Volume 73 — Maryland Reports

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

Ceoss-Appeals from the Superior Court of Baltimore City. This was au action of assumpsit upon the common counts, and two counts on a special contx-act, brought by John E. Semmes and Prank P. Clark against the Western Union Telegx-aph Company, and was tried before the Court without the intervention of a jury. The case is stated in the opinioxx of the Court. Defendant’s Exception. — The plaintiffs offered the three following prayers: 1.

The case is stated in the opinion of the Court. First Exception. — The plaintiff offered to prove .that William R. Weaver conducted a separate business of his own under the name of William R. Weaver & Co., during the year 1887, and a number of years previously, and that all notes and contracts which were made and used by Weaver in the prosecution of his separate business were signed “Wm.

Appeal as upon Writ oe Error, from the Criminal Court of Baltimore. The opinion of the Court, and the concurring opinion of Chief Judge Alvey, furnish a full statement of the case.

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

The ease is stated in the opinion of the Court. The verdict and judgment were for the plaintiff, and the defendant appealed.

<p>Parol evidence — Admissibility of Parol evidence to. Explain or Vary a Written instrument — Creditors’bill—Interest.</p> <p>On the 4th of November, 1879. judgment was confessed on a sealed note given by A. to S. for $359, dated the 23rd of October, 1879, and payable on demand, to which was appended the following power of attorney: “I hereby authorize O. S. L. to appear for me and confess a judgment on the above note in favor of D. S. for three hundred and fifty-nine dollars, with interest from date, independent and exclusive of a judgment said S. now holds against me in the Circuit Court for Harford County for $1,035, with interest from about the 9th of November, 1871. Witness my hand and seal this 23rd day of October, 1879.” It was duly signed and sealed. This power of attorney was filed in Court as part of the proceedings at the time, and as the authority upon which the judgment by confession was entered. Held :</p> <p>That parol proof was inadmissible to show that said note was given for the balance of interest due upon the older judgment for $1,035, mentioned in said power of attorney.</p> <p>Parol or extrinsic evidence is admissible to explain some uncertainty or ambiguity in a written instrument, or to prove some collateral or independent fact about which the written agreement is silent, but not to contradict, vary, or explain a written instrument in which there is no uncertainty or ambiguity, or any terms of description requiring explanation.</p> <p>Where real estate of a deceased debtor is sold under proceedings instituted by his creditors, the general rule is to calculate interest on all claims down to the date of the sale, and then to distribute the interest received, or which ought to have been received, by the trustee on the credit payments for the purchase money, pro rata to all the claims.</p>

The case is stated in the opinion of the Court. The declaration contained three counts, each of which stated that the words complained of were spoken in the presence and hearing of “divers good and worthy citizens of this State. ” The defamatory words set forth in said counts respectively were as follows: In the first count, “Lookout for Jake (meaning the plaintiff) he (meaning the plaintiff) will steal. ” In the second count: “By gosh, look out for Jake (meaning the…

<p>Appeals from the Circuit Court for Talbot County.</p> <p>The cases are stated in the opinion of the Court.</p>

<p>Record of Official acts of Executive Department, kept, by Secretary of State — Evidence—Constitutional law — Local or Special laws — Subject and Title of Law.</p> <p>Tlie record of the official acts and proceedings of the Executive Department, kept by the Secretary of State, as required by section 23 of Article 2, of the Constitution, is competent evidence to show that a bill endorsed by the Secretary of the Senate as having been presented on a particular day to the Governor, for his approval, was in fact presented on a different day.</p> <p>Section 30 of Article 3 of the Constitution, declares that “every bill, when passed by the General Assembly, and sealed with the great seal, shall be presented to the Governor, who, if he approves it, shall sign the same in the presence of the presiding officers and chief clerks of the Senate and House of Delegates;” and section 17 of Article 2 declares that, “every bill which shall have passed the House of Delegates and the Senate, shall, before it becomes a law, be presented to the Governor of the State; if he approve, he shall sign it; but if not, he shall return it, with his objections, to the House in which it originated, which House shall enter the objections at large on its journal, and .proceed to reconsider the bill; * * * If any bill shall not be returned by the Governor within six days (Sundays excepted,) after it shall have been presented to him, the same' shall be a law in like manner as if he signed it; unless the General Assembly shall by adjournment prevent its return, in which case it shall not be a law.” Section 1 of Article 41 of the Code, provides that “every bill, when passed by the General Assembly, shall be returned to the House in which the same originated, and shall, as '■ soon thereafter as practicable, be sealed with the great seal, by the secretary of the Senate or chief clerk of the House of Delegates, as the case may be, and presented to the Governor for his approval; and, in his presence, such clerical officer having custody of the same shall make on the back of every such bill, a memorandum in writing of the day and hour when the same was presented to the' G overnor for his approval; and such officer so presenting the same shall sign his name to such memorandum, and shall make a corresponding entry upon the journal of the House in which the same originated.” Held :</p> <p>That a bill regularly passed by the Legislature, and sealed as directed by the statute, could be constitutionally presented to the Governor, and signed by him, after the session of the Legislature had closed, provided the signing "by the Governor was done within six days from the time the bill was actually presented to him for approval.</p> <p>The Act of 1890, ch. 538, amending section 54 of Article 33 of the Code of Public General Laws, title ‘'Elections,” is not a local or special law, within the prohibitions of section 33 of Article 3 of the Constitution, nor does the fact that the provisions of the Act are restricted, in their application, to about three-fourths of the State, in any way affect its constitutional validity.</p> <p>The one principal subject of the Act of 1890, ch. 538, being “Elections,” and its title being “An Act to repeal and re-enact, with amendments, section 54 of Article 33 of the Code of Public General Laws, title ‘ Elections, ’ and to add new sections thereto,” &c. the Act is not repugnant to section 29 of Article 3 of the Constitution, which requires that every law shall embrace but one subject, and that shall be described in its title.</p>

<p>Appeal — Reversal—Pleading—Pjecimeut— Instruction — Sec. 69 of Art. 75 of the Code.</p> <p>To justify a reversal on appeal, there should be a concurrence of error on the part of the Court, and of injury thereby resulting to the appellant.</p> <p>Where certain pleas in ejectment are demurred to, and the demurrer is sustained, and the defendants, without objection or exception to this ruling, ask leave to file a special plea, to the same effect as the previous pleas, and this leave is refused, no appeal will lie from such refusal, it being discretionary with the Court to allow defendants to file special pleas.</p> <p>An instruction to the jury, in an action of ejectment, that “under the pleadings in this case, the plea of not guilty admits the possession of the plaintiffs of the land in issue, and their ejectment by the defendants, and puts in issue the title and right of possession to the premises, and the damages sustained by the plaintiffs,” only informs the jury as to the legal effect of the plea of not guilty in such action, and is unobjectionable.</p>

<p>Non-resident Attending as Witness — Exemption from Service of Summons.</p> <p>A resident of another State, who comes into this State as a witness to give evidence in a cause here, is exempted from service of process for the commencement of a civil action against him in this State, and the privilege protects him in staying and returning, provided he acts bona fide, and without unreasonable delay.</p>

<p>Official bonds — Breach—Liability of Sureties — Release of Sureties — Principal and Surety — Admissions as Evidence —Measure of Damages.</p> <p>The Howard Bank was empowered by its charter, (Act of 1847, ch. 88,) to take bonds for the corporation from all of its officers, agents, or servants appointed by the directors, with security, conditioned “for the faithful execution of the duties of such officers, agents, or servants, and to secure such corporation from loss;” and it was further enacted that such officers should take an oath “to discharge their several trusts diligently, honestly, and impartially.” By the Act of 1854, ch. 222, borrowing of the Bank by its officers was prohibited under a penalty. The cashier of the Bank gave bond conditioned that he “shall well and faithfully discharge the duties imposed upon him as the cashier of said Bank by the charter and by-law’s thereof.” No by-laws were ever adopted, and the charter did not particularly describe the cashier’s duties. Held :</p> <p>That the .embezzlement by the cashier of the funds of the Bank, under the pretence that he had borrowed the same, was a direct violation of a duty imposed by the charter, which was to discharge his trusts honestly, and was a breach of the condition of his official bond, and his sureties were therefore responsible for the loss consequent upon his dishonesty.</p> <p>The cancellation of a memorandum representing the cashier’s indebtedness to the Bank, did not release the sureties on his bond, such cancellation having been effected through the use of certain accommodation promissory notes which he procured for the purpose of hiding, by simulated entries, his own and the president’s defalcations, and for the further purpose of covering up, temporarily, losses sustained by the Bank on its discounted paper. ’</p> <p>The release by the Bank of its president for a small part of his defalcation from all the balance, in no way operated to discharge the sureties of the cashier from liability for what he owed the Bank. They were not answerable for the president’s dishonesty, and any adjustment made by the Bank with him to secure the return of a part of his indebtedness, and his release as to the balance, did not discharge the cashier from his duty to restore what was due by him, though both the president and cashier were wrong-doers.</p> <p>A release by the- president of the Bank of the sureties on the .cashier’s bond, .did not release them from liability for any moneys taken and retained by him from the Bank prior to the date of such release, and did not estop the Bank from recovering payment therefor.</p> <p>The failure by the directors of the Bank to give notice of the dishonesty of the cashier, if the same were known to them, to the sureties on his bond, and his retention in office, did not release the sureties, the failure of one officer of a corporation to discharge his duty not releasing the sureties of another from responsibility for the defaults of the latter.</p> <p>The failure by the Bank to set-off the amount of the salary due to the cashier against the debt due by him to it, did not discharge the sureties on the bond which secured that debt.</p> <p>The doctrine that, when the creditor parts with a security upon . which he has a lien for the payment of the principal’s debt, and to which -the surety has a right of subrogation on paying the debt, he impairs his claim against the surety, does not apply to a case where the principal, a bank cashier, has himself by means of fictitious entries, abstracted the certificate of stock which he had previously pledged to the Bank as security for money which he had embezzled.</p> <p>The admissions of the cashier as to his indebtedness to the Bank, are competent, though not conclusive, evidence against his sureties.</p> <p>In an action by a Bank against the sureties on the official bond of its cashier, to recover the amount of his defalcations, the amount proper to be recovered is the sum total of such defalcations, with interest on each sum embezzled from the time of its embezzlement. '</p>

The case is stated in the opinion of the Court. First and Second Exceptions stated in the opinion of the Court. Third Exception. — The plaintiffs offered the two prayers following: 1.

<p>Appeal from the Circuit Court for Baltimore 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. Exception. — At the trial the plaintiff offered nine prayers, the third, eighth and ninth of which, as follows, were granted; his other prayers were rejected, and are, therefore, omitted: 3.

This is an action at law brought hy the appellants against the appellee, to recover a balance claimed to be due for advances. The case is stated in the opinion of the Court. Exception. — At the trial the plaintiffs offered the three following prayers: 1.

The case is stated in the opinion of the Court. The following are the additional pleas mentioned in the opinion of the Court, the demurrers to which were sustained: And the defendants, for an additional plea, say: For defence on equitable grounds, that the said Elizabeth Miller, byO.

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

This appeal was taken from a pro forma decree -dismissing the bill of the complainant, and releasing the defendants from their contract of purchase of the lands from the complainant in the proceedings mentioned. The case is stated in the opinion of the Court.

<p>Appointment of Administrators — Appeal.</p> <p>Where one of several persons forming a distinct class, all of whom are equally entitled, is to be selected as administrator de bonis non, the selection of one of them, without regard to seniority, to the exclusion of the others, is committed to the discretion of the Orphans’ Court, and from the exercise of this discretion no appeal will lie.</p>

<p>Equitable conversion — iSale of Land — Purchaser at a Judicial sale — Presumption.</p> <p>Where a testator by his will directed the immediate conversion of all his estate into money by a trustee, and its investment in stocks or money loans, and thereby the land of the testator was equitably converted into money, a sale is valid, though the infant distributees were not made parties defendant in a proceeding therefor, and though the theory on which the petition sought the sale was not correct, facts sufficient to authorize the sale having been averred, and there being a general prayer for relief.</p> <p>A will directed the sale, and conversion into money, of all the . property of the testator, by a trustee. A sale was made, and ratified by tli'e Court; but the buyer never complied with the terms of sale, he having failed in business and become insolvent. On a petition, subsequently filed, for a resale, it was Held :</p> <p>That the previous sale could be rescinded by the Court, the purchaser having voluntarily appeared in the cause and filed an agreement that the sale made to him might be set aside, although infant distributees were not made parties defendant, and the petition for a resale made no mention of the previous sale, and did not ask to have it set aside, or the decree under which it was made, vacated.</p> <p>A purchaser, under a judgment or decree of a Court of competent jurisdiction, may presume that the Court has taken all the .necessary steps to investigate the rights of the parties, and that the decree under which a sale is made was passed after due and proper investigation.</p>

<p>Sale of Intoxicating liquors — Police power — Constitutionality of the Act of 1890, eh. 343.</p> <p>The Act of 1890, ch. 343, prescribing a new system for the regulation of the sale of intoxicating liquors in the City of Baltimore by the establishment of a Board of three Commissioners, invested with the power of granting licenses to' sell by retail only to citizens of the United States of temperate habits and good moral character, is a valid exercise of the police power of the State, and is not repugnant to section one of the Fourteenth Amendment to the Constitution of the United States, which provides that, “íTo State shall make or enforce any law which shall . abridge the privileges or immunities of citizens of the United States * * * nor deny to any person within its jurisdiction the equal protection of the laws.’’</p>

The case is stated in the opinion of the Court. This appeal is taken from the order of the Court helow directing the entry of the judgment, made 22nd of July, 1878, to he corrected and the judgment entered as of January 9th, 1877.

This is an action for damages brought by the appellee against the appellant. The case is stated in the opinion of the Court. First Exception. — The defendant asked one of its witnesses the question: “How much capital is invested in fertilizer factories in the immediate vicinity of the Susquehanna Fertilizer Company?” offering, at the same time, to prove by the witness that more than $500,000 was there invested.

<p>Will — Construction—Precatory trust — Bond of Trustee — Section 203 of Article 16 of the Code.</p> <p>A testator bequeathed one-fourtli of the rest and residue of his estate to his daughter for life, for her sole and separate use, with full power to expend, or appropriate any part or all thereof, “for her own use only;” such portion as might remain at her death, to go to her brothers. This was followed by the words, “I solemnly enjoin her to hold this as a trust, and at once, with the aid of competent counsel, by her will properly executed, so to arrange her affairs that my wishes herein indicated may be carried out.” Held :</p> <p>1st. That a trust was created in the daughter for the. benefit of her brothers as to such portion of the bequest as might remain unexpended at her death.</p> <p>2nd. That the daughter should not be required to give bond for the faithful discharge of the trust, the bill not charging that she had not made a will as directed by the testator, or that she was needlessly wasting the property, and perverting it from her own personal “use only.”</p> <p>The testator bequeathed another one-fourth of the residue of his estate to a daughter-in-law absolutely, but enjoined that the portion so given should be at once invested, so that it might be preserved for the use of herself and husband, during their joint lives, and for the use of the survivor during life, and then for their children. Held :</p> <p>That the daughter-in-law took the property given her as trustee for herself for life, and then for her children; and that under section 203 of Article 16 of the Code, which entitles persons in remainder to security for the proper administration of a trust, she should he required to give bond as trustee before the executors be allowed to pay over the bequest to her.</p>

The appellee was incorporated by the Act of 1890, chap. 209. It organized and undertook to begin business by offering to search the records, papers, etc., in the office of the appellant, but was prevented by him from doing so, unless it agreed to pay him the fees he considered he was entitled to under the Constitution and laws of the State. The appellee applied to the Circuit Court for Prince George’s County for a writ of injunction against the appellant.

This appeal was taken from a decree of the Court below dismissing the bill of complaint, with all proceedings thereunder. The case is stated in the opinion of this Court.

The case is stated in the opinion off the Court. Exception. — The appellant below offered the following prayer: That if the jury find from the evidence that the appellant is the tenant from year to year of the land described in the proceedings in this case, and that the lease of tlie land has been renewed from year to year, for a period of five years, and that the appellant erected valuable improvements upon the land, relying upon a renewal of said lease, and that it was the…

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

The bill in this case was filed on the 19th of September, 1889. by the appellants against the appellees, to redeem a mortgage made by the appellants on the 5th of November, 1870, to the Workingmen’s Permanent Building and Loan Association of Talbot County, a body corporate, and by it assigned to George W. Tyler, on the 13th day of June, 1889; said mortgagee and assignee being the appellees.

<p>Appeal — Motion to Dismiss — Right of Purchaser under a Decree for a Sale — Appeal bond — Judicial sales — Inadequacy of Price — Setting sale Aside.</p> <p>An appeal will not he dismissed for delay in sending up the transcript of the record, where such delay is occasioned by the negligence and omission of the clerk.</p> <p>Where no appeal bond is given to stay the execution of a decree, the right of a purchaser at a sale, made under the decree, will not he disturbed or affected by a reversal unless it can he shown that there was unfairness or collusion in making the sale.</p> <p>A judical sale, bona fide made, will not be set aside because of some diversity of opinion among witnesses as to the value of the property sold, unless it is shown that the price reported is so grossly inadequate, as to do injury to parties not in default.</p> <p>Mere inadequacy of price, standing by itself, is not sufficient to vacate a sale, unless it be so gross and inordinate as to indicate fraud and misconduct on the part of the trustee and purchaser.</p> <p>The mere conjecture or surmise that the property would have brought a better price if it had been offered for sale at a different period of the .year, will be no ground for setting the sale aside, in the absence of evidence that some person with capital or means was prevented from attending the sale.</p>

The case is stated in the opinion of the Court. Exception. — At the trial Charles E. Pitts, Jr., the appellant from the action of the Commissioners for Opening Streets, offered the four following-prayers, that is to say, two in the matter of Ann street opening, and two in the matter of Register street opening: Ann Street Opening. 1.

This is an action of damages brought by the appellants against the appellees upon the covenants contained in the following lease: This lease, made this sixth day of June, in the year eighteen hundred and seventy-nine, between Arthur W. Machen, trustee, of the City of Baltimore, and State of Maryland, of the first part, Amanda C. De Ford, of the City of Mobile, and State of Alabama, of the second part, and William E. Hooper, William J. Hooper, Theodore Hooper and James E.…

<p>Province of Court and Jury — Railroad Company — Death caused by Negligence— Contributory negligence.</p> <p>Where the facts are undisputed, or where but one reasonable inference can be drawn from them, the question is one of law for the Court; but where the facts are left by the evidence in dispute, or where fair minds might draw different conclusions from them, the case should go to the jury.</p> <p>An adult in full possession of his faculties, without stopping to look, attempted to cross a railroad track within from three to six feet of an approaching engine, which was running backward at the rate of from ten to titeen miles an hour, and was struck by the tender of the engine and killed. The deceased lived within a short distance of the place where the accident occurred, and its surroundings were well known to him. Held :</p> <p>1st. That the deceased was guilty of contributory negligence as a matter of law, and a recovery could not he had against the railroad company.</p> <p>2nd. That conceding that the company was also guilty of negligence this would not affect the case in the absence of evidence to show that the injury sustained was the direct consequence of such negligence.</p>

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

<p>Appeal — Agreement of Counsel — Bills quia Timet — Possession of Complainant to be Alleged and Proved— Voluntary conveyance from Wife to Husband.</p> <p>An agreement of counsel prescribing special terms for the hearing of a case on appeal, and for the award of costs by the Court, can have no effect in the appellate Court, where the case must be heard and disposed of according to the Constitution and laws of the State.</p> <p>A. bill quia timet, or to remove a cloud upon the title to real estate, is brought in view of anticipated wrongs or mischiefs, and the jurisdiction of the Courtis invoked because the party fears future injury to his rights and-interests. But to maintain a suit of this character, it is, as a general rule, necessary that the plaintiff’ shall be in the possession of the property, and, except where the defendants are numerous, that his title, if a legal one, shall have been established at law, or be founded on undisputed evidence, or long continued possession.</p> <p>Those only who have a clear, legal, and equitable title to land connected with possession, have a right to claim the interference of a Court of equity to give them peace, or dissipate a cloud on the title; and the possession must be affirmatively alleged and shown.</p> <p>A voluntary deed from a wife to her husband, made when she is surrounded by her infant children, and without provision for them, requires the strictest investigation and scrutiny, before a Court of equity will give it support.</p> <p>A gratuitous conveyance by a wife of her property to her husband will be held void, unless it affirmatively appears from the attending circumstances, or otherwise, that it was her voluntary act, free from any undue influence exercised by the husband.</p> <p>On a bill by a husband to quiet title to property conveyed to him by his wife, who had infant children, the consideration recited being natural love and affection, and one dollar, a Court of equity will not sustain the validity of the deed, in the absence of any allegation that the plaintiff was in possession of the property, or that he had been, or was about to be, disturbed in his right of possession, or that his title had been, or was threatened to be, called in question by an adverse claimant, and no proof being furnished of the facts attending the making of.the deed.</p>

<p>Sheriff’s Sale — Exemption late — Sees. 9 and 10 of Art. 83, of the Code — Equitable defence — Sec. 83 of Art. 75 of the Code.</p> <p>At a sheriff’s sale of land under an execution, the defendant B. gave notice that the land did not belong to him, but to his wife. In consequence of this notice, S., the plaintiff in the execution, was the only bidder and the property was sold to him. Subsequently, in a proceeding instituted by S., it was adjudged that the wife of B. was the owner of the property in fee, by reason of which S. never in fact paid the purchase money. In an action brought by B. on the sheriff’s bond to recover §100 out of the purchase money as allowed by section 10 of Article 83 of the Code, upon demurrer for pleas filed setting forth these facts, it was Held :</p> <p>1st. That it would be contrary to every principle of equity and fair-dealing to allow the plaintiff to disclaim all title to and interest in the land sold, and at the same time to claim the benefit of the provisions of the exemption law.</p> <p>2nd. That such disclaimer was properly pleaded as an equitable defence to the action, as allowed by section 83 of Article 75 of the Code.</p> <p>3rd. That the claim was also contrary to the spirit and letter of the exemption law itself, (sec. 10, Art. 83,) which provides that “if any property of any defendant” cannot be divided, &c.; then 'the whole shall be sold and the defendant shall have S100 in money, inasmuch as B. had not only declared at the sale that the land did not belong to him, but a Court of competent jurisdiction afterwards adjudicated his wife to be the owner of the property in fee.</p> <p>4th. That the sheriff was nevertheless bound to account for the purchase money.</p> <p>5th. That having the money in his hands in contemplation of law, if not in fact, it was his duty as sheriff, the sale remaining unrescinded, to distribute the net proceeds thereof to the party or parties entitled thereto — namely to the judgment creditor S., as the case stood, who happened to be the purchaser also.</p> <p>The rights of a judgment debtor in regard to claiming his exemption in money, are governed by section 10 of Article 83 of the Code, when a single article of personal property, or a single parcel of land is to be sold; and length of time in making the demand will not excuse the sheriff, unless such period has elapsed as will enable him to plead limitations.</p> <p>Where however the judgment debtor wishes to select property, real or personal, to the value of $100, under section 9 of the same Article, the claim must be asserted at least before the sale has commenced.</p>

<p>Appeals from the Circuit 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. The Court below (Phelps, J.) held upon the agreed statement of facts that the title to the goods of O. Brehme & Co., passed to Randolph Barton, trustee under the deed of assignment, as such trustee, and ordered judgment to be entered in his favor as garnishee. The plaintiffs appealed.

<p>Power of Appointment under Will — Execution of Power— Administrator d. 1). n. c. t. a.</p> <p>A testator gave the residue of his estate to his widow for life, and directed that the same, after her death, should pass to and become the estate of such of his children and grandchildren, or either, as she by will should nominate and appoint, and, in default of such nomination and appointment, the same should pass to his children and descendants in the same manner as if he had died intestate. Held:</p> <p>1st. That the whole estate on the determination of the life estate of the wife, vested by the will in the children and grandchildren of the testator, as remainder-men, subject only to the power of the wife of nominating and designating the persons of that class who should have the estate; and that her exercise of the power of appointment by creating trusts for life as to five-ninths of the estate, with remainders over, was unwarranted, and void.</p> <p>2nd. That the design of the testator was that his entire estate should pass absolutely by his will, to such of his children and grandchildren as should be designated by his wife; and hence when the appointment of the widow as to five-ninths of the estate was invalid, her attempted execution of the power was wholly abortive even as to the remaining portion of the estate, three-ninths of which she appointed to be taken absolutely by a son, and the other ninth by a grandson of the testator.</p> <p>Where the widow, as executrix of her husband, has passed an account in the Orphans’ Court, wherein she has charged herself with the whole residue of the estate which was given to her for life, and the account has been approved by the Court, her administration of the estate is closed, and thereafter she holds not as executrix, but as tenant for life and as trustee for the remainder-men; and on her death the Orphans’ Court has no power to appoint an administrator d. b. n. c. t. a. of the personal estate of her husband retained by her as life-tenant under his will, but the same must be accounted for by her executor or administrator in a Court of equity.</p>

This was an application for a mandamus to compel the appellee, as clerk of the Circuit Court for Somerset County, to issue a license to the appellant, to take or catch oysters, with scoop or dredge, in any of the waters of said county. The license was refused by the clerk for the reason that by the Act of 1890, ch. 629, the duty of issuing the license, demanded by the petitioner, no longer devolved- on the respondent, and it was not his duty to issue the same.

The case is stated in the opinion of the Court. Exception. — At the trial the plaintiff offered the five following prayers: 1. That the Statute of Limitations pleaded by the defendant in this cause, does not begin to run until the granting of letters of administration to the plaintiff upon the estate of Bridget Dempsey. 2.

<p>Liability of Executors — Investment.</p> <p>A testator directed that tiie sum of $1200, out of his estate, be placed at interest on a first mortgage by his executors, the interest to he paid to his wife during her life, and after her death the principal to go back into his estate, to be equally divided among his heirs. The executors invested $1100 of this sum in a mortgage, which they took iu their own names as individuals, one-half to each, no mention being made of them as executors, or that the money loaned was part of their testator’s estate. The attorney who drew the mortgage testified that he prepared it at the request of one of the executors, but that he was not told it was to he to them as executors. Some months before the maturity of the mortgage, it was assigned as collateral Security for the payment of a note of $1100, of a firm, of which the executors were partners; and afterwards the mortgagor becoming insolvent they purchased his equity of redemption, and took the fee to themselves as individuals. The proiierty subsequently sold for less than the mortgage debt. Held:</p> <p>That having dealt with the money and property as their own, they could not turn in to the estate the proceeds of the property in discharge of their duties as executors, but were hound to bring into the Orphans’ Court the amount of the legacy, with interest from the death of the wife, to he distributed to the parties entitled thereto.</p>

<p>Embezzlement — Indictment—Sec. 75 of Art. 27 of the Code.</p> <p>Section 75 of Article 27 of the Code of Public General Laws, providing that an employe who “shall fraudulently embezzle any money” from his employer, “shall be deemed to have feloniously stolen the same,” makes the offence larceny, and an indictment under such section, which does not allege the ownership of the property or money embezzled, is not sufficient to sustain a conviction.</p>

Appeals from the Circuit Court of Baltimore City. The decree from which the first and second appeals were taken, declared that if Mrs. Thomas should die without issue living at the time of her death, her share should pass to, and he vested in, the children of Mrs. Levering and Mrs. Thom. The case is stated in the opinion of this Court.

<p>Cruelty to Animals — Act o/1890, oh. 198 — Repeal of sec. 242 of Art. 4 of Public Local Laws.</p> <p>The Act of 1890, ch. 198, which makes cruelty to any animal a misdemeanor, and leaves it to the Courts to impose the common law penalty of fine or imprisonment or both, according to circumstances of aggravation in each case, is a general law on the subject of cruelty to animals applicable to the whole State, and supersedes section 242 of Article 4 of the local law of Baltimore City, which punishes the offence of cruelty to animals, by a fine of not less than five dollars, nor more than twenty dollars, however aggravated or brutal the act of cruelty.</p>

<p>Negligence— Unsafe wharf — Liability of Owner.</p> <p>The owner of a wharf is not -liable for injuries sustained by an employe of the lessee in consequence of the breaking of a rotten plank, unless if. appear that.such owner knew, or by reasonable care and diligence could have known, the unsafe condition of the wharf when he leased it.</p>

<p>Registration of Voters — Appeal—Actof 1890, ch. 573, see. 21.</p> <p>Where an appeal taken to the Circuit Court from the action of a registration officer in refusing to strike a name from the list of registered voters, is dismissed b3r order of the Court, and from this order an appeal is taken to the Court of Appeals, such appeal will he dismissed, unless it shall have been taken within five days from the date of the order, as required by section twenty-one of the Act of 1890, ch. 573.</p>

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

On the 31st of December, 1889, George S.' Brown, Charles M. Mathews, John S. Gittings, Frederick M. Colston, and.

The case is stated in the opinion of the Court. First Exception. — The plaintiff on cross-examination asked a witness of the defendant the following question: “Is there any appliance in general use by railroad companies by which the noise produced by the ‘ popping-off ’ of steam from the safety valve of engines, as testified by you, can he suppressed or greatly reduced ?” the plaintiff offering to show by witness that there was an appliance in general use on railroads known…

<p>County Commissioners — Public School tax — Code, Art. 77, sec. 22 — Public Local Code, Art. 2, secs. 123, 228, 235— Mandamus — Misjoinder of Parties.</p> <p>By the general school law (Code, Art. 77, sec. 22,) it is provided, in substance, that if the apportionment of the State school fund be insufficient for the needs of the public schools of any county, the County Commissioners shall levy such additional-sum as the school board may make demand for, not exceeding ten cents on the $100. Under section 123 of Article 2 of the Code of Public Local Laws, the County Commissioners of Anne Arundel County are empowered in their discretion to levy such additional rate, notPexceeding, with the ten cents provided for by the general law, twenty cents on the $100, as they may deem necessary to promote the efficiency of the schools; and it is expressly declared that the school tax so levied ushall constitute a separate fund, and shall not be used for any other purpose but that for which it was levied.” Section 228 of the same local Article, in defining the duties of the county treasurer, provides that “he shall reserve out of the money collected by him for county purposes generally and public schools, a sufficient sum to pay the amount levied in each, current year by said commissioners for public schools, and shall pay the same over to the board of county school commissioners of said county.” Section 235 prescribes the rate of commission to be paid to the treasurer as compensation for his services, and requires the county commissioners to include an amount sufficient to pay such commission in their annual levy. Held:</p> <p>1st. .That the gross amount levied for the schools under the foregoing provisions, is payable to the school board, and the county commissioners, after they have made the levy, have no right to diminish that amount by subsequently applying any part of it to any other purpose.</p> <p>2nd. That said commissioners are precluded from withholding part of the amount levied for the use of the public schools to pay the treasurer’s commissions.</p> <p>3rd. That they are equally without authority to lessen the amount so levied, by deducting discounts allowed for the prompt payment of county taxes.</p> <p>4th. That as to the ten cents on the $100,'which the county commissioners may in their discretion levy over and above the first ten cents which they are peremptorily required to levy under the general law, they may, in the order directing the levy, provide that the cost of collecting what is thus given in their discretion, shall be deducted, and may provide that only the net proceeds shall be paid to the school board.</p> <p>5th. That the amount levied for the schools being fixed and ascertained, and standing to the credit of the school commissioners on the books of the county commissioners, it is the duty of the latter to pay it over, and for a breach of that duty mandamus is the appropriate remedy.</p> <p>6th. That the county treasurer, being the mere servant of the county commissioners, the"writ can only issue against them; and where in such proceeding the petition prays that the writ be issued against the treasurer as well as against the county commissioners, this misjoinder is a sufficient ground for refusing the writ.</p>

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

<p>Corporation — Minority stockholders — Limitations — Counsel — Contingent fee — Creditors—Final order — Appeal.</p> <p>Where a bill is filed by the minority stockholders of a corporation to prevent an asset belonging to the corporation, from being appropriated by a stockholder owning a majority of the stock, to his own use, and the Court holds that such asset — a judgment— though recovered in the name of the majority stockholder, is in fact the property of the corporation, it is proper for the Court, on the further request of the complainants, to direct a distribution of the funds among the parties entitled thereto.</p> <p>A stockholder cannot interpose the plea of limitations to the claim of a creditor preferred directly against the corporation, when the corporation is itself a party to the cause, and declines to make such defence.</p> <p>A stockholder is not, as stockholder, a creditor of the corporation whose stock he owns. He has no standing in a Court of equitj apart from the corporation of which he is a member, except when he appeals to that Court to prevent the majority from doing some act which is ultra vires, or from making some fraudulent disposition of the corporate property.</p> <p>Counsel employed by a majority stockholder to prosecute a claim, upon a contingent fee, — an agreed percentage of the amount which might be recovered — they supposing that such claim belonged to him individually, will be allowed their fees out of the fund realized by their labors, as against the minority stockholders, who stood by and saw the work done, and neither interfered nor objected.</p> <p>The persons who advanced money to the majority stockholder to enable him to recover, in his own name and for his own use, as well as theirs, a judgment which properly belonged to. the corporation, and did this with knowledge that the corporation was being thereby deprived of its property, will not be allowed reim- • bursement out of the fruits of the judgment.</p> <p>The majority stockholder bought certain coal land, and took the deed in his own name; and a mortgage for unpaid purchase money was executed by him. The property was bought for the use of the corporation, and was afterwards conveyed to it with the lien of the mortgage thereon. In a litigation that was had, it was decreed that the amount due on the mortgage should be paid to the mortgagees, and upon such payment being made the mortgage and mortgage notes should be cancelled. Held:</p> <p>That the persons who, to prevent a sale of the property, paid the amount due the mortgagees under the decree, and took an assignment of the decree for their security, were entitled to have such amount paid to them out of the proceeds of the judgment.</p> <p>A claim for money paid for taxes on the property of the corporation, for which no vouchers or receipts from the tax collectors were produced, nor a copy of the assessed valuation of the property was filed, will not be allowed. *</p> <p>To the accounts of the auditor distributing the judgment, many exceptions were filed by all parties in interest, and after a hearing the Court rejected all the accounts, and referred the papers back to have a new account stated in conformity to the opinion then filed In that opinion many of the claims in controversy were declared by the Court not entitled to'be allowed, but the only order passed was the one referring the case back to the auditor to state a new account. Subsequently the auditor stated an • Account D, in accordance with the views expressed in the opinion of the Court, and an Account E at the instance of some of the claimants. Exceptions were filed to both accounts. The Court overruled the exceptions to Account D, and finally ratified it, and in the same order rejected Account E. Held:</p> <p>That this order formally disposing of the claims was the final order, and the time within which an appeal must be taken, should be computed from its date.</p>