apertures made therein; provided the harmo- | prohibits the sale of intoxicating liquors withnious character and use of the structure as a in three miles of either of the churches in the porch were not altered thereby. The subordi- Village of Myersville, in Frederick County. nate uses which may be made of a structure He demurred to the indictment and the court will not supersede its essential character. The sustained his demurrer and quashed the indictincidental or inferior features will not of neces- ment. This judgment was rendered on the sity be inconsistent with the maintenance of 10th of March, 1886, and on the first of April its dominating and original impress. following, the State sued out a writ of error to This porch being, therefore, in its extent bring the case to this court for review. The from the building line, and in its ornamental defendant in error has now moved to dismiss effect, a lawful structure, it follows that the the writ upon the ground that it was not taken plaintiff (even if some measure of obstruction" without delay," under Rule 28, Relating to to his light, or other injury, is consequent upon Appeals. its erection) is not entitled to relief; such damage is damnum absque injuria. The inconvenience suffered is that incident to residing in a city, where houses are necessarily close together; and the legitimate use of his property by a neighbor will unavoidably often cause discomfort, and where he in turn will suffer inconvenience from the same cause. It often occurs that it would be more agreeable if next door there were not a tree, or an awning or a signboard, to obstruct the light; but where such obstructions rightfully exist, they afford no ground for legal redress. As to any interruption of the plaintiff's facilities of outlook in the sense of view merely, it has been long ago decided that for mere interference with prospect, it not being an incident of the estate, no remedy lies apart from contract. Aldred's Case, 5 Coke, pt. 9, p. 102; Butt v. Imperial Gas Co. L. R. 2 Ch. App. 160. Decree reversed, and bill dismissed. Bryan, J., dissented. STATE of Maryland, Piff. in Err., v. George W. BOWERS. The preceding Rule 27 requires appeals in civil cases to be taken within two months from the date of the judgment; but this Rule 28 provides that "The aforegoing rule shall not apply to criminal cases; but in all such cases the appeal or writ of error allowed by law shall be taken without delay, and the transcript of the record shall forthwith, or as soon as the same can be made out, be transmitted to the court of appeals.' It is very desirable, and for obvious reasons, that criminal cases should be disposed of as speedily as possible after trial, and that no unnecessary delays should be interposed by appeals or writs of error. Hence the Legislature (when by the Act of 1872, chap. 316, it allowed exceptions to the rulings of the court in criminal cases and an appeal as in civil cases) was careful to provide that such appeals "shall be heard by the court of appeals at the earliest convenient day after the same shall have been transmitted to said court." It was to carry out this purpose of preventing delay that the rule in question was adopted. It prescribes no precise time within which an appeal or writ of error shall be taken after the ruling or judgment complained of is rendered, 1. Rule 28 requiring that in criminal but requires it to be taken without delay and cases an appeal or writ of error shall the record transmitted as soon as it can be made be taken without delay makes no dis-out, and makes no distinction between an aptinction between an appeal or writ of peal or writ of error taken by the State and one taken by the accused. error taken by the State and one taken by the accused. 2. What will amount to delay within the rule must be determined by the character of each case as it arises. A delay of twenty-one days in a simple case where the petition could easily be prepared in less than an hour, held, an infraction of the rule, and the appeal dismissed. (Decided May 28, 1886.) MOTION to dismiss a writ of error, to review a judgment of the Circuit Court of Frederick County, sustaining a demurrer and quashing an indictment for violating an Act prohibiting the sale of intoxicating liquors in a certain locality. Writ dismissed. Argued before Alvey, Ch. J., Yellott, Stone, Miller, Robinson, Ritchie and Bryan, JJ. The case is stated in the opinion. Mr. Frank C. Norwood, State's Attorney for Frederick County, for the State. Mr. Milton G. Urner, for defendant in error. Miller, J., delivered the opinion of the court: George W. Bowers was indicted for violating the Act of 1864, chap. 184, a local law which What will amount to delay within the rule must be determined by the character of each case as it arises. A longer time will be allowed where the exceptions are numerous, or where the case is such that time is required for preparing the petition for a writ of error. But in a simple case like this, where the petition could easily be prepared in less than an hour, a delay of twenty-one days is unquestionably an infraction of the rule and the motion to dismiss must prevail. Writ of error dismissed. STATE of Maryland, Piff. in Err., v. Albert LONG. Where a judgment sustaining a demurrer to an indictment was given March 10, and a writ of error was applied for by the State on the 17th of April following, held, that a longer period intervened between the judgment and the application for the writ than is allowed by Rule 28, relating to appeals, which requires the appeal or writ of error to be taken in criminal cases without delay, and the writ of errror dismissed. (Decided May 28, 1886.) MOTION to dismiss a writ of error to the Circuit Court for Frederick County, sustaining a demurrer to an indictment for violating an Act prohibiting the sale of intoxicating liquors in a certain locality. Writ dismissed. Argued before Alvey, Ch. J., Yellott, Stone, who thus makes the payment and not upon an innocent party. 6. Courts of equity exercise discretionary power as to costs; and if a decree is in other respects right, it will not be disturbed, even if, in the judgment of this court, there was an improper direction as to the party or fund charged with their payment. (Decided June 22, 1886.) Miller, Robinson, Irving, Ritchie and Bryan, APPEAL from a decree of the Circuit Court JJ. The case is stated in the opinion. Mr. Frank C. Norwood, State's Attorney for Frederick County, for the State. Mr. Milton G. Urner, for defendant in error. Miller, J., delivered the opinion of the court: The motion to dismiss made in this case must be sustained for the reasons stated in the case of State v. Bowers, just decided [Ante, 405]. The defendant in error was indicted under the Act of 1866, chap. 104, a local law which prohibits the sale of spirituous or fermented liquors within three miles of either of the churches in the Village of Wolfsville, in Frederick County. He demurred to the indictment and the court gave judgment sustaining the demurrer on the 10th of March, 1886, but the writ of error was not applied for until the 17th of April, following. A longer period of time intervened between the judgment and the application for the writ than occurred in the case of State v. Bowers, and all that was said in that case applies, therefore, a fortiori, to this. Writ of error dismissed. Thomas OWINGS, Trustee, Appt., V. Charles C. RHODES. 1. On a bill for interpleader there must be a preliminary decree, so that the codefendants may properly present their conflicting claims and support them by evidence as a foundation for a final decree determining their rights. of Baltimore City, in favor of complainants in a bill in equity to enforce payment of a certain sum of money held by defendant as trustee. Affirmed. Argued before Alvey, Ch. J., Yellott, Robinson and Bryan, JJ. The case is stated in the opinion. Mr. Charles J. Bonaparte, for appellant: The decree of December 9, 1882, is a final decree so far as the $4,000 was concerned. It directed the executor to pay that sum to the trustee; directed the trustee what to do with the income and the principal; determined who should share in the enjoyment of either, and left absolutely nothing undecided as to this subject matter. It referred to the auditor the questions only of what balance remained after such payment in the hands of the executor, and how that balance should be distributed among the various claimants. This decree, if erroneous, was subject to appeal; if improvidently passed, it could be corrected during the term, upon petition. After the term it became enrolled and beyond the control of the court, except through a bill of review or original bill for fraud, or malpractice; and, until so corrected, it determined absolutely the rights of all the parties to the cause as to its subject matter. Thruston v. Devecmon, 30 Md. 210, 217; Downes v. Friel, 57 Md. 531, 534, 535; Trayhern v. Mechanics Bank, 57 Md. 590, 598. Such being the effect of the decree, the auditor's expression of opinion, made as to a matter not referred to him and after the term in which the decree was passed, could have no possible efficacy, either to determine its con2. The court cannot determine the va-struction or to modify its effects. The auditor lidity of the claims in controversy by is a mere ministerial officer, without any judifinal decree before all the evidence in cial functions. their support has been adduced and considered. 3. The person holding the property in 5. Where there has been an unauthorized Dorsey v. Hammond, 1 Bland, 469; Field v. Holland, 6 Cranch, 21 (10 U. S. bk. 3, L. ed. 140). Mr. George R. Gott, for appellee. Yellott, J., delivered the opinion of the court: This is an appeal from a decree passed by the Circuit Court of Baltimore City. As disclosed by the record, one Fayette Plummer, by his last will and testament, did "give and devise" to his wife, Josephine Plummer, the income from $4,000 during her life, and after her death, the principal is to be divided among certain charitable institutions in said will designated. There are several legacies bequeathed to other parties, and then all the residue of the estate, real and personal, is given to the said Josephine. Of this will, George W. Lindsay was appointed executor, with power to sell all and any" of said property. The widow of the testator, being indebted to one Frank Welsh to the amount of $700, executed a mortgage of all her interest in the estate of the testator; and Welsh assigned this mortgage to Charles C. Rhodes. The validity of this mortgage being subsequently disputed, and there being other claims against the said Josephine, the executor filed his bill of complaint, alleging that the orphans' court had decided that it had no jurisdiction to determine the matters in controversy, and asking that the parties be decreed to interplead, so that their respective rights might be heard and determined. The proper pleadings were then filed in regular procedure; and by a decree, passed on the 9th of December, 1882, the court appointed the appellant, Thomas Owings, Trustee, to receive from the said executor the sum of $4,000, with interest, to be securely invested in conformity with the provisions of the will. The decree also directed the executor to pay over the said sum of $4,000 with interest, to the Trustee thus appointed, and referred the claims of all the contesting parties to the auditor, with directions to state an account. An account was stated by the auditor in accordance with these directions, and was on the 7th of March, 1883, finally ratified and confirmed. The auditor's account, which was thus finally ratified and confirmed, adjusted the matters in controversy between the litigat ing parties and allowed the claim of the appellee. tuted its own trustee in the place of the executor, and thus assumed control by ordering a transfer of a portion of the property in dispute. It could not undertake to determine the validity of the claims in controversy before all the evidence in support of those claims had even been adduced and considered; and any construction of the peculiar phraseology of a portion of this decree which tends to give it a different effect and operation must be rejected. The court referred the claims of the codefendants to the auditor, with directions to take testimony, and on the 23d of February, 1883, the auditor filed his report and account, in which, among other claims, he allowed that of the assignee of the mortgage. On the 7th of March, 1883, the court finally ratified and confirmed the report and account, and the order then passed was undoubtedly a decretal order and operated as a final adjudication, and a determination of the questions involved in the litigation then pending as, under the pleadings and issue, it was impossible for the parties interested to carry the controversy any farther in that court. Contee v. Dawson, 2 Bland, 264; Lee v. Admrs. of Boteler, 12 Gill & J. 323. The passage of this order had the effect of a final decree, and determined the rights of the respective parties. But the appellant in the pending appeal was no party to that cause. The funds in dispute had been placed in his hands by the passage of the interlocutory decree. When the procedure is by interpleader, the person holding the property in controversy has been aptly compared to a stakeholder. He has not, and cannot properly have, any interest in the issue, whatever it may be, and having no interest cannot be affected by the final decree. Langston v. Boylston, 2 Ves. Jr. 109; Bedell v. Hoffman, 2 Paige, 199. It is manifest that the decree passed on the 9th of December, 1882, was merely interlocutory. It must be borne in mind that the property was in the hands of an executor; that the orphans' court had determined that it had no jurisdiction; and that the interposition of a court of equity had been invoked so that it might be decreed that the parties to the controversy should interplead. The bill for an interpleader was filed on the 14th of January, 1882, and the parties defendant having subsequently answered, the court, on the 9th of December, in the same year, passed the decree in question. This decree was necessarily interlocutory because, from the very nature of the procedure, there must be a preliminary decree so that the codefendants may have an opportunity to properly present their conflicting claims and support them by the introduction of evidence which may form the foundation for the final determination of the court in regard to their respective rights; this being the relief which the plaintiff, who has no pecuniary interest in the contest, asks for in his bill for an interpleader. To this relief he is clearly entitled; and, therefore, it becomes the duty of the court to pass a preliminary decree. do." But when the rights of the parties to a suit which had its inception in a bill for an interpleader have been determined by a final decree, it may, at some period subsequent to the passage of the decree, become necessary to enforce the determination of the court; and this may be done by the institution of new proceedings growing out of the original suit which has been ended. And it is evident that the institution of these proceedings cannot be prevented by the enrollment of the decree in the original suit, as persons who were not parties to the former suit may be brought in and be affected by the new proceedings. It was said by Lord Cranworth in Lyne v. Pennell, 1 Simons, N. S. 113, that "As a defendant to an interpleading suit stood, after a decree, in the anomalous situation of plaintiff as well as defendant, he might file a supplemental bill for the purpose of bringing a new defendant before the court, without mak ing the other parties to the original suit parties to it, as a plaintiff in an ordinary suit might As was said by Lord Loughborough in Lang- The right of the appellee to a certain sum of ston v. Boylston, 2 Ves. Jr. 108, 109: "A party money had been determined by the court; but claiming no right in the subject is doubly vexed this money was not in the hands of any of his by having two legal processes in the names of codefendants. It was in the hands of the apdifferent persons going on against him at the pellant, who was no party to the proceedings same time. He comes upon the most obvious which were terminated by the final decree. equity to insist that those persons claiming that The appellee certainly had the right to institute to which he makes no claim should settle that proceedings to obtain the benefit of this decree. contest among themselves, and not with him.' A course of procedure analogous to that indiThe court by its preliminary decree substi-cated by the vice chancellor in Lyne v. Pennell, was, therefore, proper and expedient; and this course has been pursued by the appellee, and was the most effectual remedy which he could have invoked, as the stakeholder having the funds in his possession was the trustee of the court and subject to its supervision and control. This rule has received the sanction of the courts of equity in Maryland, and numbers of cases might be cited in which it has been rigidly enforced. Green v. Putney, 1 Md. Ch. Dec. 262; Murray v. Feinour, 2 Md. Ch. Dec. 418. The decree of October 27, 1885, from which this appeal has been taken, adopted the former determination of the court; and it is manifest that the nature of the questions involved in this controversy constrained the learned judge who passed this decree to refer to the former adjudication. The Trustee, who was not a party in holder with respect to the funds, having refused to pay the money found to be due to the assignee of the mortgage, the subsequent proceedings were instituted to enforce payment. The court decreed that this money should be paid by the appellant to the appellee. There was no error in this determination. The appellee filed his petition on the 28th of October, 1884, and in it refers to the action of the court in ratifying the auditor's account, which allowed his claim as assignee of the mortgage, and avers that there is an unpaid balance which the appellant has refused to pay.terested in the former suit, but a mere stakeThis petition is answered by the appellant, who, in his answer, denies the right of the appellee to the sum claimed by him; and avers that he, the said appellant, has paid over the whole of the income, received by him, in manner and form as directed by the decree appointing him trustee. He avers and contends that the rights of all parties to the cause, and the duties and The court also made an adjustment of the liabilities of the trustee, were finally fixed and costs; and the appellant urges that there is erdetermined, so far as the fund of $4,000 and ror in imposing on himself certain costs growthe income and proceeds thereof are concerned, ing out of these proceedings, and contends that by the decree of the 9th day of December, 1882. this is also a good ground for a reversal of the Now, as was decided by this court in Barth decree. But it has been decided by this court v. Rosenfeld, 36 Md. 604, "A decree passed that "Courts of equity in this State always exupon the filing of a bill of interpleader, order-ercise a discretionary power upon the subject ing the complainant to pay the money into of costs; and if the decree is, in other respects court, and requiring the defendants to inter-right, it will not be disturbed even if, in the plead and answer, is interlocutory, settling the rights of no party, and is at all times prior to a final decree, subject to revision and alteration, being merely auxiliary to further proceedings, and does not require a bill of review to vacate, amend or rescind the same." judgment of this court, there was an improper direction as to the party or fund charged with their payment." Hamilton v. Schwehr, 34 Md. 117; Columbian Build. Asso. No. 4 v. Crump, 42 Md. 195. From what has been said, it follows that the decree of the court below should not be disturbed. Decree affirmed, with costs to the appellee. James KENNEDY et al., Appts., v. LAND. The decree in question did not, as has already been intimated, determine any of the rights involved in litigation; and that portion of it which is supposed to be a clerical error is a mere copy or reproduction of the provisions of the will, and was inserted because the sum due the assignee of the mortgage was to be paid out of the income arising from the fund of $4,000 placed in the hands of the Trustee who was, MAYOR and City Council OF CUMBERafter satisfaction of the mortgage, to pay the income to Josephine Plummer until her death, when he was to distribute the principal among the recipients of the testator's bounty, just as the executor had been required to do, and in whose place the Trustee had been substituted. But surely the trustee ought to have known that when the court had finally ratified and confirmed the auditor's report and account, which allowed the claim of the appellee, he was not authorized to pay the income to anyone else until that claim had been satisfied. The rule is well settled, in this State and in England, that when there has been an unauthorized payment of funds held in a fiduciary capacity, the loss must fall on him who thus makes the payment, and not on an innocent party. Referring to such payments made by executors, Lord Redesdale said: "I have no doubt the executors meant to act fairly and honestly, but they were misadvised; and the court must proceed, not upon the improper advice under which an executor has acted, but upon the acts he has done. If, under the best advice he could procure, he acts wrong, it is his misfortune; but public policy requires that he should be the person to suffer." Doyle v. Blake, 2 Schoales & L. 243. 1. The fact that an individual lays out a street through his land and dedicates it to the public use does not impose upon the county or municipality the duty of improving or keeping it in repair. There must be an acceptance of the dedication before this duty can arise. An uninterrupted use of a street by the public for at least twenty years is necessary to establish a public highway by Such use for any less period will 2. 3. 4. user. not suffice. 5. That about a month after the accident for which a recovery is sought in this action the city council appropriated a sum of money to the repair of and which was subsequently expended in repairing a street, is not sufficient to make the city liable for such injury occurring by the street being out of repair and unsafe. within the city limits and dedicated to | City of Cumberland; and if they further find the public by the owners. that on or about the 14th day of September last said plaintiff, Mrs. Kennedy, while passing over said street, fell and was injured, and that said accident was occasioned by the defective and dangerous condition of said street, and that at the time of said accident she was using due care on her part-then the plaintiffs are entitled to recover, provided the jury find that the defendant or its proper agents, for the purpose of keeping its streets in repair, knew of such unsafe condition of said Lee Street (or might have for such length of time before said accident known the same by the use of due diligence) that the same might have been remedied before 6. The question whether the dedication of a street is complete, as against the owners of the soil, is one for the jury; but where the facts are undisputed, their sufficiency to warrant the conclusion that the street was adopted as a public highway is a question of law. (Decided June 23, 1886.) APPEAL by plaintiffs from a judgment of the Circuit Court for Allegany County, on a verdict for defendant in an action to recover for damages sustained from the falling of a defective foot bridge. Affirmed. Argued before Alvey, Ch. J., Yellott, Stone, Miller and Bryan, JJ. The following prayers offered by plaintiffs at the trial were rejected by the court: 1. That if the jury find from the evidence that Shriver's addition to Cumberland was laid out by Henry Shriver in 1871, and that Lee Street (mentioned in the plaintiffs' declaration) was then laid out as one of the streets in said addition, and that in 1873 said street was opened for public travel, and ever since has been used by the public as a common highway, and that about the year 1873 several houses were built along said street, and that defendant assessed the lots in said addition, including those bounding on said Lee Street, and described them in its assessment books as lots in Shriver's addition, and that other streets in said addition laid out and opened at the same time have been repaired by the city from time to time for several years; and if they further find that said street was laid out and opened at and before the 5th day of April, 1878, and that the amended charter of said City, passed at the session of 1878 of the General Assembly of Maryland, was accepted by the defendant; and that said Lee Street was within the corporate limits of said city as established prior to said 5th of April, 1878; and that the City Council of Cumberland, at a meeting held the 5th of October, 1885, passed the order, offered in evidence, appropriating $75 for the repair of said street; and that said order was approved by the Mayor; and that in pursuance thereof said street was in October, 1885, repaired by the defendant at the place where the accident in this case is alleged to have occurred-then from said facts taken collectively, they are at liberty to find that Lee Street is one of the public streets or highways of said city, laid out and dedicated to public use and accepted by the city, and was such at the time of the accident in this case. 2. That if the jury find from the evidence in the case (under the preceding instruction of the court) that Lee Street, at the time of the alleged accident to the plaintiff, Mrs. Kennedy, was one of the public streets or highways of the | said accident occurred. granted by the court: The following prayers of the defendant were 1. That if the jury find from the evidence that Lee Street (so-called) was laid out by one Shriver, in or about the year 1871, upon a piece of ground having a natural surface drain or water course, which crossed said so-called street, and which received and carried off the surface water from the adjoining property in rainy seasons, and that there had been no change in the condition of said so-called street and drain, and that the defendant had not, before or at the time of the happening of the accident complained of in this case, either actually or impliedly accepted or adopted said so-called street as one of the public streets or highways of the defendant, that is to say, by formal resolution, order or ordinance, or by any acts of repair or recognition of said street as a street in the appropriation of money for or expenditure of money thereon, or by any work or labor thereon of it or its agents or servants, with its approval or acquiescence, then the plaintiffs cannot recover under the pleadings in this case, although the jury may further find that said street so-called was used by persons passing on foot over it in going to or from their respective homes or places of business; and this although the jury may further find that one Chase, about seven years ago, voluntarily, for his own convenience but without authority from the defendant or its agents, placed a part of the deck of a canal boat across said drain, thereby making a temporary bridge across the same, and which was afterwards crossed by such persons as bad occasion to use said street in crossing said drain, and that the plaintiff, Margaret Kennedy, while using due care and caution on her part in the act of crossing said temporary bridge, sustained the injuries complained of in this case. 2. That it is necessary for the plaintiffs to prove to the satisfaction of the jury in this case before they can find for them, that Lee Street was not only laid out as a public street, but also that said street was either actually or impliedly accepted and adopted by the defendant before the alleged injuries occurred to Margaret Kennedy; and although they may find that the order was presented to the City Council of the defendant, prior to the accident as offered in evidence, and also the other order presented to the said City Council after the accident and adopted by the defendant, and said street thereafter repaired and that the property in Shriver's addition and lots in said addition were assessed by the defendant as offered in evidence, and |