Volume 79 — Maryland Reports

The case is stated in the opinion of the Court. First and Second Exceptions, taken by the defendant to the admission of certain evidence, aré not set out, inasmuch as this Court deemed it unnecessary to consider them.

This appeal was taken from a decree of the Court below (Vinson, J.,) dismissing the plaintiff’s bill of complaint. The case is stated in the opinion of this Court.

The bill of complaint in this case was filed by the Safe Deposit and Trust Company of Baltimore, as trustee, to obtain a proper construction of the last will and testament of the late Reverdy Johnson, and the direction of the Court as to the manner in which the complainant should perform its duties as such trustee. Erom a decree of the Circuit Court (Dennis, J.,) construing the said will this appeal was taken. The case is stated in the opinion of this Court.

<p>Married woman— Validity of Contract — Estoppel—iMechanics’ lien.</p> <p>Except in regard to the separate estate of a feme covert, or where she is empowered by statutory authority to act as a feme sole, all her covenants, contracts, and agreements, in Courts of law as well as of equity, are absolutely null and void, and she is under no obligation, and cannot be compelled, to perform them, whether entered into by herself, or on her behalf by her husband, with or without her consent.</p> <p>Where a party’s rights in property sufficiently appear of record, mere silence on his part is no violation of duty, and he is not estopped to assert his rights against persons dealing with his property as another’s.</p> <p>A mechanics’ lien cannot be enforced against a married woman’s real estate where no personal notice, as required by section 10 of Article 63 of the Code, has been served upon her of the claimant’s intention to claim a lien.</p>

This appeal was taken from a decree signed hy Wright, J., requiring the defendant to pay interest on the purchase money from the 1st of January, 1893, the date specified in the contract of sale, as also the taxes and ground rent, and the costs of the case. The case is stated in the opinion of this Court.

<p>Landlord and Tenant — Removal of Property from Demised premises — Distraint by Landlord — Trustee for Benefit of Creditors — Bona fide Purchaser — Replevin—Damages.</p> <p>Section 18 of Article 53 of the Code gives the landlord the right to follow, seize and sell, under a distraint for rent, any property which has been removed from the rented premises within sixty days prior or subsequent to the time when the rent became due, provided it has not been sold to a bona fide purchaser without notice, or taken in execution. In an action of replevin for property taken under a distraint for rent, it was Held :</p> <p>That a trustee for the benefit of creditors is not a bona fide purchaser within the meaning of said provision of the Code, and where the goods of a tenant who has made an assignment for the benefit of his creditors, are removed from the demised premises in pursuance of the authority given by the deed of trust, within sixty days prior to the time when the rent becomes due, the landlord is not debarred of his remedy of distraint by such assignment and removal.</p> <p>Underneath the account filed as part of the distraint proceedings, was written the words “Received payment,” followed by the landlord’s name. The affidavit made by the landlord attached to the account, stated that the rent mentioned in the account was wholly due and in arrear. The warrant to the bailiff authorizing him to distrain stated that a month’s rent was due “as per annexed account, ’ ’ (being the account above mentioned;) and there was an agreement of counsel that this rent was due and unpaid. Held:</p> <p>That the words indicating that the rent was paid were clearly the result of clerical misprision, which did not affect the validity of the distraint proceedings.</p> <p>A plaintiff in replevin to whom the property has been delivered, is entitled, if the verdict be in his favor, merely to damages for its detention.</p>

The case is stated in the opinion of the Court. Exception. — At the trial the plaintiff offered the two following prayers: 1. That there is no evidence of any conversion hy the plaintiff of the stock pledged as collateral security with the promissory note sued on in this case. 2.

<p>Attachment after Tv>o returns of Non est — Procedure— Liquidated damages.</p> <p>Section 21 of Article 9 of the Code provides that “when two summonses have been returned non est against the defendant in any of the Courts of law of this State, the plaintiff, upon proof of his claim as hereinbefore required, shall be entitled to an attachment, and the Judge of the Court where such action is pending shall order such attachment to issue, and the same proceedings shall be thereupon had as in attachments issued against absconding debtors.” Held :</p> <p>1st. That under this section, when an action is pending in any Court of law, which the Court in the exercise of its general jurisdiction has the power to try and decide, provided jurisdiction over the person of the defendant has been obtained by service of the summons upon him, and there are two returns of non est to two successive writs of summons, the Judge is authorized to regard such returns as evidence that the defendant is a nonresident or absconding debtor, and no affidavit that he is such debtor is required.</p> <p>2nd. That if the plaintiff’s cause of action be such as would entitle him to an attachment on warrant, the Judge is authorized and directed to order the attachment to issue, provided the plaintiff produces before him the same proof of his claim that he would be required to produce before the magistrate in order to obtain his warrant to the clerk of the proper Court to issue an attachment.</p> <p>3rd. That when the attachment is thus ordered by the Judge it is subject to the same conditions, and the same proceedings must be had upon it as if it were an attachment on warrant, with the single exception that the order of the Judge supersedes and takes the place of the warrant of the magistrate.</p> <p>A declaration containing the money counts and a special count on the contract set out, filed at the time the attachment was issued, will supply the place of the short note required in ordinary cases of attachment.</p> <p>A claim for damages for the breach of a contract to sell a promissory note for less than its face value, is not a claim for unliquidated damages for which an attachment cannot issue, without the giving of a bond by the plaintiff, as required by section 43 of Article 9 of the Code, such damages being the difference between the sum due on the note, and the price agreed to be accepted for it.</p>

Appeals from the Circuit Court for Baltimore County, iu Equity. The order appealed from was passed ou the 11th of July, 1893, aud filed ou the 13th of the same month, and directed D. Hopper Emory, substituted trustee under the will of Caleb D. Goodwin, to' pay to the petitioner Eliza J. Goodwin, out of the funds iu his hands as such trustee, the sum of fifteen hundred dollars, with interest from the 11th of June, 1872.

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

<p>Confirmatory .Lease — Redeeming ground Rent.</p> <p>Where prior to the passage of the Act of 1888, eh. 395, providing that ground rents reserved in leases shall be redeemable after the expiration of ten years, at six per cent., a lease for ninety-nine years, renewable forever, executed to an alleged corporation, is void by reason of the failure of the lessee to become a corporation, the reversioner may be required by a corporation having the leasehold interest, to execute a confirmatory lease after the passage of the Act of 1888, as such Act applies only to rents reserved by leases made after its passage.</p>

The case is stated in the opinion of the Court. Exception. — The testimony being closed on both sides, the plaintiffs offered the two following prayers: 1.

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

The order of the 18th of May, 1893, was signed by Judge Dennis, and the order of the 11th of July, 1893, was signed by Judge Ritchie. The case is stated in the opinion of the Court.

Cross Appeals from the Circuit Court of Baltimore City. i These cross appeals were taken from a decree of the Court below (Wickes, J.), determining the amount to be paid by the Maryland Ice Company to the Arctic Ice Machine Manufacturing Company. The case is stated in the opinion of this Court.

<p>Insolvency — Loan on Mortgage security — Lien of Mortgage — Section 14 of Article 47 of the Code, as Amended by the Act of 1890, ch. 364.</p> <p>A person, who, in good faith, has loaned money on mortgage, without any intent or attempt to hinder, delay or defraud the creditors of the borrower, or to assist him in any way to give an undue preference to any of his creditors, and without Knowledge that he was insolvent, or in contemplation of insolvency, is not deprived of his lien by section 14 of Article 47 of the Code, as amended by the Act of 1890, eh. 864, which prohibits preferences by merchants and others therein named, being insolvent or in contemplation of insolvency, but provides that nothing therein shall apply so as to render invalid the lien of any mortgage or other conveyance executed by the debtor, for money dona fide loaned or paid at the time of the creation of such mortgage or conveyance.</p>

This appeal was taken from a decree of the Court below (Boyjd, J.), setting aside and declaring null and void a deed made to the appellant. The case is stated in the opinion of this Court.

<p>Bov/ndaries of Talbot County — Indictment for Talcing Oysters without License — Flea to Jurisdiction — Demurrer to Plea — .Evidence.</p> <p>The Act of 1706, ch. 3, defined the bounds of Talbot county, and what waters were included within it. The Act of 1884, ch. 468, (codified as section 155 of the Public Local Laws of Talbot county) required the clerk of the Circuit Court for Talbot county to issue a license to any person who had been a resident of the county for twelve months next preceding his application, which license authorized him to employ any boat of the capacity of ten tons or less in taking oysters with dredge, scoop, or scrape in the waters of Choptank river; and provided that the waters of Talbot county lying’ within certain designated boundaries should be open to the citizens of said county licensed as above mentioned. T. was indicted in the Circuit Court for Anne Arundel county on the charge that he, not having been licensed according to law, did employ a certain boat called a “ bugeye ” in taking oysters with' a “ scoop ” within the waters of Chesapeake Bay, and not within the body of any county. T. pleaded to the jurisdiction of the Court, and averred in his •plea that he was a citizen of Talbot county, and had been a resident thereof for more than twelve months next preceding the taking of the oysters, and that the place where the oysters were. taken was within the waters of Talbot county, opposite and to the westward of Tilghman’s island, and not more than a mile and a half therefrom, and inland from a line drawn from Sharp’s island to Poplar island, and that he was duly licensed according to .law hy the clerk of the Circuit Court for Talhot county to take oysters at the place aforesaid with scrapes and dredges. Held :</p> <p>1st. That the plea did not show distinctly that the place where the boat was employed in taking oysters was within the limits of Talhot county. .</p> <p>2nd. That the averment that it was not more than a mile and a half to the westward of Tilghman’s island, was sufficient, because there were points much less than half a mile to the westward of that island, which were not in Talhot county, but in Chesapeake Bay.</p> <p>3rd. That although it averred that the place was inland from a line drawn from Sharp’s island to Poplar island, such line was not one of the boundaries of Talbot county, and therefore this location of the place did not show that it was within the limits of the county.</p> <p>4th. That if any offense was committed on the Chesapeake Bay, not within the body of any county, the offender might he tried in any county in which he might he arrested, or into which he might be first brought.</p> <p>5th. That the plea to the jurisdiction was properly overruled.</p> <p>On an indictment in A. county for taking, without a license, oysters in the waters of Chesajieake Bay, and not within the body of any county, the defendant had a right to show that he was a citizen of T. county, and had a license from the clerk of the Circuit Court for said county authorizing him to take oysters from the waters thereof, without stating in advance that he would prove that the oysters were taken in the waters covered by the license.</p>

<p>Mortgage of Stock in Trade — After-acguired Property.</p> <p>A provision in a mortgage of a stock of goods that all stock replaced after the sale of any of the stock, shall be substituted for the stock originally covered thereby, while not, of itself, rendering the mortgage void, as fraudulent, is, at law, a nullity, and creates no lien on after-acquired goods.</p> <p>Where, with the knowledge of the mortgagee, and for its benefit, the after-acquired goods have been so intermingled with the property embraced in the mortgage as not to be distinguishable from the latter, a judgment creditor of the mortgagor may lawfully levy upon and sell the whole, or so much thereof as may be necessary to satisfy his debt.</p> <p>Note__The efficacy of a mortgage on articles to be subsequently acquired, Is the subject of a very full note to Deeley vs. Dwight, (N. Y.) 18 L. R. A., 298.</p>

. This appeal was taken from a decree of the lower Court (Dennis, J.), passed by consent, adjudging that the defendant specifically perform his agreement with the plaintiffs, filed in the cause, being a contract of sale of certain property situate and tying in the City of Baltimore, and that he forthwith pay unto the plaintiffs the sum of thirteen hundred and fifty dollars, the same being the purchase money specified in the said agreement, and due from the defendant to the…

2 of Baltimore City. Tbe bill iu this case was filed by Calvin H. Black against Ms two sisters, Annie M. Herring and Mary E. Deringer, as legatees and trustees under the will of their mother, and their husbands, ashing that said will might be construed by the Court, and the rights and interests of the plaintiff in the estate of the testatrix determined; and that a decree might be passed for the sale of the trust property, and for the investment of the proceeds, to be held…

Appeals from the Circuit Court Ro. 2 of Baltimore City. A hill was filed hy the Safe Deposit and Trust Company of Baltimore, as trustee under the will of George Y. Wethered, asking the Court to assume jurisdiction in the administration of the trust, and to construe and declare the true meaning of the following clauses in said will: “ I give, devise and bequeath (my sister Lewina Wethered being already provided for) all the rest and residue of my estate, of every kind, and…

<p>Construction of Conveyances — Bu/rial ground — Ad/oerse possession — Act of 1832, ch. 308 — Act of 1868, ch. 211— Legislatme power.</p> <p>The conveyance of a portion of a leasehold, described as bounding on an alley called “ School House alley,” carries the title of the sub-lessee to the middle of such alley, where the grantor owns to the centre of the alley, and there are no words Or specific description to show a contrary intent, subject, however', to the easement of the right of way.</p> <p>Although a conveyance of property to the trustees of a church, to be used as a burial ground, be void because it did not express on its face the purpose for which the property was bought, entry of the grantee into possession thereunder, and continuance of such possession for twenty years, perfects the title against all persons not under legal disabilities.</p> <p>The Act of 1832, ch. 308, providing that the trustees of any Roman Catholic Church who hold the title to any lot used as a graveyard, may convey the same to the Archbishop of Baltimore and his successors, obviated any defect in the conveyance of such property to the trustees, arising from failure to specify therein the purpose for which the lot was to be used, although the Act did not specially mention such deed.</p> <p>The Act of 1868, ch. 211, authorizing the sale of any ground used for the purpose of burial, enlarged the corporate powers granted to the Archbishop of Baltimore by the Act of 1832, ch. 308, and removed tbe restriction of that Act which required that the land should be used only as a burial ground, and enabled him to cause the title to be conveyed to a purchaser.</p>

This appeal was taken from a decree of the lower Court (Dennis, J.) requiring William Graham Bowdoin and Alexander Brown, surviving partners of the firm of Alexander Brown & Sons, to pay to Ormond Hammond, Jr., the sum of $15,158.69, with interest thereon from the time it was received by them. The case is stated in the opinion of this. Court.

<p>Action for Damages — Trespassing child— When case, should he Taken from the Jury.</p> <p>A boy about twelve years of age went upon tbe premises of the defendant — a manufacturer of typesetting machines — without the authority or knowledge of the defendant or any of his agents or employés, for the purpose of purloining type metal or lead scrap which was in a box near the factory wall, and which had been placed there by defendant’s orders. While thus trespassing on the defendant’s premises the boy was injured by the sudden discharge of water and steam from a pipe connected with an engine in the defendant’s factory. The presence of the boy was unknown to the engineer when he “ blew the boiler off, to ease the pressure on it, for reasons of safety.” In an notion by the father of the injured boy to recover damages arising from the injury to his son, and for the amount expended for medicines and medical attention, it was H eld :</p> <p>That the defendant was not liable, and the case should have, been taken from the jury.</p>

The appeal in this case was taken from a decree of the lower Court (Lynch, J,) rejecting and setting aside the report of sale made by the trustee in the cause, and dismissing the plaintiff’s supplemental bill, and leaving him to his remedy at law to maintain his rights to the land in controversy, by an action in ejectment. The case is stated in the opinion of this Court.

2 of Baltimore City. The appeal in this case was taken from a decree of the lower Court (Wickes, J.) determining that the property in the check in question passed from the depositors, Ditch & Bros., and vested in J. J. -Nicholson & Sons, and that the latter conferred a perfect title upon the Western National Bank, their transferree. The opinion of this Court, together with the dissenting opinion, furnish a sufficient statement of the facts of the case.

<p>Action on Promissory note — Parol evidence to Explain a Written contract — Latent ambigwit/y— Word “ duplicate in, a Promissory note — Foreign Mils of Exchange — Evidence — Money counts — Fraud not Presumed — Evidence — Rescinding cont/ract — Reasonable time.</p> <p>On the 21st of February, 1885, the plaintiffs obtained a loan from H. of $2500, and to secure its payment made a mortgage to her of the leasehold interest in certain houses on Vincent alley, and delivered to her their joint and several promissory note for $2500, bearing even date with the mortgage, and payable five years after date. Subsequently, on the 4th of January, 1889, an arrangement was made for an exchange of the equity of redemption m the Vincent alley houses for a tract of land, the property, of Mrs. McCann, one of the defendants. As part of the transaction a deed was executed by the plaintiffs assigning their interest in the Vincent alley houses to Mr. McCann, the other defendant, which contained no assumption by the defendants of the said mortgage debt. To supply this omission, an agreement was signed and sealed by the defendants, by which they assumed the payment of said mortgage debt, and contracted to deliver to the plaintiffs their promissory note for $2500, and two interest notes for $75 each, the principal note payable the 23d of February, 1890, and the two interest notes in six and twelve months respectively from the 23d of February, 1889. The three notes were given accordingly. The principal note was as follows: “ $2500. Baltimore, Feb. 23d, 1889. One year after date, we jointly and severally promise to pay to the order of X B. P. and O. X P. twenty-five hundred dollars, a note to secure mortgage debt on twelve Vincent alley houses, —duplicate. Value received. Julia E. McCann, James J. McCann.” The defendants having failed to pay said note at maturity suit was brought on the same. The declaration contained the six common counts in assumpsit, and a special count on the note. General issue pleas were filed, and the suit was entered to the use of H., the payee in the note, to seems which the mortgage had been given. On appeal by the defendants from a judgment in favor of the plaintiffs, it was Held:</p> <p>1st. That the rule that parol proof cannot be admitted to vary or contradict the terms of a written contract did not exclude the admission of testimony to explain the meaning of the word “ duplicate,” which, standing where it did, bore a doubtful relation to the other parts of the note, and failed to express with certainty its meaning.</p> <p>2nd. That the word “ duplicate ” as used in the note could not be regarded as performing a similar office to that in which it is generally employed in foreign bills of exchange.</p> <p>3rd. That there was a latent ambiguity in the word as used, and parol proof was admissible to explain its meaning.</p> <p>4th. That the two notes and the agreement were admissible in evidence as parts of the res gestee, and as explaining the manner in which the plaintiffs came into possession of the note of the defendants, and the purpose which it was to accomplish in the matter of the exchange of the properties.</p> <p>5th. That the note sued on formed no part of the agreement under seal, by the express terms of which the defendants agreed to deliver said note to the plaintiffs.</p> <p>6th. That whether said note was negotiable or not could have no bearing upon the determination of the case, the same never having passed from the hands of the original payees, the plaintiffs, and if any legal objection existed to its admissibility under the special count on the note it was clearly admissible under the common counts for money lent, for money had and received, and upon an account stated.</p> <p>7th. That there was no proof of any fraud practised on the defendants by the plaintiffs, and none would be presumed.</p> <p>8th. That if the defendants had desired to rescind the contract because of its fraudulent character, they should have done so within a reasonable time.</p> <p>9th. That the conveyance of the Vincent alley houses to Mr. McCann, instead of to his wife, the owner of the property given in exchange for said houses, furnished no ground of defense to the action, there being no evidence of any misconduct on the part of the plaintiffs in connection with the execution of the deed.</p>

<p>Mandamus to Governor — Contested election — Remedy at Law — Sections 69 and 94 of Article 33 of the Code-— Act of 1890, eh. 624.</p> <p>Mandamus is a prerogative writ; and unless the right which the relator seeks to enforce is clear and unequivocal, and the correlative duty which the respondent refuses to perform is purely ministerial, and there is no other adequate remedy at law, it will not be granted.</p> <p>Mandamus does not lie to compel the Governor of Maryland to issue a commission for the office of County Commissioner to the plaintiff, under section 69 of Article 33 of the Code, as amended by the Act of 1890, ch. 624, providing that the judges of election in the several election districts shall “ cast up the whole vote of all the districts ”, and “ make out two plain, fair, and distinct statements and certificates of the number of votes- which shall have been given for each candidate,” and that “ from the returns so made the Governor shall issue commissions to the different persons elected,” where the certificate of the judges fails to state that they cast up the whole number of votes given in said districts according to the certificates made out by them, and attested by the clerks, on the day of election, and also omits the formal declaration as to who was elected, and the plaintiff has an adequate remedy at law, under section 94 of the said Article, under which he had already instituted proceedings to contest the election of his opponent, and they were pending at the time.</p>

<p>Practice in Court of Appeals — Final order — Appeal— Contested election — Suficiency of Petition.</p> <p>An appeal will not he dismissed because the record was not printed at the time the case was set for hearing, where it is printed at the time the case is called for hearing.</p> <p>An order denying the petitioner the means of further prosecuting his suit, is final, and an appeal will lie therefrom.</p> <p>A petition alleged that the petitioner and the defendant were candidates for the office of County Commissioner at the election of November 1893; that the returns from all the districts of the county, as shown by the certificate on the boohs of the polls filed in the clerh’s office, as well as the certificate of the returns filed therein, and “ also the duplicate of said certificate forwarded to the Governor," showed that the petitioner received at said election twelve hundred and seventy-four votes for the office, and the defendant “ not more than twelve hundred and ■ sixty-four votes ” ; that, notwithstanding, the Governor had “ erroneously, and without warrant or authority of law,” issued a commission to the defendant; that the petitioner contested the election of the defendant, claiming that he, and not the defendant was elected to the said office by the votes cast for him. Held :</p> <p>That the petition was not objectionable for failure to allege distinctly that the defendant was not elected, its averments being sufficiently broad to found an inquiry as to which of the parties claiming was elected.</p> <p>A petition in an election contest signed in the name of the petitioner by his attorney, is sufficient without an affidavit, the statute not requiring the petition to be sworn to by the contestant.</p>

<p>Executors and Administrators — Debt due by Executor— Sow enforced — Executor’s commissions.</p> <p>Section 224 of Article 98 of the Code, requires every executor, when he returns the list of debts due to his testator, to include among them any just claim which the decedent had against him. Section 225 makes the same provision in the case of administrators; and further enacts that all commissions allowed to the executor or administrator shall be applied towards the payment of any such claim so returned or established. In 1880 Mrs. Berry became surety upon the bond of McDowell as executor of Schneider. In 1885 McDowell became executor of Mrs. Berry but was subsequently removed, and K. and A. were appointed administrators d. b. n. c. t. a. In an action upon the bond executed by McDowell as executor of Schneider a judgment was rendered against K. and A., as such administrators d. b. n. of Mrs. Berry, by reason of her suretyship on the bond, and they were compelled to pay it out of the assets of her estate. On a petition filed in the Orphans’ Court by K. and A., as administrators d. b. n. c. t. a. of the estate of Mrs. Berry against McDowell as her executor, and E. and P. as his sureties, claiming the benefit of said sections of the Code, it was Held :</p> <p>1st. That the money paid on said judgment created a just claim against McDowell, which ought to hare been returned as a debt due by him to Mrs. Berry, his testatrix.</p> <p>2nd. That his commissions as executor of Mrs. Berry were applicable to the payment of this debt.</p> <p>3rd. That according to said section 224, it was competent for the Orphans’ Court, with the consent of the parties, to decide the question presented by the petition; or, with the Court’s approbation, the parties might have referred it to an arbitrator; or, at the instance of either party the Court would have directed an issue to be tried by a jury.</p> <p>4th. That the removed executor ought to- have had an opportunity to appear and answer the petition.</p> <p>5th. That if he evaded process, or for any reason it could not be served upon him, the Court ought to require him to enter an appearance to the petition, and if he should refuse to appear, he would be guilty of contumacy, and his commissions ought to be forfeited.</p>

The case is stated in the opinion of the Court. Defendant’s First Exception — Stated in the opinion of the Court. Defendant’s Second Exception. — The plaintiff at the close of the evidence offered the seven prayers following, and a sixth prayer, which was withdrawn: 1.

<p> Conflicting rights of Receivers. </p> <p>Certain petitioners alleged that they were appointed receivers for the corporation known as the Supreme Sitting of the Order of the Iron Hall, by the Circuit Court of Baltimore city, and that the trustees of the Local Branches of the said corporation within the State, were ordered to deliver to the petitioners all funds and securities in their hands belonging to the Supreme Sitting, and the petitioners thereupon demanded certain money in the hands of the defendant. The defendant had been appointed by the Circuit Court of Garrett County receiver of a Local Branch of the Order of the Iron Hall, located at Oakland, and answering the petition, he alleged that the money in his hands belonged to the Local Branch, and to the individual members thereof, and that neither the Supreme Sitting nor the petitioners had any claim upon it. Held :</p> <p>That the petitioners were not entitled to have the fund in controversy turned over to them, unless they could show that it belonged to the Supreme Sitting, and not to the members of the Local Branch.</p>

The case is stated in the opinion of the Court. The decree from Avhich this appeal was taken, was signed by Judge Dennis.

<p>Annulment of Marriage — Parties—Act of 1777, oh. 12, see. 15, as re-enacted, Toy Act of 1886, ch. 497, and codified as secUon 12 of Article 62 of the Code — Superior Court cmd Criminal Court of Baltimore City — Jurisdiction.</p> <p>By the Act of 1777, ch. 12, sec. 15, as amended by the Act of 1886, ch. 497 (Code, Art. 62, see. 12), the authority to annul a marriage within the prohibited degrees of affinity, or a second marriage the first subsisting, is, so far as the Courts of Baltimore City are concerned, confined to me Superior and Criminal Courts.</p> <p>Section 12 of Article 62 of the Code specifically limits the right to make me application to one of the parties to me marriage whose validity is assailed, and gives no third person the authority to invoke its provisions.</p> <p>Nullity decrees, except for fraud or coercion, are pronounced solely under the Act of 1777 as now codified.</p> <p>A married woman, without the consent of her husband, went to South Dakota and there procured a divorce a vinculo matrimonii from ber husband, and shortly afterward married again. Her first husband filed a bill in equity against her and her second husband in Baltimore City, charging that the divorce procured in South Dakota was void, and praying that the so-called ceremony of marriage between the defendants might be declared null and void. Ho other relief was prayed. Upon demurrer to the bill it was Held :</p> <p>1st. That a Court of equity had no jurisdiction to pass the decree prayed for.</p> <p>2nd. That the plaintiff was not the proper party to institute such a proceeding.</p>

<p>Corporation as Sole surety — Application for Counter-security on Administrator’s bond.</p> <p>A corporation “ authorized to become sole surety in all cases where by law two or more sureties are required for the faithful performance of any trust or office,” is not deprived of the right to require an administrator, upon whose bond it is surety, to give counter-security as provided by section 1 of Article 90 of the Code, by the provision in the Act of 1890, ch. 263, defining the powers of said corporation, that it shall be lawful for said corporation to stipulate and provide for indemnity from the parties for whom it may become responsible as surety, and to enforce any bond, contract, agreement, pledge or other security made or given for that purpose.</p>

The case is stated in the opinion of the Court. Exception. — The' case being tried by the Court, by agreement of counsel, without the aid of a jury, the plaintiff prayed the Court “ to find as matter of law that under the agreed statement of facts the plaintiff is entitled to a verdict for the amount of the check mentioned in the declaration and interest thereon from January 15th, 1892.” The defendant offered the two following prayers: 1.

' The appeal in this case was taken from the order of the Orphans’ Court of Baltimore ¡City dated the 29th of November, 1893, rescinding the previous order of said Court dated the 3d of April, 1893, finally ratifying the sale of certain leasehold estate of William F. Weber, deceased, made by George R. Willis, the administrator with the will annexed of said deceased, to Clara M. Hodson, wife of Thomas S. Hodson. The. case is stated in the opinion of this Court.

<p>Receiver — Deposit and Payment — Evidence.</p> <p>Where the receiver of a corporation received a draft for the benefit of an individual, with the request that he collect the same for her, the corporation having no interest whatever therein, and deposits the same in his account as receiver, and obtains a credit therefor, there is an obligation on the corporation to repay such individual the amount of the proceeds of the draft, and therefore is not prejudiced by the giving of a check by the receiver to such individual in payment of said amount.</p> <p>Where the receiver of a corporation deposited to his credit as receiver, a draft for the benefit of an individual, which she had requested him to collect for her, evidence is admissible to prove, without first showing the existence or contents of the draft, that the account of the receiver had been credited with the amount of the draft.</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 evidence having been closed on both sides, the plaintiff offered the four following prayers: 1.

The case is stated in tlie opinion of the Court. Exception — The testimony being closed on both, sides, the plaintiff offered the five following prayers: 1. That by a true construction of the deed from Robert G-. Ware to the plaintiff, bearing date the 14th day of September, 1866, and offered in evidence, the land over and upon which the way for common use in said deed described was laid out, is the land of the plaintiff. 2.

The Court below (Stake, J.,) decreed that the bill of complaint, as to all matters of relief prayed for therein, except as to the sale of the real estate of David Koontz, deceased,'be dismissed; but that inasmuch as the allegations of the bill, and the proof submitted thereunder, would entitle the complainants to a decree for the sale of the real estate, but for the fact that some of the complainants were infants, whose answers by guardian had not been taken and filed in the…

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

This case was tried before the Court below (Phelps, J.,) without the aid of a jury, upon an agreed statement of facts, which are sufficiently set out in the opinion of this Court. The Court below was requested by the parties to enter a judgment in accordance with its opinion on the law, the right to appeal from such judgment being reserved.

The case is' stated in the opinion of the Court. First, Second, Third and Fourth Exceptions are set out in the opinion of the Court. Fifth Exception. — The plaintiff offered three prayers, which the Court (Ritchie, j.,) rejected. The defendant offered the seven following prayers: 1. If the jury shall find that the plaintiff’s mother died of consumption, then, under the pleadings and all the proof in the cause, their verdict must be for the defendant. 2.

' This appeal was taken from a decree of the lower Court (Robinson, C. J.,) dismissing the bill of complaint.- The case is stated in the opinion of this Court.

<p>Proceedings to ConderrmWater rights — Time within which to Apply for Writ of Error — Appeal from Order of Circuit Court in Condemnation proceedings.</p> <p>The two months within which application must be made for a writ of error in condemnation proceedings, begins to run from the date of the order finally confirming the award of the jury, and not from the date of the order overruling some objections thereto.</p> <p>No appeal will lie to the Court of Appeals from the final order of the Circuit Court confirming the award of the jury in proceedings to condemn certain water rights, as the Legislature, by sections 248-253 of Article 23 of the Code, conferred a special jurisdiction on the Circuit Court over such proceedings, and did not expressly give the right of appeal from its judgment.</p> <p>The fact that a corporation formed for the purpose of supplying a city with pure water, diverted the water of a certain spring - from its accustomed channel prior to the institution of proceedings to have the interest of the owner of such water right condemned, does not deprive the corporation of the right to condemn.</p>

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

2 of Baltimore City. This appeal was taken from a decree of the lower Court (Wickes, J.,) dismissing the bill of complaint. The case is stated in the opinion of this Court.

The case is stated in the opinion of the Court. Exception.- — The plaintiff and defendant respectively offered nine prayers which the Court (Ritchie, J.) rejected, and ruled as matter of law on the facts found, first, that the defendant committed a breach of the entire contract, as to the five houses in question, by his refusal to pay the first instalment due under the contract on three of them, and by his notice then given that he would not pay any future instalment on any…

This appeal was taken from the decree of the Court below (Dennis, .J.) dismissing the bill of complaint, without prejudice to the right of the plaintiff to proceed at law. The case is stated in the opinion of this' Court.

This appeal was taken from an order of the Court below (.Dennis, J.), finally ratifying and confirming an auditor’s report and account. The case is stated in the opinion of this Court.

2 of Baltimore City. This appeal was taken from an order of the Court below (Harlan, J.) in the matter of the exceptions of the Baltimore and Ohio Railroad Company to the ratification of the auditor’s, report and expense account A, filed in the consolidated cases. The case is stated in the opinion of this Court.

<p>Register of Parish — Enrollment of Member of the Protestant Episcopal Church — Mcmdamus.</p> <p>Under the Act of 1798 ch. 24, known as the Vestry Act, requiring the register of the parish to enroll every person who is a resident of the parish and a member of the Protestant Episcopal Church, who shall apply for the purpose, on the books of the parish, the register’s duty is merely mechanical and ministerial, and for a failure to perform it mandamus will lie.</p> <p>Where the petitioner for a writ of mandamus to compel the register of a parish of the Protestant Episcopal Church to enroll him on the parish register, alleged as reasons therefor that he might vote at the Easter election of 1S93, and that he might be eligible for election as a vestryman, his right to the relief sought is not affected by the fact that such reasons do not exist when the petition is heard.</p>

2 of Baltimore City. TMs appeal was taken from a pro forma decree of the Court below (Wickes, J.) adjudging that under the last will of Samuel Stein, all the rest and residue of the testator’s estate, both real and personal, vested in Annie Stein, Simon EL Stein and Harry Friedenwald, trustees under said will, as tenants in common, and that they should hold the same as of one trust estate for the use and benefit of the cestuis que trust, as provided for in said will, and…

<p>Street Improvements — Legislative Power — Special Benefits — Valid Ordimance — Misreoital in Ordinance — Power to Sell to collect Assessment.</p> <p>Where a street has heen paved, and the expense against the property benefited has been assessed under an ordinance subsequently declared void, the Legislature has power to authorize the city to levy special assessments against such property to the extent of the special benefits derived by said property.</p> <p>The Act of 1S92, ch. 2S4, which authorizes the Mayor and City Council of Baltimore “ to provide by ordinance for the levy and collection, in such manner as they may deem proper, of a tax upon all the property binding on any street, lane or alley, or part thereof which may have been so improved, to the extent that such property shall have been specially benefited by such improvement; provided that no property upon which the assessment originally made for its share of the cost of such improvement shall have been paid, shall be again assessed,” is not void as to uncertainty in the amount to be assessed, the Act itself providing how such amount shall be definitely determined.</p> <p>Ordinance No. 84 of 1893 of the City of Baltimore, provides that the City Commissioner shall give ten days’ notice in two of the daily newspapers published in Baltimore that at the time and place mentioned he would ascertain and determine the amount of tax to be assessed upon all the property on North avenue, between certain points, upon which the assessment levied under Ordinance No. 100 had not been paid, for the special benefits which had been derived by said property from the grading, &c., of said portion of North avenue; that after hearing all persons interested, who desired to be heard, he shall proceed to apportion among different pieces of property binding on said portion of North avenue, upon which the assessment levied under Ordinance No. 100 was not paid, the total cost of the grading, &e., of said portion of North avenue, less the amount paid by those who had paid under Ordinance No. 100, provided the tax assessed against any piece of property should not be more than the amount which the said property had been specially benefited by the grading, &c., of said portion of North avenue. The ordinance further provides that any person dissatisfied with any assessment in which he was in any manner interested could appeal to the Baltimore City Court, where the proceedings should be similar to those in the case of trials of street appeals, and the same right should be had to appeal to the Court of Appeals. Held :</p> <p>That Ordinance No. 84, is not unconstitutional and void as taking property without due process of law.</p> <p>The Act of 1892, ch. 219, gives the Mayor and City Council of Baltimore power to provide by ordinance for improving streets, and for assessing the cost of any such work, in whole or in part, upon the property binding upon such streets, and for collecting the assessments, provided that before the passage of such ordinance, ten days’ notice shall be given. The Act of 1892, ch. 2S4, passed a few days later, provides for the assessment and collection of the costs for public improvements already made by the city. Held:</p> <p>That the ten days’ notice required by the former Act is not applicable to an ordinance passed in pursuance of the latter.</p> <p>A misrecital in an ordinance of the source' of the power of the municipality to pass such ordinance, does not affect its validity if the power to enact it existed.</p> <p>The Act of 1S92, ch. 284, authorized the Mayor and City Council . of Baltimore “ to provide by ordinance for the levy and collection in such manner as they may deem proper, of a tax upon all the property binding on any street * * * which may have been so improved, to the extent that such property shall have been specially benefited by such improvement.” Ordinance No. • 84 of 1893, of the City of Baltimore, after requiring the list of the property and of the owners thereof liable to pay the tax, and the amount to be paid by each piece of property, to be placed in the hands of the City Collector, directed him “ thereupon, to proceed in all respects as he does in cases where persons or property are assessed for benefits for opening, closing, widening, and straightening any street, lane or alley.” Section 806 of Article 4 of the Code of Public Local Laws while not prescribing the mode of procedure for the collection of benefits for opening and closing streets, authorized the City of Baltimore “ to enact and pass all ordinances from time to time which shall be deemed necessary and proper” to effect such object. Held:</p> <p>That the City Collector had power to sell property assessed for benefits under Ordinance No. 84, to pay the assessment.</p>

Appear from the Court of Common Pleas. The case is stated in the opinion of the Court. Exception. —The plaintiffs offered the following six prayers: 1.

<p>Control of Streets — Telegraph poles — Imposition of Tax.</p> <p>The City of Baltimore having full and complete control over its streets, may rightly impose a tax of two dollars on each of the poles, erected therein, of a telegraph company which has accepted the provisions of the Act of Congress of July 1866, entitling it to use the post roads of the United States for the operation of its lines.</p>

<p>Death by Wrongful Act — Liability for Sale of Dorse with Glamders — Pleading.</p> <p>When by false representations a horse, affected with glanders, is sold to an innocent purchaser, the vendor knowing the disease to be imminently dangerous to human beings and likely to cause them injury, is liable for the death of one who contracts the disease while having charge of the horse for the purchaser, if such be the natural and probable consequence of coming in contact with the horse.</p> <p>Glanders is not a disease so frequently taken by men as to permit the Court to take judicial notice of its character.</p> <p>In an action against the fraudulent vendor of a horse affected with glanders, to recover damages for the death of a person who contracted the disease by contact with the horse, an allegation in the declaration that the disease “ may easily be communicated to human beings ” is not sufficient; the declaration should allege that the natural and probable consequence of contact with it by human beings was that they would contract it.</p>

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