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PROHIBITION.-Continued.

it is exercising its judicial functions and is proceeding in excess of its judicial powers or is usurping judicial powers, which do not belong to it, to such action a writ of prohibition will lie. Id. 6. Mere errors and irregularities of such commissioners while proceeding within their jurisdiction are not subject to prohibition. Id. 7. Where commissioners were assembled under our statute in special session after an election to canvass the votes cast, and the question was presented to them, whether the precinct commissioners, canvassers and clerks at a certain voting place were sworn, such question was within their jurisdiction, and whether on the evidence before them their decision was correct or incorrect, it could not be the basis for an application for a writ of prohibition. Id. PUBLIC ROAD. See Damages 10-13.

PUNISHMENT. See Constitutional Law 1.

PUNITIVE DAMAGES. See Assault and Battery 1.

PURCHASER. See Separate Estate 1.

RAILROAD COMPANIES. See Eminent Domain 3-5; Negligence 1, 2. RECEIVERS. See Corporations 1, 2.

RECORD.

1. Where the clerk, who certifies the record, to which a writ of error and supersedeas have been awarded, copies into it as part of the record a bill of exceptions marked " No. 2," which is apparently signed and sealed by the Circuit Court judge presiding at the trial, but no reference whatever is made to this bill of exceptions by any entry on the record-book, though there was on the recordbook an entry, that on the trial of the case one of the parties took a bill of exceptions marked "Bill of Exceptions No. 1," which was signed, sealed and saved to him and made part of the record, the Appellate Court will not regard the bill of exceptions marked "No. 2" so inserted in the copy of the record of the case. Pegram v. Stortz 220.

2. A paper purporting to be a bill of exceptions and copied into the record as such will not be regarded or treated by the Appellate Court as a part of the record, unless the record shows, that it was by some order or memorandum entered on the order-book of the trial-court and made a part of the record. Winters v. Null 450.

3. Instructions copied into the record, when no bill of exceptions or order of the court refers to them, will not be regarded as a part of the record. Id.

See Wills 10.

RECOVERY BACK OF MONEY. See Judicial Sale.

RELEASE.

1. Whether or not a particular transaction amounts to the release of a
lien on real estate is a question of intention on the part of the re-
leasor; in a doubtful case such intention will not be implied, but
when it is clear, that such was the intention, a court of equity
will enforce the release, although no formal release had been ex-
ecuted. Stribling v. Coal Co. 80.

See Deed of Trust 1; Ex'rs & Adm'rs 1.

REMOVAL OF CAUSES.

1. A bill is taken for confessed and regularly set for hearing at the
October rules on the 3d day of October. A special term had been
called of the Circuit Court to be held at a subsequent day in the
month of October. The cause is ready for hearing and trial at
such special term, the court being authorized by statute to try
such cause.
Such a cause can be removed into the Circuit Court
of the United States on the petition of a non-resident defendant
at this special term but not at the first regular term of the court in
January following, as the petition for such removal must be filed
at the term of the court, at which it is first ready for hearing and
trial, which was the October special term of the court. Kennedy v.
Ehlen 540.

2. If a non-resident defendant, who petitions for the removal of a
cause from a State court into the Circuit Court of the United
States, is a citizen of Maryland, and most of the plaintiffs, with
whom he has the controversy, are also citizens of Maryland,
though some of them are citizens of West Virginia, the court
ought to refuse to remove such cause; for to justify such removal
all the parties forming together a party on one side of a controversy
in a cause must be citizens of a different State from those forming
together the party on the other side of such controversy. Id.

REPEAL. See Construction of Statutes 1, 2.

RESULTING TRUST. See Trusts and Trustees 3; Specific Perform-
ance 22.

REVERSAL OF JUDGMENT.

1. Where the decree sought to be reversed is based upon depositions,
which are so conflicting and of such a doubtful and unsatisfactory
character, that different minds and different judges might reason-
ably disagree as to the facts proved by them or the proper conclu-
sion to be deduced therefrom, the appellate court will decline to
reverse the decree, although the testimony may be such, that the
appellate court might have rendered a different decree, if it had
acted on the cause in the first instance. Prichard v. Evans 137.

REVERSAL OF JUDGMENT.—Continued.

2. If no other error is found in a decree, it will not be reversed,

cause the court may have erred in decreeing costs. Id.

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3. In a case taken by appeal from the judgment of a justice to the Circuit Court, where it was tried by jury, this Court will not reverse the judgment, simply because the jury were sworn to "try the issue" between the parties, when the record fails to show, that any plea had been filed, or issue made in the case, in the absence of anything to show that the plaintiff in error was prejudiced by such irregularity, if it was an irregularity. Tully v. Despard 370. 4. It is the legal right of counsel on the trial to submit instructions to the jury and have them passed upon by the court, but where instructions are submitted by counsel after the jury has been directed to retire, and the court refuses to consider them because offered too late, this Court will not reverse the judgment of the trial court, unless it affirmatively appears, that the said court manifestly abused the large discretion vested in it in respect to its action in such matters. Id.

5. Where the Court refuses an instruction to the jury, the Appellate Court will not reverse the judgment, unless enough of the evidence has been set out in the exception to show the relevancy and propriety of the instruction, because error must affirmatively appear; and for the same reason, if the court give the instruction, before the Appellate Court will reverse the judgment, the record must show the instruction wrong, or that it could not in any aspect of the case be given. Kinsley v. County Court 464. 6. Where the decree sought to be reversed is based upon depositions, which are so conflicting and of such doubtful and unsatisfactory character, that different minds and different judges might reasonably disagree as to the facts proved by them or the proper conclusion to be deduced therefrom, the Appellate Court will decline to reverse the decree, although the testimony may be such, that the Appellate Court might have rendered different decree, if it had decided the cause in the first instance. Frederick v. Frederick 566.

See Evidence 2, 11, 12; Executors and Administrators 6; Negligence 1,2; New Trial 1-3; Parties 2; Wills 8.

RIGHT OF WAY. See Partition 2.

SALE.

1. Where a decree requires land to be sold at public sale, the commissioner has no authority to sell the land at private sale, and such a sale will not be confirmed; it is void. Hutson v. Sadler 358.

2. Where a decree was rendered for the sale of a tract of land at public sale, and there was but one judgment-lien upon it at the time,

SALE.-Continued.

and with the consent of the judgment-creditor and the debtor the land was by the commissioner sold to the wife of the debtor, and out of her own separate estate she without fraud paid for the land by paying said judgment and costs of the suit, and afterwards another judgment was recovered against the debtor, while the wife is not entitled to hold the land under her purchase, yet she is entitled to be subrogated to the rights of the creditor in the judgment, which she discharged. Id.

3. Where a deed of trust is executed, in which the wife joins, and there are liens on the land both prior and subsequent to the trust-deed, the wife has no contingent right of dower except in the surplus, after the trust-lien is paid in full, and on this contingent right of dower the trust-lien creditor has the first and only lien, there being but one deed of trust; and in such case the decree ought to provide, that the land should be sold clear of the wife's contingent right of dower, if it appears at the sale, that it is necessary to pay the full amount of the trust-lien. If not, it should be sold subject to the dower. Barbour v. Tompkins 311.

4. Where a deed of trust is executed, and there are a number of prior judgment-liens on the land, and it is necessary to resort to a court of equity for the enforcement of the liens, the court will fix the terms of sale according to the rules of equity without regard to the terms of sale fixed in the trust-deed. Id.

See Assignor and Assignee 1; Executors and Administrators 4-6;
Jurisdiction 1; Mortgage 1, 2; Specific Performance.

SELLING SPIRITUOUS LIQUORS.

1. Where a druggist has spirituous liquors in his store, and a sale thereof is made in violation of the statute, ch. 107 Acts 1877, by his clerk, he will be responsible for the sale and may be fined therefor, notwithstanding the sale may have been without his knowledge and contrary to his instructions to his clerk. State v. Denoon 122.

See Damages 1-9; Indictment 1.

SEPARATE ESTATE.

1. In a suit in equity brought by a creditor to subject the separate personal estate of a married woman to the payment of a debt, in which no attachment was sued out or lien acquired on the property prior to the institution of the suit, HELD, by two judges in a court of three, that until the court takes the property out of the possession of the married woman, or the plaintiff acquires a lien upon it in some of the modes recognized by the laws of this State, a purchaser thereof for value and without fraud will not be liable to the plaintiff for the property so purchased or its value, whether

SEPARATE ESTATE.-Continued.

such purchaser had or had not notice of the pendency of such suit
at the time of his purchase; and by one of said judges, that the
plaintiff, from the time his summons is served on the woman, ac-
quires a claim or right to subject said property as against all the
world, and that the pendency of the suit is sufficient to charge a
purchaser without regard to whether he has or has not in fact
notice of the pendency of the suit. Bruff v. Thompson 16.

See Married Woman 1, 2.

SERVICE. See Specific Performance 12.

SFT-OFF.

1. Upon the contract for the lease of a farm made by the lessor in his
lifetime for a term of years the rent accruing from such lease
after the death of the lessor can not be set-off by a debt due to the
tenant from the lessor at the time of his death, although the es-
tate of the lessor is insolvent. Washington v. Castleman 832.
SETTING ASIDE CONVEYANCE. See Parties 1.

SHERIFF. See Jury and Juror 6, 7.

SIDEWALKS. See Contributory Negligence 1; Corporations 1, 2;
Declaration 1; Evidence 13.

SIGNATURE. See Evidence 1.

SIMILITER. See Plea 1.

SPECIFIC PERFORMANCE.

1. In a suit by the purchaser for the specific execution of a parol con-
tract for the sale of land the plaintiff must establish the contract
alleged in his bill by a clear preponderance of evidence. If the evi-
dence is conflicting, and it is not clear, that a contract was in fact
made, the court should dismiss the bill. Gallagher v. Gallagher 9.
2. To entitle a purchaser to relief in such a case, it must appear 1st
that the contract is certain and definite in its terms, 2d that the acts
proved in part performance refer to, result from or were made in
pursuance of the contract proved, and 3d that the contract has been
so far executed, that a refusal to complete it would operate a fraud
upon the purchaser and place him in a situatien, in which he
could not be adequately compensated in damages. Id.

3. The payment of the purchase-money is not of itself such part per-
formance, as will take the case out of the statute of frauds. Id.
4. In such case the plaintiff must show not only the terms of the con-
tract but also such acts and conduct of the vendor, as a court
would hold to amount to a representation, that he would not rely
on the statute to escape his contract, and also that in reliance

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