of the Postal Telegraph Cable Company, praying to be admitted a party to the cause for the purpose of defending its rights in the premises. The case is stated in the opinion of this Court.

<p> Patent for Land—Special proclamation Warrant—Title to Land—Instruction to Jury—Doctrine of Relation—Common warrant—Certificate of Surveyor. </p> <p>In an action of trespass quare clausum fregit, the title to the locus in quo was claimed by the plaintiffs under a patent for “ Republic,” dated the 5th of September, 1796, that purported to have been granted on a certificate of resurvey made and returned to the Land Office on the 10th of March, 1794. The defendant claimed title under a patent for a tract of land called “ Mount Pisgah,” dated the 15th of July, 1795, but the certificate on which it was granted was not made and returned into the Land Office until the 29th of September, 1794. Both patents, however, were issued under special proclamation warrants; that for “ Mount Pisgah,” being dated the 4th of October, 1798, and that for “ Republic,” the 21st of March, 1794. Held :</p> <p>That the defendant had the superior title to the land in dispute, as under a special warrant, which on its face designates and describes the particular land intended to be affected, the title begins with the date of the warrant.</p> <p>Where on the trial of an action of trespass quare clausum fregit, for mining coal on the location of the plaintiffs, they, after offering in evidence their title papers, gave evidence tending to prove that they were correctly located on the plats, and that the defendant had mined coal within the lines of their tract as so located, and proved that all of said places of alleged trespass were within the lines of the defendant’s tract as located by it, and where the two tracts lay foul of each other as located on the plats, a prayer by the defendant that instructed the jury that if they found the issual of the warrant and patent for the tract of the defendant, and the mesne conveyances and facts as to the derivation of title thereto to the defendant, then their verdict must be for the defendant, was not defective, because it assumed that the defendant’s location of the place of the trespass as within the lines of said tract was correct, the plaintiffs having themselves proved and admitted the correctness of such location.</p> <p>The doctrine of relation is founded on common law principles, and under it the title begins with the first authoritative and certain designation or description of the particular tract of land intended to be tafeen up.</p> <p>In the case of a common warrant, that simply directs the surveyor to lay out a specified quantity of land, anywhere, without regard to any particular space or tract, the certificate of the surveyor first contains the requisite description or designation, and the title commences from the date of such certificate. But in case of special warrants ■ that on their face designate and describe the particular land intended to be affected, the title begins with the date of the warrant.</p>

This was an action of ejectment instituted by the appellant to recover of the appellees an undivided one-sixth interest in a lot of ground in the City of Baltimore, described in the declaration. The case is stated in the opinion of the Court.

This is au action for the breach of a written contract under seal, brought by the appellants, Cecil Wallace Mitchell and Lydia P. Mitchell, his wife, against the appellees, Alexander J. Wedderburn and Jane Sarah Wedderhurn, his wife. The contract is signed and sealed by all the parties, the husbands uniting therein “in testimony of their assent to all the covenants contained (therein) on the part of their respective wives.” The case is stated in the opinion of the Court.

<p>High License Act—Election—Majority of Votes cast—Voters absent— Voters present icho Abstain from Voting—Acquiescence.</p> <p>Section 7, of the Act of 3886, ch. 248, “to regulate the sale of spirituous, fermented and intoxicating liquors in Washington County,” provides that “the voters of said county, at the general election then to be held, shall determine by ballot -whether or not the provisions of this Act shall go into effect in said county ; ” that “ those favoring the Act-will cast their-ballots with the words written or printed thereon, ‘ For the High License Law; ’ and those opposing the Act will cast their ballots with the words written or printed thereon, ‘ Against the High License Law; ’ ” and that “ it shall be the duty of the judges of said election to make a full return of the ballots cast as aforesaid, as now provided by law, to the clerk of the Circuit Court for Washington County, who, upon the certified returns, shall immediately make proclamation as to the result of said election.” Section 8, of said Act, provides “that if a majority of the voters of said county, shall determine by their ballots in favor of the ‘High License Law,’ and the clerk of said Court shall so pro claim to the people of said county, the provisions of this Act shall take effect on the first day of May, 1887.” Held :</p> <p>That sections, seven and eight, construed together, mean that the Act was to become operative and effective if it received, at the general election referred to, the approval of a majority of the voters of the county voting on that subject. •</p> <p>When an election is held at which a subject-matter is to be determined by a majority of the voters entitled to cast ballots thereat, those absenting themselves, and those who, beingpresent, abstain from voting, are considered as acquiescing in the result‘declared by a majority of those actually voting, even though, in point of fact, but a minority of those entitled to vote really do voie.</p>

<p>Practice in Orphans’ Court—Administrator—His duties—r Allowances to Administrator on Contest of Will—Costs— Interest on Funds in hands of Administrator—Commissions—Action of Orphans’ Court not Beviewable on Appeal.</p> <p>Letters of administration were granted in this State to A. J. D. on the estate of his brother, who died in another State, and it was supposed intestate. Subsequently a will was-discovered. The establishment of said will was unsuccessfully resisted in the State of the decedent’s domicil, by A. J. D. on behalf of himself, and the other next of kin, who gave him a power of attorney to act for them. After the establishment of the will the letters granted to A. J. D. in this State were revoked, and new letters issued. A. J. D. then stated an account of his partial administration of the estate before the revocation of his letters, which was passed by the Orphans’ Court, exparte, without notice. In this account he was allowed for his services, expenses, attorney’s fees, and various costs incurred in the litigation over the will in the State where it was contested, as also ten per cent, commissions. Subsequently, on application, the order of approval was stricken out. Held :</p> <p>1st. That as this account was passed ex parte, the Orphans’ Court,, on exceptions specifically filed, had the power to review, within a reasonable time, its action, if found to have been improvident, and to reduce the rate of commissions, and rescind allowances erroneously made.</p> <p>2nd. That said account improperly allowed the administrator his claim for personal services, and expenses, incident to the litigation over said will in the State where it was contested.</p> <p>3rd. That the costs of such litigation were in no sense, costs of his administration or of duties pertaining to it.</p> <p>4th. That the administrator was under no obligation to resist the probate of said will.</p> <p>oth. That the administrator having admitted that he was paid by a Bank, a certain rate of interest on all the funds of the estate deposited by him in said Bank, he was accountable for interest at that rate, not only on the cash actually deposited, but also on that in his hands, which he ought to have deposited.</p> <p>The fact that an administrator has paid the State tax on his commissions as allowed by the Orphans’ Court, will not prevent the Court from afterwards reducing the rate of such commissions, on sufficient cause shown; and such action of the Orphans’ Court is not reviewable on appeal.</p>

<p>Lottery ticket—Sec. 171, of Art. 72, of the Revised (Jode— Indictment—Evidence.</p> <p>Section 171 of Article 72, of the Revised Code, enacts that the Courts shall construe liberally the provisions relating to lotteries, “ and shall adjudge all tickets, parts of tickets, certificates, or any other device whatsoever, by which money or any other thing is to be paid or delivered on the happening of any event or contingency in the nature of a lottery, to be lottery tickets.” Under an indictment charging the traverser with having sold a lottery ticket, evidence that he had sold to the person named in the indictment, pieces of paper commonly known as “policies,” that entitled the purchaser to receive a specified sum of money on the happening of the contingency of certain numbers being drawn in a lottery of the same date, is relevant to the issue and admissible.</p>

<p>Insolvency—Final order of Discharge—Appeal from an Order in Insolvency—Sec. 6, of Art. 71, of Revised Code—Jurisdiction of Court of Appeals—Certificate of Court.</p> <p>From an order for the Anal discharge of a debtor in insolvency, a creditor has his right of appeal within the time and in the manner prescribed by law. But if he does not avail himself of the right within the time prescribed, he cannot be allowed to revive the right by a petition subsequently filed, setting out defects and omissions in the proceedings.</p> <p>Where to such petition an answer is filed, and upon hearing the petition and answer, the Court below simply orders the petition to be dismissed, without in any manner indicating the ground of its action, and no certificate stating the questions decided, is given by the Court as required by section 6, of Article 71, of the Revised Code, the action of said Court cannot be reviewed on appeal.</p> <p>Nor has the Court of Appeals any power to pass an order upon the Court below, to furnish the certificate required by the statute.</p>

<p>Administration account—Final Settlement—Acquiescence— Lapse of Time.</p> <p>M. A. C. died in 1860, intestate, leaving her husband, one sister, and four brothers,'but no children, surviving her. She left certain real and personal property. Letters of administration were granted on her personal estate to her husband, who filed an inventory of part of such estate, but died before the estate was settled. After his death, letters testamentary were granted upon'his estate to T. O. Y. who as executor, on the 7th of April, 1869, settled an account in the estate of M. A. C. in the Orphans’ Court, and in that account charged his testator, the administrator of M. A. C. with the amount of the inventory previously filed by him, and after taking credit for sundry small items of costs, obtained a further credit for the “ rest and residue of decedent’s personal estate retained by this accountant’s testator, as husband and sole heir-at-law of deceased.” Subsequently T. C. Y. as executor, collected a mortgage held by M. A. C. at the time of her death, surrendered the mortgage notes paid to him, released the mortgage, and carried the amount thus collected into the personal estate of his testator, which he shortly thereafter settled and distributed, in the Orphans’ Court, according to his testator’s will, to the legatee thereunder. The brothers and sister of M. A. C. had full knowledge of the settlement of the account of the 7th of April, 1869, and of the distribution of the estate of the testator, and the same remained unchallenged and unquestioned by any of them during their lives. But on the 2nd of March, 1887, after the death of those brothers and of the sister, and nearly eighteen years after the settlement by T. C. Y. in the Orphans’ Court, of the aforementioned account in the estate of M. A. C. a ne2>hew of M. A. C. who had been appointed in February of that year, administrator de bonis non of her estate, filed a 23etition in the Oiphans’ Court praying that the account passed on the 7th of April, 1869, might be opened on the ground that the testator in his life-time had not reduced into 2>ossession certain personal property of his wife, and that consequently the same had been erroneously included in his estate by his executor. Held :</p> <p>That as the administration account in the estate of M. A. C. settled on the 7th of April, 1869, and the distribution of the estate of the testator, were thoroughly known to, and acquiesced in by, the next of kin during the life-time of said testator, the claim now presented for the first time, after the lapse of so many years, by some of their descendants, cannot be entertained.</p>

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

The case is stated in the opinion of the Court. First Exception.-—At the trial the defendant offered the following prayer: 1. If the jury find from the evidence in the cause, that the vouchers mentioned in the plaintiff’s bill of particulars were delivered to the witness, U. H. Painter, and being so in his hands, the plaintiff wrote and delivered to the said Painter the letter offered in evidence, in the following words and figures, to wit: “ Pocomoke City, 2, 21, ’84.

<p>Sale of Good-will—Liability for acts of a Third party— Practice in the Court of Appeals.</p> <p>McC. sold to C. W. W. the stock, good-will and fixtures of a business which had been conducted in the store No. 119 N. Calvert Street, Baltimore City, by H. from whom McC. had purchased it; and he agreed not to engage in, nor to assist H. to engage in the same business in the neigborhood of the store in which the business sold had been conducted. In an action by McC. against J. A. W. on a note for the balance of the purchase money, drawn by C. W. W. to the order of McC. and indorsed before delivery, by J. A. W. it was Held :</p> <p>1st. That the act of H. in establishing a competing business in the neighborhood of said store, could not be relied on to defeat, either wholly or partially, the right of the plaintiff to recover on said note.</p> <p>2nd. That the agreement of the plaintiff related only to his own acts, and not to those of H. over which he had no control.</p> <p>An instruction relating-to the effect of certain testimony, will not be reviewed on appeal where the testimony is not contained in the record; and tlie Appellate Court will assume, in the absence of any thing showing the contrary, that the ruling of the Court below in this respect was right.</p>

On the 8th of March, 1887, the Orphans’ Court of Baltimore City, passed an order, deciding that the following were the proper issues in the case, and directing that the same be sent for trial by a jury, to the Court of Common Pleas: 1. Did Richard S. Hardesty, in the month of November, 1882, execute a paper-writing, purporting to be his last will and testament ? 2.

<p>Lottery tickets—Policy-l>ooles—Evidence—Sec. 163, of Art. 72, of Revised Code—Record—Presumption.</p> <p>When a record transmitted to the Appellate Court presents no question for determination, the presumption that all things have been rightly and properly done, and that the decisions of a Court of competent jurisdiction are well founded and its judgments regular, must prevail.</p> <p>On the trial of a party under an indictment founded on section 168 of Article 72, of the Revised Code, that prohibits the keeping, or allowing to be kept, any office, or other place for the sale of lottery tickets, certain slips of paper known as “ policy books,” were offered in evidence by the State, and although objected to by the defendant, were admitted by the Court. The defendant excepted. The record of the case, on appeal, did not show under what circumstances the slips of paper were introduced as evidence. Held :</p> <p>That as the record did not disclose the facts relevant to the ruling excepted to, the presumption must prevail, that such ruling was-correct.</p>

<p>Assignee in Bankruptcy—Act of Congress re-establishing the Court of Commissioners of Alabama claims—Res judicata— War premiums—Reimbursement—Doctrine of Relation.</p> <p>From 1852 to the 81st of December, 1867, the appellee was a member of the firm of Stirling & Ahrens, shippers and general commission merchants, their shipping trade being carried on between the port of Baltimore, and the ports of the West Indies and of South America. The firm, between the dates of the 13th of April, 1861, and the 9th of April, 1865, paid large sums as extra or enhanced premiums, known as “ war premiums,” against loss or capture of vessels and cargoes by Confederate cruisers. Subsequently to the payment oí these premiums, changes took place in the membership of the firm, the appellee, however, remaining a member. In August, 1875, the firm, then existing under the name of Stirling, Ahrens & Company, committed an act of bankruptcy, and in December of the same year it was adjudged bankrupt, and the appellant was appointed assignee in bankruptcy of thp bankrupt firm, and of each member thereof individually, and duly assumed the trust. The Act of Congress of the 5th of June, of 1882, for re-establishing the Court of Commissioners of Alabama claims, provided for the payment of premiums for war risks, paid after the sailing of any Confederate cruiser. Under this Act, and by the judgment of the Court of Commissioners re-established thereby, the appellant, as assignee in bankruptcy, was awarded a large sum of money for the “ war premiums ” paid by the original firm of Stirling & Ahrens. In an action by the appellee, surviving partner of the original firm of Stirling & Ahrens, to recover this sum from the appellant, the assignee in bankruptcy, it was Held :</p> <p>1st. That the judgment of the Court of Commissioners of Alabama claims had no effect as res judicata.</p> <p>2nd. That no right existed in the bankrupts at the date of their bankruptcy declared, to receive reimbursement for the “ war premiums” paid, and consequently no right could pass to their assignee.</p> <p>3rd. That as the claims for allowance of such extra, or “ war premiums,” against Great Britain wore rejected by the Geneva tribunal, the provision made by the Act of Congress of the 5th of June, 1882, for the payment of such premiums, was an act of gratuity, and being so, the doctrine or principle of relation could not be invoked to give this right created by the Act of 1882, relation back to the time of .bankruptcy, and the assigment to the appellant.</p> <p>4th. That the appellee, as surviving partner of Stirling & Ahrens, was entitled to recover from the appellant the money received by him for “ war premiums.”</p>

The case is stated in the opinion of the Court. Exception.—The plaintiffs offered three prayers, the third of which was as follows: 3.

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

The petition in this case filed by the appellee, prayed that the letters of administration upon the estate of Catharine Ford, previously granted to the appellant, he revoked and annulled, and that letters of administration be granted to the petitioner. The deceased was a married woman, and at the time of her death was liable in law for debts owing by her. This appeal is taken from an order granting the prayer of the petition. The case is stated in opinion of the Court.

An attachment on original process under the Act of 1864, ch. 306, was sued out by William McLuclde against the property of David J. Williams. An attachment bond was given by McLuchie with Adam E. Hitchins as surety, and was made payable to David J. Williams, the defendant in the attachment, instead of to the State of Maryland as required by the statute.

The case is stated in the -opinion of the Court. Exception:—The petitioners offered the three following prayers, numbered two, three and four : 2.

The case is stated in the opinion of the Court. Exception:—At the trial the plaintiff offered the following prayer: If the jury find that the plaintiff owned the premises mentioned in evidence, and that the same were adjacent to the hed of the railroad operated by the defendant, and that the natural flow of the surface water accumulated northerly and easterly of said premises, was between said premises and railroad westerly and across Clinton street by an open trench or…

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

This appeal is taken from an order dismissing a petition filed by the appellant in certain equity proceedings, in which some of the appellees were plaintiffs and the others were defendants. The case is stated in the opinion of the Court.

Appeal as upon Writ oe Error, from the Circuit Court for Alleghany County. The plaintiff in error was indicted by the Grand Jury of Alleghany County, for the murder of Philip Lemmert.

The ease is stated in the opinion of the Court. Exception.—At the trial the plaintiffs offered the two following prayers : 1. If the jury find from the evidence that the defendant submitted, or caused to be submitted to the plaintiffs, the plan of the bridges to he built over the Severn and Patapsco rivers, as contained on the plat which was given in evidence, endorsed : “Bridge over Severn river, A. & B. Short Line R. R., Wm.

The case is stated in the opinion of the Court. First, second, third and fourth Exceptions, sufficiently stated in the opinion of the Court. Fifth Exception.—The testimony being closed on both sides, the plaintiffs offered the two following prayers: 1.

At the instance of the defendants, the Court (Phelps, J.) instructed the jury, that upon the plea of limitations, their verdict must be for the defendants. The plaintiff appealed. The facts of the case are sufficiently stated in the opinion of this Court.

<p>Construction of Will—Devise—Equitable Life estate—Remainder—Execution of Power of Appointment—Word “heirs'”—Executors and Administrators— Validity of Appointment under Power given by Will—Rule against Perpetuities—Void trusts—Election—Delegation of Power of Appointment—Bequests to a Class—Bequests to Individuals.</p> <p>J. A. by the third clause of his will gave certain real and personal pipperty to trustees upon the following trusts: “ In special trust and confidence nevertheless, for the use and benefit of my son A. J. during the term of his natural life, to the end and intent that he during that period be permitted and suffered to have, use, occupy, possess, and enjoy the same, and the rents, issues, profits, dividends and income, arising therefrom to take, receive, and apply to his own use and benefit. And from and immediately after the decease of my said son A. J. then in trust that the same shall descend, and I do hereby devise and bequeath the same to all and every lawful child or children the said A. J. has or may have hereafter, their heirs, executors, administrators and assigns to be equally divided between them, share and share alike.” By the tenth clause the testator authorized and empowered his five children, including A. J. as follows: “ Should either or any of them who may arrive at lawful age and have legal descendants, deem it expedient to avail themselves of the power hereby granted, they or either or any of them may, by Iheir last will and testament, devise and bequeath to their legal heirs, executors, and administrators, either in trust or absolutely, the property, real and personal, left in trust for their use and benefit, as in their discretion and judgment, they or either of them, may deem proper and right in the division and distribution of the said property real and personal. And in the event of my aforesaid named children or any one of them dying without making or executing a will or testament, then the said property, real and personal, devised to either or any of my aforesaid children shall descend to their legal heirs, executors, and administrators, under the restrictions and limitations aforesaid.” A. J. attained the age of twenty-one years and died, leaving lawful descendants, and a will which by the first clause thereof he declared to be “ executed with a view to affect and embrace all property, real and personal and mixed, of every kind and description whatsoever, which shall belong to me at the time of my death, and all that over which I have or shall have the power of testamentary disposition by virtue of my father J. A’s will, of record,” &c; “or by any other paper instrument whatsoever.” Held :</p> <p>1st. That A. J. under the will of his father had an equitable life estate in said property, with remainder to his children, subject to the right on the part of the said A. J. to appoint by his will the respective amounts or proportions of his children’s shares of that remainder, and subject to his further right to subject that remainder to a trust for the benefit of all or any of his children.</p> <p>2nd. That the word “ heirs ” in the tenth clause of said will meant children notwithstanding it was followed by the words “ executors and administrators;” which when used in wills, are often held to mean quite another person than the one implied in their strict and literal acceptation.</p> <p>By the will of A. J. he blended with his own properly, that over which he had said power of disposition by will, and directed his executors to make eight equal shares of the whole; one of which he gave in trust for each of his two daughters for her life, and then to her descendants absolutely, discharged from the trust; one other share he gave in trust for his granddaughter Mrs. W., who was born after the death of-J. A., for her life, and then to her descendants discharged from the trusts, one other share was given to each of his four sons, as to part thereof absolutely, and as to the remaining part in trust during his life and the life of his wife, and then to his descendants. The remaining share he directed to be divided into four equal parts, one of which was given in trust for and during the life of his granddaughter D. and one in trust for and during the life of his granddaughter F. with remainder in each case to their children ; and the remaining two'fourths were given respectively to his grandsons J. and A. upon their attaining respectively the age of twenty-one years, with cross remainders among said four grandchildren, in case of any of them dying, the females without issue, and the males under age and without issue living at their death. Held :</p> <p>1st. That to test the validity of the appointments in the will of A. J. under the power given by the will of his father J. A., it was necessary to read the gifts made by his will, as if they had been written in and formed part of the will of his father, in the place of the power itself therein contained.</p> <p>2nd. That as the two daughters of A. J. were living at the death of their grandfather J. A. the appointment of their shares of the settled property in trust during their lives, with remainder to their children, did not violate the rule against perpetuities, and was valid.</p> <p>3rd. That although J. and A. the grandsons of A. J. were not born till after the death of J. A., yet as they must of necessity, if they live, attain their majority, (the time fixed for the indefeasible vesting of their shares) inside of the period of twenty-one years after the termination of the life estate of J. A. their estates were not within the-rule.</p> <p>4th. That in regard to the four living sons of A. J., (all of whom were living at the death of their grandfather J. A.) so far as the trusts extend for their respective lives, they would be valid, provided their respective wives were in esse at the death of J. A. but. not otherwise.</p> <p>5th. That as to the gifts in trust for A. J’s granddaughters Mrs. W., D., and F., during their respective lives with remainders over, inasmuch as none of said granddaughters were alive during the • life-time of J. A. those gifts were void.</p> <p>6th. That the invalidity of these trusts did not affect the validity of the other trusts created by the will of A. J.</p> <p>7th. Tha.t the trusts in favor of said three granddaughters, being invalid as to the property over which A. J. had merely the power of disposition, their respective shares of that property would vest in them absolutely.</p> <p>8th. That as the property given in trust for his said granddaughters, by A. J. consisted of his own property as well as of that over which he had said power of disposition, those as to whose shares the trusts wore in part void, would be required to elect whether to take absolutely under the will of J. A. their proportion -of the property affected by said power, and relinquish all claim to participate in the estate of A. J. or to abide by the will of the latter in its entirety.</p> <p>9th. That should the fact be that the wives of the sons of A. J. were not in esse at the death of J. A. these sons, or such of them as were So situated, would also be required to make a similar election.</p> <p>10th. That the power of appointment conferred upon A. <1. by his father was properly exorcised by him, and his leaving to his executors the division of the property, was not a delegation to them of the power of appointment.</p> <p>Whore bequests are made to a class, and some of the class are in esse and capable of taking without violating the rule against perpetuities, and some are not, the whole bequest must fail. But where the bequests have been made to individuals, some of whom are capable of taking and some are not, a different consequence follows.</p>

The appellee sued the appellants to recover for damages, alleged to have been caused by the negligent act of the defendants, in setting fire to the plaintiff’s growing timber. The case is stated in the opinion of the Court.

<p> Judgment by Confession—Surprise and MistaJce—Setting aside Judgment—Bight to prescribe Condition on 'which Judgment may be Set aside. </p> <p>Where a summons was issued in due form and taken by the sheriff' to the office of an attorney, who seeing endorsed on the writ the names of parties as defendants, for whom lie was counsel, and not knowing that there was a defendant named in the writ for whom he was not counsel, but whose name did not appear on the back of the writ, told the sheriff to return the writ summoned, and that he would appear in the case, and he subsequently entered his appearance, and at the trial term confessed judgment, having no objection to make to the claim, such judgment as to the defendant for whom he was not attorney, will be stricken out, on motion alleging surprise and mistake, after the lapse of the term at which it was rendered.</p> <p>If, however, on the remand of the case, it should bo made to appear that the defendant against whom such judgment was rendered, has confessed judgments in favor of other parties, so that the plaintiffs would be in danger of being deprived of their judgment, the Court may prescribe, as a condition, on, which the judgment shall be stricken out, that the defendant shall pay into Court a sum of money sufficient to satisfy the plaintiffs’ claim in case it should be duly established.</p>

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

The case is stated in the opinion of the Court. First Exception.—Stated in the Court’s opinion. Second Exception.—The plaintiffs offered five prayers, the first of which, as follows, the Court (Hoeeman and Syester J.,) refused as offered, but granted as modified: 1. That as both plaintiffs and defendant claim title under David Shriver, they are hoth estopped from denying his title. 2.

The bill of complaint was filed by certain creditors of Jesse H. Haugh for the purpose of setting aside a deed made by said Haugh on the ninth day of May, 1883. The deed was executed by Haugh and his wife, and conveyed a lot or parcel of ground in Carroll County to Manoah Metz for the consideration (as expressed in the deed) of three thousand five hundred dollars.

<p>Pleading—Plea of Payment—Plea of Non est Pactum— Joinder of Issue—Motion in Arrest of Judgment.</p> <p>A declaration upon a scaled instrument for the payment of a certain sum of money, averred that the defendant had not paid the same. The defendant pleaded non est factum, and payment. Upon these pleas issue was joined by an entry on the docket of 11 issue joined.”After trial and verdict for the plaintiffs, upon motion in arrest of judgment, it was Held :</p> <p>1st. That the entry of “ issue joined ” was a sufficient joinder of" issue as to the plea of non est factum.</p> <p>2nd. That although the plea of payment was affirmative in form it, was in effect a denial of the allegation of non-payment in the declaration, and the joinder of issue thereon was no ground for arresting the judgment.</p>

<p> Attachment—Appeal—Execution on Judgment—Motion to Quash—Practice in Circuit Courts—Affidavits—Oral evidence—Discretionary power of the Court—Appeal. </p> <p>A defendant neglecting to avail himself, within the time prescribed by statute, of an appeal from a judgment rendered against him by a justice of the peace, cannot, on a motion to quash an execution to enforce the judgment, present the same questions for determination as could have been presented on the appeal.</p> <p>The general practice in the Courts of this State is to require the proof in support of motions to quash an execution, to be presented by affidavits ; but the rule in not inflexible, and the Court may, in the-exercise of its discretion, permit the introduction of oral evidence</p> <p>The refusal of the Court to hear an argument in support of a motion, to quash an execution, is the exercise of a discretionary power inherent in all Courts, and from such refusal no appeal will lie.</p>

<p>Parol contract—Action for Breach of Parol contract—Evidence—Amendment of Declaration—Discretion of Court— Appeal.</p> <p>In an action to recover damages for the alleged breach of a parol contract, the plaintiff in his declaration averred, that the defendants, real estate agents, agreed verbally to sell him a farm belonging to S. the price to be paid therefor, being $2,740 ; that in consideration of the payment of $200 in cash, and $800 on the 1st of April next ensuing, the defendants would loan the plaintiff the residue of the purchase money on a mortgage on the farm; that the plaintiff paid the $200, and was ready and willing to pay the $800, on the 1st of April, but that the defendants declined to furnish the money on the mortgage, as stipulated in the contract. On the trial, the plaintiff offered to prove, not that the sum of 8800 had been paid on the 1st of April, but that he had given S. a bill of sale on his personal property as security for the payment. Hki/d :</p> <p>That the evidence offered was not pertinent to the issue presented by the pleadings, and was therefore inadmissible.</p> <p>Where money is due on a certain day, the mere fact that the person to whonj it is duo and payable, does not object to its non-payment on that day does not relieve the person who had agreed to pay it at that time, from his obligation; and proof of the failure to object to such non-payment is inadmissible.</p> <p>In an action for the alleged breach of a parol contract by real estate agents to advance part of the purchase money to the purchaser of land on a sale made by them, evidence by the plaintiff to prove that the owner had agreed to accept a bill of sale for $800, part of the purchase money, instead of a payment in cash, and also the principal inducement which caused the plaintiff to enter into the agreement with the owner for the purchase of the land, is inadmissible.</p> <p>It is within the discretion of the Court to refuse to allow an amendment of the declaration after the jury has been instructed to find for the defendants, and from such refusal no appeal will lie.</p>

George W. Talbott and Henry O. McCauley, trading as Talbott and McCauley, brought an action against Samuel T. Suit to recover the sum of nineteen hundred and fifty-one dollars and three cents, with certain arrears of interest.

<p> Principal and Surety—Alteration of BisTc—Gonstnction of Contract—Discharge of Surety. </p> <p>Tlie obligation of a surety is not to be extended beyond what the terms oí the contract fairly import.</p> <p>In the case oí a surety standing bound for the fidelity or capacity of a principal appointed to a particular office or employment, if the nature of the employment is so changed by the act of the employer that the risk of the surety is materially altered from what was contemplated by the parties at the time of entering into the bond, the surety has a right to say that his obligation does not extend to such altered state of things.</p> <p>And in order to arrive at the intention of the parties, the contract itself must be read in the light of the circumstances under which it was entered into.</p> <p>■G. became surety on a bond given to a banking corporation by L. The bond recited the appointment of L. as a clerk in the bank, and was conditioned for the faithful and honest performance by L. during the time ho should continue in its employment, of all the duties and services in said bank which should “ from time to time, be required of him by the board of directors of said bank, or the president or cashier thereof, or by or under their authority,” and for his faithfully and honestly fulfilling “ all the trusts that shall be by them, or by or under their authority, in him reposed, in his said appointment of clerk of the said” bank. The clerkship to which-he was appointed was that of assistant book-keeper. His position was repeatedly changed, and finally he was made note teller and discount clerk, in which position large sums of money were collected and received by him daily, and his responsibility was greatly increased. While in this last position he committed defalcations. In an action on the bond brought by the bank, it was Held :</p> <p>1st. That by the terms of the bond it was competent to the board of directors, or to the president or cashier, to impose additional consistent duties up<ra L. to those then pertaining to the position of book-keeper, but not to impose duties upon him that would entirely change the nature and grade of his position in the bank, and enhance his responsibility, and thereby essentially increase the risk to the surety on his bond.</p> <p>2nd. That the change in the employment of L. involved a material increase of risk to the surety, who was thereby released from his-obligation under the bond.</p>

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

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

<p> Landlord and Tenant—Trade fixtures—Loss of Right of Removal—Structures which are not Fixtures. </p> <p>Where a tenant from year to year, places on the premises certain buildings, structures aud fixtures, and subsequently during the tenancy, and after receiving notice to quit at the end of the current year, accepts from his landlord a written lease of the premises, “ together with all the rights, appurtenances, and privileges thereunto belonging,” for a term of five years, without a reservation of the right to remove the fixtures then on the premises, the right of removal is lost.</p> <p>, Wooden structures or buildings, resting by their own weight on flat stones laid upon the surface of the ground, withbut any other foundation, are not fixtures.</p>

<p>Practice in the Courts of Baltimore City under the Act of 1886, ch. 184—Construction of sec. 170 of said Act— Affidavit of Defence.</p> <p>Section 170, of the Act of 1886, ch. 184, relating to the speedy recovery of debts in the Courts of Baltimore City, requires, when the claim of the plaintiff is verified by affidavit, that the defendant’s affidavit of defence in addition to averring the truth of his plea, “ shall further state the amount of the plaintiff’s demand, if anything, admitted to be due or owing, and the amount disputed.” Held :</p> <p>1st. That under this section the affidavit of defence to be made by the defendant, or some one in his behalf, in addition to the averment that the plea is true must state specifically to what part of the plaintiff’s claiin his plea applies. If to the whole, he must so state, and if to a part, he must state to what part.</p> <p>'Snd. That an omission to state in the affidavit whether his plea embraces the whole or only a part of the claim, will render it fatally 1 defective, and entitle the plaintiff to a judgment by default for want of a sufficient affidavit of defence.</p> <p>3rd. That the object of the Act was, in cases to which' it applied, to obtain from both plaintiff and defendant a definite and sworn statement of both the claim and the defence (if any) so that the parties might know exactly wherein they differed, and shape their' action accordingly.</p>

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

On the 18th of November, 1885, Joseph Sohroeder. trading as Joseph Sohroeder & Co., caused to he issued out of the Baltimore City Court an attachment against Joseph E. Herbert and Ella Herbert, who were then non-residents, in which three promissory notes, aggregating $316.50, drawn by Herbert & Co. to the order of the plaintiff, and endorsed by Ella Herbert, wife of Joseph E. Herbert, were filed as the cause of action.

<p>General Demurrer—Limitations— Orphans’ Court—Final account by Administrator—Distribution^- Suit against Administrator or his Administration bond by Distributees— Trust—Ignorance of Fact.</p> <p>The defence of limitations may be availed of under a general demurrer, where from the face of the bill it can be seen that the bar applies, and where no facts are stated sufficient to relieve it from the operation of the Statute.</p> <p>The passage of a final account by an administrator, showing a balance in his hands for distribution, is a complete settlement of his administration -so far as the Orphans’ Court is concerned. He is not bound to state a distribution account, or make distribution under the supervision of that Court, though he may do so, if he choose, to protect himself and his bond by adopting that course.</p> <p>He may make the distribution in pais, without the order of any Court if he choose to take the risk of paying the right amount to the right parties.</p> <p>As soon as the final account of an administrator is passe.d, the parties entitled to shares of the surplus thereof shown to exist, can at once demand the same, and on his refusal or neglect to pay, can immediately bring an action at law against the administrator individually, or institute suit upon his administration bond, to recover their respective shares; and limitations run as to such suits from the date of the account.</p> <p>After tbe estate has been settled by the passage of a final account, whatever may have been the case before, there is no such express, subsisting, and continuing trust relation between the administrator and the distributee, as will relieve a Court of equity from the duty of following and obeying the law by applying the statutory limitation of time.</p> <p>The mere fact that the distributee of a deceased person was not aware that the deceased had left any considerable personal estate over aud above his debts, and died in ignorance of the fact that she had any substantial interest therein, is wholly inadequate to prevent the operation of the Statute.</p>

The appellee, the owner of a leasehold lot of ground and improvements on the north side of Preston street in the City of Baltimore, sold the same to the áppellant. The title having been objected to, questions -involving its validity were presented by a-special case stated. The Court (Dennis, J.) upheld the title, and from the pro forma decree requiring the purchaser to comply with the terms of sale, he appealed.

Appeals from the Circuit Court of Baltimore City. The Circuit Court decreed that it had been established by the proceedings in the Courts of the State of California, that William H. Dalrymple did die of the sickness from which he was suffering at the time of the execution of his will, and that the condition upon the happening of which said will was to operate, was in fact fufilled; and that the question of whether or not the said William did so die from said sickness was res…

<p>Pleadings—Demurrer — Defective Counts—Misjoinder of Actions.</p> <p>On a demurrer to a declaration, if any one count is good, the demurrer cannot be sustained, but to be good'it must be so independently of the others which may be deemed bad.</p> <p>■Counts in a declaration from which there is an entire omission of the prefatory words “ Por money payable by the plaintiff to the defendant,” cannot be regarded as counts for money had and received.</p> <p>An action on alleged policies of life insurance, cannot be joined with an action of deceit for the fraudulent procurement of money from the plaintiff through the medium of pretended policies of insurance.</p> <p>A count charging that on the demand of the defendants “ the plaintiff’ paid them a large sum of money as premium^ or assessments on the policies,” (mentioned in another count) “ which they illegally look and used,” does not set forth a cause of action, inasmuch as it fails to state in what way the money was illegally taken and used.</p> <p>A count which simply charges the fraudulent procurement from the plaintiff by the defendants, of large sums of money, under representation that the defendants were legitimate life-insurance agents, without alleging in what way, when, or how much money was taken, falls short of stating facts sufficient to constitute a ground of action for deceit.</p>

<p>Husband and Wife—Use of Wife’s funds by Husband— Debtor and Creditor.</p> <p>Where a wife entrusted her funds to her husband’s management, and never at any time objected to his making such use of them as he saw fit, and the same were used in the business of a firm of which he was a member, and neither he nor the firm ever made any express promise to her of repayment, and the firm afterwards failed, she cannot be regarded as a creditor so as to be entitled to receive a dividend from the assets of the firm. ,</p> <p>If a man use the money of his wife with her acquiescence, she does not acquire a claim against him or his estate, unless at the time of receiving or using the money, he made her an express and specific promise to repay it. She cannot become a creditor; under these circumstances, by reason of the fact alone that her husband has received the benefit of her money.</p>

<p>Injunction—Equity pleadings—Evidence—Act of 3884, ch. 28, relating to Evidence in the Courts of Baltimore City— Parties—Amendment—Jurisdiction in Equity—Discovery— Attachment of Stock in the hands of a Pledgee—Mortgage—Act of 3808, ch. 473, sec. 199, and Act of 1886, ch. 287—Act of 1880, ch. 28.</p> <p>On a bill for an injunction and a receiver it is imperatively necessary that the written documents upon which the relief is prayed, should accompany the bill, or a proper excuse be made for their non-production.</p> <p>The Act of 1884, ch. 33, applicable to Baltimore City cases, relieves from the necessity of producing in evidence in any Court in the City of Baltimore, a transcript of the record of any cause in any other Baltimore City Court, and allows the production of the docket and record books in evidence, and gives them the same effect as evidence, as transcripts under seal. Held :</p> <p>1st. That as evidence such records are undoubtedly admissible ; but in a bill for an injunction, where a levy is alleged to have been made, such charges should be made as would show an effectual levy, and at least the proceedings should be so referred to as to make them a part of the bill, and enable them to be easily found.</p> <p>2nd. That while the omission of such charges and reference would justify the refusal of a preliminary injunction, this and the want of other parties, could be cured by amendment, and if, when amended in these particulars, a proper case would be made for the intervention of a Court of equity, it would be proper to retain the bill, and allow the amendments to be made.</p> <p>L. in order to secure the payment of a sum of money winch he owed to G. on a bond dated July 5th, 1884, payable three years after dateT pledged to him certain shares of stock which he, L., owned in certain foreign corporations, and at the same time (July 5th, 1884,) executed to him a mortgage'on certain real estate in New Jersey. On the 5th of November, 1887, M. sued out of the Superior Court of Baltimore City a writ of attachment against L. as anon-resident debtor, and caused it to be laid in the hands of G. as garnishee. On a bill in equity filed by M. in the Circuit Court of Baltimore City against G. and L. for an injunction and a receiver, and a discovery, and asking that G. be required primarily to foreclose his mortgage in New Jersey for the payment of his claim, it was Held :</p> <p>1st. That in order to give the attaching Court jurisdiction to condemn and sell the stock, it was necessary to comply with the requirements of the Act of 1868, ch. 471, sec. 199, in regard to the attachment of stock.</p> <p>2nd. That as the attaching Court by reason of the non-compliance-with these requirements acquired no jurisdiction to render judgment, the equity Court had none on the subject.</p> <p>3rd. That in this case the stock being alleged to be pledged, the provisions of the Act of 1886, ch.‘287, prevented the Court from getting any control of it, by attachment, and a Court of equity could not take it away from the bona fide pledgee in the face of the statute,, and put it in the hands of a receiver, as asked in the bill.</p> <p>4th. That as under said statute stock which is pledged cannot be described and scheduled, no lieh could be acquired by the mere-laying of the attachment in the hands of the pledgee.</p> <p>5th. That a creditor situated as G. was, would not be sent out of the State to enforce his lien, for the purpose of leaving property here on which he had a lien, for the benefit of other creditors who have a lien on the property within the State; and a fortiori he would not be required so to do for a creditor who had acquired no lien.</p> <p>6th. That the plaintiff’s claim being wholly unestablished, and it not being claimed that the attachment suit upon it has proceeded any further than the issuance and levy' of the writs, and this not. being a proceeding to set aside a fraudulent conveyance, the plain- - tiff was not entitled to the relief prayed.</p> <p>7th. That the plaintiff having resorted to attachment must perfect Ills lien by the means the law gives Mm.</p> <p>8th. That the Act of 1880, ch. 28, and the other provisions of the attachment law, gave him the right to interrogate the garnishee, and he had no need to resort to a Court of equity for discovery in regard to the state of the accounts between L. and G. And his remedy being a legal one, a Court of equity cannot aid in its administration.</p>

<p>City improvement—Contract—Time not of its Essence— Ordinance authorizing liepavement of Street—Patent process—Repugnancy—Assessment of Tax to pay for Improvement.</p> <p>Where in'a contract for the re-paving of a street, it is stipulated that the work shall be completed by a specified time, a failure to begin and complete the work within the time stipulated, will not, after the work has been completed by the contractor, and accepted and paid for by the city, render the contract a nullity from the beginning, and invalidate the tax assessed to pay for the work, there being no words in the contract indicating that time was of its essence, or that a non-observance of that particular provision was designed, of itself, to terminate the liability of the city.</p> <p>A city ordinance provided that a certain street should be repaved with “ Camp’s patent process of Belgian block pavement.” The patent provided that the bed of the street should be rolled at right angles to the curbing, varying from an angle of forty-five degrees to a right angle, before the stones were laid. The contract provided that it might be either rammed or rolled. The patent provided that the stones, when laid, should be placed diagonally or obliquely to the road-bed. The contract provided that they should be laid at right angles to the road-bed. The patent provided that the blocks, when laid, should be rolled with a heavy steam-roller, that they might be firmly compacted together. The contract provided that each block should bo rammed separately with a hand rammer. The patent1 provided that the joints between the stones should be filled with asphalt or other elastic filling, whereby the pavement should be rendered waterproof. The contract provided that the blocks, when laid, should be covered with three inches of sand tamped into the joints. Held :</p> <p>That there was no repugnancy between tlie contract and the ordinance.</p> <p>Matters of detail in repaving a street under a patent process, not material or substantial variations or departures from the patent, will not render the tax levied to pay for the work illegal and void.</p> <p>It is no defence to an assessment for a public improvement completed and accepted, that the contractors did not perform the contract for the Work strictly according to its terms.</p>

The appellee sued the appellant as indorser of a promissory note made by J. N. Ileflebower in favor of the appellant, and by him indorsed to the plaintiff. - The note^ was dated the 15th of January, 1881, and payable one year after date. The suit was brought the 19th of December, 1885. First Exception.—Stated in the opinion of the Court.

<p> Promissory note—Failure of Consideration—Fraud—Burden of Proof—Purchase of Mote at a Discount—Good faith—Bona fide, Purchaser of Promissory'.note—Amount of Recovery. </p> <p>Where in an action on a promissory note, by an endorsee against the maker, it is shown that the note was obtained without consideration • by the original payee, and that he transferred it fraudulently, and against the express protest of the maker, it is incumbent upon the plaintiff, to entitle him to recover, to establish by proof that he is the Iona fide owner of the note; that he acquired it for value before maturity, and without notice or knowledge of any infirmity in its origin or its transfer.</p> <p>While the mere fact that a note has been purchased at a discount will not, ordinarily, be evidence of bad faith, yet where the discount is very large, that circumstance maybe considered, in connection with other facts, in determining the question of the purchaser's good faith.</p> <p>An instruction to the jury that in determining whether the plaintiff acted in good faith in purchasing thenote in suit, they might consider the circumstances in the knowledge of the plaintiff at that time, and, if they should find that there was anything in those circumstances calculated to excite the suspicion of a reasonable man who desired to avoid participation in the circulation of a fraudulent note, and calculated to cause such a man-to make proper inquiries as to its lona fides, and that plaintiff failed to make such inquiries, that then they might infer want of good faith from such conduct, is rightly refused ; the fraud or bad faith in the purchase of the note being a question to be determined from all the facts attending the transaction, without reference to the supposed or assumed conduct of others if situated as the purchaser was.</p> <p>The purchaser of a promissory note in good faith, before maturity, for value, without notice or knowledge of any defects in it, is entitled to recover the full amount of the note from the maker, although he may have paid less than its par value therefor.</p>

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

<p> Bill of Exception—When signed too late. </p> <p>This Court will not consider a bill of exception signed after the close of the term at which judgment in the case was rendered, and against the protest of the appellee, and without an express order of the Court extending the time for settling and signing the exception^</p>

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

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

<p> Cemetery—Bights of Lot-holder. </p> <p>Where the charter of a cemetery company provided “ that every lot conveyed in said cemetery shall be held by the proprietor for the purpose of sepulture alone, and for none other, as real estate,” and by an instrument in writing, under .seal, a lot in the'cemetery was conveyed to a grantee, his heirs and assigns forever, for. such purpose, together with the right to cultivate trees, shrubs and plants in the same, and he had exercised this right for more than twenty years, employing skilful and competent persons of his own selection to do the work, the cemetery company cannot, by any subsequent order, prevent the exercise of this right by the lot-liolder personally, or by any agent or servant he may employ.</p>