Volume 71 — Maryland Reports

<p>Power of Sale by Executor — Suit in this State against Foreign Executor in his individual capacity — Power and Duties of Executor — Sale by Executor without Authority — Power and Duties of Executor in respect to the Proceeds of Unauthorize d sale — -hirisdiction.</p> <p>A testatrix in Maryland died leaving a farm in Pennsylvania, but owning no land in Maryland. By her will she devised as follows: “I desire my farm to be sold as soon as it can be sold to advantage after my death, that is, if it is not sold before. But no one shall force a sale to get their share without the majority is willing for it, and one-lialf of the price I want to be secured in the farm while my dear husband lives, or if it is taken out it must be secured in some other real estate, so as to keep the principal to be equally divided after my husband’s death among all my children; my husband is to have the interest only while he lives. The other half I want to be equally divided among my children, or, if any of them is dead, their share is to be eqirally divided among their heirs. If any one owes us anything, take it out of their share before giving it to them, and divide it among them all.’" Her husband and her two sons C. and W. were named as executors. The husband died after the date of the will, and during the life of the testatrix, and letters testamentary were granted to W. one of the executors, both in Maryland and Pennsylvania. The farm in Pennsylvania was sold by AT. the acting executor, without the authority of the Orphans’ Court in Pennsylvania, which by the law of that State was essential to the validity of the sale. But although the sale was made by him, the deed given to the purchaser was executed by the adult children of the testatrix and the guardian of an infant grandchild; and the purchase money was collected by him, and he charged himself with it in an account stated by him in the Orphans’ Court in Pennsylvania, and confirmed by that Court. Held:</p> <p>1st. That the acting executor by selling in the unauthorized manner above stated, and delivering said deed, did not deprive himself of other powers over the proceeds of sale when those proceeds came into his hands. .</p> <p>2nd. That the division of the proceeds of sale, the deduction of the debts due by the children from their respective shares, and the payment of the debts of the testatrix which her personal estate was insufficient to pay, were duties which devolved upon him though not expressly conferred by the will; and the funds were subject to the trusts impressed upon them, no matter how the sale was made.</p> <p>3rd. That if there were errors in the account stated by him in the Orphans’ Court in Pennsylvania, they could not be corrected by any proceeding in this State.</p> <p>4th. That while the fund was under the jurisdiction of the Orphans’ Court in Pennsylvania, it could not be interfered with by any process here.</p> <p>5th. That the executor was not liable in his individual capacity, and could not be sued in that capacity in this State by one of the distributees of the fund, for the distributee’s share of the fund held by him as executor.</p>

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

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

Appeals from tlie Circuit Court for Erederick County, in Equity. Citarles A. Ganibrill by his last will and testament, after making- certain devises of real estate, directed that the residue of his property should be sold by his executors; and then, after giving several legacies, he disposed of the remaining portion of his projterty.

<p>Descent and Distribution — Real estate — Money derived from Sale of Real estate.</p> <p>Where a person seized of an estate by purchase, dies intestate, without lineal descendants, and leaving as his only heir-at-law the son of his deceased sister, the son takes by descent immediately from liis uncle, but mediately from bis mother, and upon his death intestate, and without issue, the estate goes to his heirs of the blood of his mother under the Act to Direct Descents which provides that if the estate descended to the intestate on the part of his mother, it shall go to liis heirs of the blood of his mother.</p> <p>Where the land of an intestate is sold to pay his debts, the fund arising therefrom remaining in Court after payment of the debts, is subject to the same rule of distribution as would control the distribution of the land.</p>

The case is stated in the opinion, of the Court. First, Second, Third and Fourth Exceptions, are sufficiently set out in the opinion of the Court. Fifth Exception. — The plaintiffs offered the three following prayers: 1.

This appeal AAras taken from a decree of the Court below, making perpetual the injunction that had been previously issued in the case. After the filing of the answer of the defendant denying the equities of the complainant’s bill, and moving for a dissolution of the injunction, Ellen Keller, to wliom James Howard, the mortgagor, had conveyed the mortgaged property, was, by agreement of counsel, made a party plaintiff in the cause, in the place of said Howard, deceased.

<p> Appeal. </p> <p>Where a verbal order for an appeal in an equity case, was given to the clerk of the Court, within due time, but the appeal was not actually entered by liim until after the expiration of more tlian two months from the date of the order appealed from, the appeal will be dismissed, the verbal order having no effect.</p>

The case is stated in the opinion of the Court. First and Second Exceptions need not be set out. Third Exception. — The plaintiff offered the three following prayers: 1. That the evidence of the witnesses, White, Roussey and Hopper, as to the quantity of wheat raised upon the defendant’s farm in 1884, is not to be considered by the jury in this case, the same being irrelevant to any issue under the pleadings in the case. 2.

Charles Brewington filed a bill of complaint against Louis Katz, alleging that in May, 1887, they had entered into a co-partnership under the name of L. Katz & Co.; and that the business had been carried on under the firm name until the time of the filing of the bill.

Court of Baltimore City. The hill of complaint in this case was filed by John G. Brendel and others, against The Zion Church of the City of Baltimore, and others, to remove an alleged cloud upon their alleged title to certain land in the City of Baltimore. The Circuit Court (Weight, J.,) passed a decree staying further proceedings in the cause. From this decree the complainants appealed. The case is further stated in the opinion of this Court.

The case is stated in the opinion of The Court. First Exception. — At the trial the plaintiff offered in evidence the testimony of Samuel Carty, the equitable plaintiff, and father of the deceased, who testified that he is fifty-two years of age, and was the father of John Carty, who was killed on the fair ground of the defendant on the 19th day of October last; that the son was nineteen years and seven months old at the time of his death; that he had emancipated his son two…

Cross Appeals from the Circuit Court of Baltimore City. . Thomas Whitridgé, now deceased, hy his last will and testament left the following legacy: “I give and hequeath to John A. Whitridge fifty thousand dollars in cash to he held in trust, the income of which to he paid to Mrs. Mary O. Williams, wife of Dr. Philip C. Williams, for the sole use of herself and her children during the term of her natural life; this trust to continue until her youngest child then alive attain…

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

The case is stated in the opinion of the Court. The following portions of the agreement, referred to in the opinion, will suffice for an understanding of the case: This agreement, made this 20th day of March, 1886, by and between William H. Armstrong and J. Irvin Bitner, both of Washington County, Maryland : Whereas, by agreement dated the 8th day of October, 1811, the said William H. Armstrong and J. Irvin Bitner, covenanted and agreed with each other, that they should be…

<p>Mechanics7 lien — Interpleader—Right of Attachment.</p> <p>A corporation owning a building contracted for the erection of an addition thereto, and stipulated as to the times and amounts of the payments of the contract price. A judgment was obtained against the contractor, and an attachment tli'ereon was laid in the hands of the owner. A number of persons alleging .that they had mechanics’ lien claims for work done and materials furnished to the addition to the building, filed a bill in equity to enforce their payment. The owner of the building filed a bill admitting a balance in hand due the contractor under the contract, and expressing a readiness to pay the same to the persons rightly entitled thereto. This balance was insufficient to pay the alleged claims. The complainant stated that it could not know with certainty to whom it ought to make payment because of the conflicting claims, ándthatit was entitled to have an adjudication of the different claims for the purpose of securing itself against making payments to persons not entitled to receive them, and that it was entitled to have the' building relieved from liability for the claims for work and materials. Held.</p> <p>1st. That the bill was not maintainable, as the holders of mechanics’ liens had no concern with the state of the accounts between the owner of the building and the contractor, their claim being against the building, and they had a right to be paid the full amount due them by a sale of it, if the proceeds of sale were sufficient.</p> <p>2nd. That such a bill being in the nature of a bill of interpleader, ought to offer to pay into Court the money due by the complainant, and an affidavit should be filed stating that there was no collusion between the complainant and any of the parties.</p> <p>3rd. That the debt due by the owner of the building to the contractor was attachable like any other debt.</p>

A hill of complaint was filed in this case to obtain the foreclosure of a mortgage from the appellants to the appellee on lands, in Calvert County, to secure the payment of a note dated the 20th of June, 1872, given by James H. Frazier, for $1,640, payable twelve months after date to the order of Samuel J. Lanahan. The defendants, in their answer, not under oath, averred, as a defence that the debt had been paid; and usury..

The case is stated in the opinion of the Court. Exception. — The defendant offered the three following-prayers : 1. The plaintiff’s ticket was evidence of .the payment of his fare, and of his right to he carried according to its terms.

This appeal is taken fi-om a decree passed by the Court below (Dennis, J.,) in favor of the complainants. The 'case is stated in the opinion of the Court.

<p>Sale of Liquor on Dlection day — Construction of Statutes.</p> <p>Section 264, of Article 4, of the Code of Public Local Laws makes the sale of liquor in the City of Baltimore on an election day unlawful, and any person violating this section is made liable to a forfeiture of his license, if he shall have taken out one, and to be disqualified from taking out p.ny other license for the sale of liquor for the space of five years, and also to a penalty of five hundred dollars, to be recovered by the “board of police by civil action in the name of the State.” The Act of 1880, ch. 211, (Article 38, section 1, of the Code of Public General Laws) reenacted at the same time, declares that the penalty for such offence shall be recovered by indictment. II ram:</p> <p>1st. That these enactments being clearly irreconcilable, the Local Laws must, under section 10, of Article 1, of the Code of Public General Laws, prevail; and the pecuniary penalty could only be collected by civil action in the name of the State.</p> <p>2nd. That under an indictment-, under section 264, of Article 4 of the Code of Public Local Laws, for selling liquor in the City of Baltimore on an election day, it was entirely proper for the Court, upon the conviction of the offender, to impose the penalty affixed by the statute, even though the pecuniary part of that penalty could only be recovered subsequently by a civil action.</p>

The case is stated in the opinion of the Court. Exception. — At the trial the Gr. Ober and Sons Company offered three prayers, the first and second of which were as follows: 1. The claimant, the Gr. Ober & Sons Co., prays the Court to rule if it find that the tankage was bought by Cottman from Kapy, and by the Gr. Ober & Sons Co., from Cottman, and was bought by Kapy from Jacob Dold & Son, and was shipped by said Jacob Dold & Son to the said Gr.

An auditor’s report and accounts distributing the proceeds of the sale of the real estate of Garrett Brown, deceased, awarded a portion thereof to be “set apart to be paid over to the trustee to be appointed by this Court, for the share of the testator’s estate devised and bequeath ed to his son Thomas H. Brown, to be held in trust for and during- the life or widowhood of Mattie R. Brown, the widow of said Thomas TL, and after her death or marriage to be paid over and…

This appeal Avas taken from a decree of the Court below (Wright, J.,) denying to the petitioners an extension of time to enable them to perfect the title to the lot in the proceedings mentioned. The case is stated in the opinion of this Court.

This was a special case stated under Rule 47 of General Rules for the regulation of Pleading and Practice in Equity, to obtain the construction of the sixth item or clause of the will of John Willett, the material part of which is set out in the opinion of this Court.

This appeal was taken from a^decree of the Court helow, (Wright, J.,) granting a divorce a mensa et thoro to the complainant, Augustus L. Shutt, from the defendant, Martha A. Shutt, and from the order refusing her permanent alimony. The case is stated in the opinion of this Court.

The case is stated in the opinion of the Court. First Exception. — The plaintiff offered to prove by Sterrett McKim, that he was a member of the New York Stock Exchange, and also of the Baltimore Stock Exchange, and that he had informed himself as to what their rules were in 1886; to prove further by the same witness, and by the printed hooks of such rules which he would identify, what these rules were, and particularly that by Article 15, section 3, of the constitution and…

The ease is stated iu the opinion of the Court. The cause was submitted to the Court for determination without the aid of a jury. The first four Exceptions are stated in the opinion of the Court. Fifth, Exception — At the trial the defendants offered the three following prayers: 1.

<p>Jurisdiction in Equity — Account—Discovery—Act of 1796, eh. 13, sec. 7 (Art. 75, sec. 91, of the Code) — Municipal Corporation — Special tax on Gross earnings of Passenger Kailway Company — Demaild.</p> <p>Where a Court of equity has original jurisdiction, and a statute confers upon the common law Courts a similar power, the jurisdiction of equity is not thereby ousted.</p> <p>The Act of 1790, cli. 43, sec. 7 (Code of 1888. Art. 75, sec. 94) provides in substance that in proceedings at law the Court shall have power to require the parties to answer any bill of discovery only which may be filed in cases and under circumstances where they might be compelled to produce original books or writings or answer such bill of discovery by the ordinary rules of proceedings in chancery. On demurrer to a bill filed in equity for an account, and for a discovery of the manner in which the defendant's accounts were kept, in reference to the plaintiff’s claim, it was Held:</p> <p>That the Act of 1790, did not take away the jurisdiction of a Court of equity in such a case.</p> <p>On a proceeding instituted by a municipal corporation against a city railway company to recover a tax upon the earnings of the company, the limes for the payment of which were definitely fixed by ordinance, it was Held:</p> <p>That the failure to pay the tax at the times prescribed by the ordinance, was a breach of duty which fastened upon the company a liability to be proceeded against without any demand being-made.</p>

The appellants filed a bill against the appellee, praying that his proceedings as examiner in the matter of the opening, grading, condemning, and constructing Gorsuch avenue between certain designated points, so far as the same purport or claim to impose any tax or charge against the plaintiffs or their property, might be declared null and void, and for an injunction. The Court below (Wrioht, J.,) passed a decree dismissing the bill, and the plaintiffs appealed.

The Court below (Dennis, J.,) passed a decree adjudging that certain money on deposit in the Eutaw Savings-Bank of Baltimore, belonged to the estate of Lawrence McDonald, deceased, and a further decree adjudging that certain other |money on deposit in the Savings Bank of Baltimore, belonged also to the estate of said McDonald. Erom these decrees the present appeal was taken; the appellants, widows, being children of Sarah McDonald by a former husband.

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

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

<p>Disorderly house — Evidence—Constitutional law.</p> <p>Under an indictment for maintaining a disorderly house by permitting lewd persons to frequent it, evidence of the general reputation of the women for lewdness who resort there, and that they do so in company with men, is admissible, as also evidence of specific acts of unchastity committed by some of the women elsewhere.</p> <p>A bar room and dance hall, with music, kept for the purpose and with the intent of bringing together and entertaining prostitutes, and men desirous of their company, if such persons habitually assemble there to drink and dance together, is a disorderly house, although it is quietly kept and no conspicuous improprieties are permitted inside.</p> <p>The provision of the Constitution, Article 15, section 5, declaring that “in the trial of all criminal cases the jury shall be the judges of law as well as of fact,” does not inhibit the Court from instructing the jury on the law when they unanimously request it to be done.</p>

A lot of ground in the City of Baltimore was sold for taxes in October, 1862, to John Morrow, now deceased. The lot was and always has been unimproved and vacant. Morrow paid the State and City taxes accruing after his purchase up to and inclusive of the year 1868. In September, 1868, he, in consideration of one hundred dollars, leased this lot to Charles Shipley for ninety-nine years, renewable forever, at the annual rent of fifty-four dollars.

<p>■Qualification of Jurors — When judgment of Court below should not be Disturbed by Court of Review — Admissibility of Dvidence — Remarks of Counsel in the Presence of the Jury — Duty of the Court — Plvidence in Rebuttal.</p> <p>All that can be required of a juror, to render him competent, is that lie shall be without bias or prejudice for or against the accused, and that his mind is free to hear and impartially consider the evidence, and to render a verdict thereon without regard to any former opinion or impression existing in his mind, formed upon rumor or newspaper reports. Whenever it is shown that such is the state of mind of the juror ho should be held to be competent.</p> <p>Where a person summoned as a juror stated upon his voir dire that ho had formed an opinion in regard to the case based upon the newspapers and rumor which it would require evidence to remove, but that notwithstanding such previous opinion formed by him he felt confident he could give the prisoner a perfectly fair and impartial trial, upon the evidence, and upon that alone, such previous opinion does not render him incompetent.</p> <p>Where the question of the competency of. talesmen has been fully investigated by the Court below, and the question is one of mixed fact and law, the judgment of that Court ought not to be disturbed by a Court of Review, unless there be clear and manifest error to the prejudice of the prisoner.</p> <p>A person was on trial for the murder of his wife. After proof of the homicide, the State proved by the sister of the deceased wife, that on the Saturday night preceding the killing, the prisoner-made an assault upon his wife in one of the streets of the town, and drew his knife and declared that he had a mind to stab her to the heart, but desisted; and then offered to prove by the same witness, that on the next evening the parties met by appointment with the prisoner at the [house of the prisoner’s brother; and that, when the wife and her sister were about to start for home, the prisoner proposed that they should take a different route from that by which they came, and return by an unfrequented and little used path over the mountain, which they declined to do. On objection by the prisoner to the admissibility of this evidence, it was Held:</p> <p>That in connection with what had transpired on the day preceding, and the killing two days after at a place of meeting designated by the prisoner himself, this evidence was admissible to go to-the jury, to be considered with all the other circumstances reflecting upon the fact of premeditation.</p> <p>It is not the particular disposition or temperament of the accused, but the nature of the alleged provocation, as that may be supposed to affect and influence ordinary minds, that may be considered in mitigation of crime.</p> <p>Where counsel in the presence of the jury indulge in reckless assertions as to the law applicable to the case on trial, while arguing a question of evidence to the Judge, the latter has the right to give expression of his full and emphatic dissent from the unwarrantable contention of the former; and it may not be unfrequently his imperative duty to exercise that right in a very positive and emphatic manner.</p> <p>A prisoner on trial for the murder of his wife became a witness himself, and stated that he was so shocked and overcome by a * confession of infidelity made by his wife that he was seized by a frenzy or distraction of mind tliat deprived him for the moment of all reason and control of himself, and it was while in this state of mind that he committed the act of killing. On his cross-examination it was proposed to be shown by him, that while a married man, and living apart from his wife, he maintained improper relations with other women, and that such relations in one instance at least were of a criminal nature. On objection, it was Held:</p> <p>1st. That the question was admissible for the purpose of showing the prisoner’s estimate and appreciation of the marital relation and fidelity, and the improbability that he was shocked and overcome in the manner described in his testimony in chief.</p> <p>2nd. That liis relations to liis wife and to other women were circumstances to be considered as pertinent to the defence attempted to be maintained by his testimony in chief.</p> <p>The State is not required to anticipate what, will be the statements of the prisoner on the witness stand, and if he makes statements at variance with former admissions or statements made by him, such former admissions or statements are admissible in rebuttal for the purpose of contradiction and impeachment.</p>

<p>Proceedings in Involuntary insolvency — Framing issues— Practice in Appellate Court — Sufficiency of Verdict to Support judgment.</p> <p>In all cases of proceedings of involuntary insolvency, formal issues should he framed, which should clearly present the facts in dispute; and it is the right of either the petitioner or the defendant to demand such issues.</p> <p>It is also the duty of the Court, upon such demand being made, to see that the proper issues are made and submitted; and it is a good ground for exception if the Court refuses to do so.</p> <p>But, if the parties elect to go to trial upon the petition and answer, they cannot afterwards complain of the want of formal issues.</p> <p>Where it does not appear from the record that any demand was made by either party for issues before the jury were sworn, or any exception taken because they were refused, that objection cannot be considered on appeal.</p> <p>In a petition filed for the purpose of throwing a defendant into involuntary insolvency, if the petition contains a statement of facts which, if true, would authorize him to be adjudged an insolvent, and the parties elect to go to trial upon the petition and answer, a verdict “for the petitioners” can only mean that the jury find the facts stated in the petition to be true, and will be sufficient to support a judgment.</p>

<p>Testamentary guardian — Illegitimate child — Appeal.</p> <p>In the absence of express statutory authority, a father cannot appoint a testamentary guardian to his illegitimate child; but the Orphans’ Court may properly adopt the nomination of the putative father, and appoint the person designated by him, in cases where no objection can be made to the nominee, and no superior claims are presented by other parties.</p> <p>Prom an order of the Orphans’ Court appointing the mother as guardian of her illegitimate child, in the place of a testamentary guardian designated by the putative father, no appeal will lie.</p>

<p>Conveyance by Married woman — Insanity of Husband — Art. 45, see. 2, of Code.</p> <p>Fnder. section-2, of Article 45, of the Code, which provides that where the husband is a lunatic, or insane, and has been so found upon inquisition, and said finding- remains unreversed, and in force, the wife may convey her property as fully as if she were a feme sole, by her separate deed, whether the same be absolute, or by way of mortgage, she may mortgage her property, her husband having been declared insane by the special verdict of a jury in a criminal case, and being in confinement in a hospital for the insane under an order of the Court.</p>

The case is stated in the opinion of the Court. First and Second Exceptions, sufficiently stated in the-opinion of the Court. Third Exception. — The defendant called Mr. Landwehr, a competent witness, who testified that he had known Mr. Korns in his life-time very well; that he had heen the partner of his father, the administrator of his father’s estate, and was the witness’, business adviser for many years, and was at his place of business almost, daily.

<p>Judgment in Attachment — Appeal.</p> <p>Prom an. order, striking out a judgment of condemnation in an attachment case during the term at which it was rendered, no appeal will lie.</p>

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

The case is stated in the opinion of the Court. Exception. — The plaintiffs offered six prayers which the Court (Harlan, J.) refused. They are omitted, not having been noticed in the opinion of this Court. The defendant offered five prayers, all of which, save the first, were refused. The first, as follows, was granted: 1.

The appeal in this case was taken from a decree of the lower Court (Wright, J.) dismissing the hill of complaint. The case is stated in the opinion of this Court.

<p>Gift from Father to Son — Specific Performance — Injunction— Compensation for Improvements — Lien.</p> <p>A bill in equity, filed by a son against his father, charged that the defendant being possessed of about four hundred acres of land, voluntarily divided the same into as many parts as he had children, and in consideration of natural love and affection, gave to each child a portion of the land so divided; that he gave to the complainant a tract of about sixty-two acres, of which he was put in possession by his father; that, at the same time, his father made a will devising the land accordingly; that he caused the tract allotted to the complainant to be surveyed, and had it transferred to him on the assessment books, and that he had paid the taxes thereon since such transfer; that relying on the gift and assurance of his father, as well as upon his said will, he had entered upon said tract, and had ever since remained in possession as owner thereof, and had made valuable improvements on the land, and had rented it; that subsequently the defendant served a notice on the tenant to quit at the end of thirty days, and had since instituted proceedings to oust him as a tenant holding over. The bill prayed for a specific performance, for a reimbursement of all money expended upon the premises during the occupancy of the complainant, for a receiver to receive the rents and profits of the premises pending the suit* for an injunction, and for general relief. The defendant demurred to the bill. Held:</p> <p>That upon the averments of the bill, which, upon the demurrer, must be assumed to be true, the complainant was entitled to the injunction asked for, to compensation for the improvements made by him, and to a decree establishing a lien therefor on the propert}'.</p>

This' appeal presents simply a question of practice, hut an important one. The facts are as follows: The appellee sued the appellant on two promissory notes, and the declaration also contained a count for money found due from the defendant to the plaintiff on accounts stated between them. The pleas were non-assumpsit and set-off, and the case was tried before a jury.

The decree of the Court below, from which this appeal was taken, was passed hy Wri&ht, J. The case is stated in the opinion of this Court.

<p>Pleading — Confession and Avoidance — Contract of Hiring— Discharge of Employe-</p> <p>In an action to recover damages for a breach of contract of employment, pleas that admit the making of the contract, and its subsequent broach, but one of which sots up a justification, and the other two a judgment in bar, are pleas in confession and avoidance, and are good pleas, if the justification set up be valid, and the judgment relied on be in law a bar to the proceeding.</p> <p>Where a person employed for a year at a specified salary, payable monthly, is discharged before the expiration of two months, and having been paid one month’s salary prior to her discharge, sues and recovers judgment for the value of her services up to the time of such discharge, and the judgment is paid, she cannot afterward sue her employer for a breach of the contract.</p>

The appellee was employed by the appellant to teach elocution and painting in the Hagerstown Female Seminary. The contract was for a year at a fixed salary, payable monthly. She commenced her duties as such teacher on the 27th of September, 1887, and continued to perform them until the 25th of October, when she was discharged. Soon afterward the appellee brought suit against the appellant, before a justice of the peace, and recovered judgment for one month’s salary.

<p> Usury. </p> <p>Lf the mortgagee of property while he remains mortgagee, ehoses to question any prior lien or incumbrance thereon he may do so^ but if he becomes the purchaser of the property under proceedings for foreclosure of his mortgage, and takes a deed for it “subject to the yearly ground rent” thereon, his position is thereby changed, and he will not be allowed to avail himself of the fact that the transaction by which said rent was created was tainted with usury.</p>

The case is stated in the opinion of the Court. First, Second, Third, Fourth, and Fifth Exceptions, stated in the opinion of the Court. Sixth Exception. The plaintiff' offered the two following prayers: 1.

<p>Appeal from tlie Circuit Court for Prince George’s County, in Equity.</p> <p>This appeal was taken from the order of the Court below, (Brooke, J.,) overruling the motion to dissolve the injunction, previously granted, restraining the appellant from collecting the county taxes for the years 1878 to 1888, inclusive, due by the appellee as a delinquent tax-payer, and making such injunction perpetual. The bill was filed to restrain “James T. Perkins, trustee to complete the collection of taxes remaining uncollected by the late John G. Hall, collector of State and county taxes for Prince George’s County,” from selling certain real estate assessed in the name of Louis C. Dyer, under an advertisement of the same. The injunction was issued as prayed.</p>

<p>Action on a Promissory note — Recoupment.</p> <p>A promissory note was given in payment for a quantity of cord-wood. and other articles of personal property, sold to the makers at public auction by an agent of the payee, but not delivered at the time of the sale. A few days after the sale the vendor agreed that the vendees should be permitted to convert the wood into charcoal on the vendor’s land, whereupon they signed the note, and one of them testified that he would not.have signed it without such agreement. In an action on the note, to which the plea of set-off was filed, it .was Held:</p> <p>That the contract, hy which the wood was to be converted into charcoal on the vendor’s land, was so directly connected with the subject-matter of the note, that if it was violated on the part of the payee, the defendants were entitled to off-set or recoup against his claim, the amount of the loss occasioned by such violation.</p>

The appellee sued the appellant, a corporation of the District of Columbia, doing business in Maryland, for an alleged breach of a contract to employ him as general manager for the Industrial Branch Insurance of the defendant for the term of two years, from the 21st of February, 1887, upon the terms stated in the contract.

This appeal was taken from a decree of the Court helow, (Dennis, J.,) sustaining a demurrer to the bill of complaint. The case is stated in the opinion of this Court.

This appeal was taken from an order of the Court below (Wright J.,) overruling exceptions to the sale, and finally ratifying the same. The case is stated in the opinion of this Court.

The Court below (Dennis, J.) being of opinion that the plaintiff, Christian Gross, had overpaid the mortgage indebtedness due to the defendant Building Association, upon the two mortgages .mentioned in the proceedings, by the amount of $50.89, and that said sum should be returned, passed a decree requiring the defendant to pay said sum to the plaintiff, and to release said mortgages.

The case is stated in the opinion of the Court. The plea of set-off filed hy the defendant, (now appellant) is as follows: “3rd. For defence on equitable grounds, that the plaintiffs are indebted to the defendant in an amount greater than the said plaintiffs’ claim, for money payable hy the plaintiffs to the defendant, for money had and received hy the plaintiffs for the use of the defendant.

John Burt brought an action of assumpsit against William S. Myer and Thomas R. Myer, partners, trading as W. S. Myer and Brother. — The declaration contained a count on a special contract, which will be more particularly noticed hereafter, and counts for money had and received, on accounts stated, and for goods bargained and sold.

<p> Order from toliicli an Appeal will not lie. </p> <p>No appeal lies from an order overruling a demurrer to a petition in insolvency by creditors of the insolvents, and requiring the latter to answer within a specified time; such order not being final, and deciding no question under the insolvent laws within the meaning of sec. 31 of Art. 47 of the Code. "</p>

<p>Attachment — Affidavit—Appeal—Record,.</p> <p>Section 35 of Article 9 of the Code, provides that the affidavit upon which an attachment may issue, shall state “that the plaiutiff knows, or has good reason to believe, either (1st) that the debtor is about to abscond from this State, or (2nd) that the defendant has assigned, disposed of, or concealed, or is about to assign, dispose of,' or conceal his property, or some portion thereof, with intent to defraud his creditors, or (3rd) that the defendant fraudulently contracted the debt, or incurred the obligation respecting which the action is brought, or (4th) that the defendant has removed, or is about to remove, his property, or some portion thereof, out of this State, with the intent to defraud his creditors.” Held:</p> <p>That an attachment obtained on an affidavit that alleged the first and second conditions prescribed in the statute will be quashed, where there is no sufficient evidence to support such allegations, although there is strong evidence in support of the third condition mentioned in the statute.</p> <p>The insertion in the record on appeal, without apparent authority, or at least any official authentication whatever, of the whole mass of testimony taken at the trial, when every material or relevant fact or circumstance to be gathered from it, could have been well stated in a bill of exception, is objectionable, and the appellants, though they may obtain a reversal of the judgment appealed from, will be required to pay the cost of printing such testimony inserted by their order.</p>

Douglass street was widened and extended under the provisions of an ordinance passed by the Mayor and City Council of Baltimore. The Commissioners for opening streets having made their assessment of benefits and damages, and having assessed benefits on two lots of ground belonging to the Central Savings Bank of Baltimore, it prayed an appeal to the City Court. A motion was made1 to quash the proceedings and the following reasons were assigned: 1.

This appeal involves the proceedings in reference to Douglass street. The same motion was made to quash, which has been considered in the preceding case. The motion was overruled and a jury was sworn and benefits were assessed to Zion Church. At the trial four prayers were offered in behalf of the Church, and one for the city. The appellant’s prayers are as follows: 1.

This suit was brought by the appellee against Samuel W. Regester, Elisha S. Heath, Alexander D. Michael, Anton Textor, Henry P. Chandlee, and Edwin L. Tunis. Held: and such a resolution passed;) and shall further find that the said defendants, Regester, Chandlee and Michael, did not subsequently ratify such resolution, then their verdict must be for the defendants. 5.

<p>Appeal — Practice in Court of Appeals — Eminent domain— Injunction — Erection of Telegraph poles over Right of Way of Railroad Company — New easement — United States Revised Statutes, sections 3964, 5263 — Sees. 222-226, of Art. 23 of the Code — Constitutional law — New servitude— Compensation to Oicners of Land.</p> <p>In deciding an appeal from an order granting a preliminary injunction, the Court can look only to the case made by the bill, though the defendant is required to file an answer before he can appeal, and the answer must appear in the record.</p> <p>A telegraph or telephone company is, with respect to its right to construct its lines over private property, just as much subject to the provision of section 40 of Article 3 of the Constitution, that forbids the taking of priyate property for public use without just compensation, as is a railroad or any corporation clothed with the power of taking private property for public use; and the averment that such company is .proceeding, or threatens to proceed, to construct its line of poles and wires on and over the complainant’s land, without his leave or license, and without paying or tendering him compensation for the use of his lands, for this purpose, is sufficient to entitle him to an injunction.</p> <p>Where a telephone or telegraph line is constructed by some one over the right of way of a railroad company, or by the railroad company itself, in good faith, for its use and benefit in the operation of its road, and to facilitate its business, or it is reasonably necessary for that purpose, the land-owners have no ground of complaint, such use of their land being within the scope of the original easement for which they have received compensation; but if the line be not constructed for such purpose, it will be a new easement, and put a new and additional burden upon the land, for which the owners will be entitled to compensation.</p> <p>The Act of Congress, approved 24th July, 1866, (U. S. Eev. Stat., sec. 5263,) providing that telegraph companies shall have the right to construct, maintain, and operate lines of telegraph over any of the military or posbroads of the United States, and the Act of Congress approved 8th June, 1872, (U. S. Eev. Stat., sec. 3964,) declaring all the railroads in the country to be post-roads, do not give telegraph companies the right to construct their lines over the right of way of railroad companies without previously obtaining the consent of the owners of the right of way, or condemning the same for telegraph purposes, and making compensation therefor.</p> <p>If sections 222-226 of Article 23 of the Code, contain any provision authorizing the construction of telegraph lines on and over private property in the first instance, and then requiring the property owners to seek compensation therefor afterwards by an action at law for damages, it is in conflict with sec. 40 of Art. 3 of the Constitution, which.requires just compensation to be “first paid or tendered,” before private property can be taken for public use.</p> <p>■Casting an additional burden by erecting a telegraph or telephone line over the right of way of a railroad company, is just as much taking the land for public use as was the taking of it for the original easement, and Courts of equity have in this State jurisdiction to prevent it by injunction, until compensation is paid or tendered.</p> <p>At the time a railroad was completed between Baltimore, and , Delta in Pennsylvania, it had a line of telegraph poles, with one •wire thereon, constructed by D. under a contract with the company, to construct and maintain, at his own cost, a first class telegraph line along the company’s right of way, for the purposes of the railroad. This line existed, and was in operation, performing all the necessary work of the company when it was transferred to the company by a contract made with the defendant, a telephone and telegraph company, organized for the purpose of establishing lines of communication, at long distances, by telegraph and telephone, and to do business between the city of Yew York and cities south of it. By the contract the railway company granted to the defendant the right, at its own cost, to erect, maintain, and operate a telegraph and telephone line over the right of way of the railway company, the railway company not receiving a single substantial privilege which it did not have mi dor the contract with D. Shortly after the execution of this contract the defendant commenced erecting large and tall poles, with arms ten feet in length for the support of the wires, all which were of a character not required to promote the business purposes of the railroad company. Held:</p> <p>That the construction of the new and additional line of telegraph by the defendant, imposed a new servitude on the land through which the right of way passed, and the owners of the land were entitled to compensation.</p>

<p>Larceny of Bank note — Pleading.</p> <p>In an indictment under section 158 of Article 27 of the Code, for the larceny of a bank note of this or any other State, it is not necessary to charge that it was the note of a particular bank.</p>

This was a hill, in equity-filed by the appellant against the appellee to obtain relief against two judgments against him by the defendant. A pro forma decree was entered in favor of the defendant and the plaintiff appealed. The case is stated in the opinion of the Court.

<p>Bills of Exception — Practice in Court of Appeals — Demurrer — Motion in Arrest of Judgment — Action at Law against P'eme Covert on her Contract for Services.</p> <p>Rulings on a demurrer, and on a motion in arrest of judgment, cannot be brought up for review on bills of exception.</p> <p>That which may be availed of on general demurrer cannot be relied on in arrest of judgment. (Code, Art. 75, sec. 9.)</p> <p>The common law doctrine, that a married woman cannot be sued at law in an action ex contractu, except as modified by express legislative enactment, still prevails In this State.</p> <p>None of the statutory exceptions to this general rule of the common law, affects the disability of a feme covert tó be sued upon a ■ contract made by her for personal services in waiting upon and nursing her.</p> <p>The estate of a feme covert, after her death, cannot be held responsible upon a contract which could not have been enforced against her when living.</p> <p>When the suit is upon a contract of a feme covert, who can only be sued under prescribed conditions, it must appear by proper averments in the declaration that those conditions exist.</p> <p>The fact that the contract of a feme covert specially charging her separate estate, may be enforced in equity, furnishes no ground for concluding that an action at law may be maintained against her personally, upon her mere promise to pay a debt for services rendered to her, even though she has charged her separate estate with the payment of it.</p>

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

<p>Warranty — Parol evidence.</p> <p>Where in an action for an alleged breach of warranty of a mortgage sold to plaintiff by defendant, there is no allegation of fraud or deceit in the declaration, and the written assignme'nt endorsed on the mortgage contains no warranty, evidence that at the time of the execution of the assignment the defendant verbally warranted the mortgage to be a good lien on the property, is inadmissible.</p>

Appkai, from tire Orphans’ Court of Howard County. The case is stated in part in the opinion of the Court.

<p>Railroad Company — Person hilled by Engine — When case should be Withdrawn from the Jury — Evidence—Province of Jury — Province of Court.</p> <p>A boy nearly eleven years old, and smart and intelligent for his age, was killed by an east bound passenger train, running on a down grade at the rate of thirty or thirty-five miles an hour. He had been sent on an errand to the house of a neighbor some three or four hundred yards distant, and when he started he attempted to go up the tracks of the railroad, and his mistress, observing his course forbade his going on the railroad, and cautioned him to avoid the danger of the cars. She testified that when she heard the rush of the train, she ran to the front door to see what it was, and caught sight of the boy and -the engine at the same time; that he was on the front of the engine, being tossed up, and scrambling with his hands, the engine being at that moment on the private crossing below the house. The engineer of the defendant testified that he did not blow the whistle for the crossing on that day, and never did so to his recollection; there was no whistling post requiring it; that when he first saw the boy running towards the house between the north and south tracks of the railroad, he was forty or fifty yards west of the crossing, and appeared to be running as rapidly as he could — at full speed; he could have stopped off at any point, and gotten out of the way of the train, without any trouble; he was not on witness’ track at any point where he could see him, and if he had remained between the tracks lie would not have been injured. The fireman who saw the accident as it actually occurred, testified that the hoy was not on the track at any time until he got hit; that when the engine got within three feet of him, the little fellow stumbled, and fell right out on the pilot, and it threw him up, and he came down aud lit on the flag staff; the flag staff broke off with him, and he fell to the ground. If he had not stumbled and fallen over, he would not have been hit. Held:</p> <p>That there was. not such legally sufficient evidence of negligence on the part of the defendant as to warrant the submission of the case to the jury.</p> <p>In matters of proof the existence of facts is not to be inferred from mere possibilities; there must he proof of the essential facts to fix liability upon a party charged with the commission of a wrongful act; a mere surmise that there may have been negligence on the part of the defendant will not justify the Court in submitting the case to the jury.</p> <p>Juries cannot be allowed, however great the deference conceded to their province, to make mere conjecture or speculation the foundation of their verdicts. If there he no evidence upon which a rational conclusion may he based in support of the claim of the plaintiff, the case should be withdrawn from the jury; and to do this is a preliminary duty of the Court.</p>

<p>Sections 129, 130 of Article 7 of the Code of Public Local Laics, relating to Taxes in Carroll County — When Taxes are Legally demandable — Sale under Power in a Mortgage — Inadequacy of Price.</p> <p>Under sec. 129 of Article 7 of the Code of Public Local Laws relating to Carroll County, taxes become due and in arrear “on the first day of January next succeeding the date of their levy.” And sec. 130 of said Article provides that where taxes are in arrear, “and the collector shall find it necessary to enforce the collection thereof, he shall first leave with the party by whom the taxes are to bo paid,” a notice warning the delinquent that, unless they are paid within thirty days, the collector “will proceed to collect the same according to law.” A mortgage of land in Carroll County contained a covenant to pay the taxes on the mortgaged property “when legally demandable,” and the usual provision for a foreclosure “in case of default being made in paying the mortgage debt, or in performing any agreement, covenant or condition” of the mortgage. HjbIjD:</p> <p>1st. That taxes on the mortgaged property were “legally demandable” within the meaning of said covenant, as soon as they ‘ became due and in arrear, which was on the first day of January next after their levy.</p> <p>2nd. That proceedings for foreclosure for the non-payment of taxes so due and in arrear, were properly instituted although no notice, as provided in section 130 of said Article, had been given by the collector.</p> <p>3rd. That although payment of said taxes could not have been enforced by legal process unless the notice had first been given, they were none the less due and in arrear, and therefore legally demandable at the time when said proceedings were instituted.</p> <p>Mere inadequacy of price is not a sufficient ground for setting aside a mortgage sale, unless it be so gross as to indicate want of reasonable judgment and discretion, or misconduct and fraud in the mortgagee, or some mistake or unfairness for which the purchaser is responsible.</p>

<p>Decedent’s Beal estate — Purchase from Devisee — Creditors of Decedent.</p> <p>Section 109 of Article 93 of the Code, provides that an executor shall give notice of his appointment, and shall warn the creditors of the deceased to exhibit their claims properly authenticated, within six months. Section 110 of the same Article authorizes the executor to report to the Orphans’ Court that such notice has been given, and requires the Court, upon being satisfied of the fact, to order said report to be recorded. Section 188 of Article 10, provides that where any person dies leaving real estate, and not leaving personal estate sufficient to j>ay his debts and costs of administration, the Court, on suit by any of his creditors, may decree that the real estate, or so much thereof as may be necessaiy, shall be sold to pay his debts. Held:</p> <p>That where the records of the Orphans’ Court show that an executrix, who was the sole residuary devisee and legatee, has, after giving the required notice to creditors, filed her final account showing that she has paid all the debts proved against the estate and many others, a legacy, and the costs of administration, and that a large balance remains in her hands, a purchaser from her of a house devised, in good faith, and for value, and without knowledge of any outstanding and unsettled debts of the decedent, will be protected against any and all of his creditors subsequently preferring claims.</p>

The case is stated in the opinion of the Court. The pro forma decree from which this appeal was taken, was passed by Judge Dennts.

<p>Practice — Judgment Irregularly Entered, Stricken out.</p> <p>A suit was instituted and ail attorney appeared for the defendants, who were partners, and filed pleas denying the plaintiff’s case. A commission was issued to Now Orleans to take the testimony of one of tlio defendants. The commission and testimony were returned. The case not being tried went on the stet docket. Subsequently defendants’ attorney ordered his appearance to be stricken out. A rule was laid on the defendants to employ new counsel, and the writ issued thereupon was returned “non sunt.” Under a rule of Court, when a case is on the stet docket, counsel may compel the opposite party to proceed to trial by giving five days notice in writing to be served on the attorney of record of the party to bo affected by it, or left at his office, or set up in some conspicuous place in the clerk’s office if there be no appearance by attorney, or served on the opposite party personally. No such notice as thus required was given, but plaintiff’s counsel delivered to the sheriff, to bo served on the defendants, a written notice of his intention to call the case for trial after the expiration of five days from the date thereof; and subsequently a like notice was placed in the hands of the sheriff. Each of these was returned unon suntand seven days after the date of the last notice, the suit was prosecuted ex parte, and verdict and judgment were given for the plaintiff. The partnership of the defendants had been dissolved more than four years when the judgment was entered, and the responsible partner lived in New Orleans at the time. He had no notice that the appearance of the defendants’ attorney had been stricken out, and concluded that the suit had been abandoned on the part of the plaintiff, or had been successfully resisted. As soon as he had notice of the entry of judgment, a motion was made to have it stricken out, and he made oath that he had a good and substantial defence. Held:</p> <p>That under such circumstances the judgment should be stricken out, and the case tried on its-merits.</p>