safe custodian, and that, at the same time, | estate. Mr. Jackson and Dr. Long have pehe declares that he did not know he was at- cuniary interest to the extent of their comtesting a testamentary act, but thought that missions as executors, and Mr. Coddington is he was merely witnessing a signature. His said to be influenced in his testimony by the testimony thus appears to be contradictory. fact that he is engaged as counsel for the But taking it as true that he failed to com- proponents in this contest. With the excepprehend the character of the instrument, tion of Thoms and Soden, these are the only after an express declaration of its nature, witnesses who tell of the testator's condition that fact itself betrays gross stupidity upon at the very times when the disputed papers his part. He does not better his position by were made. Messrs. Jackson, Long, and stating that he supposed he was merely wit- Coddington are all professional gentlemen of nessing a signature. A signature to what? excellent repute and standing. I can hardly The fact that he was willing to attest the conceive that they would deliberately perjure signature of a dazed and delirious man to a themselves under any circumstances; much document so important as to need a safe cus-less under those here existing. They gave todian, in itself evinces his moral weakness. the business in which the testator was enMrs. House says that when the codicil was gaged their undivided attention, and underexecuted she was in the room, sitting on the stood and fully appreciated its nature, and floor, less than a foot from the testator. the capacity required of the testator to transThat the testator did not talk as Mr. Cod-act it. Besides this, they each had had a long dington says he did. When she was asked previous acquaintance with his character, how Mr. Coddington succeeded in getting habits, and strength; hence it would seem to anything from Frazee, she answered, "I be impossible for them to mistake appearmight have interpreted; I might not. Iances. To refuse to credit their testimony, don't remember if I did." She says the tes- then, is tantamount to charging them with tator wandered in his mind; and that, point- deliberate perjury. Their characters, inteling to the wall as Mr. Coddington read, he ligence, manner of testifying, inconsiderable exclaimed, What is that? What's that?" interest in the event of this contest, and cirand afterwards said, "Show me, show me, cumstantial corroboration, alike forbid this show me." The witness and Mrs. Garth- conclusion. The natural appearance of the waithe explain that the words "show me" had testator's signatures to the disputed papers reference to a proposition that the testator must have an important place in this conhad made to them that they should exhibit | sideration, when it is remembered that the their persons to him. After the proposition contestants would have it believed that, when was made, they say, he would catch at their they were made, he was suffering with delirankles, and frequently say, "Show me." Up-ium tremens, and that his hand constantly on cross-examination, this witness says that, as Mr. Coddington spoke to Frazee, she saw Frazee's lips move, but she could not understand him. She further states that he was sitting up in bed, and that he took the pen, and moved his fingers, but that she is near-dent ineffectual effort to start them; but that sighted, and did not see him write; also, that she was out of the room about some two or three times, but she thinks she was not out of the room at any time long enough for Mr. Coddington to read Daniel's will without her knowing it. 66 trembled. Upon comparison of the signature to this will and codicil with the testator's usual signature, I fail to note that they lack in either strength or character. The only weakness to be detected in them is in an evi misfortune frequently is attributable to the pen, or the way in which the pen is charged with ink. The evidence here discloses that, when the codocil was signed, the ink did not flow freely from the pen, and Mr. Coddington was obliged to recharge it. It was most This is substantially all the testimony bear- natural and proper that Mr. Jackson, who ing upon the execution of the will of July perhaps knew more about the testator's busi9th, and the codicil of July 21st. It is ap-ness than any other living man, should be parent from it that the testimony of the wit-made an executor in the place of the dead nesses can with difficulty be reconciled; and brother; and it was not amiss that Dr. Long it becomes necessary, if none of the tes- should also be given a place in the adminis timony is to be rejected as unworthy of be-tration of the estate, if William Hetfield, by -lief, that it shall at least be read in the light of the interest that the witnesses have in the event of this controversy. If the wills and codicil should be set aside, the aged fathers of Sarah House and William Hetfield will divide the entire personal estate, valued at about $90,000, between them, and share largely in the real estate, which is worth $100,000 more; and, in the course of nature, It is noticeable from the testimony as to the Sarah and William must very soon profit by occurrences on the 9th of July, 1888, the day their fathers' success. Mrs. Garthwaithe is when the disputed will was made, that as the less interested in the event of the controver-day advanced the testator gradually became sy. That which she may expect to gain by it stronger and more rational. Very early in the is limited to a portion of the testator's real morning, his mind wandered so that it was his intemperance, had forfeited the testator's full confidence. The evidence indicates that this charge of intemperance may not have been without foundation. Hetfield himself admits that a short time before the testator died he was locked up for drunkenness, and that at the time of Frazee's death he was in a liquor saloon at Plainfield. TIMORE. NON-APPEALABLE ORDER. (71 Md. 335) An appeal will not lie from an order of the trial court striking out a judgment of condemnation in an attachment case during the term at which it was entered. Appeal from superior court of Baltimore city. Argued before ALVEY, C. J., and MILLER, BRYAN, ROBINSON, and STONE, JJ. S. D. Schmucker and George Whitelock, for appellants. Wm. F. Frick, John P. Poe, and Wm. H. Dawson, for appellees. with difficulty that Mrs. Garthwaithe could and they have not borne it. In reaching this get authority to summon the undertaker conclusion, I have not lost sight of the fact from Rahway. Later, though still some- that Mr. Jackson was the confidential adwhat wandering in mind, he told Mrs. House viser of the testator, and the draughtsman of and William Hetfield that there was $100,- the will that made him an executor, and that 000 between them. So indefinitely did he Dr. Long was the testator's physician, and then express himself that what he said has present when the codicil which appointed given rise to dispute whether he is correctly him an executor was prepared. Such facts reported, and, if he is, whether he referred to are well recognized by the authorities as inthe executorship of Mrs. House and William dicia of undue influence, and they have not Hetfield, or to a testamentary intention in escaped my attention and careful scrutiny. their favor. Later yet, with difficulty he I think that they are fully and satisfactorily gave intelligent instructions to the under-explained. I will admit the will and codicil taker; though then, when left to himself, he to probate. would moan and call upon the Lord. An hour and a half later, he clearly and intelligently received Mr. Jackson; and, a half an SLOAN et al. v. LOCUST POINT CO. OF BALhour or more after that, he executed the will. In the afternoon, he shrewdly bargained with (Court of Appeals of Maryland. Nov. 15, 1889.) Thomas Lee. That night, it is said, he was again delirious, but the next day he was better, and on Wednesday he kept the door of his room ajar to hear the exercises at Daniel's funeral. On the 18th of July, three days before the codicil was made, the testator had a long business interview with Charles, A. Smith, at which he give every evidence of capacity. About that time he expressed a desire to see Mr. Jackson, who was in Kentucky. On the 21st, not longer waiting for Mr. Jackson, he sent for Mr. Coddington, and made/the codicil. On the 23d, two days after the codicil was executed, his condition STONE, J. The appeal in this case must was such that William Hetfield and Mrs. be dismissed. It is an appeal from an order House did not refuse to join with him in a of the superior court of Baltimore city, strikpetition for the admission of Daniel's will to ing out a judgment of condemnation in an probate, or to join with him in an affidavit attachment case obtained in that court, and verifying that petition, and in the oath to the which was stricken out during the term at executors of Daniel's will when that oath which it was rendered. It hardly needs any was administered, and the surrogate did not authority to show that, as a general rule, all refuse to twice swear him, and to issue let- judgments remain, during the term at which ters testamentary to him. In giving credence they were rendered, under the control of the to the testimony of Messrs. Jackson, Cod-court in which they were obtained. Such dington, and Long, I do not necessarily en-. judgments may be stricken out for fraud, tirely discredit Mrs. House, Mrs. Garth- surprise, mistake, irregularity, or other good waithe, and William Hetfield. They are reason addressed to the sound discretion of comparatively poor. The rejection of the the court in obtaining the same, at any time papers in dispute and the will of June 26th | during the term. Such a power in the courts will materially change their conditions in is clearly necessary for the purposes of juslife; hence their interest is apt to influence tice. It is equally obvious that the correcthem, unconsciously perhaps, to color cir- tion of its records during each term must be cumstances that favor their contention, and left to the sound legal discretion of the court, regard as unimportant those which militate and, being a matter of such discretion, no against it. Making allowance for the exag-appeal is allowed. This is the general rule. gerations and inaccuracies thus occasioned, As we understand them, the appellants contheir testimony is useful in this inquiry. It cede this; but they insist that the case of an exhibits that none of them were continuous-attachment such as the one before us is an ly present at the execution of either the will exception to the general rule. No authority or the codicil; that, when they were present, has been shown for such a contention, and that which was being done did not engage their undivided attention; and that in several instances their memory is confessedly in fault upon points of the gravest importance. I may, in short, say that, while the testimony of these witnesses is not to be entirely rejected, its inherent weakness makes it insufficient to countervail the testimony of Messrs. Jackson, Long, and Coddington. The burden of proof is with the contestants, we hardly think any can be found. Every reason that can be shown for allowing a court to strike out, during the term, an ordinary judgment, applies with equal, if not greater, force to judgments obtained in attachment cases. Fraud, mistake, irregularity, or surprise are as liable to occur in the entry of a judgment in an attachment case as any other. It makes no sort of difference whether it is a case of attachment or warrant, or an attach ment upon judgment by way of execution. | Jr., for appellant. C. C. Magruder and JoThe same liability to error exists, and the seph S. Wilson, for appellee. same duty rests upon the court to correct the error, when it is brought to its notice. MILLER, J. This appeal is from an order The case of Dawson v. Contee, 22 Md. 27, sustaining a demurrer to the bill filed in so much relied on by the appellants, does not January, 1889, by the appellant against the present an exception to the general rule. In appellee, and dismissing the same. This that case an attachment or warrant was issued bill alleges and charges that in September, against the goods and chattels of a non-resi- 1881, the defendant, who is complainant's dent defendant. The attachment was re- father, being possessed of about 400 acres of turned, "Laid as per schedule," and the sum- land, voluntarily divided the same into as mons against the defendant returned, "Not many parts as he had children, and, in confound." The plaintiff moved for a judgment sideration of natural love and affection, gave of condemnation, on the return of the writ; to each child a portion of the land so divided, but the court below was of opinion that no that given to complainant being a tract of judgment could be entered until the expira- about 62 acres, of which he was put in postion of a year and a day, unless the plaintiff session by his father; that, at the same time, first filed a bond, as provided by the act of his father made a will, which was exhibited 1715, c. 40. The plaintiff appealed, and this to his children, by which he devised to each court decided that the judgment of condem- the portion laid off and designated as such nation should have been entered without the child's part, including the 62 acres to the plaintiff's giving bond, and that the plaintiff complainant; that his father caused this tract was entitled to his judgment as a matter of to be surveyed, and had the same transferred right, and not as a matter resting in the dis-on the assessment books to the name of the cretion of the court, and that an appeal would lie from the refusal of the court to enter such judgment; but in the same opinion the court says that such a judgment was subject to be stricken out during the term. It by no means follows that because a plaintiff, upon the facts as they appear upon the record, has the legal right to have a judgment entered, the court has not the right, in its discretion, to strike it out during the term for good reason shown. No matter of right is determined by the striking out of a judgment during the term. It amounts, practically, only to giving the defendant further time to present his de-ers, and has also paid taxes thereon since fense. Like motions for the continuance of a case or for new trials, such motions are addressed to the sound legal discretion of the lower court, and are not the subject of appeal to this court. Appeal dismissed. (71 Md. 357) DUCKETT V. DUCKETT. (Court of Appeals of Maryland. Nov. 15, 1889.) SPECIFIC PERFORMANCE-GIFT-INJUNCTION. In an action by a son against his father to enforce specific performance of an agreement to convey, the bill alleged that defendant divided his land between his children, and made a will devising it accordingly; that he caused the tract allotted to complainant to be surveyed, had it transferred to him on the assessment books, and put him in possession; that, relying on defendant's promises of a gift, complainant made valuable improvements on the land, rented it, and paid the taxes, and thereafter defendant served notice on the tenant to quit, and was seeking to dispossess complainant. The bill prayed for specific perform ance, injunction pending suit, and general relief. Held, that the bill stated facts sufficient to entitle complainant to the injunction asked, and to compensation for his improvements, and a decree establishing a lien on the land therefor. Appeal from circuit court, Prince George's county. Argued before ALVEY, C. J., and MILLER, IRVING, BRYAN, and MCSHERRY, JJ. Urie Townsend and George R. Gaither, complainant, who has paid the taxes thereon ever since such transfer; that relying on this gift and assurance of his father, as well as upon his said will, complainant entered upon this tract in September, 1881, and has ever since remained in possession as owner thereof; that during this time, and still relying upon these assurances of his father that this land was to be, and in fact was, his property, he has expended about $1,000 in permanent improvements thereon, by erecting a dwellinghouse and out-buildings, and in repairing the barn, and has improved the land by fertiliz 1884 to the amount of $59.10; that since February, 1885, the premises have been rented to one Simpson, as a yearly tenant of complainant, at a crop rent, who has been allowed to remain in undisturbed possession until about the 1st of December, 1888, when the defendant served a notice upon him to quit at the end of 30 days, and has since instituted proceedings to oust him as a tenant holding over; and complainant charges that to be thus dispossessed of the land would be greatly to his injury, and would leave him without compensation for the money he has expended in permanent improvements, as aforesaid, as well as without remedy at law. The relief prayed is (1) that the agreement, as witnessed by this will of his father, to devise or convey to complainant the premises in question, may be specifically enforced; (2) that complainant may be reimbursed for all money expended upon the premises during his occupancy of the same; (3) that a receiver may be appointed to receive the rents and profits of the premises pending this suit; (4) that defendant may be restrained by injunc tion from taking any other or further proceedings to oust the tenant of the complainant pending these proceedings; and (5) for general relief. The exhibits are the contract of renting between Simpson and the complainant, dated the 9th of February, 1885, and the (71 Md. 307) BOWLAND. WILSON et al. RECORD ON APPEAL-INSOLVENCY. 1. After a verdict "for the petitioners" in an insolvency proceeding, a motion in arrest of judgment, on the ground that no formal issues were made up and submitted to the jury, cannot be considered on appeal, where the record fails to show that any demand for the proper issues was made, or any exception taken, because they were refused. 2. A petition in insolvency charging that defendant, being a merchant, and engaged in business, and being then insolvent, and indebted to the petitioners in an amount exceeding $250, did, within 60 days before filing the petition, convey to his wife a mortgage which he then held, and other personal defraud his creditors, alleges every fact necessary property, with intent thereby to delay, hinder, and to make out a case of involuntary insolvency, and verdict thereon "for the petitioners " is sufficient to support a judgment. Argued before ALVEY, C. J., and MILLER, Thomas S. Hodson, for appellant. tax-bills paid by the latter, which support | the averments of the bill in relation thereto. (Court of Appeals of Maryland. Nov. 14, 1839.) As the case is presented, we must assume the averments of the bill to be true; and we think there is error in the decree appealed from, which denies the plaintiff any relief whatever. As we read this bill, it does not present the case merely of a promise by a father to give land to his son by will,-an instrument inherently revocable, but a case where there was a positive gift by the father to the son of land which the father had laid off and designated as the son's share of his estate in the will which he then executed, and exhibited to all his children. The son was put in immediate possession by the father, and was thus encouraged to treat the property as his own. He remained in undisturbed possession as owner, by himself and his tenant, from September, 1881, to December, 1888, and during his own occupancy expended at least $1,000 of his own money in permanent improvements, with, as may be fairly inferred from the statements of the bill, his father's knowledge and assent. The father also had the land transferred on the assessment books from his own name to that of his son, and the latter thereafter paid the taxes thereon. The son made these improvements, and paid the taxes, relying upon the good faith of these assurances of his father that the land was to be, and in fact was, his property. Upon this state of case, which, upon the demurrer, must be assumed to be true, we think it clear the complainant is entitled to the injunction prayed for. Neither he nor his tenant can be immediately and unconditionally ousted from possession by the defendant. He is also entitled to compensation for the improvements thus made, and to a decree establishing a lien therefor on the property. Relief to this extent, at least, is clearly authorized by the cases of Shepherd v. Bevin, 9 Gill, 32; Haines v. Haines, 4 Md. Ch. 133, and same case on appeal in 6 Md. 435; Hardesty v. Richardson, 44 Md. 617; and King v. Thompson, 9 Pet. 204. Whether, upon the same authorities, he would or would not be entitled to a decree for the immediate conveyance of the land to him by deed is a question we do not now decide. It may well be, so far as the bill shows, that both parties understood that the legal title should be made by and devised from the will of the father; and there is no averment that the will executed at the time has been destroyed, or that the father has changed his intentions in this respect, or that he will not eventually carry them out. There is nothing to show that the son will not ultimately get the title under his father's will. This question, therefore, can better be decided after answer and proof. All that we now decide is that, upon the averments of the bill, the son is entitled to relief to the extent indicated. The whole aspect of the case may be changed upon the coming in of the answer and proof. Decree reversed and cause remanded. STONE, J. This is an appeal from the action of the circuit court for Somerset county overruling a motion in arrest of judgment. The motion was made in a proceeding of involuntary insolvency, and the material facts are these: Wilson, Palmer & Co. and Young, Creighton & Diggs filed in January, 1889, a petition against Bowland, charging that they were creditors of Bowland to an amount exceeding $250; that Bowland on and before the 2d of October, 1888, was a merchant doing business in Somerset county, and that their debts had accrued prior to that time; that said Bowland, in his own right, was possessed of real and personal property in said county, and that he also held in his own right a mortgage from a certain A. Goodrich and wife for $2,000; that the said Bowland, being insolvent, and in contemplation of insolvency, and within 60 days before filing the petition, did assign said mortgage and other of his personal property to his wife, Evelyn C.; that said assignments did contain and work an unlawful preference, and were made with the intent to delay, hinder, and defraud the creditors of the said Bowland, and especially the petitioners; and that said assignments, conveyance, and transfer, and the preferences therein contained, are unlawful, fraudulent, and void. The petitioners prayed for process against Bowland, that he might be declared an insolvent, and the assignments and conveyances declared void. Bowland, the defendant, appeared, and answered this petition. In his answer he admitted his indebtedness to the petitioners, and that he was prior to 2d October, 1888, a merchant in Somerset county, and that on that date, to-wit, 2d October, 1888, he was insolvent. He also admitted the execution of the mortgage from Goodrich and wife to himself, and he also admitted the assigument of said mortgage for a good and Ovaluable consideration, and in good faith, to his wife, Evelyn. But the defendant denied | should with reasonable certainty ascertain that he was a merchant at the time of making facts sufficient for the court to base their the assignment of the mortgage, to-wit, on judgment upon. It has been repeatedly de23d November, 1888, but alleges that the cided in this state that mere formal defects sheriff seized his goods, and closed his store, in a verdict are not sufficient to sustain a on 2d October, 1888, and that he had carried motion in arrest, but the defect must be a on no business as a merchant since. He substantial one. Mitchell v. Smith, 4 Md. denied that he ever transferred to his wife 403. In order, then, to determine the validany personal property as set forth in the peti- ity of this verdict, we must recur to the pleadtion. He also denied that he held the mort-ings. The petition charged that the defendgage debt in his own right, but claims that ant being a merchant, and engaged in busiat the time of the assignment, and before, his wife, Evelyn, was the real owner of said debt, and her right to it would have been enforceable in equity. He denied that he had made any assignment, transfer, or conveyance of his property with intent to delay, hinder, or defraud his creditors. These are the material facts set forth in the petition, and admitted or denied by the answer. Upon the filing of the answer, a jury appears to have been impaneled, which found a verdict "for the petitioners." The defendant, Bowland, thereupon moved in arrest of judgment, and filed the following reasons: (1) Because no issues were made up and submitted to the jury for their determination; (2) because the court cannot discover from the verdict what issues, if any, were passed upon by the jury, and what the jury found upon the issues, if any, in the cause; (3) because of other errors and irregularities in the verdiet, and apparent upon the face of the record. The first reason assigned by the defendant for arresting this judgment-that no formal issues were framed-cannot now avail him. It is certainly true that, in all cases of this sort, formal issues should be framed, which should clearly present the facts in dispute; and it is the right of either the petitioners or the defendant to demand such issues. It is also the duty of the court, upon such demand being made, to see that the proper issues are made and submitted; and it is a good ground for exception if the court refuses so to do. But, if the parties elect to go to trial upon | the petition and answer, they cannot afterwards complain of the want of formal issues. In this case it does not appear from the record that any demand was made by either party for issues before the jury were sworn, or any exception taken because they were refused. That objection cannot now be made. Castleberg v. Wheeler, 68 Md. 266, 12 Atl. Rep. 3. "The court certified that the question presented and passed upon by the court under the second reason assigned by defendant was whether the verdict was defective in not specifying any particular act of insolvency under the ruling of the court, or other facts under the said ruling, by prayer accompanying this record." The validity of this verdict must be determined by a reference to the pleading, and for this purpose the whole record is before us. The judgment to be entered upon this verdict, if it is valid, is an adjudication of insolvency against the defendant. It is necessary, therefore, that the verdict ness, and being then insolvent, and indebted to the petitioners in an amount exceeding $250, did, within 60 days before filing the petition, convey to his wife a mortgage which he then held, and other personal property, with intent thereby to delay, hinder, and defraud his creditors. It will be seen, by reference to the petition, that every fact necessary to make out a case of involuntary insolvency was alleged against the defendant. In his answer he denied that he had conveyed any personal property to his wife, and also emphatically denied that he had assigned the mortgage to her with intent to delay, hinder, or defraud his creditors, but asserted that, in equity, his wife had a good and bona fide claim to the mortgage. In finding their verdict "for the petitioners," it is reasonably certain, we think, that the jury meant to say, and did say, that the facts set forth in the petition were true; and, as we have already stated, all the facts pecessary to make a case of involuntary insolvency were stated in the petition, the verdict is sufficient, and a judgment can be properly entered upon it. The appellant has relied somewhat upon some expressions used by the judge in delivering the opinion of this court in Browne v. Browne, 22 Md. 103. That case was a caveat to a will, and the jury found a general verdict for defendants, and, upon motion in arrest, the court sustained the verdict; but the court said some question might arise if the verdict had been a general verdict for the plaintiffs, and referred to the case of Biggs v. Barry, 2 Curt. 259. Upon a reference to that case, we find that the decision there was made upon a motion for a new trial; that there were two distinct causes of action in the declaration; and that, by consent of parties, the jury, while being polled, were asked upon which count they found, and it appeared that some were for one count, and some for the other. As a matter almost of course, under these circumstances, a new trial was ordered. As in an ordinary action at law one good count in a declaration will support a verdict, so in a petition filed for the purpose of throwing a defendant into involuntary insolvency, if the petition contains a statement of facts which, if true, would authorize him to be adjudged an insolvent, and the parties elect to go to trial upon the petition and answer, a verdict "for the petitioners" can only mean that the jury find the facts stated in the petition to be true, and will be suffi cient to support a judgment. We will, however, repeat what was said in Castleberg's |