Volume 69 — Maryland Reports

<p>Partition—Sale of Land—See. 99 of Art. 16 of the Code as amended by Act of 1886, ch. 282—Ljease of Doubtful validity—Practice in Equity—Parties.</p> <p>Whore a hill is filed under section 99 of Article 36 of the Code, as amended by the Act of 1880, ch. 232, for the sale of real estate, because it cannot he divided in kind, without loss or injury to the parties in interest, the Court must, if the parties will not agree among themselves, decree a sale, although the sale may not bring any money into Court for distribution.</p> <p>Where in a suit for the sale of land, as being incapable of partition without loss or injury to the parties interested, it appears from the answer that there is an outstanding lease of the property, the validity of which is questioned, the Court should withhold the bill for a reasonable time to afford the parties an opportunity * of testing the validity of the lease.</p> <p>On a hill filed under section 99 of Article 16 of' the Code, as amended by the Act of 1886, ch. 232, for the sale of real estate, which is subject to a leasehold interest, it Is not necessary to make the lessees parties.</p>

This appeal was taken from a decree of the Court below requiring of the defendant a specific performance of bis contract to purchase of tbe plaintiff a certain piece of property in Baltimore City. The case is stated in the opinion of this Court.

<p>Railroad company — Passengers— Contributory negligence per se—Passenger acting by Direction of Railroad official— Liability of Railroad Company—Prima fade JSsidence— Burden of Proof—Province of Jury.</p> <p>Although a railroad company may have provided a platform where the trains regularly stop for the ingress and egress of passeugers, it Is not per se contributory negligence; for a passenger to attempt to enter a train at a place other than the platform provided, in the absence of notice that passengers would be received only at such platform, and were prohibited from attempting to enter the cars at any other place.</p> <p>Where a passenger is directed by a person wearing the uniform of the railroad company, and justifiably'supposed to he an official, to take the train away from the platform, and he attempts to ('liter the train as directed, and is injured in consequence thereof, the railroad company is answerable.</p> <p>Evidence that a person, wearing the uniform of the railroad company, said to a passenger: “We have telegraphed for an extra train,” and then invited him into the waiting-shed, and, as an officer, directed him, when the train arrived at a place other than the platform, to go and take it, is sufficient prima facie evidence that such person was what he seemed to he, and the burden is imposed upon the company of disproving it.</p> <p>An attempt by a passenger to enter a car in motion is not perse contributory negligence—it is a question to he determined by the jury from all the circumstances.</p>

<p> Murder—Insanity as a Defence—Dvidence—Test of Insanity. </p> <p>On. a trial for murder the facts and circumstances of the killing, and the plan and deliberation by and with which the act was done, having been shown, the counsel for the prisoner proposed to prove by him that his wife died some three years before the murder; and that some time previous to her death she had complained to him of illness, the cause Of which she attributed to a felonious assault made upon her by the deceased, and that tire prisoner believed that the assault was the immediate cause of her death; that this fact fastened itself upon his mind, to the exclusion of all other thoughts, and that from the death of his wife to the date of the homicide ho was nervous and restless, and that it was impossible for him to remain long at one employment, by reason of this condition; that tlie.dead body of his wife, with the scars inflicted by the deceased, would appear to him in his dreams, and he was constantly followed and haunted with the idea that, so long as the deceased lived, he, the prisoner, would have no rest or peace of mind, and that he could exercise no power of will or self-control over this idea, and that since the death of the deceased he, the prisoner, had found rest, and peace and quiet. This testimony, on the objection of the State, the Court excluded, the counsel for the prisoner declining to give the assurance that they would follow up the proof of the facts embraced in the proffer, with other proof tending to show that at the time of the homicide the prisoner was insane, or deranged, and thereby rendered irresponsible for bis acts. The counsel for the prisoner then proposed to ask him this question: “Did you observe any change in your mental condition after the death of your wife, and, if so, state what that change was, and how it affected you?” To this testimony the State objected, and the Court excluded the same, the prisoner by his counsel refusing to give the assurance that the testimony sought by the question, would be followed up by other proof tending to show that, at the time of the homicide, the prisoner was insane or deranged, and thereby rendered irresponsible for his acts. On appeal it ivas Held:</p> <p>That the evidence sought to he introduced was not admissible as tending to show insanity on the part oí the prisoner, at the time of the commission of the offence, or at the time of the trial; nor was it admissible to reduce the degree of the crime, in the face of evidence, that of the prisoner included, that there was the most deliberate premeditation in the perpetration of the offence.</p> <p>If the party accused of a criminal offence he competent to form and execute a criminal design, or, if, at the time of the commission of the alleged offence, he had capacity and reason sufficient to enable him to distinguish between right and wrong, and understand the nature and consequences of his act as applied to himself, ho is a responsible agent, and amenable to tlie criminal law of the land for the consequences of his act.</p>

This appeal was taken by the defendant from an order granting a preliminary injunction. The case is stated in the opinion of the Court.

<p> Action on Replevin bond—Evidence—Opinion of Witnesses as to Prospective profits—Mitigation of Damages—Nominal Damages. </p> <p>In an action on a replevin bond, where the property replevied was a steam engine, separator, and clover huller, it was Huim:</p> <p>1st. That the mere opinion of witnesses as to the prospective profits which the plaintiff might have realized from the use of the engine and thresher if the same had not been taken from Ins possession under the writ of replevin, is inadmissible, such evidence being too uncertain and speculative to furnish a >a\‘r, guide to the jury in estimating damages.</p> <p>2nd. That the replevin bond, being one of indemnity only, the df-l'indants had the right in mitigation of damages to show that the engine and thresher did in fact belong to the plaintiff in the replevin; and that the title thereto was not determined in the replevin suit.</p> <p>3rd. Thai as the evidence showed that the right of the plaintiff was possessory only, determinable on a demand by the plaintiff in the replevin suit-for the return of the property, the obligors on the replevin bond were not answerable for any damages sustained by the former in consequence of his being deprived of the use of the property.</p> <p>Where the judgment in a replevin suit is for the defendant, for the return of the property and costs, it is no defence to a suit on the bond that the plaintiff in replevin returned the property and paid the costs. The failure to prosecute the replevin suit with success renders the obligors liable at least to nominal damages.</p>

To the statement of the case as contained in the opinion of the Court, and in the dissenting opinion by-Judge Miller, there may be added, that, the plaintiff gave evidence that the road and -bridge were out of repair, and had been for two weeks before the accident, and were in an unfit condition for teams to travel thereon with safety; that the road commissioner who had charge of this bridge resided about three miles distant, and the road supervisor who had charge of the…

On the 15th of April, 1870, the appellant recovered judgment against Robert J. W. Garey and George Millington, trading as Garey & Millington, for $1188.51, and interest and costs. In May, 1886,.

On the 19th of August, 1887, the Franklin Bank sued out of the Superior Court of Baltimore City, an attachment on warrant for §4,735.63, against one William Lorman Roberts, as an absconding debtor. On the same day the attachment was laid, as per schedule, on the defendant's interest in schooner “ William Lorman Roberts on the 25th of August, 1887, on his interest in schooner “Rose Esterbrooke,” and on the 22nd of August, 1887, it was laid in the hands of Thomas Shields.

<p>Appeal from the Circuit Court for Montgomery County.</p>

Appeal, and appeal'as on Writ of Error, from the Court of Common Pleas. James W. Wolvington brought suit in the Court of Common Pleas against William H. May and John W. .Massie, executors of Winfield M. Simpson. No plea appearing to have been filed in the cause, the plaintiff moved for, and obtained a judgment according to^ the terms of the Act of 1886, ch. 184, sec. ItO.

The case is stated in the opinion of tlie Court. First Exception.—The plaintiff, to maintain the issues on its part, offered to prove by Urie Townsend, a member of the bar. of Baltimore, the note of George S. Powell, made the 1st of July, 1881, hy proving the signature of William R. Emerson, written on the back and face thereof, and the circumstances connected with the note at har and endorsement thereof; to this the defendant objected, but the Court (Brown, 0.

<p> Jurisdiction in Equity—Surrender of .Notes and Single bills. </p> <p>Where notes and single bills were endorsed by the owner, the plaintiff, and delivered to the defendants’ testator with the understanding and agreement that he would collect the same, and he died helore collection was made, a Court of equity will interfere, and compel their return and delivery to the owner, Ms remedy at law being inadequate to give full relief.</p>

This action was instituted by the appellant in the Circuit Court for Carroll County, and thence removed to the Circuit Court for Washington County, where it was tried: The case is stated in the opinion of this Court.

<p> Libel and Slander— Privilege of Witness. </p> <p>IsTo action for slander will lie against a witness for what he says or writes in giving evidence in a judicial proceeding, notwithstanding it may he malicious and false. The privilege that exempts a witness from such action is absolute.</p> <p>A witness being examined in an equity cause, in reply to a question by which it was attempted to fix a certain date, said: “Hot knowing that a mistress or woman of Mr. Plitt would step in to claim the lawful wife’s property, I did not keep an account of the date that way. If I would have, I would have noticed thé date, and all those little particular incidences, to save Mrs. Plitt from much heartache and trouble and cause of her death.” Held:</p> <p>That this answer was not outside of the privilege of a witness, and an action of slander was not maintainable therefor.</p> <p>A witness is absolutely protected as to every thing said by him having relation or reference to the subject-matter of inquiry before the Court; but if he takes advantage of his position as a witness to assail wantonly the character of another, and to utter maliciously what he knows to befalse in regard to a matter that has no relation or reference to the matter of inquiry, he is liable in an action of slander. Per Robinson, J.</p>

The case is stated in the opinion of the Court. The account of the decedent, referred to in the opinion, contained no mention of interest.

<p>Sale of Fertilizers without License—Fines and Penalties— Recovery of by Indictment—Suit—Repeal by Implication— Construction of Acts of 1882, ch. 451, and 1880, ch. 477—Dismissal of Writ of Error.</p> <p>The Act of 1882, ch. 451, passed to “prevent fraud in the manufacture and sale of commercial fertilizers and hone dust in Harford County,” provides, that “all suits for the recovery of lines under the provisions of this Act, shall be brought by the Clerk to the County Commissioners in the name of the State of Maryland.” Held:</p> <p>That under this Act an indictment will lie to enforce the recovery, of the fine iuposed for the sale of fertilizers without the license required by the Act.</p> <p>The word “suit” includes not only a civil action, hut also a criminal prosecution.</p> <p>The repeal by implication of a former by a subsequent statute is not favored by the Courts, and will only he declared where they are clearly irreconcilable, and not susceptible of such fair interpretation as will allow of their standing together.</p> <p>The Act of 1882, ch. 451, a public local law is not repealed by implication by the Act of 1886, ch. 477, a public general law; the two Acts arc not inconsistent with each other; being different in their objects, purposes and provisions, they may stand together, and both he enforced.</p> <p>Where judgment was entered and sentence passed on the 20th of February, and the petition for a writ of error was not filed until the 26th of March following,'.the writ of error will he dismissed, not having been sued out within the time limited by the rules of this Court.'</p>

<p>Appeal from the Circuit Court of Baltimore City.</p>

This is an appeal hy the plaintiff from the action of the Court below sustaining a demurrer to his declaration and giving judgment for the defendant. The case is stated in the opinion of this Court.

<p> Appeal—Pinal decree. </p> <p>'By the decision of the Court of Appeals two co-defendants were held to he liable to pay to trustees certain money claimed by them as belonging to their cesiuis que trust. On the remanding of the case to the lower Court one of such co-defendants filed a petition bringing the money in question into Court and praying the Court to decree that the other co-defendant was primarily liable to the trustees. The Circuit Court thereupon passed a decree in conformity with the decision of the Court of Appeals, and further adjudged that nothing in said decree should be construed or taken to affect or determine the rights of such co-defendants as between themselves, but that all questions as to such rights were reserved for the further order of the Court. Held:</p> <p>That such decree was not a final decree, nor one of those embraced in section 21 of Article 5 of the Code, and no appeal would lie therefrom.</p>

The appeal in this case was taken from a decree dismissing the complainant’s hill. The case is stated in the opinion of the Court.

<p>Verbal agreement for the Sale of Land—Specific Execution— Part performance—Conflicting evidence—Laches.</p> <p>Courts of equity will decree the execution of a verbal agreement for the sale of land, where there has been a part performance by one of the parties; but to entitle one to the specific performance of such an agreement, there must be not only clear, definite, and satisfactory proof of the agreement, but also that the acts of part performance relied on were done in pursuance of it.</p> <p>Where on a bill filed by a son against his father to enforce the execution of a verbal agreement for the sale of a farm, the proof both in regard to the agreement itself, and to the acts of part performance under it, was conflicting and contradictory, and the complainant, had delayed bringing the suit for fifteen years, a Court of equity will not interfere to give the relief sought.</p>

<p>Foreign Insurance Companies—Service of Process—Acts of 1868, ch. 471, sec. 211, and 1878, ch. 106, sec. 30—Appeal.</p> <p>The whole subject-matter of the service of process on foreign insurance companies licensed to do business in this State, when sued in our Courts, is regulated by the provision contained in section 30 of the Act of 1878, chap. 100; and such provision is exclusive in its nature; and the provision of the General Incorporation Act of 1868, ch. 471, sec. 211, authorizing service of process upon any agent of a foreign corporation doing business in this State, does not apply to foreign Insurance Companies licensed to do business in this State.</p> <p>No appeal lies from an order quashing the sheriff’s return of service of process.</p>

The case is stated in the opinion of the Court. F-irst Exception.—This exception was taken to the action of the Court below in directing the clerk to enter a judgment by default against the defendant for want of a proper affidavit to the plea of limitations, under the Act of 1886, ch. 184.

The case is stated in -the opinion of the Court. Exception—Yhe plaintiff offered the two following prayers: 1.

This appeal is taken from a pro forma decree in favor of the vendor of real estate, on a special case stated between him and the vendee for the opinion of the Court, as to the character of the title offered in fulfilment of an agreement to sell said real estate, and to give a clear title to the vendee.- The case is stated in the opinion of the Court.

<p>Pleading in Equity—Insufficiency of Allegations of a Bill . to Warrant an Injunction.</p> <p>A bill in equity asking that the sheriff may be restrained from serving and executing a writ directing him to eject the complainant from certain lands and premises, and alleging that said writ has been illegally, wrongfully and unjustly procured by the defendant, is insufficient to show the complainant entitled to the relief asked for, having failed to state the nature of the -writ, or to designate the tribunal that issued it, or to aver that the writ was itself illegal, or to furnish a copy of it as an exhibit, or to explain why a copy could not be produced, or to disclose the character of the complainant’s occupancy and possession of the land, or to set forth facts to enable the Court to see whether the remedy, if any, were at law or in equity.</p>

The ease is stated hi the opinion of the Court. Exception-.—At the trial the plaintiff offered the foliowing prayer: That if the jury shall find that the plaintiff sold the goods mentioned in the evidence to Herman Straus, and delivered the same into the possession of said Straus, and that at the time of such sale the said Straus knew he was insolvent, and had no reasonable expectation of paying lor the same, and that after-wards said goods came to the hands of the defendant…

<p> Guardian and Ward—Settlement—Burden of Proof—Release—Fraud—Laches. </p> <p>Courts of equity will not permit transactions between guardians and wards to stand, even when they have occurred after the minority has ceased, and the relation become thereby actually ended, if the intermediate period be short, unless the circumstances demonstrate, in the highest' sense of the term, the fullest deliberation on the part of the ward, and the most abundant good faith— uberrimafides—on the part of the guardian.</p> <p>Where the transaction occults within a short time after the ward attains his majority, the onus of proof is on the guardian to show everything requisite to make the settlement valid and binding.</p> <p>A guardian in settlement of a' balance shown to be due his ward, transferred to him, fourteen days after he attained his majority, certain shares of stock in a purely speculative manufacturing company, with emphatic assurances that it was an excellent investment, and would pay very handsome dividends, and by such representations and through Ms power over, and Ms influence with, him, induced him to execute a release acknowledging the receipt of said balance. These representations of the guardian proved to be untrue. The stock turned out to he utterly valueless. On a hill in equity by the ward upon the discovery that he had been imposed upon and deliberately defrauded by liis guardian, it was Held:</p> <p>1st. That the release executed by the ward should be vacated and set aside, and that the guardian should- pay over the money for which ho was accountable to his ward on reaching his majority.</p> <p>2nd. That the ward was not guilty of laches in not filing his hill of complaint until two years after the execution of the release, the same having been filed promptly upon his learning of the fraud that had been practised upon him.</p>

The opinion of the Court, together with the statement of Judge Bryan, filed at the January Term, 1888, and now reported, present the facts of the case very fully.

<p>Insolvent law—Article 48, section 13, of the Code—Deed of Assignment—Preferences—Non-resident Creditors—Jurisdiction—Effect of Adjudication of Insolvency—Judgment in Bern—Foreign Creditors..</p> <p>By section 13, of article 48 of the Code as re-enacted by the Act of 1886, sec. 298, it is provided, “That no deed or conveyance executed, or lien created, by any banker, stock-broker, merchant, manufacturer or trader, being insolvent, or in contemplation of insolvency, shall be lawful or valid if the same shall contain any preferences, save such as result from operation of law, and save those for the wages or salaries to clerks, servants and employe's contracted not more than three months anterior to the execution thereof, and all preferences, with the exceptions aforesaid, shall be void, howsoever the same may be made; provided the grantor or party creating said lien or preference shall be proceeded against, under section twenty-four, or shall apply for the benefit of this Act under section one, within four months after the recording of the deed or conveyance, or the creation of said lien or preference, and shall be declared, or shall become, under the provisions of this Act, an insolvent.” On the 30th of November, 1887, a merchant trader residing and doing business in the City of Baltimore, executed and delivered to a citizen of the State of Virginia a deed of trust of all his property, for the benefit of his creditors, reciting his own insolvency, and giving preferences to certain non-resident creditors. On a petition filed on the 8th of December, 1887, by other non-resident creditors, an order was passed by which said grantor was adjudicated an involuntary insolvent. On appeal from said order it was Held:</p> <p>1st. That said non-resident petitioning creditors, had full right to file the petition, and to ask to have the debtor declared an insolvent.</p> <p>2nd. That the deed of assignment was not protected from the operation of the State insolvent law, by reason of the preferences therein given, being in favor of creditors residing in another State.</p> <p>3rd. That as the Court had jurisdiction over the insolvent debtor himself, and the property assigned was situated in this State, and the deed of assignment was made here, the Court below had jurisdiction to pass the order appealed from.</p> <p>4th. That as the insolvency of the debtor, and the illegal preferences to the creditors were apparent upon the face of the deed, the deed W'as made void ig)so facto et eonstructione legis, and in no -way depended upon any express declaration of the Court apart from the adjudication of the debtor to be an insolvent.</p> <p>5th. That tlio adjudication was in rem, and with all its direct legal incidents and consequences, bound every one, unless shown to have been procured by fraud or collusion.</p> <p>•6th. That the fact, that the foreign creditors wero not served with process, and could not have been compelled to become parties to the insolvent proceedings even if they had been served, could not be assigned as error in the order of the Court below.</p> <p>7th. That said order was not objectionable because it declared in terms the deed of assignment to be void; that being the legal result of the adjudication of insolvency founded thereon, as declared by the statute.</p>

The case is stated in the opinion of the Court. Section 1*7 of Article 5 of the Code referred to in the opinion provides that, “when oil the reversal of a judgment, a writ of procedendo shall be awarded, the Court of Appeals, 'upon suggestion in writing by either of the parties, supported by affidavits or other proper evidence that a fair and impartial trial cannot be had in the Court where the judgment so reversed shall have been rendered, shall direct their clerk to…

This appeal was taken from a decree setting aside a conveyance to a married woman and directing the property to be sold, on a bill filed by creditors of her husband. The case is stated in the opinion of the Court.

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

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

<p>Master and Servant—Assumption of Risk by Servant— Fellow-servant—Question of Law.</p> <p>As a general rule, the servant assumes all such risks arising from his employment, as he knew, or in the exercise of a reasonable degree of prudence might have known, were naturally and reasonably incident thereto, and he cannot recover against the master for injuries arising from such patent risks. If, therefore, the machinery or appliances which the master furnishes contains obvious defects, of which the servant knew, or as a reasonably prudent man might have known, or if he continues in the service after he has discovered, or by the exercise of reasonable care might have discovered, the existence of such defects, he cannot recover against the master for injuries resulting therefrom.</p> <p>In cases where knowledge of the-defects does not necessarily carry with it knowledge of the resulting danger, in order to establish that the servant assumed the risks involved in using the machinery, it must appear that the danger was known to him, as well as the defects that caused the danger, or that by reasonable care on his part they would have been known to him.</p> <p>The plaintiff, while employed in the service of the defendant, a corporation engaged in making charcoal by a patent process, was injured through defects in the machinery used in the charcoal works. The work the plaintiff was engaged in was the simplest kind of manual labor, and the machine he used'was exceedingly simple in its construction and-operation. The story of the building in which it was located and operated was open from the floor to the rafters. The wheel and track on which it ran were open to view,,with no part covered or concealed, and there was nothing latent about the whole apparatus. The plaintiff was perfectly familiar with the machine and its working. He had worked with it for months in the fall and winter of 1885, and during that time, the wheel, while he was working it, fell from the track, at least once, in the same place it fell on the occasion of his injury. When he returned to the employment of the defendant in the spring of 1886, he asked to be put at the same work, and had been so engaged for about two weeks before the accident occurred, with the wheel and track in the same condition they were in when he left them in the preceding winter. Held :</p> <p>1st. That the knowledge possessed by the plaintiff of the defects in the machinery, necessarily, and in legal contemplation, carried with it knowledge of the risk, and that he voluntarily incurred the same by continuing in the employment of the defendant.</p> <p>2nd. That an employe hired by the month, and paid a monthly salary: chief manager of the works, save that the officers of the company were over him; had no direct charge over the machinery, hut had the right to repair it, and sometimes did repair it, but had no authority to buy, alter or change it, hired and discharged men, kept their time, made out the pay roll, and sent it to the company’s office, where the money due each one was put in an envelope, and when he received it he gave it to the men,—was not a vice-principal or representative of the company, but a fellow-servant of the plaintiff, and the company was not liable for his negligence in the management of the machinery.</p> <p>Whether, upon a given state of facts, a party is a fellow-servant, or a deputy master, or vice-principal, is a question of law to lie decided by the Court.</p>

<p>Eguity jurisdiction—Injunction—Debtor and Creditor— Remedy at Law—Judgment—Execution on Judgment— Act of 1835, ch. 380, sec. 2.</p> <p>A Court of equity will not, at the instance of the holder of a promissory note upon which he has not obtained judgment, enjoin the maker from conveying her property on the ground that the object of such conveyance is to delay and hinder the creditor in the collection of his debt. s</p> <p>It is an invariable rule, except where changed by statute, that the holder of a debt cognizable at law, cannot obtain relief in equity, until he has shown that his legal remedies are inadequate. If he seeks to subject real estate to the payment of his debt, he must obtain a judgment creating a lien upon it; and if he is pursuing personal estate, he must obtain a lien by an execution on his judgment.</p> <p>The Act of 1835, ch. 380, sec. 2, that dispenses with the necessity of a judgment in all cases of proceedings in equity “to vacate any conveyance or contract, or other act as fraudulent against creditors,’’ has no application where the thing complained of has not been executed, but rests merely in contemplation or intention.</p>

The hill in this case was filed by the appellant on behalf of himself and all other creditors of Elizabeth A. Balls, deceased, who should come in and contribute to the expenses of the suit, against the appellees, as her executrix and devisees, for the sale of her real estate for the payment of her debts. The case is stated in the opinion of the Court.

The appellant was defendant, and the appellee was the plaintiff'below. The case is stated in the'opinion of the Court. .First and Second Exceptions, stated in the opinion of the Court.

The appeal is taken from an order dismissing the petition of the appellants. The ease is stated in the opinion of the Court.

<p>Appeal from the Circuit Court for Anne Arundel (Aunty, in Equity.</p> <p>Oil the llt-h of September, 1855, Zaohariah Turner and Elizabeth his wife in consideration of natural love, &c., to their son William dames Turner, sometimes called •Tames William Turner, conveyed a parcel of land in Anne Arundel County, containing eighty-three acres, to their said son William, his children and assigns, during their natural lives; but if said William James die leaving no child or children, the property to revert back to the original owners Zachariah and Elizabeth his wife, or their heirs and assigns, and so remain as if the deed had not been given, with a reservation to the grantors of a right to cut’firewood, and a right of way during their natural lives, and all the estate, right, title, &c., of the grantors in the same, on such conditions as theretofore expressed'—habendum to Wm. Jas. Turner, his child or children and assigns, to the only jumper use, &c., juovided, nevertheless, to be held on such conditions as theretofore set forth. At the date of this deed James Wm. Turner was unmarried, and had no children. On the 28th of November, 1865, James Wm. Turner having in the meantime married, and having issue living, and Zachariah Turner being-dead, he, his wife, his mother Elizabeth, and several of the children arid co-heirs of Zachariah, in consideration of $2,659.72 conveyed the same jaarcel of land and several other tracts to the appellant in fee, with general warranty.</p> <p>By deed dated the 4th of December, 1865, and confirmed the 30th of January, 1866, the appellant and his wife,, in consideration of $3,000, conveyed all the land described in the deed of the 28th of November, 1865, to .G-eorgianna Comegys in fee, with a covenant of general warranty, the appellant taking back a mortgage of the same date to secure $2,000 of the pur chase money, and on the 17th of April, 1867, Georgianna Comegys with her husband, assigned the equity of redemption to Evelina M. Comegys,—this mortgage was due in 1870, but was extended until 1871, and the appellant assigned the mortgage to Edward Gill, who assigned it to Arthur Y. Milholland upon an undertaking by the apjoellant to Milholland to guarantee him the payment of the mortgage. ,</p> <p>On the 3rd Monday in October, 1873, the appellant exhibited his bill in the Circuit Court for Anne Arundel Oomitv, in equity, against the said James Win. Turner and his wile, and six infant children, the heirs-at-law of Zaehariah Turner and wife, some of them infants, Arthur Y. Milholland, Evelina Comegys, and John P. Comegys and Georgianna his wife, suggesting that said deed from Zaehariah Turner and wife, to James Wm. Turner, did not convey to the latter a title in fee to said eighty-three acres, the conveyances of the other tracts being admitted to he valid, that said James W. Turner could not therefore convey an estate in fee, nor more than a life estate in said eighty-three acres, asking the Court to reform said deed, according to the intention of the parties, in order to vest in him a title in fee, and stating that the appellant, had procured conveyances of all their interests in said eightv-three acres from Jour out of the ten co-heirs of Zaehariah Turner, that as holder of said undivided interests in the land he was entitled to a sale thereof for partition, as also to an account and sale of the interest of Evelina Comegys therein, to pay the mortgage due, &c. The prayer of the hill is stated in substance in the opinion of the Court. This hill was signed hv Messrs. Randall and Hagner, having been drawn by the late Mr. Randall, subpoena was issued, but none of the parties appeared except Milholland, who submitted to the prayer of the hill. The appellant afterwards got in the titles of all the heirs of Zaehariah Turner, and on the 22nd of Yov., 1887, he revived the suit against the heirs and personal representatives of Evelina Comegys, who liad in the meantime died, and obtained a decreejwo confesso against the defendants, which was afterwards stricken out against the real and personal representatives of Evelina Comegys, who appeared and demurred to the hill for misjoinder and multifariousness, because the appellant urns not co-tenant with any of the defendants since he had conveyed to the Comegys, and could not foreclose the mortgage since he had assigned that to Milholland and therefore had no standing in Court. The Court below on the 20th Eeb., 1888, sustained the demurrer, but retained the bill for fifteen days, with' leave for the appellant to bring forward for the consideration of the Court any amendment he might wish to offer, reserving the right to defendants to object to the same and have the bill dismissed. Thereupon on the 6th of March, 1888, the appellant filed his amended and supplemental bill against the children of James Wm. Turner, and the real and personal representatives of Evelina Comegys, and after stating the original bill charged that by the true construction of the deed from Zachariah Turner and wife to James Wm. Turner, the latter took a fee, and charging that at the date of said deed James Wm. Turner had no children, and that his after-born children pretended an interest under said deed; that under his covenant he, the appellant, had warranted the title of said eighty-three acres absolutely, that shortly after his conveyance to Mrs. Comegys, the heirs-at-law of Zachariah other than said James, claimed the land, and Mrs. Evelina Comegys thereupon insisted that appellant’s covenant of general warranty had been broken, and that she was entitled to retain the money due by said mortgage, to recoup herself against the alleged defect in her title, and that Milholland required appellant to repurchase said mortgage according to his agreement, which appellant did after the filing of the original bill, and appellant charged that the said Evelina Comegys having all along insisted, and her representatives since her death having insisted, that said mortgage was invalid, and having denied that any title passed to Milholland, were estopped from contending that the appellant was not interested, and'that Milholland was solely interested in the suit, and the appellant further stated that Mrs. Evelina Comegys always professed her willingness to pay the mortgage debt if • the appellant would cure the defect in the title of the eighty-three acres, and that she represented to him that she had deposited the money therefor in bank ready to pay said mortgage, and urged appellant to clear up the title' and procure conveyances of outstanding interests in said lands,—that she required him to consult with her counsel, Messrs. Randall and Hagner, and to conform to their advice and directions, and stated she would abide by what thej said ought to be done,—and that he' accordingly visited Messrs. Randall and Hagner and placed himself and all his papers in their hands, and retained them to cure the title to said eighty-three acres, stating what had taken place between himself and Mrs. Comegys, and further charged that Messrs. Randall and Hagner filed said original bill, of which Mrs. Evelina Comegys was fully aware, and afterwards put large improvements on the land, which bill was one of the means adopted by appellant and her on the advice of her counsel, to which she required him to submit, to cure said title, and, the bill prayed a sale and decree for payment of the balance of purchase money against the representatives of Mrs. E. Comegys, and an injunction against the children of Jas. Wm. Turner to restrain them from setting up any title to the eighty-three acres. This bill was filed, and subpoenas were issued thereon inadvertently, and a motion was made by the representatives of Mrs. Comegys to take it off the file, and the.Court thereupon ordered it to be so taken off the file, and dismissed the original bill without prejudice. From this order and the preceding order, susr taining the demurrer to the original bill, the complainant appealed.</p>

<p>Appeal from the Circuit Court for Prince George’s County, in Equity.</p>

<p> Promissory note—Stipulation to Pay Attorney\s commissions. </p> <p>A stipulation in a promissory note, in case of its non-payment at maturity, to pay the costs of collecting the same, including attorney’s commissions, is valid and can be enforced.</p>

The hill in this case was filed by the appellees against the appellants. The case is stated in the opinion of the Court.

The appeal in this case was taken from a decree of the Circuit Court of Baltimore City, (Dennis, J.,) sustaining the demurrer of the appellee Smith, to the bill of complaint, and dismissing the bill. The case is stated in the opinion of this Court.

The hill of complaint in this case alleged that the plaintiff, Henry T. Daly, was a tax-payer, and resided in Baltimore County—in that portion usually designated “ The Belt ”—and had paid his taxes on real and personal property for 1888, and prior years.

<p>Railroad company—Killing of person "Walking on the Track—Contributory negligence — Engine running backward—Person Wrongfully on the Track—Gross negligence—Reasonable eare by Railroad employes to Avoid collision, after Discovery of Person in Peril.</p> <p>A person walking on a railroad track in the open country, where the road was straight, and the view entirely unobstructed in both directions for a distance of nearly a mile, was struck in the rear, by an engine and tender of the defendant, running backward, and killed. No bell was rung or signal given by the approaching train. The wind was, at the time of the accident, blowing from the south-east, the direction in which the deceased was . walking. Held :</p> <p>That the deceased could not have been run down by the train if he had been watchful, and had used his senses for his protection; and in the absence of all evidence to show that the presence of the deceased on the track was known to any of the employés on the train until after the accident had occurred, a verdict for the defendant was properly entered.</p> <p>The running backward of an engine and tender on a track through the country, where people are not expected, and have no right, to be on the track of the road, cannot be regarded of itself as an act of negligence.</p> <p>The servants of a railroad company are under no obligation of duty to keep a look-out for the protection of a person wrongfully on the track; but, having voluntarily put himself in a place of danger and peril to his life, he is bound to use his senses as the means of avoiding' injury.</p> <p>A person who, as matter of convenience to himself, walks along a railroad track as upon a common highway or footway, without observing the precaution of constant watchfulness for the ap- ' proach of trains, is guilty of negligence of the grossest nature, and such as will defeat all right of recovery for injury sustained, if such negligence is a direct contributory cause; except where there has been a want of reasonable care, under the circumstances, by the employés of the company, to avoid the injury, after becoming aware of the perilous situation of the party injured.</p> <p>The fact that a person is wrongfully on a railroad track, will not relieve the employés of the company in charge of a train, from the duty of using reasonable care to avoid collision; but that duty only arises from the time that the person is discovered by such employés to be in peril.</p>

The case is stated in the opinion of the Court. First, Second, Fourth, and Fifth Exceptions not noticed by the Court. Third Exception stated in the opinion of the Court. Sixth ‘ Exception.—At the trial the plaintiff offered two prayers, which were rejected, and the defendants offered the seven following prayers : 1.

The appellant was convicted in the Court below on an indictment, charging him in the first count with unlawfully soiling a lottery ticket to Maria Clagett, and in the second count with unlawfully keeping a room fertile purpose of selling lottery tickets, and in the third count with knowingly permitting a certain room, of which he was the owner, to be used as a place for selling lottery tickets. The case is further stated in the opinion of this Court.

The case is stated in the opinion of the Court. Exception.•—At the trial the plaintiff offered the following prayer: If the jury shall believe from the evidence that the defendant wrote the draft sued on in this case and accepted the same, and that said draft was then compíete with the exception of the signature of Waddv as drawer, and that the defendant delivered said draft to Waddy to be. used to raise the money thereon, or to be otherwise negotiated for the purposes of…

<p>Appeal from the Circuit Court of Baltimore City. This appeal was taken from an order of the Court below (Phelps J.,) sustaining the demurrer of the defendants, and dismissing the complainant’s bill, and petition to amend. The case is stated in the opinion of the Court.</p>

<p>Courts of Baltimore City—Judgment by Default under Act of 1886, ch-. 184, sections 170 and 171—(Local Code of 1888, Article 4, secs. 167 and 168.)—Insufficiency of Statement of Cause of Action.</p> <p>In an action on a verbal contract brought in the Superior Court of Baltimore City, under the Act of 1880, ch. 184, where the cause of action, verified by affidavit, and accompanying the declaration, was as follows: “Baltimore, November 19th, 1887. B. T. to R. H. S. Dr. To a balance due on the purchase money of nine houses on the East side of M. street, south of McH. street, Baltimore City,' $365.00,” it was Held :</p> <p>That this was not a sufficient statement of the particulars of the defendant’s indebtedness, as required by section 171 of said Act, (Local Code of 1888, Art. 4, sec. 168,) to entitle the plaintiff to a judgment by default under section 170 of said Act, (Local Code, Art. 4, sec. 167.)</p>

<p>Defective highway—Instructions—Travelling at Night— Failure to Carry Light at night—Contributory negligence— Province of Jury.</p> <p>In an action of damages for an injury received, while walking along a public road at night, by falling over the edge of the road which was so constructed as to form a precipice, and which had been left unprotected by railing or barrier of any sort, an instruction that if the plaintiff was well acquainted with the road and knew there was no railing or guard, and was unable, solely on account of the darkness, to see the road and its surroundings, and walked off' the brink of the precipice, he could not recover, is projierly rejected.</p> <p>An instruction, that the plaintiff could not recover, if knowing the condition of the road, he failed to carry a light, is properly refused. The failure to carry a light on a dark night by one acquainted with the road, is not conclusive evidence of contributory negligence.</p> <p>An instruction that if the plaintiff knew the condition of the road, and while travelling on a dark night, voluntarily walked close to the unprotected edge without having a light, when by taking the middle, or inner side, of the road, the accident could have been prevented, he did not exercise the care and caution required to entitle him to recover, is properly rejected, the question of contributory negligence being for the determination of the jury.</p>

The case is stated in the opinion of the Court. Exception.—At the trial the plaintiff offered the following prayer: That if the jury find from the evidence in this case that the cargo of River Rock was sold to the Messrs.

The case is stated in the opinion of the Court. First and Second Exceptions, taken to the ruling of the Court below upon the admissibility of evidence, were not considered by this Court, and are therefore omitted. Third Exception.—The plaintiff offered the following-prayers that the Court (Stewart, J.,) granted: 1.

<p>Bill to Vacate a Deed—Mental incapacity—Fraud— Undue influence.</p> <p>Five days before his death the decedent, a man of strong and determined will, about sixty-two years of age, and not shown to be wanting in mental capacity, executed a deed which was prepared some weeks before, conveying to his wife by a third marriage the bulk of his property, giving as one of the reasons that induced him to make it, that she had materially aided him by her thrift, energy and industry in making and saving what he possessed. A will containing substantially the same provisions in favor of his wife and their children, but containing also legacies to children by a former wife, which he afterwards modified by codicil, in respect of three of them, was made six years before. Another reason expressed for giving the deed was to avoid the expenses incident to his estate passing through the Orphans’ Court. His wife acted as his book-keeper and aided him in his business; she was kind and exercised great influence over him, but there was no evidence to Show that she even suggested the preparation of the deed. His property was accumulated during their marriage. The decedent had materially assisted the children by h'is former marriage, but three of them had proved ungrateful and treated him badly. On a bill filed against his widow by these three children to set aside the deed on the ground of mental incapacity, fraud, and undue influence, -it was Held :</p> <p>That there was no evidence to show mental incapacity when the deed was signed, or anything approaching fraud or undue influence on the part of the widow.</p>

This appeal was taken from a decree of the Court below (Dennis, J.,) cancelling the mortgage mentioned in the proceedings in the cause, from Caleb C. Merritt and wife, to F. Waters Hall and Ottoman Brehme, executors and trustees under the will of Thomas I. Hall, declaring the assignment of said mortgage to the appellant Ida R. Shipley, null and void, and directing the payment by the appellants to the appellee of the sum of $8312.12 being the amount he paid to Andrew Saks,…

Appeals from the Circuit Court for Baltimore County, in Equity. Proceedings were taken in this case by Walter B. Brooks and others, trustees and assignees, against Harris J. Chilton for the sale of certain leasehold estate, situated on Madison avenue, under a power of sale contained in a mortgage from said Chilton. The property was sold. Exceptions were filed to the sale by the mortgagor as also to the ratification of the auditor’s account distributing the proceeds of sale.

<p>Equity pleading—Multifariousness—Dismissal of Bill in Eqtdty—Equity Buie 33.</p> <p>A bill which asks for the xiartition or sale of two tracts of land, one of which was held in common by the plaintiff’s ancestor and his brother, while the other was held in common with his brother and a third person, and which makes both the brother and the third person defendants, is multifarious.</p> <p>Where a hill which asks for the partition or sale of two tracts of land, one of which was held in common by the plaintiff’s ancestor and Ms brother, and the other was held in common with his brother and a third person, and which joins both the brother and the third person as defendants, is held to be multifarious, the bill will not be dismissed, but the cause will ho remanded to allow the plaintiffs to proceed, (though they refused to ask leave to amend their bill in the lower Court,) for the partition or sale of one of the tracts, as they may elect, under Equity Rule 33, which gives Courts of equity the power to dismiss a bill as to such of the subject-matter as may bo improperly joined or included therein, so as to relieve it of the objection of being multifarious.</p>

<p> Husband and Wife—Deeds—Consideration—Deed fraudulent in fact—Subsequent Creditors-^-Insolvent Trustee. </p> <p>Money earned by a married woman was handed over by her to her husband to be invested by him for her. This money, as he received it, was put along with his own, to his credit in bank, and was used by him in his business, without any promise or agreement by him to repay it to her. Subsequently the husband conveyed a farm to S. for the express consideration of §10,000 lawful money; and S. shortly afterwards conveyed said farm to the wife for “three hundred dollars lawful money, and for other-valuable considerations.” These deeds being afterwards impeached as made in fraud, of the creditors of the husband, it was Held :</p> <p>1st. That the wife had no claim upon the money so received by her husband from her, and could not maintain the position tliatthe farm was purchased in the first instance with her money, and consequently belonged to her,.</p> <p>2nd. That the deed to the wife, purporting to be for ‘‘threehundred dollars lawful money and other valuable considerations,” no consideration of a different character could be set up or relied on to maintain it.</p> <p>3rd. That no merely good consideration, however meritorious, as contradistinguished from a valuable one, could be invoked to rescue, it.</p> <p>4th. That the evidence showed that the deeds were fraudulent in-fact, and therefore could not be upheld on any ground.</p> <p>5th. That the husband’s trustee in insolvency, representing all the creditors, might sustain any proceeding which the creditors might prosecute to vacate fraudulent conveyances made hy tlie insolvent.</p> <p>6th. That if the creditors represented by the trustee of the insolvent became such after the execution and recording of the impeached conveyance, and tlie conveyance was made with tlie intent to defraud those who should thereafter become creditors, it might be successfully attacked by tlie trustee.</p> <p>A deed, fraudulent in fact, cannot, by registration, be made effective against subsequent creditors whom it was made to defraud, or bar tlieir right to impeach it.</p>