No. 84, and claiming that Acts 1892, c. 284, and Ordinance No. 84, were null and void. The bill prays that said act, Ordinance No. 84, and assessment under it, be declared null and void; that all the proceedings in making said assessment be vacated and set aside; that the appellant and city collector be enjoined. A number of objections to the act of assembly and ordinance, and proceedings thereunder, are stated in the bill, which will be hereinafter passed upon. The appellants filed their answer, admitting, for the most part, the history of the proceedings, as stated in the bill, but alleging that the act of assembly and ordinance, and all proceedings under them, were valid. The case was submitted to the court below on the bill and answer, and a decree pro forma was passed, declaring Ordinance No. 84, and the assessment thereunder, null and void, and perpetually enjoining the collection of the assessment. From the pro forma decree, an appeal was taken by the city. Some of the objections urged by the appellee questioned the validity of chapter 284 of the Acts of 1892 and Ordinance No. 84, while others only apply to the method of proceeding on the right to recover, if the statute and ordinance be valid. As the former class of objections attack the very foundation of the assessment, we will consider them first, without attempting, however, to wholly distinguish the two classes on some points raised. The first question that naturally suggests itself is, had the legislature power to pass any statute to accomplish the purposes indicated in the preamble of this act? The case of Spencer v. Merchant, supra, clearly establishes that it had. It is not necessary to discuss how far such a law could affect property that had beer bona fide transferred from the owner of the property at the time the work was done to some one who had no notice that the property was liable to such a claim, as in this case the title remained in the person whose property is alleged to have been specially benefited. We must therefore go a step further, and inquire into the validity of this particular statute. In the opinion delivered on the motion for a rehearing in Ulman's Case, we expressly stated, on pages 610 and 611, 72 Md., and page 711, 21 Atl., that there was ample power in the original act of 1874 (chapter 218) to enable the city to pass ordinances that would not be subject to the constitutional objection passed on in that case. On page 593, 72 Md., and page 141, 20 Atl., it quoted from Spencer v. Merchant, where it was said that "if the legislature provided for notice to and hearing of each proprietor, at some stage of the proceedings, upon the question, what proportion of the tax shall be assessed on his land? there is no taking of this property without due process of law." And on page 594, 72 Md., and page 141, 20 Atl., in further quoting from that case, it was said, "The statute of 1881 (being the one in controversy) afforded the owners notice and hearing of the question of the equitable apportionment among them, and thus enabled them to contest the constitutionality of the statute, and that was all the notice and hearing to which they were entitled." The act of 1892 authorized the appellants "to provide by ordinance for the levy and collection, in such manner as they may deem proper, of a tax upon all of the property binding upon 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." The requirements of the act are to take the total assessment formerly made for improvements, then deduct the amount paid, and assess the balance on the properties within the defined limits, to the extent that they have been, respectively, specially benefited by the improvement. That was as certain as if the legislature had named a definite sum to be assessed on those who had not paid on North avenue, or any other street where a similar condition of things existed. The objection of appellee that no hear ing is given by the statute as to the aggregate sum to be collected was raised and distinctly answered in Spencer's Case, on page 358, 125 U. S., and page 921, 8 Sup. Ct. The act of 1892 further provides "that reasonable notice and an opportunity to be heard shall be given to all persons interested before the final ascertainment of the amount of tax to be paid by any such property." It required appellants to provide for appeals to the Baltimore city court from the decision of any commissioners, or other person appointed to determine the amount or amounts of such special taxes or assessments, and also for the right of appeal to this court. The ordinance, as shown above, provided for ample notice. I'lman's Case, on page 611, 72 Md., and page 711, 21 Atl., authorizes notice by summons or through the newspaper. Thus we see that appellee had ample opportunity to have a jury pass upon the assessment against her property, as well as to have the court below, and this court on appeal, determine the legality of the proceedings, including the validity of the statute and ordinance. We are of the opinion that Spencer v. Merchant and the former case between these parties fully sustain the validity of the statute, and also of the ordinance unless there be some technical objection to the latter. We will now pass upon the other class of objections urged by appellee. Without meaning to decide that the appellee could, in a bill for an injunction, properly ask the benefit of the statute of limitations, we have no doubt that it is not a bar to the assessment. It was only made a few months before the bill was filed; and no action accrued until the right to sue on it had matured. It is contended by appellee that, inasmuch for which the legislature says the property of the citizens shall pay, a reassessment may be authorized." But on this point we might also have contented ourselves by referring te Spencer v. Merchant. as Ordinance No. 100 was declared to be null | the public benefit for improvement received, and void, the grading, paving, and curbing of North avenue were without any legal sanction, and void, and that no valid assessment for the cost thereof could consequently be made. The case of Spencer v. Merchant, so frequently cited by us, because we deem it conclusive on many of the points raised in this case, would seem to dispose of that objection. Porter's Case, in 18 Md. 301, cited by appellee's counsel, certainly does not sus. tain his contention. There the city authorities undertook to correct the errors which the court had determined had made the proceedings void, by passing an ordinance to confirm the grading, and to ratify the acts of the city commissioner. This court. on the page cited, shows very clearly why that ordinance was not of binding force, because of its "not being authorized by any law." And in Horns' Case, 30 Md. 222, which was a suit against the city for injuries done to his property in grading that avenue, the court decided that the city was not liable, as the acts done were ultra vires. In referring to the ordinance above mentioned, it said, "If the act was void, because ultra vires, and they had no power to authorize it before it was undertaken and commenced, they certainly had no power to adopt it after it was done." Nor can we agree with the appellee's counsel that, because Ordinance No. 100 was determined to be void, the act of 1892, so far as applicable to the assessment, was unconstitutional, null, and void, being an exercise of judicial powers in violation of the eighth and twenty-third articles of the declaration of rights. To sustain this, he cited Horns' Case, in 26 Md. 206. After the decision in Porter's Case, which also disposed of a similar case, -Holland v. Mayor, etc., of Baltimore, 11 Md. 186,-the legislature undertook to authorize the city to collect the same assessments that this court had determined could not be collected. As was said in Horns' Case, in referring to that act of the legislature, “It, in effect, and that most plainly, reversed the judgment of this court." Of course, that could not be permitted. But that was not what was done in this case. This court simply determined that the ordinance and assessment then in controversy were null and void, and in pursuance of the decision the court below so decreed, and enjoined the appellant and its collector from collecting, or in any way enforcing, said assessment. The act of 1892 provides for the collection of an assessment, to be made to the extent that the property was specially benefited,-not the original assessment but a new one, and not necessarily the same amount, for it might have been very different if appellee had seen fit to appear before the commissioners, or submit her case to the jury. As is said in Mills v. Charleton, 29 Wis. 400, "The original proceedings having failed for reasons which the legislature may lawfully obviate, and the basis for taxation still remaining, namely, Considerable stress has been laid on the point made by the learned counsel for the ap pellee that the ordinance is void by reason of the failure to give the 10 days' notice required by the Acts of 1892 (chapter 219) to be given before the passage of an ordinance requiring the cost of grading, etc., streets to be assessed upon the property. He first notes thefact that the ordinance itself refers to that chapter. It is true that in the preamble, reciting the source of the authority of the city to pass the ordinance, it is stated, "Whereas, by chapter 219 of the acts of 1892 full power and authority is given," etc., but the rest of the preamble itself shows conclusively that it was a mere clerical error, and that chapter 284 was intended. But if this were not so, a misrecital in an ordinance of the source of the power of the municipality could not affect its validity, if in point of fact the power to enact it existed. The real question raised by this point is whether or not chapter 219 is applicable to Ordinance No. 84, so as to require the notice therein provided for. Chapter 284 of the Acts of 1892 was passed four days after chapter 219. It did not pretend, and was evidently not intended, to repeal chapter 219, which simply amended the local law of the city providing for the grading and improving of any street, alley, or land after it was opened. A careful examination of the two chapters convinces us that the notice required in chapter 219 is not, and was not intended to be, applicable to ordinances passed in pursuance of chapter 284. Chapter 219 gives the appellant power to provide by ordinance for improving streetsas therein stated, 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 assessment, "provided that before the passage by either branch of the council of any ordinance requiring the whole or any portion of the costs to be assessed upon the property, ten days' notice shall be given," etc. etc. It is perfectly apparent that this legislation only applied to ordinances for such grading or other authorized work as was to be done after the passage of the act. The ob ject of the notice was to give an opportunity "to all persons interested therein to appear and be heard before some appropriate committee of the council" as to the grade character of work, whether the cost should be wholly, or in part only, borne by the property binding upon the street, whether the work should be done at all, etc. That act provided for ordinances for the work, as well as for the assessment and collection of the costs thereof, while chapter 284 provides for the assessment and collection of the costs for work already done by the city. Hence, the latter act only required a notice before the final ascertainment of the amount of tax to be paid by any such property. The position that the Acts of 1892 (chapter 284) and Ordinance No. 84 only applied to cases where valid assessments had been made is not supported by a reasonable construction of the act. It does not use the term "valid assessment," and, if it was intended to apply only to assessments that were valid, it would have been of but little if any use, as the act would not be necessary to enforce valid assessments. The question raised as to the interest charged need not be passed upon by us, further than to say that, as we have held the statute and ordinance valid, a court of equity could not give the complainant relief for any such alleged irregularities. She had the right to make such objection before the tribunal provided for under the ordinances, but not collaterally, or by such a proceeding as this. The cases to that effect are very numerous in this state. We will only refer to O'Neal v. Bridge Co., 18 Md. 1; County Com'rs v. Mining Co., 61 Md. 548; and Greenland v. County Com'rs, 68 Md. 59, 11 Atl. 581. We have considered at some length the points raised by the bill that have been pressed by counsel, with the exception, possibly, of one or two, which are disposed of by what we have said above, or at least are met by the case of Spencer v. Merchant. There is still another question which was presented in argument, although not given in the bill, as a reason for the interposition of a court of equity. That is the right of the city collector to sell the property of the appellee. The act of 1892 authorizes the city "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," etc. The ordinance, after requiring the list to be placed in the hands of the city collector, directs him to "thereupon 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 Public Local Laws is the statute law on the latter subject. It does not prescribe the mode of procedure for the collection of such benefits, but authorizes the appellant "to enact and pass all ordinances from time to time which shall be deemed necessary and proper to exercise the powers and effect the objects above specified." From an examination of the ordinances of the city of Baltimore, we find that the appellant has full power to sell for benefits for opening, closing, widening, and straightening any street, lane, or alley. Hence, the appellants have full and ample power to sell the property of the appellee for the assessment made under Ordinance No. 84. It follows from what we have said that we must reverse the pro forma decree, the injunction must be dissolved, and the bill dismissed. Decree reversed and the bill dismissed, with costs to the appellants. BOROUGH OF WALLINGFORD v. HALL. (Supreme Court of Errors of Connecticut. June 29, 1894.) NONSUIT-LIMITATION OF ACTIONS-CONTINUING OFFENSE. 1. Where plaintiff's evidence shows that his action is barred by limitations, which defendant has pleaded, a nonsuit on motion of defendant is properly granted. 2. An action for a fine imposed by a borough by-law, passed by authority of a legislative act, for making an excavation in a street or highway, is a "suit for a forfeiture under a penal statute" (Gen. St. § 1379), and must be brought within one year after the excavation was made. 3. A borough by-law prohibiting the opening and making of excavations in a street or highway does not make the offense a continuing one, in case the hole is left open, so as to prevent an action therefor from being barred by limitations. Appeal from court of common pleas, New Haven county; Hotchkiss, Judge. Action by the borough of Wallingford against Henry F. Hall. There was a judgment for defendant, and plaintiff appeals. Affirmed. Tilton E. Doolittle, for appellant. Charles Kleiner, for appellee. FENN, J. The charter of the borough of Wallingford, which is a public act, empowers its court of burgesses to make and enforce by-laws upon certain subjects, one of which is the "excavation or opening of the streets or highways for public or private purposes." Pursuant to such authority, said court of burgesses passed a by-law "prohibiting the opening or making of any excavation, vault or cellar, in, upon, or under any street or highway in said borough, without the consent of the warden or court of burgesses," and providing that "every person violating said by-law shall forfeit and pay, for such offense, a sum not exceeding twentyfive dollars, for the use of said borough." This action was brought for a violation of such by-law, the alleged breach being an excavation made by the defendant in the highway adjacent to a tract of land owned by him. by him. The complaint was made returnable before a justice of the peace. The writ was dated November 18, 1892, and served November 19, 1892. It was alleged that the defendant made an unauthorized excavation in May, 1891, "and has ever since allowed and caused said excavation to remain," and that, "by reason of said offense of the defendant in making said excavation, the defendant has forfeited and become bound to pay to said borough the sum of twenty-five dollars, as provided by said bylaw." In the court of common pleas, to which the action was appealed by the defendant, to the defense of denial the defendant added, as a second defense, the limitation of Gen. St. § 1379, which provides that "no suit for any forfeiture, upon any penal statute, shall be brought, but within one year next after the commission of the offense." It was alleged that "the offense was not committed within one year next before the bringing of this action." To this To this defense the plaintiff demurred, and the court overruled the demurrer. The plaintiff then denied the matters contained in said second defense, and, upon the issues made up by the defendant's denial of the complaint and the plaintiff's denial of the second defense, the case was closed to the jury. Upon the trial, the plaintiff having introduced its evidence and rested its case, the defendant moved for judgment, as in case of nonsuit, which the court granted, upon the ground "that the plaintiff proved that the excavation in question was made, if ever, in May, 1891, and the file shows that the suit was not brought until November 19, 1892, more than one year later, thus bringing it within the statute of limitations." The court of common pleas having denied a motion to set aside said nonsuit, the plaintiff appealed to this court, assigning as reasons of appeal the overruling of the plaintiff's demurrer, and the granting and refusing to set aside the nonsuit. It was conceded upon the argument that these reasons presented substantially the same question, for although, as was said by this court in Brown v. Brown, 56 Conn. 252, 14 Atl. 718, a statute of limitations "is wholly a matter of defense, and one that constituted no part of the plaintiff's case," yet if the court correctly ruled upon the demurrer, and the evidence produced by the plaintiff showed that the only offense claimed was committed so long previous to the bringing of the action as to be barred, it needed no further evidence upon the part of the defendant to establish this fact: He might have rested when the plaintiff did, and then, as any other verdict than one for the defendant "would inevitably be set aside upon review," such a verdict might have been directed by the court. People's Sav. Bank v. Borough of Norwalk, 56 Conn. 556, 16 Atl. 257. The plaintiff borough, therefore, does not and could not claim that the granting of a nonsuit injures it, providing the law and facts required that a verdict be returned against it. But it is claimed that the law and facts did not so require, and this upon two grounds: First, that the by-law in question is not a penal statute; and, second, that the complaint alleged and the evidence showed that the defendant had, ever since the excavation was made, allowed it to remain open, and that in consequence the offense was continuous; that in fact the excavation had increased as the earth fell in, enlarging its width nine inches from the time it was first dug until the commencement of the suit. We think the court below correctly held the by-law to be a penal statute, within the intent and meaning of Gen. St. § 1379. That it is penal cannot be doubted. Hallenbeck v. Getz, 63 Conn. 387, 28 Atl. 519. That it derives its force, as the plaintiff itself states in its complaint, from action taken in pursu ance of power conferred by the general assembly, is also manifest. Such action is in legal contemplation that of the general assembly, whose power enabled it. The enactment is therefore law, statutory in its nature, and as such within the purpose, and so properly embraced within the fair construction, of the language of the statute of limitations in question. We think, also, the court correctly ruled upon the other point. The law concerning continuing nuisances and trespasses is, in the abstract, as the plaintiff claims. But it does not apply in this case. The complaint is not adapted to recovery on such ground. Even if it were, the by-law in question would not support it. It is exclusively confined to the opening or making of an excavation without lawful authority. That is not, in its nature, a continuing act. The meaning of the provision seems clear and certain. But if it were not the defendant could not be held liable upon construction, fairly doubtful, of ambiguous language. Pratt v. Borough of Litchfield, 62 Conn. 118, 25 Atl. 461. There is no error in the judgment complained of. The other judges concurred. Appeal of BLACKSTONE. (Supreme Court of Errors of Connecticut. June 29, 1894.) CONSTRUCTION OF WILL-DISTRIBUTION OF IN COME. Testator gave one-third of his estate to his wife, and the other two-thirds to his children, in certain proportions. The will provided that advancements made to the children were to be "embraced in the inventory," and to be deducted from each child's share. Held, that the income of the estate during distribution should be divided among the wife and children in proportion to the amount they would each have taken, computed at the time of testator's death, and not in proportion to each one's share in the estate, without considering the advancements to them. Appeal from superior court, New London county; Prentice, Judge. Appeal by J. De T. Blackstone from a decree of distribution in the matter of Lorenzo Blackstone's estate. Affirmed. Solomon Lucas, for appellant. Jeremiah Halsey and Willis A. Briscoe, for appellees. FENN, J. Lorenzo Blackstone, late of Norwich, died in 1888, leaving a last will, by which he disposed of a large residuary estate; giving to trustees one-third of the same, in trust, to pay the income therefrom to his wife, Emily Blackstone, who is still surviving, during her life. The other twothirds, by the fourth clause of his will, he directed, should be divided into 18 equal parts or shares, and these shares be disposed of to and among his five children; giving to the appellant, who is one of said children, 4 of such shares,-1 absolutely, the other 3 to be held in trust for his benefit. The sixth clause of said will is as follows: "There is to be deducted from the shares given to each of my said children, or in trust for their use, in the fourth clause of this will, the amounts charged to them, respectively, on my books. These amounts are to be embraced in the inventory of my estate." On the 31st day of July, 1893, the distributors of said estate made return of their doings to the court of probate for the district of Norwich, which on said day accepted and approved said distribution. In said instrument the distributors stated: "We have determined the amounts due to the residuary legatees under the will of said deceased, in accordance with the provisions of said will, to be the following: The above amount of $199,470.95 was the aggregate of the sums charged upon the testator's books, as mentioned in the sixth clause of his will, which were advanced by him to his children in his lifetime, and were charged to the children to whom such advancements were respectively made; and charged also in an account on his books entitled "Distribution Account." By far the largest of these charges was to the appellant, the amount charged to him being $113,385.29. This the distributors deducted from the amount of $207,468.63 set to the appellant, leaving him, as his share in the principal of the estate, $94,083.34. Of this action the appellant does not complain. But in addition the estate, during the nearly five years in which it was in settlement, had earned or produced income to the amount of $243,108.60, of which a separate account had been kept by the executors, and this amount of income the distributors had divided upon the basis of the following computation: Principal estate, residue....... $1,300,677 76 Less advancements 199,470 95 Estate producing income.... $1,101,206 81 $1,101,206.81 earned $243,108.60, or 22.07656 per cent. From the decree of the court of probate approving such action, the said J. De T. Blackstone appealed to the superior court, which made a finding embracing the above facts, and thereupon reserved the case for our advice. The appellant, in his reasons of appeal, claims, in substance, that the distributors should have distributed to him, and in trust for him, four-eighteenths of two-thirds of the entire earned income to the time of settlement of the administration account, namely, $36,006, instead of said sum of $20,770.37; and this raises the only question which the appeal presents for our consideration. This involves a construction of the sixth clause of the testator's will, and the determination of the intention therein manifested, namely, whether the testator intended that each of his children should receive in the final settlement of the estate, however long deferred, their proportionate share, or an amount equal to a specified number of eighteenth parts of the residue then on hand, after deducting the sum charged to each of such children, respectively; or whether they should only receive such share, less such deduction, of the clear residue existing at the time the will became operative by the death of the testator, as such residue should be finally ascertained; or, more briefly stated, whether the given number of eighteenths, less charges, was intended to be of a residue of principal existing at the death of the testator, or of principal, and interest thereon, existing at the time of distribution. In favor of the appellant's contention on this point, it is claimed that the amounts advanced by the testator to his children were directed to be inventoried, and were in fact inventoried, as a part of his estate, and that they were declared to be such by the testator in his will; that "if the estate had been intestate there would have been no question as to when and how the several advancements should have been deducted, or that they should have been deducted from the estate existing at the time the estate was ready for distribution, which would have included, not only the estate left by the deceased at the time of his death, but the earned income during the time of the settlement of the estate;" that, if the terms of the will leave this question in doubt, that construction which most nearly conforms to the statute of distributions should be adopted. Opposed to this, it is to be considered that, if the testator had not made provision in reference to these sums, they could in no wise have affected the prescribed testate shares of his children in his estate; that the object of such provision was manifestly equality between such children,-between the three sons, each of whom received four-eighteenths, and the two daughters, each of whom received three-eighteenths of such residue. If the testator, by his direction to embrace these amounts in the inventory of his estate, intended, as the appellant ་ |