Volume 70 — Maryland Reports

<p>Tenants in Common — Petition—Sale of Undivided interest— General jurisdiction — Art. 16, sec. 99, of the Code of 1860 — Service of Process on a Corporation — Art. 75, sec. 99, of Code of 1860 — Appearance—Waiver—Allotment of Land — Improvements.</p> <p>The heirs of C., and the City of Baltimore, were tenants in common of an undivided fourth part of a tract of land containing ten acres and two-thirds of an acre. Besides its interest in this one-fourth, the City of Baltimore was also the owner of one-half of said tract; the remaining one-fourth belonging to P. A bill was filed under section 99 of Article 16 of the Code of 1860, by the heirs of C. to which the City of Baltimore was the sole defendant, alleging that the plaintiffs and the defendant were tenants in com- ° mon of one undivided fourth part of the land in question, and that it was not susceptible of partition, and praying that it might be sold, and the proceeds of sale divided among the parties according to their respective interests. Under a decree passed in this case, the one-fourth interest of the parties was sold. Held:</p> <p>1st. That the Court erred in decreeing the sale of the one-fourth interest belonging to the heirs of C. and to the City of Baltimore, but having a general jurisdiction to decree a sale of property held by co-tenants, its judgment was binding on the parties to the suit, until reversed on appeal.</p> <p>2nd. That the purchaser merely acquired the interest of the parties to the suit in the one undivided fourth, and as such was a tenant in common with the owners of the remaining three-fourths of the property, whose rights and interests were in no manner affected by the decree, and sale under it.</p> <p>The object of partition being a division of the property among the several co-tenants so as to put an end to the co-tenancy, and to vest in each person a sole estate in a specific part of the property, there cannot be a jrartition of an undivided one-fourth interest in ' a tract of land so as to vest in each co-tenant a separate estate; for the reason that after such partition the owners of the undivided one-fourth interest would still be tenants in common with the owners of the remaining undivided three-fourths.</p> <p>Under section 99 of Article 16 of the Code of 1860, the Court may decree the sale of property, if a partition cannot be made without loss or injury to the parties interested. But the Court has no right to decree a sale, except under such circumstances as would have justified a partition before the statute; and as there could not be a partial partition there cannot be a sale of a part interest in the property. Under the statute the entire property must be divided or sold, and all the co-tenants must be made parties.</p> <p>The Code (Art. 75, sec. 99,) of I860, provides that process against a corporation shall be served upon the president, or any director or manager or other officer of such corporation. A subpoena against the City of Baltimore was returned endorsed ‘ ‘ summoned. ’ ’ and service admitted by the City Solicitor. The City Solicitor appeared to the suit, and the proper officers of the city received the city’s share of the proceeds of sale, and executed a release therefor. Held :</p> <p>That the defects of the sheriff’s return of service of summons, and the irregularities in passing the decree, must be considered as having been waived.</p> <p>Where one tenant in common has made improvements on the property held in common, in the belief that they were located on his own land, a Court of equity, in decreeing partition, will allot to him, so far as can be done consistently with an equitable partition, that part of the land on which the improvements are situate, without taking into consideration the value of the improvements.</p>

The case is stated in the opinion of the Court. By the deed referred to in the opinion, Annie E. Thompson and Robert E. Thompson, ber husband, conveyed certain-real and leasehold estate belonging to her, to George E. Ballard, to be held by him in trust for her own separate use, during her life in the manner particularly expressed, “and from and immediately after the death of the said Annie E., in trust that the said trustee shall appropriate and apply the net rents, issues,…

Appeals from the Circuit Court for Prince George’s County, in Equity. The case is stated in the opinion of the Court. The following exceptions to the auditor’s report on the receivers’ accounts, were filed hy Mary E. Burroughs and others: The defendants except to the auditor’s report on the receivers’ accounts herein filed, and for cause of exception, say as follows: 1.

The appeal in this case was taken from an order of the Court below, (Dennis, J.) overruling the exceptions filed by the appellants to the final ratification of the sales reported by Herman H. Hobelman, as trustee, and finally ratifying and confirming the same. The case is stated in the opinion of this Court.

<p>Equity Pleading and - Practice — Mortgage—Payment— Variance between the Allegata and Probata — Usury—Amendment — Decree—Code, Art. 5, sec. 28, (Code of 1888, Art. 5, see. 36.)</p> <p>A party cannot have relief which is contrary to the purpose of his hill and not within its scope. He must stand by the averments contained in his pleadings, and cannot state-one case and recover upon another materially different.</p> <p>Certain mortgagors filed a bill against the mortgagee alleging that they had mortgaged a tract of land to secure the payment of $1160 with interest, that they had paid the whole of the mortgage debt, except a small balance which they were ready and willing to pay. but that the mortgagee declined to receive the balance and release the mortgage, claiming that a larger sum was due, and under a • power contained in the mortgage had advertised the land for sale. The bill prayed for an account, and that on payment of the sum found to be due, the mortgagee might be decreed to execute a release; also for an injunction and general relief. On a reference to the auditor he reported that the amount actually loaned was .$1000, that this sum with interest had been paid, and $120.36 in excess of the indebtedness. After exceptions the report of the auditor was confirmed, and a perpetual injunction was decreed. On appeal it was Held :</p> <p>1st. That although the evidence showed that the mortgage debt was overpaid, the Court could not affirm the decree, because of the variance between the allegata and probata.</p> <p>2nd. That the plaintiffs could not avail themselves of the defence of usury although usury was proven, inasmuch as they not only had failed to charge usury, but had recognized as a debt the amount stated in the mortgage and offered to pay what remained due.</p> <p>3rd. That the plaintiffs’ instructions to the auditor, wherein they objected to the usurious excess, could not be taken as changing the character, or modifying the averments, of the bill.</p> <p>4th. That the hill might he amended so as to conform to the proofs, and the plaintiffs would then he entitled to such a decree as was passed hy the Court helow.</p> <p>5th. That to enable them to make such amendment, the Court would remand the case under section 28 of Article 5 of the Code, (Code of 1888, Article 5, section 36,) without either reversing or affirming the decree.</p>

The case is stated in the opinion of the Court. First Exception. — -The plaintiff offered evidence tending to show that the defendant had notice of the condition of the culvert in question, and that the same was insufficient, in time to remedy it; and then offered to prove: “That the water from that part of the hill, southeast of Bowery street, formerly ran eastwardly, hut that the defendant diverted the natural flow of the water from its eastward direction, and made it run…

The case is stated in the opinion of the Court. First Exception. — The defendant offered to prove that the Mayor and City Council of Frostburg levied for its purposes a tax of 50 cents on the hundred dollars, making a revenue of less than $5,000, and that the revenue thus raised, if wholly devoted to the construction of drains, culverts and sewers, would be insufficient to carry off and convey away from property abutting on the streets of the town surface water coming from…

The case is stated in the opinion of the Court. Exception. — The plaintiffs offered the five following prayers: 1. If the jury find from the evidence that Daniel Steever, on the 24th day of July, 188*7, while crossing the railroad tracks of the Union Railroad Company upon the Baltimore and Havre de Grace Turnpike, was run into and' killed hy an engine and tender of the Phil., Wilm. & Balto.

<p>Trust funds — Identification—Ownership, of Trust funds Attributed to the Oestuis que trust — Breach of Trust — Trustee and Cestui que trust — Mixing of Trust funds with Individual or Partnership property — Liability of Firm for Breach of Trust by a Partner.</p> <p>The principle upon which trust funds may be traced, when attempted to be misapplied, or where they have been converted into other property, or become mixed with other funds belonging to the trustee or fiduciary, is a very plain one, and all the difficulty that is found to .exist is in matters of fact and in identifying the ’ fund. So long as a trust fund can he traced, the Court will always attribute the ownership thereof to the cestui que trust, and will not allow the right to be defeated by the wrongful act of the trustee or fiduciary in mixing or confusiug the trust fund with funds of his own, or even those of a third party.</p> <p>The true owner of a fund traced to the possession of another has a right to have it restored, not as a debt due and owing, but because it is his property wrongfully withheld from him; and it can make no manner of difference whether the fund be traced into a bank account, the possession of an individual, or into the hands of a firm composed of many individuals, if the essential facts are shown bj' which the identification of the fund can be established, and no superior rights of innocent third parties have intervened.</p> <p>As between cestui que trust and trustee, and all parties claiming under tlie trustee, otherwise than by purchase for valuable consideration without notice, all property belonging' to a trust, however much it may be changed or altered in its nature or character, and all the fruit of such property, whether in its orignal or in its altered state, continues to be subject to or affected by the trust.</p> <p>If a partner being a trustee or fiduciary, improperly employs the money of his cestui que trust in the partnership business, or in the payment of partnership debts, this fact alone, and without anything more, is not sufficient to entitle the cestui que trust to occupy tlie position of creditor, and to enforce the repayment of his money as against the firm. To render the firm liable in such case the firm itself must be shown to have been implicated in the breach of trust, and this cannot be unless all the partners either knew whence the money came, or knew that it did not belong to the partner making use of it.</p> <p>Eunds belonging to wards were deposited by;their guardian, on the day of their receipt in bank to the credit of “J. P. S. & Co." that being the name under which.he individually conducted business, but the bank account showed that they were all, except a small balance, withdrawn by him within a few months. The guardian testified, and the bank account showed, that only a comparatively small portion of the fund deposited was applied to the payment of merchandise accounts. More than three years afterwards, the guardian having meanwhile taken a partner into the business, the firm made an assignment for the' benefit of creditors. On a petition filed by the wards to have the partnership assets applied to the payment of the trust funds so drawn out of bank, it was Held :</p> <p>1st. That the fund in Court for distribution could not be identified as the product of any investment of the original trust fund belonging to the petitioners.</p> <p>2nd. That the proof showed an entire absence of knowledge on the part of the new partner of the use of trust money by the guardian in the partnership business, and the knowledge of the latter could not affect the former.</p>

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

<p>Promissory note — Part payment — Renetoal—Alteration of Note — Recovery on the Original cause of Action.</p> <p>Where at the maturity of a joint promissory note, a partial payment is made thereon, and a renewal note is given for the balance, which is invalid as to one of the makers on account of a material alteration — the insertion of the words “with interest — without his knowledge and consent, a recovery can be had against him on. the original cause of action, the renewal note being produced at the trial.</p>

<p>Insurance — Mutual benefit Company — Profert— Variance— Motion in arrest of Judgment — Measure of Recovery— Pleadings — Regleet to malee Assessment.</p> <p>A mutual life insurance company was sued in assumpsit upon a certificate of membership in said company. The declaration alleged a promise to pay §500 upon the death of the insured. By the terms contained in the certificate and application it was stipulated, “that all suits shall only be for the benefit of an assessment made by the proper officers of the association.” It was also agreed by the insured in these words : “If the amount of one mortality assessment paid by all the members holding certificates in force at the time of .my death shall be less than the sum named in this application, then the amount of such assessment shall be received in full of all demands on account of this contract.” A verdict was rendered for tlie plaintiff. A motion in arrest of judgment was made, and the same was overruled, and judgment was entered on the verdict. On appeal it was Held :</p> <p>1st. That the certificate and application for it, not having been made part of the declaration, by proferí, the motion in arrest because of the variance between them and the narr. was properly overruled.</p> <p>2nd. That as under the contract the plaintiff could only sue for the benefit of an assessment on. account of the death of the insured, and no assessment was made, a prayer of the defendant was properly rejected which defined the measure of recovery to be such sum only as would have resulted from the collection of an assessment at the time of the death of the insured, after malting certain deductions for the expense fund according to the terms of the policy.</p> <p>3rd. That if the pleadings had made a proper case, the plaintiff would have been entitled to recover for the neglect to make an assessment.</p>

Cross Appeals from the Circuit Court of Baltimore City. These cross appeals were taken from a decree of the Circuit Court of Baltimore City, divorcing the complainant Martha S. Bruner, a mensa et thoro, from the defendant Joseph B. Bruner, awarding to the complainant the exclusive control of all her property and estate, and giving to her the care and custody of her infant child Edward Thomas Bruner. The case is stated in the opinion of the Court.

The case is stated in the opinion of the Court. First Exception. — Stated.in the opinion of the Court. Second Exception.- — At the trial the plaintiffs offered the two following prayers: 1.

The appellees sued the appellant in assumpsit to recover for services the nature of which is stated in the opinion of the Court. The defendant took three exceptions, which are sufficiently stated in the opinion of the Court.

Certain real estate was sold hy trustees appointed hy the Circuit Court for Prince George’s County. The sale was reported to the Court, and the case was referred to the auditor to state an account distributing the proceeds, and ascertaining the amount due Thomas EL Gaither hy virtue of a lien he held on the property. The auditor stated an account showing the amount due Thomas EL Gaither and distributing the proceeds of sale.

This appeal was taken from the order of the 19th of March, 1888, of the Court below, directing the injunction prayed for in the bill of complaint and in the subsequent petition, to issue, unless the defendant, the Maryland Central Railroad Company, and the receivers of the same, Samuel Spencer ancl William Gilmor, should within sixty days from the date of said order, erect the fence mentioned ancl described in the inquisition of the jury.

<p>Appeal :&om the Circuit Court for Montgomery County, in Equity.</p> <p>The case is stated in the.opinion of the Court.</p>

The case is stated in the opinion of the Court. First and Second Exceptions 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 five' following prayers; 1.

Appeals from the Circuit Court of Baltimore City. These appeals were taken from an order of the Court below, (Dennis, J.,) sustaining the exceptions of P. Hanson Hiss and others to the auditor’s reports and accounts A, B, C and D, and rejecting the same, and overruling the exceptions of Thomas Worthington and others to the said accounts, except so far as said accounts A and B, are confirmed by said order. ’The case is stated in the opinion of this Court.

This appeal was taken from an order of the Court below (Dueey, J.,) overruling the demurrer of the defendant, Elizabeth C. Attrill, to the plaintiff’s bill of conrplaint. The case is stated in the opinion of this Court.

The case is stated in the opinion of the Court, and the several exceptions to evidence are therein sufficiently stated.

• Appeal from the Circuit Court for Alleghany County, in Equity. This is an appeal from a decree of the Court helow, passed in a cause instituted in said Court hy the appellees, executors and trustees under the will of John S. Comhs, for the purpose of obtaining a judicial construction of certain provisions of said will, and of their powers and duties as such trustees, and asking for an administration of the estate, and of the trusts under the direction of the Court.

The nature of the action is stated in the opinion of the Court. The case was submitted to the Court below upon the following agreed statement of facts: This case is docketed by consent, for the purpose of obtaining from the Court a construction of the Acts of 1886, chapters 261 and 491, in reference to the disposition of the fee of one dollar, therein mentioned, to be charged by the clerks of the Courts for marriage licenses.

Albert L. Gorter, on the 10th of April, 1888, being the owner in fee of a lot of land in Baltimore city, leased the same to John P. Mincher, for the term of fourteen years from that date, for the annual ground rent of $120, redeemable after ten years at five per cent. David Stewart, on the 12th of April, 1888, agreed to convey in fee a lot owned by him, and adjoining Dorter’s lot, to said Gorter.

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

The hill in this case was filed hy the appellant, Elizabeth H. Thomas, who subsequently intermarried with Thomas L. Benson, in her own behalf and of all persons interested in the estate of Joseph M. Brian, Sr., deceased, against the appellees, for the purpose, among others, of setting aside certain deeds from the said Brian to the appelle.es, Carvilla Benson and Joseph M. Brian, Jr., and subjecting the property thereby conveyed, to the payment of an indebtedness of the said…

<p>Insurance by a Creditor of the Life of his Debtor — Insurable interest — Assignment of Life policy by the Assured— Disproportion between Debt and Amount of Policy.</p> <p>A creditor took out certificates of insurance amounting to §0500 on tlie life of his debtor, who owed him about §1000. These insurances were effected in mutual aid associations where mortuary dues were paid by assessments, and where the sum to be realized depended upon the number and solvency of the members. The creditor on the death of his debtor, collected from these insurances the sum of §2124.82, and after deducting the debt and interest due, the premiums he had paid, and the costs and expenses of effecting the insurances, there remained a balance of §474.53. Held:</p> <p>That the creditor was entitled to this balance.</p> <p>A creditor has an insurable interest in the life of his debtor; and if the contract of insurance be valid at the time it is entered into, the creditor may recover ou the policy, notwithstanding that his interest has ceased during the life of his debtor.</p> <p>The assured may make a valid assignment of a policy on his own life, to one who has no insurable interest therein, the policy being but a chose in action for the payment of money.</p> <p>There may be such a gross disproportion between the debt and the amount of the policy as to stamp the transaction with want of good faith, and as a mere speculation or wager; but the question of such disparity should be left to be determined by the circumstances of the particular case.</p>

The appeal in this case was taken from an order of ths Court below, granting an injunction to restrain George W. Merrill, William D. Hoye, and Sylvester Ryland, from acting, or assuming to act, as the Board of County School Commissioners of Garrett County, and from doing, and-performing any of the acts and duties rightfully and properly belonging to the office of said Board under the law ; and to restrain William Hinebaugh from receiving or expending any moneys receivable or…

<p>Written agreement — Evidence—Relevancy—Escrow.</p> <p>When parties have made a written agreement, the writing is regarded as the exclusive evidence of the contract, and all oral negotiations and stipulations preceding or accompanying the execution of the written agreement are merged in it, and are not admissible in evidence.</p> <p>And the admission in evidence on the part of the plaintiff, of some previous negotiations, the same being incompetent and irrelevant, does not authorize the introduction of testimony of the same kind on the part of the defendant.</p> <p>It was pleaded to an action on a sealed agreement for a lease that it was delivered to M. as an escrow to become effective upon conditions stated. At the trial the defendant offered to prove, that, at the time the written agreement was executed, it was agreed between the parties that it should he left in possession of M. and and that it should not take effect to rent the property to the plaintiff' until either plaintiff or defendant should inform M. that the tenant then in possession had left the property. The Court, on objection by the plaintiff, refused to admit said evidence. On appeal it was Held :</p> <p>1st. That said evidence was admissible in itself.</p> <p>2nd. That it was not rendered inadmissible by the fact that it was offered in connection with other evidence which was not competent.</p>

<p>Bawdy-house — Evidence—Gist of Offence — Character of Frequenters of a Mouse — Bill of Exception — Braetice in Court of Appeals.</p> <p>Under an indictment containing two counts, — one for keeping a bawdy-house, and the other for keeping a disorderly house, testimony of a woman that once she went to the house with aman, whose name she did not know, to get something to drink; that they got a room, and remained there ail hour; that she “staid with him”— the witness admitting that she understood what the phrase meant; that while there the man offered to keep her, and pay her board, and pay her something beside; that the traverser was not present, and witness did not see him,- — is admissible to be considered, with other facts and circumstances, from which the jury may conclude that the house of the traverser was kept for the resort and unlawful commerce of lewd and dissolute persons.</p> <p>The gist of the offence of keeping a bawdy-house, consists in keeping the house for lewd and unchaste persons, and not in the reputation of the house; and it is not necessary that the indecency or disorderly conduct of the frequenters of the house should he perceptible from the exterior of the house.</p> <p>In a prosecution for keeping a bawdy-house, evidence of the bad character for chastity of the women who frequent the house, is admissible, as showing or tending to show the purpose for which the house is used.</p> <p>Where a bill of exception does not state that the evidence contained therein, offered by the State in a criminal prosecution, and admitted by the Court, was the whole evidence produced to support the indictment, such will not be assumed to be the fact by the appellate Court.</p>

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

<p>Insolvent proceedings — Jurisdiction—Injunction—Appeal— ¡Section 20, of Article 48, of the Code — Act of 1880, ch. 172.</p> <p>Section 20, of Article 48, of the Code, expressly gives the right of appeal from any order of the Court in insolvent proceedings, if taken within the prescribed period of thirty days.</p> <p>'The jurisdiction of the Circuit Courts of this State, and of the Court of Common Pleas, over proceedings in insolvency, is of a limited nature, and the mode of proceeding, being prescribed by statute, must be pursued in the manner prescribed and not otherwise.</p> <p>The right of these Courts to issue injunction given by the Act of 1880, ch. 172, is for .the single object of preventing the disposition of the insolvent’s property and effects by him or others, pending the trial of the issues under proceedings for coercing him into insolvency, and their right to issue a restraining order at any other time, and for any other purpose, is excluded.</p> <p>The trustees in insolvency in all controversies as to the right to property, and claims of other persons to it or over it, are remitted to the Courts having cognizance of the subject-matter, for trial, where the parties interested can enjoy their right of trial by jury, which could not be given them by the insolvent Court, and which cannot, constitutionally, be denied to. them.</p>

<p>Construction of sec. 102, of Art. 81, of the Code of 1888, imposing a Tax on Collateral inheritances — Constitutional law.</p> <p>Letters of administration were taken out in Maryland upon the estate of W. H. D. a deceased non-resident. At the time of his death the decedent was entitled to an undivided one-fourtli interest in the personal estate of his deceased brother E. A. D. a resident of Maryland, who died in that State shortly before TV. H. D. Upon the settlement of the estate of E. A. D. — the administrators of TV. II. D. received therefrom sundry certificates of National Bank stock and Baltimore City stock, several Missouri State bonds, and cash, which, after deducting expenses, were held by them for delivery to the residuary legatee of TV. H. D. who was neither his mother, wife, child, nor lineal descendant, and was herself a resident of the State where TV. II. D. resided at the time of his death. Held :</p> <p>1st. That there was paj'ahle out of said personalty to the State of Maryland, under section 102, of Article 81, of the Code of 1888, a collateral inheritance tax of two and a half per centum.</p> <p>2nd. That the amount of the tax depended upon the sum in the hands of the administrators payable to the legatee.</p> <p>3rd. That the Legislature has the power to impose such tax, not only where it affects citizens of this State, but also where nonresidents or aliens claim by inheritance or by will property located here.</p> <p>4th. That the words being in this State,” contained in said section, refer not to the decedent himself, but to his property.</p>

This is an action of' ejectment brought in the year’1886 by the appellant against the appellee. The case is stated in the opinion of the Court. Exception. — At the trial the plaintiff offered the five following prayers: 1.

Martha Harvey was killed on the 16th of October, 1886. This suit, in the name of the State, to the use of Edward Harvey, her husband, was instituted on the 10th of December, 1886. It was removed from Baltimore City on the affidavit of the defendant, and was tried in the Circuit Court for Baltimore County at March Term, 1888. Under the instructions from the Court, a judgment was rendered for the defendant, which, on appeal was reversed, and a new trial ordered.

<p>Abortion — Evidence.</p> <p>On an indictment under section 2, of ch. 179 of the Acts of 1868, charging that the traverser “did knowingly use, and cause to be used, certain means ” for the purpose of unlawfully causing a miscarriage and abortion, letters written by the traverser to the female, one of which contained minute directions as to how a bottle of ergot that accompanied it, should be taken, and proof by the female that she administered to herself the drug sent'to her by him, and in other respects also followed the instructions given by him, are admissible in evidence, although he was not present when she took the drug, and did the other things which he advised her to do.</p> <p>A conversation between the traverser and the girl, in which she stated, upon his charging her with not having complied with his advice, as contained in the letters, that she had done so, but without producing the desired effect, is also admissible.</p>

The case is stated in the opinion of the Court. First, Second, Third, Fourth, Fifth, Sixth, and Seventh Exceptions stated in the opinion of the Court. Eighth Exception — The plaintiff asked the Court to instruct the jury as follows: 1.

The case is stated in the opinion of the Court. First Exception. — Stated in the opinion.

<p>High License — Local Act of 1884, ch. 283 — Mandamus—Demurrer.</p> <p>The local Act of 1884, ch. 283, sec. S, designated as the “High License Law of Prince George’s County,” provides that,- in addition to the usual license required by the State, all applicants for liquor licenses shall, before obtaining said licenses, pay to the Clerk of the Circuit Court the sum of S100. for the use of the public roads of said county. The Act further provides “that each and every applicant, person or persons, house, corporation, company, or association, shall be recommended to the said clerk, by five respectable freeholders of his or their immediate vicinity, as a fit person to traffic in the article.” Upon the refusal of the clerk to issue such license, because he did not think that the applicant was recommended by five respectable freeholders living in the immediate vicinity, it was Held :</p> <p>1st. That a mandamus would not lie to compel him to do' so.</p> <p>2nd. That the clerk by demurring to the replication filed to his answer to the petition for a mandamus, in which replication it was alleged that the petitioner was recommended by five respectable freeholders in his immediate vicinity, did not admit the truth of that allegation.</p> <p>A Court will not issue a mandamus to compel a public officer to perform any act, when its performance has been left to his discretion and judgment.</p> <p>If facts are pleaded which are insufficient in substance, or immaterial, they are not admitted by the demurrer to be true.</p>

This appeal was taken from an order of the Court below (Dueey, J.) overruling the motion for the dissolution of the injunction, and continuing the same till final hearing. The case is stated in the opinion of the Court.

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

<p>Trustee — Right of Trustee to Retain Trust funds for Individual claim.</p> <p>A trustee in equity for the sale of property, has no right to retaiu the share of the proceeds awarded to a distributee, for the payment of a simple contract debt due to him by the distributee, in the absence of a special assignment of such share or assent to such . appropriation.</p>

<p>JPalse pretences — Indictment—Criminal pleading — Code, Art. 27, sees. 288, 291, and 82.</p> <p>Under section 288, of Article 27, of the Code of 1888, -an indictment for false pretences is not demurrable for failing to set out the false pretences intended to be relied on.</p> <p>But the indictment in other respects must have that degree of certainty and precision that- will fully inform the accused of the special character of the charge against which he is called upon to defend, and that will enable the Court to determine whether the facts alleged constitute a crime; and that will protect the defendant against further prosecution for the same alleged offence.</p> <p>The provisions of section 291 of said Article, do not dispense with .the necessity of giving in the indictment the purport, or other proper designation of the instrument alleged to have been obtained by false pretences; so that there can be no mistake as to the identification of the instrument described with that produced in ' evidence in support of the indictment.</p> <p>An indictment for obtaining a “bill of sale or mortgage of personal property” by false pretences, will be defective unless it contains an averment that the instrument was assigned or transferred to the defendant by the owner, or that something more passed to the defendant than the mere paper upon which the instrument was written.</p> <p>An indictment will be defective for want of' certainty and precision which describes the instruments obtained by false pretences as “certain valuable securities, to wit: The endorsement and signature of the said A. M. B. to two certain promissory notes for the payment of three hundred dollars each.”</p> <p>The ■ offence referred to in section 82, of Article 27 of the Code of 1888, is the obtaining by false pretence a subsisting, security, and not merely the obtaining of a signature to an instrument..</p> <p>It is no less requisite in indictments for obtaining property or securities by false pretences, that the ownership of the property or securities obtained should he distinctly alleged, than it is that such averments should he made in indictments for larceny.</p>

<p>Act of Insolvency — TJnlaivful preference — Void mortgage.</p> <p>Where ^ess than four months has elapsed from the recording of a mortgage to the institution of a proceeding in insolvency by a creditor, the jurisdiction of the insolvent Court to pronounce it an “act of insolvency,” is complete; and where the mortgagee does not intervene' to protect his mortgage, or resist the adjudication, and takes no appeal therefrom, the effect of such adjudication, in conjunction with the express terms of the insolvent law, is to strike down the mortgage and make it void.</p>

The hill in this case was filed by the appellee, against William A. Nixon and wife, and the appellants as administrators of Mrs. Eleanora L. Lee, asking for a sale of the property in question for the payment of the complainant’s claim, as a preferred claim against the property. The case is stated in the opinion of the Court.

<p>Policy of Fire Insurance — Technical defence — Prior insurance.</p> <p>By the terms of a fire insurance policy, in the event of a loss by fire, the party insured was required “to produce the certificate under seal of the magistrate or notary public living nearest the place of fire, and not concerned in the loss, nor related to the assured, stating that he has examined the circumstances attending the loss, knows the character and circumstances of the assured, and verily believes that he has, without fraud, sustained loss on the property insured to the.amount claimed by Mm.” In an action on said policy, a certificate was offered in evidence by the plaintiff, given by the magistrate who lived nearest to the property insured, and who stated therein that he was not competent to appraise a portion of the property destroyed. On objection to this certificate, another was offered, given by a magistrate who did not live quite so near to the property, hut whose office or place of business was nearer than that of the other magistrate, and containing all the other requirements of the policy. On objection, it was Held :</p> <p>1st. That this latter certificate sufficiently complied with the terms of the policy, and was admissible in evidence.</p> <p>2nd. That in the construction of such contracts Courts will not draw fine distinctions, and allow insurance companies to escarie from the obligation of paying valid claims through mere technicalities.</p> <p>At the time of the insurance the plaintiff was insured in another company but withdrew from it before the fire occurred. The application for insurance was not in evidence; and the plaintiff’s demand for its production was refused by the defendant. It was Held :</p> <p>That in the absence of any written evidence of the contract providing for the disclosure of other insurance, and the policy itself disclosing no such condition, such prior insurance did not avoid the policy.</p>

This appeal was taken from a decree of the Court helow (Phelps, J.,) dismissing the hill of complaint. The case is stated in the opinion of the Court.

<p>Declaratory Decrees — Act of 1888, ch. 47S — Construction of Will — Alternative or Substitutional devise— Contingent remainder and Vested Executory Devise — Fee simple Estates — Estates Tail male — Estates Tail female — Fee-tail general — Lapsed devise — Definite and Indefinite failure of Issue — Perpetuities.</p> <p>The jurisdiction conferredby the Act of 1888, ch. 478, (Code, Art. 10, sub-title ‘ ‘Declaratory Decree”) should never he invoked for the purpose of having determined mere moot-points, or mere abstract or experimental questions. In all cases the Court should see that there is a real bona fide question for controversy involved, as between the parties to the cause, and that there is an existing propriety for its immediate decision.</p> <p>It is only in those cases where equity would have jurisdiction, if some specific or ultimate relief were asked, that the Court would he warranted in proceeding under the statute to make a declaratory decree; and the plaintiff must be unable to seek other relief than a mere declaration of title.</p> <p>A testator, by his will, dated 2nd of August, 1834, gave real estate to his wife for life, and (omitting certain contingent dispositions which failed) devised the reversion to his daughter H. “for her life, with reversion to her eldest son in fee; and if she die without male issue, then to my daughter C, for life, with remainder to her eldest son in fee; and if she also die without issue, then to my next daughter, and so on, in the same manner.” The testator died in 1837, leaving a widow who died in 1867. His daughter H. died before him unmarried, and his daughter C. survived him and died in infancy unmarried. A third daughter E. survived him and married, and had a son 11. G-. H. and other children. On a bill filed by E. and her husband against K. G-. H. and others, for a declaratory decree construing said will, it was Held :</p> <p>1st. That the limitations to the daughters of the testator and .their eldest sons in succession, were not to be regarded as limitations upon the preceding contingent estates, and only to take effect after them, but as alternatives substituted for the former, and to take effect only in case they should fail and never take effect at all.</p> <p>2nd. That IE having predeceased the testator, without ever having had male issue, the limitations both to her and to her eldest son totally failed of effect as if they never had place in the will.</p> <p>3rd. That the limitation over to C. was good and effectual, she having survived the testator, though she died without a son.</p> <p>4th. That the devise over upon the failure of male issue of C. was not restricted to such failure at the time of her death, and was therefore too remote.</p> <p>5 th. That the estate which O. took under the will was not one that was converted into a fee simple estate by virtue of the statute to Direct Descents, but an estate for life, remainder to her eldest son in fee, with an executory devise by implication to her in tail male, until her eldest son became in esse,' and which estate, she having had no male issue, terminated at her death.</p> <p>6th. That at the death of the testator O. and E. became entitled to a reversion in fee^ as heirs-at-law of the testator, subject to the life estate of his widow, and to a life estate, and estate in tail male by way of executory devise in C., subject to be divested upon the happening of a future event, which never happened.</p> <p>7th. That O. having died in infancy and unmarried, the estate had devolved upon E. as heir-at-law of her father and of her said sister.</p> <p>When the terms “in fee” without adjunct, are used as applied to estates, they are to be taken as descriptive of a fee simple, — the highest and most enlarged estate — as contradistinguished from a fee-conditional or a fee-tail.</p> <p>Estates in tail male, or estates tail female, are not included within the definition of estates tail general, as these latter terms are employed in the Act to Direct Descents, of 1820, ch. 191, sec. 1, and by which Act estates tail general are converted into fee simple estates, and upon being so converted are saved from lapse.</p> <p>Where a preceding executory or contingent limitation has failed to arise or take effect, (and -whether it be by the death of the devisee in the life-time of the testator, or the non-existence of such devisee, the consequence is the same) the remainder over will nevertheless take effect.</p> <p>The mere lapsing of intervening estates will never be allowed to defeat the remainder over, unless those estates be coupled with conditions upon which the subsequent limitations are in some way made to depend.</p> <p>In this State (except in cases arising under the Act of 1862, ch. 161,) a limitation over of land to a devisee for life, after an indefinite failure of issue of a prior devisee, does not convert the indefinite into a definite failure of issue.</p> <p>A devise or limitation must be good at the time of its creation; and if not good then, no subsequent accident or occurrence can make it good.</p> <p>A will of real estate taking effect prior to 1862, after certain limitations over after failure of issue, contained the following provisions: “I hereby require and direct that before any person or persons herein named or specified, shall have possession or property under this will, he or she, if my son or daughter, shall pay to his or her brother or sister (if there be but one) the sum of five thousand dollars, or distribute among his or her brothers and sisters, (if there be two besides himself or herself) the sum of six thousand dollars, and (if there be three besides) the sum of seven thousand dollars, and (if there he four or more) the sum of eight thousand dollars.” Held:</p> <p>That this charge upon the devisee taking the estate did not operate as a condition precedent, and confine the meaning of the words to a dying without male issue within a period of time that did not infringe the rule of law against perpetuities.</p>

<p>Unconstitutionality of Act of 1888, ch. 244, relating to Prince George’s County — Taxation—Article 15, of the Bill of Bights.</p> <p>The second section of the Act of 1888, ch. 244, provides, “that the County Commissioners of Prince George’s County, shall authorize and direct the treasurer of said county to pay, horn time to time, to the Commissioners of Laurel, the amount of the tax levied or taxed upon the real property, within the limits of said town, to he appropriated and used by the said Commissioners of Laurel for the repair and improvement of the streets and roads within the limits of said town, and such other improvements as said Commissioners of Laurel shall deem proper.” Held :</p> <p>That this Act, which practically exempts the owners of real estate in Laurel from contribution pro tanto to the necessary expenses of the county government, is in violation of Article 15, of the Bill of Rights, which requires equal contribution for the support of the government according to the actual worth of the tax-payer.</p>

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

The case is stated in the opinion of the Court. First Exception. — The plaintiff having concluded his case, the defendant was duly sworn, and the notes in question exhibited to him, and to maintain the issue on his part, after identifying his signatures as endorser on said notes, the following question was propounded to him: What was the condition of those two notes when you endorsed them — put your name on the hack, and delivered them to your son to he delivered to Mr.…

Appeals from tlie Circuit Court of Baltimore City. The Court helow (Dennis, J.,) passed an order ratifying the claim of the executors of John M. Orem, deceased, allowed in the auditor’s accounts, and dismissing and disallowing the exceptions thereto, except as to the item of $6085.44, being for ten years’ interest on the principal sum of $10,140.44, due hy George B. Chase as his proportion of 'the losses resulting from the business of John M. Orem & Co. which item was…

<p>Plea of Res adjudícala — Demurrer—Pleadings and Practice — Bul tiel Record — Bills of Exception.</p> <p>A plaintiff, after the Court has announced a decision sustaining a demurrer to a pleading which, in effect, defeats the plaintiff’s action, and the entry of “demurrer sustained” has been made on the docket, but has not been followed by formal judgment for the defendant, may dismiss or discontinue his suit; and if, having done so, he brings a new suit on the same cause of action against the same parties, the decision of the Court on 'the demurrer in the former case will not sustain a plea of res adjudicata, if nul tiel record is replied.</p> <p>A bill of exception is the certificate of the Judge of the testimony on which he decided, and is not in any sense an agreement of counsel; though as a matter of courtesy the counsel on both sides are generally allowed to see it, and make suggestions about it.</p> <p>It is the uniform practice to sign bills of exception, leaving documentary evidence to be inserted where the bill of exception indicates it is to go in, which documentary evidence is generally so designated as to leave no question as to what was intended to be in-sérted.</p> <p>Where the original papers and docket entries in a case are offered in evidence, as authorized by the Act of 1884, ch. 23, they can only be inserted in a bill of exception through copies of the same.</p> <p>It is not necessary for an exception to the evidence or record offered in reply to a plea of nul tiel record, to have beeu formally signed before judgment rendered on the plea, nor for any prayer to have been submitted on the subject.</p> <p>To enable the appellate Court to determine whether the Court below erred in its finding or not, requires the evidence to be certified and for such purpose record evidence only is admissible, because the plea of mil lid record only puts in issue the existence of such record as is pleaded and relied on.</p> <p>The rule of procedure in such case in this State is a bill of exception setting forth the record offered, the ruling of the Court with respect to it, and the exception thereto.</p> <p>The entry of “demurrer sustained,” is but the announcement of the opinion of the Court upon the question raised by, it$ and, until formal entry of judgment thereon, the case remain's open for amendment or trial of other issues which may be in the case.</p> <p>Such entry does not possess those elements of a final judgment to make the decision on the demurrer in that case conclusive in any future litigation between the parties.</p>

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

On a hill of interpleader filed by the tenant of the leasehold property involved in this suit, the parties to this appeal were required to interplead, for the purpose of ascertaining which was entitled to the rent of said property, due by the tenant; and which he was ordered to pay into Court to await the decision of said question. After hearing, the Court below, (Dennis, J.,) passed a decree awarding the fund to the appellee. This appeal is taken from said decree.

The case is stated in the opinion of the Court. By agreement the Court below (Wright, J.,) passed a pro forma decree dismissing the hill. The plaintiff appealed.

The hill in this case was filed for the specific performance of a contract of purchase of certain real estate. The Peabody Heights Company, the plaintiff in the case, is a land improvement company, organized for the purchase, improvement and sale or lease of real estate. In June, 1888, it sold to the defendant a parcel of ground formerly in Baltimore County, hut now within the limits of the City of Baltimore as extended.

<p>Contract — Specific performance — Action at Laic.</p> <p>Appellant made a lease of a lot of ground for ninety-nine years, renewable forever, reserving an annual rent of 880. The lessees gave him a mortgage on their leasehold interest to secure the payment of 8500. Subsequently the leasehold, by- assignment came into the possession of the appellees, subject to said mortgage and ground rent. The appellant made an agreement to pinchase . lumber from the appellees, and to pay for it by releasing the mortgage, and also surrendering one of the two ground rents, both parties then erroneously believing that the appellant held two ground rents, each of 840, on the property. After the delivery of a large quantity of lumber, it was discovered that the appellant held only one ground rent which was for 880. Thereupon it was agreed between the parties that the old lease should be surrendered, and the mortgage on the leasehold interest released, and that new leases should be executed, reserving two rents of 840 each, and new mortgages given on the newly created leasehold estates, the appellant agreeing to pay the costs of drawing, acknowledging, and recording the necessary papers. This he subsequently failed to do. Held:</p> <p>That the appellees had a right to bring their action at law against the appellant, to recover the value of the lumber delivered under the agreement.</p> <p>The appellant having failed to comply with-his part of the contract by refusing to pay the costs of preparing and recording the papers, was not in a position to demand a specific performance of the agreement.</p>

The case is stated in the opinion of the Court. The order of the Court below, from which the appeal was taken, was passed by Judge Dennis.

The appellant filed a petition in this case, asking that the decree against the appellee and itself might be entered to its use; and that said co-defendant might be directed to make good to it the amount of said decree, which it had paid into Court. The Court (Brown, C. J.,) passed an order dismissing said petition, and the petitioner appealed. The facts are stated with sufficient fullness in the opinion of the Court.

The hill in this case was filed hy the appellant against the appellee for an account of an alleged partnership between them, and for the payment of his share of the profits, which he claimed to he one-half. The case is stated in the opinion of the Court. The decree from which the appeal was taken, was passed hy Judge Stewart.

This action was brought hy the appellee against the appellant, upon a policy of fire insurance, to recover for a loss by fire.

<p>Appeal as upon Writ of Error — Belay—Rule 28, respecting Appeals or Writs of Error in Criminal Cases.</p> <p>A delay of tliirty-two days in applying for an appeal as upon writ . of error, is a violation of Rule 28, respecting appeals in criminal cases, and the appeal will he dismissed.-</p> <p>In such case the petition and assignment of errors will be dismissed by the Court without motion by the defendant.</p>

<p>Oyster laws — State Fishery force — Power to Arrest without Warrant — Proceedings before a Justice of the Peace— Jurisdiction — Act of 1878, ch. 359 — Act of 1886, ch. 296, sec. 41, {Art. 72, sec. 37, of the Code of 1888,) — Act of 1884, ch. 510 — Appeal.</p> <p>The owner of a sloop was licensed to dredge for oysters within certain limits in Maryland. The person in charge of the vessel was arrested without a warrant by officers of the State fishery force, upon the charge that he did not have the number of the license displayed on the vessel as required by section 7 of the Act of 1878, chapter 359. The accused being carried before a justice of the peace, waived a jury trial, and elected to be tried by the justice, and was found guilty, and sentenced to pay a fine and costs. The return of the justice to a writ of certiorari issued by the Circuit Court of the county contained a copy from his docket which failed to show by whom or under what authority the accused was arrested, or under what statute the justice proceeded. The writ of certiorari was quashed by the Circuit Court, and upon a writ of error it was Held:</p> <p>1st. That the defective record made by the justice in these particulars was aided and made certain by the statements and admissions of record contained in the petition of the plaintiff in error for the writ of certiorari.</p> <p>2nd. That the question was not whether the proceeding before the justice was in all respects regular, and free from error, but whether he acquired jurisdiction of the person of the plaintiff in error, and of the subject-matter of the accusation, and acted within the limits of such jurisdiction.</p> <p>3rd. That under section 41 of the Act of 1886, chapter 296, now section 37 of Article 72, of the Code, the State fishery force have the power to arrest on view without warrant.</p> <p>4th. That nothing appearing to the contrary, it must he presumed the arrest -was lawfully made.</p> <p>5th. That it w'as not necessary that the justice should set forth, as the basis of his judgment, all the circumstances of the arrest of the party accused, or whether the arrest was made with or without warrant.</p> <p>6th. That as it was apparent from the entries of the justice in his docket, that the party was before him on a charge of violating the law, and elected that the justice should exercise his jurisdiction, rather than be held for trial in the Circuit Court by jury on indictment, this was sufficient to show that jurisdiction was obtained by the justice.</p> <p>7th. That the statute does not require in cases like the present, that a written charge be filed with the magistrate, as the foundation of his proceeding; and however desirable it may he, as a matter of good practice by magistrates, that such written charge should be filed in all cases of arrests without warrant, its omission can in.no way affect the question of the jurisdiction of the magistrate.</p> <p>Under the Act of 1884, ch. 510, giving magistrates concurrent jurisdiction with the Circuit Courts in certain enumerated cases, if the party accused waives his right to a trial by jury, afforded by the Act, and elects to be tried by the magistrate, he has no right to ask a review' of the judgment against him, (except where there is a want or failure of jurisdiction) except in cases where the right of appeal is given by statute.</p>

<p>Insane persons Charged with Crime, &c. — Proceedings under sections 4-11, of Article 58, of the Code of 1860, (Code of 1888, Art. 59) — Proceedings for Accounting hy Trustee of the Insane person, Appointed in such cases — Courts of Equity.</p> <p>Sections All, of Article 58 of the Code of 1860, (re-enacted in Article 59, of the Code of 1888,) provide for judicial proceedings in respect of insane persons charged with crime. Section 8, of the Article provides that the provisions of the preceding sections in regard to the case of persons under indictment or arrest for crime, who appear to be insane, “shall apply to the case of any person who may be arrested on any process issued by any Court or Judge of this State, founded on oath, requiring security to keep the peace, and who shall fail to give such security.” On the 15th of June, 1886, a peace warrant was issued by a magistrate during the recess of the Court, in which it was charged on oath that there was danger that D. would injure his own family or do them some bodily hint. Under this warrant D. was arrested by the sheriff in order that he might be required to give security to keep the peace. On the next day while he was thus in custody, on the petition of a relative addressed to one of the Judges of the Court, a jury of inquisition was summoned under the provisions of the sections above referred to, who found that D. “was insane at the time the alleged cause for swearing the oath of the peace against ■ him occurred, and is still insane at the finding of this inquisition.” Upon this finding- the Judge passed an order committing him to a hospital for the insane, at the expense of his estate, to he paid by a trustee thereafter to he appointed; It appearing that his estate ■was abundantly sufficient to pay all such expenses. Held :</p> <p>That the case as presented to the Judge, was within the spirit and intent of the law, and it was not essential to the validity of his action that he should go through the useless formality of issuing himself a new process to the sheriff for the arrest of a party already in his custody, and ascertaining that no one would come forward to become his security, in order to gratify the letter of the statute.</p> <p>Afterwards, on the 31st of July, 1886, B. was appointed trustee of the estate of D. and committee of his person, and gave the prescribed bond. D. remained in the hospital until the 8th of April, 1888, when upon, habeas corpus he was declared to be restored to his reason, and was discharged from custody. Prior to such discharge the trustee made a report to the Court sitting in equity, of his proceedings, and -filed inventories of the property which had come into his hands, and shortly after the discharge he . made a final report, and asked that both reports be referred to the . auditor, and that he be allowed proper commissions, and a reasonable fee to his counsel for their professional services. Held :</p> <p>1st. That there was no good ground of objection to these proceedings on the part of the trustee.</p> <p>2nd. That his appointment as trustee, and the condition of his bond, made it his duty to account in a Court of equity for all the estate, income, and effects of D. which came into his possession, or under his care and direction.</p> <p>3rd. That he had the right to be relieved of his trust in such a way as effectually to release his bond, and his sureties thereon, and a Court of equity was the most appropriate, if not the only, tribunal from which such a release could be obtained.</p>

The case is stated in the opinion of the Court. The decree appointing Joshua J. Zimmerman, trustee, provides that he he “appointed trustee in the place and stead of John Zimmerman of John, deceased, to carry out, execute, and complete the trust created hy the ■will of Nicholas Holtz, deceased, in favor of Mary Ann E. Fraley,” &c.

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

<p>Justice of the Peace in the Oity of Baltimore — Official bond — Liability—Ministerial Acts — Act of 1876, oh. 28— Replevin— Writ of Retorno habendo — Act of 1888, cli. 235— Appeal bond in Replevin cases — Stay of Execution — Demurrer.</p> <p>A declaration on the official bond of a justice of the peace of the Oity of Baltimore, conditioned as required by the Act of 1876, chapter 28, alleged that the magistrate “ wrongfully and wilfully and defiantly refused and declined to issue a writ of retorno habendo for the return of property taken under a writ of replevin, in a case in which judgment had been given in favor of the defendant in replevin, “for the return of the goods, chattels, and effects replevied” from the said defendant by the plaintiff in the replevin, “and for one cent damages and costs,” until a mandamus had been issued by Baltimore City Court to compel him to do so. Upon demurrer to the declaration, it was Held :</p> <p>1st. That the issuing of the writ of retorno habendo by the magistrate was an official act which it was his duty to perform, and which in its nature was purely ministerial, involving no exercise of judgment or discretion.</p> <p>2nd. That for his refusal or neglect to perform this duty his official bond must be held responsible.</p> <p>3rd. That the condition of the bond required by the Act of 1876, chapter 28, that the magistrate ‘ ‘ will truly and faithfully discharge, execute, and perform all and singular the duties and obligations of the office of justice of the peace,” was broad enough to embrace the neglect or refusal to perform any ministerial act, the performance of which was devolved upon him by law.</p> <p>4th. That the Act of 1888, chapter 235, which adds a new condition to replevin bonds in magistrates’ cases, to the effect that the plaintiff will not only abide by and perform the judgment of the justice, but also “of the Circuit Court of the county, or Baltimore City Court, as the case may be,” does not dispense with the necessity of giving an appeal bond in order to stay execution in such cases.</p> <p>5th. That there was enough in the declaration, however loosely stated, to make out a prima, fade case, so as to enable it to stand against a general demurrer.</p>

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