Volume 76 — Maryland Reports

<p> Injunction to Restrain enforcement of Judgment. </p> <p>A bill alleged that M. had made a deed of trust for the benefit of his creditors, and that the complainants had become sureties on his bond for the faithful performance of his duties; that the wife of M. had filed fraudulent claims against the trust estate; that by the fraud and collusion of the trustee and M. and wife these claims were allowed; that the trustee failed to pay to the wife the money allowed to her in the auditor’s account; that M. and wife brought suit on the trustee’s bond, and judgment was rendered against the complainants and the trustee, and the same was affirmed on appeal; that the judgment was entered to the use of IX, and he had brought suit against the complainants and the sureties on the appeal bond; that the trustee had departed from the State, and no longer resided therein. It -was further alleged that M. and wife had permitted the trustee to take and use the trust funds and misappropriate them. The prayer of the bill was for an injunction to restrain 1). and M. and wife from taking any steps, by suit or otherwise, to enforce the judgment against the complainants, and for general relief. Held :</p> <p>That the statements in the bill did not entitle the complainants to relief in a Court of equity.</p>

This appeal was taken from the order of the lower Court overruling the motion to dissolve the injunction previously granted, and making said injunction permanent. The opinion of this Court, together with the separate opinion of Chief Judge Alvey, furnish a full statement of the case.

The appeal in this case was taken from an order of the lower Court (Wickes, J.,) making perpetual an injunction previously granted. The case' is stated in the opinion of this Court.

<p>Death of Witness before Signing deposition — Death of Opposite party — Admissibility of Evidence of Witness who Dies before Cross-examination.</p> <p>Where a witness dies, without having signed his deposition as required by equity rule 40, the examiner shall sign it, stating the reason why the witness has not done so.</p> <p>Where in an equity cause the plaintiff had testified as to his recollection of the matter in dispute — the payments made by the defendant to him — and, the defendant, having testified on his own behalf, suddenly died before the cross-examination could be had, such testimony is admissible under the statute on the subject, which puts both parties to a contract on a plane of mutuality in cases of death of either party, and excludes the testimony of the survivor if the other party be dead, unless he shall have died after testifying in his own behalf.</p>

The following opinion was delivered by Judge Phelps in the Court below: The object of this suit is the cancellation of a deed of trust executed by the plaintiff 9th November, 1876. The . case has been twice argued, the first time before Judge Dennis, who declined to entertain it as then presented, for reasons which will appear further on. The plaintiff is the daughter of the late William H. Graham, and the grand-daughter of the late George Brown.

<p>Liability of Tenant in Common to his Co-tenant for Share of Rents Collected — Lien—Statute TV Anne, ch. 16, sec. 27 — Bill for Partition — Demurrer.</p> <p>A tenant in common lias no lien against his co-tenant’s interest in land for rents in excess of his share collected and retained by the latter before partition of the land.</p> <p>The claim of a tenant in common 'for. his share of the rents received by his co-tenant is recoverable at law, and suit can be instituted therefor at any time.</p> <p>The statute of IV Anne, chap. 16, is in force in this State, and its twenty-seventh section makes express provision for such a case; but it gives no lien on the undivided interest in the land of the tenant collecting the rents.</p> <p>The fact that one tenant in common assumes the right or duty of collecting the rents, without being made a bailiff by express authority, does not change the nature of his co-tenant’s claim against him, or subject him to any other or greater liability for the rents so collected by him than if he had been duly and fully ' authorized to collect them.</p> <p>So much of a bill for the partition of land, as seeks to subject the undivided interest of one of the joint-owners, or its proceeds after sale thereof, to the payment of any rents collected and retained by him in excess of his share thereof, is demurrable.</p>

This was an action brought by the appellee against the appellant to recover the price of a cargo of coal sold by the former to the latter. The case is stated in the opinion of the Court. Exception. — At the trial the plaintiff offered the two following prayers, and motion to exclude: 1.

<p>Corporation — Malicious prosecution — Insufficiency of Declaration — Pleading—Demurrer. _</p> <p>An action on the case was brought by a body corporate, in which it was alleged in the declaration that the defendants wilfully and maliciously, and without probable cause, instituted a suit in equity for its dissolution, that in the bill filed in said suit the defendants made many false, malicious, and slanderous allegations against the plaintiff, and widely circulated the same for the purpose of destroying the confidence of the public in the plaintiff; that the defendants did in fact, in the manner aforesaid, injure the plaintiff; and that having taken no proof the suit was dismissed by order of the Court. The Court below sustained a demurrer to the declaration filed by the defendants, and entered judgment in their favor. On appeal it was Held :</p> <p>That the declaration did not set forth a good and sufficient cause of action. The allegations were too general; the plaintiff, being a corporation, had no personal character to be injured by the alleged slanderous allegations; it was not made to appear in what manner such allegations affected its property; and, there was no allegation that the property of the plaintiff was seized or in any manner interfered with.</p>

<p>Husband and Wife — Administration by Surviving husband upon the Estate of his Deceased wife — Sec. 32 of Art. 93 of the Code. — Act of 1892, ch. 571.</p> <p>Under section 32 of Article 93 of the Code, which devolves all the personal property of a married woman who shall die intestate, and shall leave no child or children or descendants, on her surviving husband, it is not necessary for the surviving husband of a deceased wife, who died on the 24th of December, 1891, intestate, without child or descendants, and owing no debts, to obtain letters of administration upon her estate, to enable him to collect a chose in action due her at the time of her death; and debtors of her estate would be protected in making payment to the husband.</p> <p>The Act of 1892, ch. 571, qualifying said section of the Code, has no retroactive operation, and cannnot affect this case which came into existence prior to its passage.</p>

<p>Affidavit of Defence — Act of 1886, ch. 184, sec. 170.</p> <p>Under the Act of 1886, ch. 184, which provides that in any suit on a contract, the plaintiff shall be entitled to judgment after fifteen days from the return day, unless the defendant shall make oath that every plea pleaded is true, and shall further state the amount of the plaintiff’s demand, if anything, admitted to be due, and the amount disputed, an affidavit in an action of assumpsit “that the defendant does not admit any of the plaintiff’s claim to be due and owing,” is not such a denial of the defendant’s indebtedness as the Act requires.</p>

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

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

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

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

<p>Will — Irregularity in Decree — Trustees’ sale — Exceptions to Sale — Title of Purchaser — Persons hound by Decree — Persons not in Being.</p> <p>A testatrix died in 1881, and by her will devised certain real estate in Baltimore County to trustees, “in trust and with authority to sell and convey the same as soon as the price or sum of two hundred dollars per acre can be obtained therefor, or as soon thereafter, not exceeding one year, as in the judgment of such trustees, it shall be deemed expedient; and the proceeds arising from such sale to invest in some safe security.” The testatrix directed that the income from such investment should be paid to her brother S. D. S. during his life, and after his death, to certain other persons. In 1882 a bill was filed in the Circuit Court for Baltimore County on which a decree was passed for a sale of said land, and the trustee appointed to make such sale made efforts to sell, but the best offer he received was less than $25 per acre. and he afterwards resigned as such trustee. In April, 1891, a second bill was filed in the same Court for a sale of said land, to which all persons in being having any interest whatever in the land were parties. It was shown that a sale was necessary for the interest, benefit, and advantage of all the parties interested, and upon the bill, answers, and evidence a decree was passed for the sale of the land in question, and for setting aside and vacating the bill, proceedings, and 'decree of 1882. Acting under the decree of 1891 the trustees therein named sold the land for $70 per acre, agreeing to give the purchasers a marketable title. On exceptions to the sale filed by the purchasers, and on an appeal from an order of the Court overruling said exceptions, it was Held :</p> <p>1st. That on such appeal no question could be raised as to the regularity and validity of the decree under which the sale was made.</p> <p>2nd. That if the Court passing the decree had jurisdiction of the parties in interest and of the subject-matter of the suit, its jurisdiction would be binding upon all the parties concerned, those in being as well as those unborn, notwithstanding any irregularity in the proceedings, until such decree be reversed or annulled.</p> <p>3rd. That even if the decree could be reversed for irregularities, whether in respect to evidence or otherwise, provided the Court had acquired jurisdiction to pass the decree, a purchaser in good faith under the decree while it was subsisting, and binding on the parties thereto, would not be affected by such reversal.</p> <p>4th. That the purchaser was bound, however, at his peril, to see that all proper parties were before the Court, and that he did not take a title that might be impeached aliunde.</p> <p>5th. That as it was conceded in this ease that all parties in esse having any interest in the land were before the Court, those not in esse were also bound by the decree.</p> <p>6th. That the appellants, as purchasers under the decree of 1891, would take a good and marketable title, and their exceptions were properly overruled.</p>

This appeal was taken by the complainants, trustees under the will of Mrs. Annie Gregg Thomas, from a pro forma decree of the Court below (Dennis, J.,) dismissing their bill of complaint. The case is stated in the opinion of this Court.

This appeal was taken by the defendant from a pro forma decree of the Court below, (Dennis, J.) The Act of 1888, ch. 395, referred to in the opinion of this Court, and which took effect from the date of its passage, the 5th of April, 1888, provides “that all rents reserved by leases or sub-leases of land hereafter made in this State for a longer period than fifteen years, shall he redeemable at any time,- after the expiration of ten years from the date of such lease or…

Section 4 of Article 57 of the Code, referred to in the opinion of the Court, provides that “no person absenting himself from this State, or that shall remove from county to county after any debt contracted, whereby the creditor may be at an uncertainty of finding out such person or his effects, shall have any benefit of any limitation herein contained.” The case is stated in the opinion of the Court.

This appeal was taken by the defendant from the decree of the lower Court (Dennis, J.,) adjudging that the contract of sale made between the plaintiffs and the defendant he specifically performed, and that upon the payment of the balance of the purchase money, the defendant shall he entitled to receive from the plaintiffs a good and sufficient deed of conveyance in fee simple of the property sold. The case is stated in the opinion of the Court.

The case is stated in the opinion of the Court. Exception. — At the trial the plaintiff offered the five following prayers, (a sixth prayer offered was refused, and is omitted): 1.

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

<p>Contract for the Sale of Land — Specific performance — Laches or Unreasonable delay.</p> <p>On the 15th of June, 1888, P. made the following contract with McC.. “I have this day agreed to and have sold to Mr. W. W. McC. eighty feet of land in width, running parallel with our division line from railroad to Bunker Hill road, containing about two acres; price for the above named piece or parcel of land, fifteen hundred dollars. I herewith acknowledge receipt of check for two hundred dollars, as part of the purchase-money. (signed) J. W. P.” On a bill filed on the 6th of March, 1890, by McC. against P. for the specific performance of this contract, it appeared in evidence that the plaintiff had failed to pay for the land because of his inability to do so, and-that on the 31st December, 1889, with his consent, the contract itself was rescinded. Held :</p> <p>That this evidence put an end to the plaintiff’s case, and the defendant was under no obligation to accept an offer to pay the purchase money, made by the plaintiff’s counsel in January of' the next year, by which time the property had enhanced in value.</p> <p>On a bill for the specific performance of a contract, the plaintiff' is bound to make out his case by satisfactory proof, and must show that he has performed, or was ready to perform, his part of the contract, and has not been guilty of laches or unreasonable delay.</p>

<p>Registration — Voter—Residence.</p> <p>O. was a legal resident of the first precinct of the twenty-second ward of Baltimore City in 1890, and was registered as a qualified voter at tlie registration of that year, said precinct being in the second legislative district of the city. He remained there until late in September, 1891, when he moved to the ninth precinct of the seventh ward which is in the same legislative district. Held :</p> <p>That the name of O. was properly stricken from the list of qualified voters of the first precinct of the twenty-second ward, by the officers of registration at the October sitting of 1891.</p> <p>O. having removed from the first precinct of the twenty-second ward to the ninth precinct of the seventh ward, ceased to be entitled to vote in tlie former ward, but was entitled to vote in the latter; both wards being in the same legislative district-</p>

This appeal was taken from an order of the Court below, (Phelps, J.) sustaining the demurrer to the-amended bill of complaint, and dismissing the bill, with costs to the defendant. The case is stated in the opinion, of the Court.

The case is stated in the opinion of the Court. Five Exceptions were taken by the defendants. The First, Second, and Fifth Exceptions, are sufficiently referred to in the opinion of the Court.

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

The case is stated in the opinion of the Court. The First, Second, Third, Fourth, and Fifth Exceptions are stated in the opinion of the Court. Sixth Exception. At the trial the plaintiff offered three prayers, the first and second of which are as'follows; 1.

The case is stated in the opinion of the Court. Exception. — At the trial the plaintiffs offered the four following prayers: 1. That if the defendant, either by the form of its policy or the action of its agents, caused Moses Mason to believe that the policy of insurance sued on in this case was operative and effective from the date of its issue, the defendant is precluded from now insisting that such is not the case. 2.

<p>Sale under Foreclosure of Mortgage — Res judicata.</p> <p>Under section 9 of Article 66 of the Code, enacting that the Court shall have full power to hear and determine any objections which may be filed against the sale of lands under a mortgage, by any person interested in the property; and under section 11, providing that, when the sale is confirmed by the Court, it shall pass all title which the mortgagors had at the time of the recording of the mortgage, the validity of the mortgage may he determined under exceptions to the ratification of the sale; and where such exceptions have been overruled, and the sale has been ratified, no action can be brought to determine the validity of such mortgage.</p> <p>Where some of the mortgagors brought a suit in equity to have the sale under the mortgage set aside and vacated, and the other mortgagors knowing of the pendency of the suit, neglected or wilfully refused to take part in the proceedings, they are con- ’ eluded by the judgment therein as effectually as if they had been parties named on the record.</p>

The appeal in this case was taken from a pro forma decree of the Court helow, (Roberts, J.) overruling the demurrer of the plaintiff to the defendant’s pleas, and sustaining said pleas. The case is stated in the opinion of this Court.

<p>Trial for Murder— Venue — Death of Person in Pennsylvania from Blow inflicted in Maryland — Criminal trial — Separation of Jury pending Trial — Appeal.</p> <p>By section 278 of Article 27 of the Code, it is provided that “if any person be feloniously stricken or poisoned in one county, and die of the same stroke or poison in another county, within one year thereafter, the offender shall be tried in the Court within -whose jurisdiction such county lies where the stroke or poison was given; and in like manner an accessory to murder or felony committed shall be tried by the Court within whose jurisdiction such person became accessory.” Held :</p> <p>That this statute is simply declaratory of the common law, and the same reason and principle equally apply to the case where the mortal blow or poison is given in any county of this State, and the party so stricken or poisoned shall, in consequence of the blow or poison, die out of the State, within the year and a day after the blow given or poison administered, as to the case provided for by the terms of the statute.</p> <p>In the progress of a criminal trial, the entire panel of twelve jurors were placed in charge of the sheriff during a recess of the Court, and were taken to quarters provided in a hotel in the town. Upon reaching the hotel, one of the jurors was suffering so much from illness that ho had to be allowed to go to bed, but he was alone, and was locked in the room by the sheriff. At the hour of re-assembling of the Court, the other eleven jurors were taken into the Court, but in consequence of the inability of the sick juror to be present, the Court adjourned until the following day, at -which time the whole panel attended. Held :</p> <p>That a motion to discharge the panel, founded upon the simple fact that the sick juror had been separated from his fellow jurors, before verdict rendered, without any pretence or suggestion that he had been approached by any one, or tampered with in any manner, was properly overruled.</p> <p>In the trial of capital cases even, there are many occasions when, in reason, and with a proper regard to the needs of humanity. it may become necessary to allow a temporary separation of the jury, without necessarily breaking up the trial; and that even after the jury have retired to consider of their verdict.</p> <p>The separation however, should only he allowed when attended with those precautions and safe-guards necessary to secure entire freedom from approach or external influence of any kind. But each case rests upon its own peculiar circumstances, and is within the sound discretion of the trial Court; and is therefore not the subject of appellate review, except where it is affirmatively shown that the party has been prejudiced by the action of the Court.</p>

The appeal in this case was taken from a decree of the Court below (Lynch and Vinson. J.) dismissing the bill of complaint. The case is stated in tire opinion of this Court.

<p>Court of Appeals — Jurisdiction in Habeas corpus — Constitutional law.</p> <p>Section 1 of Article 42 of the Code, taken from the Act of 1880, ch. 6, which provides that “the Court of Appeals, and the Chief Judge thereof, shall have the power to grant the writ of habeas corpus, and to exercise jurisdiction in all matters relating thereto throughout the whole State,” is unconstitutional and void, the Legislature having no power to confer upon the appellate Court such original jurisdiction.</p> <p>Section 6 of Article 4 of the Constitution which declares that “all Judges shall, h.v virtue of their offices, be conservators of the peace throughout the State,” does not confer jurisdiction upon the Court of Appeals in habeas corpus cases.</p>

The appeal in this case was taken from the decree of the Court below (Dennis, J.) dismissing the bill of complaint. The case is stated in the opinion of this Court.

<p>Failure to Except to Evidence — Sec. 34 of Art. 5 of the Code — Due process of Law — Constitutional law.</p> <p>Section 34 of Article 5 of tlie Code provides that “on an appeal from a Court of equity no objection to the competency of a witness or the admissibility of evidence * * * shall be made in the Court of Appeals, unless it shall appear by the record that such objection was made by exceptions filed in the Court from which such appeal shall have been taken.” Held :</p> <p>That a party who does not avail himself at the trial of this statutory right, or of the opportunity to produce countervailing proof, but relies upon a strictly technical defence to the action, and such defence is ruled insufficient on appeal, and a decree is rendered against him, he cannot have the execution issued thereon quashed on the ground that the testimony on which the decree was based was inadmissible under the allegations of the bill, and that he had countervailing proof which he could have produced, and that the decree was in consequence void, and that he had been deprived of his property by the State without due process of law, in violation of the fourteenth amendment of the Constitution of the United States.</p>

<p>Action for Work and Materials — Evidence—Refreshing the Memory of Witness — Quantum Meruit.</p> <p>The plaintiff sued the defendants for a balance alleged to be due for work and materials. Evidence was offered tending to prove that the work was done and the materials were furnished by the plaintiff at the request of the defendants, and that the prices-charged were reasonable and proper. The defendants then offered in evidence the estimates, proven to have been made by two persons of knowledge and experience, of what their price would be for similar work and materials, which estimates were much less than the prices charged by the plaintiff. On objection it was Held :</p> <p>That said estimates, being, the unsworn statements of living persons, who might have been produced in Court as witnesses, were inadmissible.</p> <p>The defendants also produced two witnesses who testified that for many years they had dealt in articles of hardware such as those furnished in this case. On being asked to state the fair retail price of certain of these articles, they replied that they could not do so without consulting the ‘‘lists.” These lists, they said, were schedules of prices fixed by a convention of dealers from year to year, and were the established prices in the trade; but that there were so many articles, each differing slightly, both in the article itself and in its price, from all the others, that it was impossible for any one to carry the prices of all of them in his mind. On objection made to the witnesses being allowed to look at the lists and answer the question, it was Held :</p> <p>1st. That the witnesses having testified to the correctness of the lists, and to the impossibility of any one carrying all the prices in his mind, ought to be allowed to refresh their memories by examining the lists, and to give their testimony by their aid.</p> <p>2nd. That the fact that the work was done on a steamship owned by the defendants, and that the plaintiff followed the business of building and repairing ships, did not confine the testimony to prove that the prices charged for the hardware furnished were excessive, to that of persons in the same line of business with the plaintiff. The question was whether the materials were charged at prices exceeding their value, and any evidence was competent which tended to prove their value.</p> <p>3rd. That if there were any facts which would show that these materials were of greater value when furnished by the plaintiff under the circumstances of this case than they would have been if purchased from hardware dealers, the plaintiff had the right to prove these facts in evidence.</p> <p>The responsibility of a defendant for work and materials, is for what they were fairly worth at the time and place, and not what two or more persons would charge for doing the work and furnishing the materials.</p>

The action in this case was brought by the appellee against the appellant. The case is stated in the opinion of the Court. First Exception.— Stated in the opinion of the Court. Second Exception. — At the trial the plaintiff offered three prayers, the second of which was refused, and is omitted, the others are as follows: 1.

<p>Sess. 1 and 2 of Art. 45 of the Code — Acts of 1890, ch. 294, and 1892, ch. 267 — Will of Féme sole as Affected by her Marriage.</p> <p>By sections 1 and 2 of Article 45 of the Code, as respectively amended by the Acts of 1892, ch. 267, and 1890, ch. 394, it is provided that the property acquired or owned by a married woman, both before and after marriage, “by purchase, gift, grant, devise, bequest, descent, in a course of distribution, or in any other maimer, * * * * she shall hold for her separate use, with power of devising the same as fully as if she were a feme sole." &e. Held :</p> <p>That this legislation removed every common law disability to which a feme covert was formerly subjected, with respect to making a valid will, and a woman’s marriage no longer revokes a will previously made by her.</p>

The case is stated in the opinion of the Court. The first Four Exceptions are sufficiently stated in the opinion of the Court. Fifth Exception. — At the trial the plaintiff offered fourteen prayers. The fourteenth prayer was rejected and is omitted. The other prayers are as follows: 1.

<p>Award of a Municipal contract — Review by the Court.</p> <p>The decision of the Harbor Board of Baltimore City in awarding a contract for dredging under an ordinance of the City, will not be reviewed by the Court unless it can be shown that there was fraud in making the award.</p>

<p>Pleading and Practice — Action on Joint contract — Judgment against One defendant — Secs. 10 and 12, of Art. 50 of the Code — Assumpsit— Tort — Implied contract.</p> <p>Section 12 of Article 50 of the Code, provides that in actions upon joint contracts against joint debtors, the plaintiff shall be entitled to judgment, “as in actions ex delicto, against such one or more of the defendants as shall be shown by the evidence to be indebted to him;” and by sec. 10 of the same Article it is provided that “a judgment rendered against one or more members of a partnership, or one or more persons jointly liable on any bill, bond, covenant, promissory note, bill of exchange, contract or agreement whatsoever, less than the whole number of partners or persons so bound, shall not work an extinguishment or merger of the cause of action on which such judgment may have been rendered, as respects the liability of the partners or persons not bound by such judgment; and they shall remain liable to be sued as if their original responsibility had been joint and several; provided that but one satisfaction of the debt or demand shall be made.” Held :</p> <p>1st. That where parties fraudulently apply to their own use the moneys of a plaintiff, he may waive the tort and sue them in assumpsit to recover the moneys so belonging to him.</p> <p>2nd. That although such action be founded on a contract arising . by implication of law, it is none the less a contract within the letter and spirit of said provisions of the Code.</p> <p>3rd. That whether the judgment by default against one of the defendants was properly entered or not, the name of the plaintiff’s attorney having been signed to the motion by the deputy clerk at the request of the attorney, or whether such judgment had been extended or not, were matters which in no way affected the plaintiff’s right to judgment on the verdict subsequently rendered by the jury in the trial of the issues joined on pleas of never indebted, and never promised as alleged, filed by the other defendant.</p> <p>4th. That there could be but one satisfaction of the debt, and if the debt had been paid in whole or in part by the defendant against whom the judgment by default was entered, this was matter of proof of which the other defendant could have availed himself in the trial against him, and furnished no ground for motions consecutively filed by him, for a new trial, in arrest of judgment, and to strike out the judgment.</p>

The contract of renting between the plaintiff and the defendant's intestate, was executed on the 21st of January, 1891, the rent to begin on the 1st of February following. The case is further stated in the opinion of the Court.

The plaintiffs claiming under the will of Herman Yon Kapff, deceased, agreed in writing to sell to the defendant a lot of ground in the City of Baltimore, at the corner of Park avenue and Lanvale street, for the sum of twenty-five thousand dollars. The defendant contending that the plaintiffs were not able to convey to him a good and marketable title to the property, declined to comply with the terms of sale.

<p>Rights of Distributee — Application of Distributive share to Debt due Estate.</p> <p>Where a distributee, as administrator, has become indebted to his father’s estate, his distributive share will not pass to his trustee under a deed for the benefit of creditors, hut will he applied to his indebtedness to his father’s estate.</p>

The case is stated in the opinion of the Court. JException.-^At the trial the plaintiff offered the four following prayers: 1. Held: and the officers claiming to be so elected are not entitled to the office. 10.

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

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

<p>Appeal from the Circuit Court for Alleghany 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. The Baltimore and Harford Turnpike Company was incorporated by the Act of 1816, chapter 48, and by the Act of 1819, chapter 50, the Act of 1812, chapter 78, (the charter of the Washington Turnpike,) was made part of its charter.

This appeal was taken from an order of the Court below dismissing the petition for a mandamus. The case is stated in the opinion of this Court.

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

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

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

<p>Criminal law — Act of 1892, ch. 506 — Practice in Court of Appeals — Libel—Indictment—Demurrer—General verdict of Guilty — Drawing Grand jury — Waiver of Appeal.</p> <p>When an appeal is taken in a criminal case, under the Act of 1892, ch. 506, which provides that the parties to criminal proceedings shall be entitled to bills of exception, in the same manner as in civil proceedings, and appeals from judgments in criminal cases may be taken in the same manner as in civil cases, both the exceptions and the judgment upon the demurrers to the indictment are open for review in the appellate Court.</p> <p>A newspaper article contained the following: “Political pulls as a preventative of the purgation of the city. The mighty and sudden zeal of the organ of the Court house ring for the purgation of this city from the dens of infamy and vice which pollute it, is a matter of such surprise to so many that it cannot pass without comment. Cordially as the Times welcomes each and every recruit in the cause of law and order * * * it cannot help applying to our own situation the words of the New York Herald upon the same subject: ‘You have noticed, perhaps, that no excise cases are prosecuted nowadays. There is the broken law, there is the man who broke it; but the law is a dead letter, and the offender goes scot free. There is no reason why the public prosecutor should not handle these cases, but the fact is he does nothing of the kind, and apparently does not propose to. Why not? Was he forced to agree, as a condition of his election, not to enforce tlie law ? Did he make a bargain when results were hanging by a thread, and is it that which holds back his hand ? There is at least ground for suspicion, since nothing has been done, or is being done, or is likely to be done?’ We will never have legislation at Annapolis in favor of restrictive liquor laws, and we will never have these laws enforced at home, until the public’s servants in the Legislature and the Court house, cease their alleged covenanting with hell and bargaining with the devil in the form of the divekeepers for the sake of their well known, oft proven, and never denied political power.” Held :</p> <p>That the article, was not on its face, a libel on the Judge who was accustomed to try the liquor cases in the Court house, and could not, by any inducement, colloquium, or innuendo be made to include him, as it was applicable only to the State’s attorney.</p> <p>The article not being a libel on the Judge, the clerk or the sheriff, the association of their names in the indictment with the name of the State's attorney to whom the language was applicable, does not bring them within the words or the meaning of the libelous article.</p> <p>Where a demurrer is filed to each count of an indictment, and all, save one, are erroneously overruled, a general verdict of guilty must be set aside, it being impossible to determine upon which count it was rendered.</p> <p>Section 7 of Article 51 of the Code provides that “it shall be the duty of the Judge of the Circuit Court for each of the counties * * * in the presence of such practising members of the bar of said Court as shall think proper to attend, — notice of the time and place having been first given to said bar through the criers of said Courts, — to proceed to select from the lists last furnished by the clerks of the County Commissioners * * * * * and from the poll-books of the several election districts of said counties, that shall be returned and filed in the clerk's office of said Court after any general election that may be last held previously to such selection, a panel, to consist of the names of two hundred persons * * * to be fairly and impartially selected by the said Judge.” Section 5 of Article 88 of the Code of 1860 provides that the sheriff shall make oath that he will “not summon or return as a juror any person who may have been recommended or requested to be returned by another person ;” and section 11 of Article 51 of the Code of 1888 enacts that “the name of no person whom the sheriff is forbidden to summon as a juror, shall be selected and placed upon the panel or list from which the drawing is to be made.” It appeared in evidence that the Judge had directed the crier to notify the members of the bar that on March 19th, 1892, he would proceed to draw the jury for the April term of Court; that upon the day named, “he went to the Clerk’s office with a list of two hundred names; that said list had previously been made out by him from names of persons that he knew and from names that had been suggested to him by different persons in the different districts of the county, but was chiefly composed of names of persons that had previously been in the box, but had not been drawn out; that some of the names had been suggested by different members of the bar; * * * that he announced that he was about to draw the jury; that if there were any objections to any of the names he would be glad to hear them; that he then read from the list previously prepared by him, the two hundred names; * * * * that the names of the two hundred were selected from the list previously made by him; that no reference was at that time made to the poll-books or to the list furnished by the Clerk of the County Commissioners, except that a reference was made'to the poll-books to ascertain the correct spelling of one of the names, and to ascertain whether another person on said list was twenty-five years of age; * * * * and that all of the two hundred names placed in the box appeared upon the poll-books of the several election districts of Alleghany County, as were filed in the Clerk’s office of said Court after the last general election held previously to said drawing, but some of said names did not appear upon the list of tax-payers filed by the Clerk of the County Commissioners.” From the list names thus made up the grand jury was selected. Held :</p> <p>That said list of names was not duly selected in coufirmity with, and according to the spirit and intent oí, the law, but was, on the contrary, a wide departure from its requirements; and the jury drawn from said list was not a legal body.</p> <p>Pending a motion to strike out a judgment of the 24th of May, 1892, imposing fine and imprisonment on the traverser, he entered an appeal on the 15th of July, 1892, from a previous judgment on the demurrers to the indictment, and from the finding and judgment on the issue made upon the first plea in abatement. After the 15th of July testimony was taken, and a hearing was had on the motion to strike out the judgment of the 24th of May. Held:</p> <p>That the appeal taken on the 15th of July could not be treated as having been waived by the taking of testimony and having a hearing on the motion to strike out the judgment of the 24th of May.</p>

<p>Codicil to Will — Curative Act.</p> <p>A by-law of a Savings Bank required that “a book shall be kept at the Bank, in. which every depositor shall be at liberty to appoint some person or persons to whom, in the event of his or her absence or death, the money shall be paid, if not otherwise disposed of.” W. caused to be entered in this book the name of R. under the words, “Name of person to whom, in the event of absence or death, the money shall be paid, if not otherwise disposed of,” and this was witnessed by the teller and assistant book-keeper of the Bank. Held :</p> <p>That this entry in the book could not be admitted as a valid codicil to the will of W., section 310 of Article 93 of the Code providing that all bequests of personal property, of any kind, shall be in writing, signed by the party so bequeathing the same, and attested and subscribed in his presence by two or more credible witnesses, or they shall be void.</p> <p>The Act of 1892, ch. 167, providing “that nothing in section 310 of Article 93 of the Code, shall affect or be applicable to any will or bequest executed prior to the first day of August, 1884,” does not cure the omission in the alleged codicil of W. it appearing that W. died in 1891, before the passage of the Act; and by that event the estate of the distributees became vested and absolute, and could not be divested by any subsequent legislation.</p>

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

The appeal in this case was taken from a decree passed by Judge Dennis. The case is stated in the opinion of this .Court.

<p>Jurisdiction of Orphans' Court — Trusts.</p> <p>Section 256 of Article 93 of the Code, provides that “the Orphans’ Court shall not, under pretext of incidental power or constructive authority, exercise any jurisdiction not expressly conferred by law;” and section 81 of Article 16 provides that “nothing in the testamentary law of this State shall be construed in any manner to affect the general superintending power of the Courts having chancery jurisdiction with respect to trusts.” Held :</p> <p>That the Orphans’ Court has no jurisdiction to pass upon the title to real estate sold by trustees, who were also executors , under the will, they having passed a final account as such executors.</p>

Appeals from the Circuit Court for Prince George’s County, in Equity. The case is stated in the opinion of the Court.

This appeal was taken from a pro forma order of the Court below (Dennis, J.) authorizing the trustee, W. L. Marbury, for the purpose of distribution, to sell the securities held by him, and directing the auditor to state an account, allowing, after deducting all costs and expenses, one-fifth of the net balance to Blanche Ehlen, the remaining net four-fifths, pro rata, to the Mayor and City Council of Baltimore, the Baltimore Fire Insurance Company, the Firemen’s Insurance…

The appeal in this case was taken from the decree of the lower Court (Desistís, J.) sustaining the demurrer to the bill of complaint and dismissing said bill. The case is stated in the opinion of this Court.