Volume 100 — Maryland Reports

<p>Appeal from the Court of Common Pleas (Stockbridge, J.)</p>

<p>Appeal from the Orphans’ Court of Harford County.</p>

) Acceptance of rent after it was due for months preceding the month in which forfeiture was claimed can create no waiver. 1 ‘The receipt of rent after a breach of covenant does not operate as a waiver, unless the rent received accrued subsequently to the act which works the forfeiture. ” Morrison v. Smith, 90 Md. 83.

<p>Appeal from the Orphans’ Court of Carroll County.</p>

<p>Appeal from'the Circuit Court No. 2, of Baltimore City (Sharp, J.)</p>

) It is to be observed that Moses H. Powder did not intend to protect the property against the improvidence of his children, or to keep it from their creditors, for he gave the principal absolutely to them, in remainder.

<p>Appeal from the Circuit Court for Frederick County (McSherry, C. J., and Motter, J.)</p>

The liability of the stockholder to the creditor is contractual and not penal. Norris v. Wrenschall, 34 Md. 492; Colton v. Mayer, 90 Md. 716. The liability of the stockholders to the creditors is a primary obligation, that is, it is not necessary for the stockholder to exhaust his rights against the corporation before suing the stockholder.

<p>Appeal from the Superior Court of Baltimore City (Wickes,- J.)</p> <p>It is submitted that if the appellant ever became liable to the bank on the two notes in question, his liability was only that of a joint endorser with Warfield. That the bank because of its failure to make demand for payment of the notes on the .maker, and its failure to protest the notes, or in any way inform Mr. Keyser of the default of the real maker of the notes (the Md. Mfg. & Construction Co.) within a proper time after the notes were given, lost all rights against Keyser, no matter what rights it may have had against Warfield, with whom it had various transactions, including these notes, running through a number of years. That between Warfield and Keyser there was never any relation regarding this matter other than that of joint endorsers, and that Warfield cannot hold Keyser responsible unless he can fasten upon him the liability of an endorser which only changes from that of a contingent liability to that of an absolute liability after certain things have been done, viz.: demand, protest, notice, &c.</p> <p>In the Maryland cases where parties who endorsed notes when made and before delivery were treated as joint makers, the payee’s name was written in the note before it was delivered. In such cases the plaintiff is required only to prove the signatures, and the conclusion then follows (in the absence of evidence repelling the presumption) that the “backers” of the note were joint makers.</p> <p>In Sittig v. Birkestack. 38 Md. 158, the note was drawn to the order of blank. In that form it was signed on the back by Sittig. Birkestack wrote his name in the blank, and the Court ruled that if in fact Sittig intended to bind himself as maker, then Birkestack had a right to insert his own name as payee; but the Court says particularly that he only had a right to so insert his name, if it was the contract that Sittig was to be a maker of the note. There was no presumption that Sittig was a maker — it required proof from the plaintiff that he had contracted to be a maker.</p> <p>So in this case, the note looked at as originally constructed would in natural, mercantile and legal order, be filled in with the names of Warfield and Keyser as payees. Then the bank would have held the obligation of the maker, plus the obligation of the endorsers.</p> <p>Now apply the test suggested in Sittig and Birkestack. The bank refused the notes unless endorsed by Warfield and Keyser. Keyser reports this refusal. The notes are prepared and handed to the bank. Could the bank honestly write in its own name as payee, and thus radically change the nature of the obligation of Warfield and Keyser, from that of endorsers which it had demanded, into that of joint makers, which it had not stipulated for.</p> <p>We submit that even without a word of testimony as to what the bank demanded, and as to what Warfield and Keyser agreed to do, the bank could only have traced its title to the note by filling in the blank with the names of Warfield and Keyser, thus making them endorsers only. But when we find that the case made by the plaintiff shows expressly that Warfield and Keyser were on the note as endorsers, the bank could not then involve them in any other liability.</p> <p>If the obligation of the defendant was that of endorser, then the notes should have been presented for payment within a reasonable time after date, and if not paid notice should have been given to the endorsers. What is a reasonable time, is a questiori of law — seven months held not to be a reasonable time. Mudd's Admx. v. Harper, i Md. no; I Daniel on Negotiable Instruments, sec. 606. Joint endorsers — both entitled to notice People's Bank v. Keech, 26 Md. 521:</p> <p>Our contention was and is that the word “endorse” was intended and understood by all to have its plain and usual meaning, and there was no evidence of any agreement, contract or understanding beyond the demand of an ‘'endorsement” and compliance with that demand. It might have been competent for the Court, at the request of the plaintiff, to instruct the jury that the form of the notes created a prima facie presumption that the plaintiff and defendant intended to be joint makers unless the jury should find that it was the intention and understanding of all parties that they were to be liable only as endorsers. That would have been the converse •of the defendant’s sixth prayer, and in that shape the two instructions would have been consistent and the whole question of the intention of the parties would have been left to the jury. But, as it stands, the plaintiff’s prayer tells the jury that if they believe that Mr. Thomas said that he would not discount the notes unless they were “endorsed” by Mr. Warfield and Mr. Keyser, and that thereupon Mr. Warfield and Mr. Keyser wrote their names on the back of the notes and “that there was no other agreement, contract or understanding or intention between said plaintiff and said defendant at that time” then the verdict must be for plaintiff To relieve the defendant, the jury was required to find some “agreement, contract or understanding or intention” other than what? Obviously something other than the demand of an endorsement and compliance with that demand. This precluded the jury from considering what was meant by the word “endorse.” It contradicted and completely nullified the defendant’s granted prayer; and, as we believe, was not only erroneous as an abstract legal proposition, but had the further vice of inconsistency with the other instruction that was granted i'n the same case, and thus must have confused and misled the jury, as to what was meant.</p> <p>This prayer and the defendant’s sixth prayer, which was granted, cannot stand together. To grant both was to confuse and mislead the jury. They are inconsistent. For the plaintiff, the Court said in effect to the jury, “if you find that Thomas said he would not discount the notes unless endorsed by Warfield and Keyser, and that Keyser told Warfield what Thomas said, and the notes were then endorsed as required, then you can find for the plaintiff, provided you find “that there was no other agreement, contract or understanding, or intention between said plaintiff and said defendant at that time.”</p> <p>The jury then turns to the sixth prayer of the defendant, and is told by the Court, in effect “if you find that Thomas said that he would not discount the notes unless endorsed by Warfield and Keyser, and that Keyser told Warfield what Thomas said, and the notes were then endorsed as requested, and that it was the understanding and intention of Thomas, Warfield and Keyser that Warfield and Xeyser were to be liable as endorsers, and not as joint makers, then you can find for the defendant.”</p> <p>Now the jury might read this last instruction and agree that in their belief, such was the understanding among the parties, but turning to the instructions prayed for the plaintiff, they would say, the Court tells us we must find for the plaintiff simply upon "the fact of Thomas’ demand for endorsements and Warfield and Keyser’s yielding to that demand, unless we find that there was some other contract between Warfield and Keyser, exclusive of Thomas.</p> <p>When one not otherwise a party to a promissory note puts his name on the back of it before negotiation thereof, and to secure its negotiation, he becomes liable as a joint maker in the absence of proof of a certain intention to limit his liability to that of maker. Sullivan v. Violett, 6 Gill, 181; Ives v. Bosley, 35 Md. 262; Schroeder v. Turner, 68 Md. 506. This liability will be avoided only on proof of a different understanding of all the parties. Owings v. Baker, 54 Md. 82; Gisriel v. Burrows, 72 Md. 366.</p> <p>This would require proof of an understanding of Warfield and Keyser personally, and of the company as represented by them, and of Thomas, representing the bank, as payee. We confidently assert that there is not a shred of proof of such understanding on the part of any party.</p> <p>The essence of an endorser’s position is his right to notice of failure to pay by the maker. The suggestion that the treasurer of a company in charge of its promissory notes and their payment, should, when securing the discount of one of its notes, carefully stipulate that he should have notice as individual of his own failure to pay it as treasurer, is ridiculous.</p> <p>No evidence whatever has been offered to show that any of the parties understood that Warfield and Keyser were assuming only an endorser’s liability, and, on the contrary, the clear evidence is that both Warfield and Thomas distinctly understood the contrary. The liability of a joint maker can only be avoided by proof that all the parties had a special understanding to the contrary.</p> <p>Defendant below objected to plaintiff being allowed to fill in the name of the payee, the payee being in blank. This was the basis of his first exception. Should it be necessary to quote authority on so well recognized a right, we would refer the Court to Elliott v. Chesnut, 30 Md. 562; Condoti v. Pearce, 43 Md. 83; Sittig v.Birkestack, 38 Md. 158; Boyd v. McCann, 10 Md. 118; ,Kunkel v. Spooner, 9 Md. 462.</p>

<p>.Appeal from the Superior Court of Baltimore City (Wickes, J.)</p>

<p>Appeal from the Circuit Court for Harford County (VanBibber, J.)</p>

<p>Appeal from the Circuit Court of Baltimore City (Dennis, J.)</p>

<p>Appeal from the Superior Court of Baltimore City (Dobler, J.)</p>

) (1) It is not claimed that Stevens has any property in the device other than that acquired, if any, from registration under the Act of 1892. There is no claim of copyright; and clearly such a device (irrespective of its implication with the name and business of the Kenny Company) could not be appropriated by Stevens. (2) It is not claimed that Stevens has or could register the device as a technical trade mark.

<p>Appeal from Baltimore City Court (Harlan, C. J.)</p>

) I. Applying the principles stated in Barron v. Whiteside, 89 Md. 456, to the facts presented here, we submit that the appellant would be entitled to receive the rents in reduction of the morgage deficit, irrespective of the fact that such deficit was caused in part by the taxes she was required to pay. And this on two grounds : First.

2, of Baltimore City (Sharp, J.) If by its true construction, the deed is irrevocable, it should be cancelled.

<p>Wills — Insufficient Evidence of Undue Influence.</p> <p>Upon the trial of a caveat to a will the jury found as facts that the testatrix at the time she executed the will was of sound and disposing mind and was aware of its contents and effect. The trial Court instructed the jury that there was no legally sufficient evidence of undue influence. The testatrix was eighty-four years of age and the will gave nearly all of her estate, amounting to about half a million dollars, to her two sons, and only small legacies to her two grandchildren, the issue of two deceased daughters, but these two grandchildren had received about two hundred thousand dollars each under the will of the husband of the testatrix. The evidence in the case examined and held, to be legally insufficient to show that the will was made as the result of importunities, which deprived the testatrix of her free agency, and that consequently the instruction of the trial Court was correct.</p> <p>The mere fact that one of the chief beneficiaries under a will advised the testatrix, his mother, to execute it, is not per se evidence of undue influence, since honest persuasion, unaccompanied by fraud or deceit, does not show that the person persuaded was deprived of free agency.</p>

<p>Appeal from the Circuit Court for Washington County (WlTZENBACHER, J.)</p>

), where there was a judgment for $5,000 against the defendant, Steiner. Held: question for jury as to whether he was acting within the scope of his authority, and company held liable. In Rogahn v. Moore Mnfg. Co., 79 Wis. 575, a foreman was authorized to employ and discharge. Foreman discharged plaintiff and ordered him off premises, then assaulted him ; principal held liable.

) The case at bar belongs to the class of which Campbell v. Lambert, 36 La. An. 35, is a striking example.

<p>Appeal from the Circuit Court for Anne Arundel County (Thomas, J.)</p>

<p>Appeal from the Circuit Court No. 2, of Baltimore City (Sharp, J.)</p>

) Plaintiff's 1st Prayer. — If the jury find from the evidence in the case, that the plaintiffs agreed, as set forth in the letters offered in evidence dated respectively December 22nd, 1899, and December 27th, 1899, to furnish and erect a 100 horsepower automatic engine and a 1,000 light dynamo, and make suitable connections with the boiler of the defendant in the auditorium premises on North Howard street, and to connect the exhaustfrom the engine to the heating apparatus…

<p>Appeal from the Circuit Court for Baltimore County (Burke, J.)</p>

<p>Appeal from the Circuit Court for Baltimore County Burke, J.)</p>

<p>Appeal from the Circuit Court of Baltimore City (Dennis, J.)</p> <p>1. The affidavit to the petition on which the injunction was issued was legally insufficient in its veiification. The affiant who was not a party to the cause did not in the affidavit state that he had personal knowledge of the matters and things stated in the petition and to which he swore — “That the matters and things set forth in the foregoing petition are within his knowledge and are true as therein stated, to the best of his knowledge and belief.” Fowble v. Kemp, 92 Md. 630; Moffatt v. Calvert County, 97 Md. 266; Bowie v. Smith, 97 Md. 326; 10 Ency. PI. & Pr. 967.</p> <p>2. The averments of bill show that the appellee had ample and adequate remedy at law, and that no irreparable injury was possible or probable, therefore the tender by the appellants in their answer of a bond as required by Art. 16, sec. 69, ousted the jurisdiction of a Court of equity, and the bill should have been dismissed. Code, Art. 16, sec. 69; Dudley v. Hurst, 67 Md. 44; 18 A. E. Ency. Law, 91; Mogul Steamship Co. v. McGregor, 15 Q. B. D. 476; Francis v. Flynn, 118 U. S. 385; Mayer v. Journeymen Stonecutters, 47 N. J. Eq. 519; Long-Shore Printing Co. v. Howell, 25 Or. 527; Rynolds v. Everett, 144 N. Y. 189; McCaidey v. Lierney, 19 R. I. 250; Bohn MJg„ Co. v. Hollins, 54 Minn. 223; McHenry v. Jewett, 90 N. Y. 58.</p> <p>3. Labor unions are legal bodies of organized labor provided for and sanctioned by the laws of Maryland and the United States, with legal rights to be protected and enforced by the Courts. Code, Art. 23, sec. 37; Art. 27, sec. 31; 24 Statutes at Large, 86; Curran v. Galen, 152 N. Y. 33; Gray v. Building Trades Council (Minn.), 97 N. W. Rep. 663; Thomas v. CincinnatiR. Co., 62 F. Rep. 817; Stevedores Assn. v. Walsh,. 2 Daly io; Perkhis v. Rogg, n Ohio, Dec. 585; Hopkins v. Oxley Stove Co., 49 U. S. App. 709.</p> <p>■ 4. Free competition, within the lim'its of the law, is the inalienable right of the citizen, acting separately or in combination; and the means which the law permits to be used in other competitive struggles are available, and maybe used in conflicts between labor unions and non-union employers and employees. Allen v. Flood (1898), App. Cas. I; Casey v. Cincinnati T U.r 45 Fed. Rep. 135; Walker v. Cronin, 107 Mass. 564; Rogers v. Evarts, 17 N. Y. Sup. 264; Hopkins v. Oxley Stove Co., 49 U. S. App. 709; Vegilahn v. Gunther, 167 Mass. 92; Snowv. Wheeler, x 13 Mass. 179.</p> <p>5. The means which union labor may use in its competitive conflict with non-union labor and its employers:</p> <p>(a) Union labor may declare a strike, call out its members, and persuade others not to accept employment or leave the employment, if no contract exists, of the firm or corporation against which the strike has been declared. The use of any of these means must be free from illegal threats, violence, intimidation or coercion. 18 A. &. E. Encyl Law, 86; Arthur v. Oakes, 24 U. S. App. 239; U. S. Kane, 23 Fed. Rep. 746.</p> <p>(b) Picketing peaceably the factory where the strike has; been declared is lawful. 1 Eddy on Comb., sec. 537; Reynolds v. Everett, 22 N. Y. Sup. 309; 144 N. Y. 189; 18 A. & E. Encyl. Law, 86; Regina v. Druett, 10 C.C. Cases 593; Richter-v. Journeymen Tailors, 24 Wkly. L. Bul’t. 189; Rogers v. Ev— art, 17 N. Y. Sup. 264.</p> <p>(c) Boycotts under certain conditions, used to accomplish' certain lawful ends in the battle of competition are lawful and' permissible means, which may be used by labor unions. State v. Glidden, 55 Conn. 46; 18 A. & E. Encyl. Law, 87; Mogul Steampship Co. v. McGregor, 15 Q. B. D. 476 (1885).</p> <p>{d) A boycott which involves the refusal of union labor and their friends to deal with any non-union firm or corporation, or with their customers, is lawful when the excuse or reason for such a boycott is to aid or help union labor or its employees, in its competitive struggle with non-unior labor and its employers. 18 A. & E. E7icyl. Law 87; Mogul Steamship Co. v. McGregor, 15 Q. B. D. 476 (1885), 21 Q. B. D. 544 (1888), L. R. App. cases 25 (1892); Alleii v. Flood, L. R. App. cases 1 (1898); Walker v. Cronin, 107 Mass. 555; Carew v. Rutherford, 106 Mass. 1; Crump v. Commonwealth, 84 Va. 927; People v. Welsig, 4 N. Y. Crim. Rep. 403; People v. Kostka, 4 N. Y. Crim. Rep. 429;. McCauley v. Tierney, 19 R. I. 250; Bohn Mfg. Co. v. Hollis, 54 Minn. 223; Commonwealth v.Hunt, 4 Met. hi; Bowen v. Matthews, 14 Allen, 499; Mayor v. Journeyman S. C. Assn., 47 N. J. Eq. 519; Payite v. Railroad Co., 13 La. 507; Lo7ig Sho7'e P. & P. Co. v. Howell, 26 Or. 527-</p> <p>(e) A threat in law is a declaration or intimation of an intention tQ injure another by the commission of some unlawful act. If the act intended to be done is not unlawful, then the declaration is not a threat in law, and the effect thereof is not intimidation in a legal sense. 18 A. & E. Encyl. Law 84; Moores v. BricklayeiT Uiiion, 10 Ohio, 665; McCaideyv. 1ier-ney, 19 R. I. 250.</p> <p>(/") The following cases, in which the boycott was illegal are clearly distinguished from the foregoing cases in this: the act done and complained of was done in the interest of union labor or competition, but were acts which were wanton, reckless and malicious. These cases are : Lucke v. The Clothing Cutters and Trimmers Assembly, 77 Md. 449; Barr v. Essex Trade Council, 53. N. J. Eq. 101; Thomas v. Cincinnati R. Co., 62 Fed. Rep. 817; Gray v. Bldg. Trades Council (Minn.), 97 N. W. Rep. 663; Quiim v. Leatham, L. R. 1901, Q. B. D. 76.</p> <p>As was said in Allis Chalmers Co. v. Reliable Lodge, &c., 111 Fed. Rep. 264, “In a conspiracy of this character where it is difficult to even learn the names of the individual members of the lodges, the actual co-operation of the individual members in the conspiracy is difficult to establish by direct proofs, but their acquiescence in, and connivance at, the methods pursued by their officers and leaders is easily established by the results sought and accomplished. ”</p> <p>Now in this case we have, as a result of something, the facts:</p> <p>(а) That plaintiff’s business, as to one great and important branch, is utterly ruined by reason of all his old customers ceasing to have dealings with him.</p> <p>(б) That even goods that have been ordered are sent back, and work that has been commenced is ordered stopped.</p> <p>(c) That these customers inform plaintiff that the reason for all this is, not any fault that they have to find either with the goods or the work furnished by plaintiff, but solely that a boycott has been declared by organized labor of this city against him, und also against anyone who employs him.</p> <p>(d) That many of these customers (one a customer of twenty-five years standing) are willing to place themselves on, record in affidavits to the effect in substance that they do not give the plaintiff work for the sole reason that they are afraid to, on account of the effect it would have on their own business.</p> <p>(e) That, when any of his old customers orders a bit of work done by John B. Adt, a boycott circular appears, warning all mankind, or all friends to union labor, to withdraw their patronage from the firm who dares employ John B. Adt; a man declared “unfair by the Baltimore Federation of Labor.”</p> <p>It is too plain for dispute that the result of something is the ruin of the plaintiff’s business, by reason of his customers being prevented from doing business with him through the fear of incurring the displeasure, persecution, and vengeance of the defendants in this case. If this is not a boycott, what is it? See Crump v. Commonwealth, 84 Va. 927.</p> <p>“No case has been cited where, upon a proper showing of facts, an unsuccessful appeal has been made to a Court of Chancery to restrain a boycott. The authorities are all the other way.” Casey v. Cincinnati lypo Union, 45 Fed. 135. “Boycotts, though unaccompanied by violence or intimidation, have been pronounced unlawful in every State of the United States where the question has arisen, unless it be in Minnesota, and they are held to be unlawful in England.” Thomas v. Cincinnati, &c., R. R. Co., 62 Fed. Rep. 803. They have since been held unlawful in Minnesota. Ertz v. Produce Exchange, 79 Minn. 140. See also Eddy on Combinations, 453; Lucke v. Clothing Cutters, 77 Md. 396.</p>

The case must be considered with reference to the provisions of the will of Benjamin C. Pearce, and the particular facts- and circumstances surrounding it.

<p>Appeal from the Circuit Court for Carroll County (Jones, C. J., and Ihomas, J.)</p>

<p>Appeal from the Circuit Court No. 2, of Baltimore City (Sharp, J.)</p>

<p>Appeal from Circuit Court No. 2 of Baltimore City (Sharp, J.)</p>

<p>Appeal from the Court of Common Pleas (Stockbridge, J.)</p>

<p>Appeal from the Circuit Court for Allegany County (Boyd, C. J.)</p>

<p>Appeal from the Circuit Court for Talbot County (Pearce, C. J., Martin and Brown, JJ.)</p>

<p>Appeal from the Baltimore City Court (Dobler, J.)</p>

<p>Liability of Railway Company For Injury to Land Adjoining Mouth of Tunnel From Smoke and Gases — Evidence—Experts—Pleading.</p> <p>A railway company is liable for injury to property adjacent to the mouth of a tunnel caused by the smoke, cinders, gases and vibrations resulting from the operation of the road, when the company has not complied with a municipal ordinance providing certain safeguards against such damage to adjacent property.</p> <p>The fact that a railway company is authorized by statute to construct and operate its road through an open cut between tunnels in a city does not exetnpt it from liability for special injury caused to the land adjoining the open cut from smoke, cinders, vapors and so forth; and the land owner cannot constitutionally be deprived of his right to recover damages for such consequential injury.</p> <p>A railroad was constructed through a city under an ordinance which provided that it should be built in a tunnel at certain places and that between two designated points the company should establish a station, the tram shed of which should cover all of the tracks and be provided with smoke escapes twenty-five feet above the level of the street. No station or shed was erected at this point, but the road there ran through an open cut between the two tunnels. Plaintiff’s property adjoined this open cut and in the operation of the road smoke and gases were drawn out of the tunnels and cast upon plaintiff’s land, and he was also subjected to an unusual decree of vibration. Held, that the plaintiff is entitled to recover damages for the consequential injuries so occasioned, although there has been no taking of his land, and although the railway was lawfully operated in pursuance of its charter and there was no proof of negligence in its mode of operation.</p> <p>Held, further, that such action is not affected by Code, Art. 23, sec. 198, which provides that railroad companies shall not be responsible for injuries to cattle, etc., or for fires caused by their engines, if they prove that the injury complained of was not the result of negligence.</p> <p>In said action,held, also that evidence is admissible to show that the defendant had not complied with the provisions of the municipal ordinance requiring it to erect a shed over the open cut provided with smoke escapes.</p> <p>That an expert witness should not be allowed to testify that in his opinion the quantity of smoke, etc., thrown upon the plaintiff’s land was increased by the existence of the tunnels. But since other witnesses had testified that the smoke is collected in the tunnels and forced into the open cut and thence upon plaintiff’s land, the defendant was not injured by the evidence of the expert’s opinion to the same effect.</p> <p>That evidence as to the effect produced by the smoke, etc., upon other property than that of the plaintiff in the immediate neighborhood is admissible.</p> <p>The testimony of experts is admissible to prove the fact that the smoke, vapors and vibrations from an open cut of a railway near a tunnel caused a diminution in the value of the plaintiff’s property adjoining the open cut. But expert testimony is not admissible to show the amount or extent of the damage so caused.</p> <p>In an action against a railway company for special injury caused by smoke, etc., from an open cut, defendant’s plea alleged that the injury complained of was the unavoidable result of the operation of the defendant’s cars in an lawful manner. Held, that a demurrer to'this plea does not admit that the acts which caused the injury were lawful.</p> <p>A special plea in confession and avoidance is not bad on demurrer, although it states facts which are admissible in evidence under the general issue plea.</p>

<p>. Appeal from the Circuit Court for Harford County (Fowler, C. J.)</p>

<p>Entry of Judgment Nunc Pro Tunc — Failure of Clerk to Enter Judgment as Directed in Open Court — Laches—Appeal.</p> <p>When, upon motion made in open Court, a judgment is ordered to be entered, but the clerk fails to make a formal record thereof, the Court has the power afterwards to direct the judgment to be entered as of the date of the first order.</p> <p>When a Judge in open Court orally directs the clerk to enter up a judgment and the clerk omits to make the proper entry, parol evidence is admissible to prove the fact that such an order was given.</p> <p>Upon motion of the plaintiff’s attorney in open Court on September 19th, 1903, the clerk was directed to enter a judgment on a verdict. The clerk neglected to make the formal entry. In February, 1904, the de- ' fendant moved to strike out the verdict and in March, 1904, the plaintiff moved for entry of a judgment as of September 19th, 1903. Held, that the plaintiff had not been guilty of laches since the failure to enter up the judgment was due to the mistake of the clerk.</p> <p>A motion to vacate the verdict of the jury is equivalent to a motion for a new trial, and no appeal lies from the ruling of the Court below on such motion.</p>

<p>Statutory Liability of Stockholders to Creditors Enforceable Under the Practice Act — Statement of Defendant’s Indebtedness.</p> <p>The Practice Act of Baltimore City (Local Code Art. 4, sec. 312), authorizes a party having a claim for a definite sum of money arising ex contractu to obtain a judgment against the debtor within fifteen days from the return day to which the defendant shall have been summoned unless a certain plea and affidavit be filed. The plaintiff brought an action against the defendants under this statute and set forth as his cause of action that he was a creditor of the City Trust and Banking Company, an insolvent corporation; that the defendants are stockholders in the company and that under Code Art. 23, sec. 85L, all the stockholders are liable to the creditors of the corporation for double the amount of stock held by them. Held, that the statutory liability of stockholders to creditors of the corporation is not penal, but is so far contractual in its nature as to be enforceable by a suit brought under the Practice Act.</p> <p>The said Practice Act provides that the plaintiff shall file with the declaration the writing or account by which the defendant is indebted, or if the action be founded upon a verbal or implied contract shall file a statement of the defendant’s indebtedness thereunder with an affidavit stating the true amount thereof. In this case, where the action was to enforce defendant’s statutory liability, as a stockholder in the City Trust and Banking Company, to the plaintiff, as a creditor of the company, the affidavit filed with the declaration followed the language of the Act, and the account set forth the dates and amounts of all deposits made by the plaintiff with the City Trust and Banking Company with credit for the money withdrawn. Held, that this account was sufficient under the Act to notify the defendants of the nature and amount of the plaintiff’s claim.</p> <p>Held, further, that it was not necessary for the plaintiff to file with the declaration the bank-book kept with the corporation and the certificates of stock issued to the defendants, because these are not the cause of action in this case, and the defendant’s statutory liability could be established without the production of either.</p> <p>Held, further, that, although the record does not show that the charter of the Trust and Banking Company was offered in evidence, it will be assumed on appeal from a judgment against a stockholder that all the necessary proof was before the trial Court.</p>

<p>Appeal from Circuit Court No. 2, of Baltimore City (Sharp, J.)</p>

) Caveator’s 1st Prayer. — If the jury find from the evidence that at the time of executing the paper writing mentioned in this cause, and purporting to be hi’s last will and testament, and dated Februaiy 25th, 1902, Charles Struth was not of sound and disposing mind and capable of making a valid deed or contract, then he was not in possession of that description of mental capacity which is required by law and their verdict should be in favor of the caveators on the second…

<p>Appeal from the Court of Common Pleas (Dobler, J.)</p>

2, of Baltimore City (Sharp, J.) No exceptions have been filed either to the sufficiency of the bill or to any of the evidence, and therefore no objection can now be made to the sufficiency of the averments of the bill or to the admissibility of any evidence, and the case will now be decided “according to the matters established by the proof,” Code, Art. 5, sec 34; Miller's Equity, sec. 329-334; Schroeder v. Loeber, 75 Md. 195, 202.

<p>Appeal from the Superior Court of Baltimore City (Wickes, J.)</p>

), where there was a judgment for the plaintiff for $1,500. The alleged acts of negligence on the part of defendant were, (a) the failure of the engineer to give signals of its approach; ('b) the invitation of the gateman. One witness for plaintiff testified that the engine gave no signal by bell or whistle, and others testified that they did not “hear” or “notice” any, and accordingly, their testimony will be considered in connection with defendant’s ninth prayer.

<p>Appeal from the Baltimore City Court (Harlan, C. J.)</p>

<p>App’eal from the Circuit Court of Baltimore County (Burke, J.)</p>

<p>Appeal from the Circuit Court for Baltimore County (Burke and Van Bibber, JJ.)</p>

<p>Appeal from the Superior Court of Baltimore City (Wickes, J.)</p> <p>There is no practice known in Maryland by which a stranger may intervene in a suit at law to which he is not a party, and assert rights in such suit against the parties thereto. There are a few instances where under special statutes something of the kind is allowed, as in the case of claimants in attachment suits and claimants of goods seized under a writ of Ji. fa. There is, however, no general practice of this kind.</p> <p>Briefly summarized, the situation here is that A sues B on a promissory note, the appellant C comes in by petition, asserts that the note filed in the case is his, and asks the Court to order its delivery to him. Such a course of procedure we submit is absolutely unknown in Maryland law. There is no reason for permitting such a procédure and strong reason against it.</p> <p>(a.) Because the claimant has several courses open to him which will afford him full relief.</p> <p>(b.) Because a Court of law is not adapted for the determination of triangular disputes.</p> <p>The remedies open to a claimant in such case are as follows: He may bring a suit in trovpr for the wrongful conversion of the note. He may, if the note is not in custodia legis, sue in replevin for its recovery. He may proceed by bill in equity and in a proper case obtain an injunction against the plaintiff to prevent the continued prosecution of the suit. He may sue the defendant and in a proper case recover against him regardless of the actual custody of the note.</p> <p>We must also consider the confusion and difficulties incident to such a practice as that which the appellants now seek to introduce. A Court of law has no machinery adapted to the determination of a triangular dispute of this kind. A jury could not be impaneled to determine the issues between the three parties, and the case could not be heard piecemeal by the same or different juries impaneled at different times in the same case. The Judge would have no right to determine disputed questions of fact affecting title which might arise on such petitions.</p> <p>In short, we submit that the procedure attempted here, if sanctioned, would be simply revolutionary. A stranger cannot intervene in a suit at law in any such manner. Even if he had such a right he would have to proceed in an orderly manner and first ask to be made a party. Here the appellants had no right to become a party to the case. They never did become parties to the case, and hence they have no standing to appeal.</p> <p>The order of April 18th, 1904, relates to a matter resting in the sound discretion of the lower Court, and is not subject to appeal.</p> <p>The order passed on October 31st, 1903; permitted the withdrawal of the notes upon leaving copies thereof. The petition asks in substance a reversal of this order. We see, therefore, that the question involved is whether or not the Court should have permitted the withdrawal of certain papers from its files and the substitution of copies therefor. It is familiar, indeed daily practice in Baltimore City for the Courts to pass orders of this kind. The jurisdiction to pass such an order rests on the control which every Court has over its own records and files. Notwithstanding the hundreds of similar orders which have been passed and occasional cases in which they have been refused, can the appellants point to a single case where such a matter has ever been brought before this Court on appeal?</p> <p>The appellants are, in effect, asking this Court to undertake to regulate the keeping of the files in the Clerk’s offices in every Court of the State. Such orders do not determine the title to the papers withdrawn. They do not determine any right between the parties. They at most determine the temporary custody of the paper. It would be unjustly burdensome to this Court, and indeed, incompatible with its dignity, to require it to pass upon such matters of mere routine.</p> <p>The notes in question are no longer under the control of the Superior Court. That Court had, months before the petition was filed, permitted their withdrawal for the purpose of filing them in the Circuit Court No. 2, of Baltimore City, and had thereby lost all jurisdiction over them. If by any kind of elastic practice a petition like that of the appellants can be maintained, it must certainly be in the Court which has jurisdiction over the notes. This is in the Circuit Court No. 2, where the notes áre now on file, and not the Superior Court. Any other rule would lead to a conflict between the various Courts. How can the Superior Court of Baltimore City require the Circuit Court No. 2, of Baltimore City, to give up a part of its files? This is exactly, however, what must be done to carry out the prayer of the appellant’s petition.</p> <p>Again, what forum is better able to determine the question of the bank’s • claim to these notes than the equity Court, where they are now filed as claims against The City Trust and Banking Company? The whole matter can be worked out in that Court under exceptions to the claims of the various parties concerned. Indeed, this is actually being done in that Court at the present time.</p>

<p>Appeal from the Superior Court of Baltimore City (Wickes, J.)</p>

The ancient doctrine of the common law, as stated in Sheppard's Touchstone, is that “every deed well made must be written, i. e., the agreement must be all written before the sealing and delivering of it, for if a man seal and deliver an empty piece of paper parchment, albeit he do therewithal give commandant that an obligation or other matter shall be written in it, and this be done accordingly, yet this is no deed.” This remains the law in Maryland, in England and is…

<p>Appeal from the Circuit Court for Carroll County (Thomas, J.)</p>

<p>Constitutional Law— Works of Internal Improvement— Validity of Statute Making State Appropriation for Construction of County Roads.</p> <p>In the construction of a provision, which was first adopted in the Constitution of 1851 and continued in the Constitutions of 1864 and 1867, it is proper to consider the circumstances under which it was first adopted the object of its adoption, and the construction that has been placed on it by the Legislature, the framers of the several Constitutions and by. the people.</p> <p>The Act of 1904, ch. 225, appropriates from the State Treasury $200,000 annually to aid the different counties of the State in the construction and repair of public roads, the counties being required to pay one-half of the cost of the construction or repair, and afterwards to keep the roads in repair. Constitution, Art. 3, sec. 34, declares that the General Assembly shall not have “the power in any mode to involve the State in the construction of works of internal improvement, nor in granting any aid thereto, which shall involve the faith or credit of the State, nor make any appropriation therefor, except in aid of the construction of works of internal improvements in the counties of St. Mary’s, Charles and Calvert, which have had no direct advantage from such works as have been heretofore aided by the State. ” This provision was first adopted in the Constitution of 1851 and was continued with slight changes in the subsequent Constitutions. The legislative and constitutional history of ' the State shows that large sums of public money had been lost by the State’s investment in railroads and canals, and that it was the intention, of the framers of the Constitution and of the people who adopted it to forbid the giving of aid to such works in the future. The contemporaneous and subsequent construction of the term “works of internal improvement, ’ ’ and the evident meaning of the term as used in other parts of the Constitution, all show that it was intended to apply only to those kinds of internal improvements, such as railroads and canals, to which the State had so given its aid. Consequently the construction or repair of public highways is not such a work of internal improvement as is within the constitutional prohibition and the Act of 1904 is valid.</p>

<p>Appeal from the Superior Court of Baltimore City (Phelps, J.)</p>

<p>Appeal from the Circuit Court for Anne Arundel County (Revell and Thomas, JJ.)</p>

We are simply seeking damages for the breach of a clearly expressed and fully understood contract. Unless this Court- now determines that this contract is void as against public policy, it would seem that the decision in both cases must be in favor of the appellant.

<p>Appeal from the Baltimore City Court (Harlan, C. J.)</p>

<p> Procedure in Attachment For Unliquidated Damages Aftet Two Non Ests. </p> <p>An action of assumpsit to recover a definite sum as liquidated damages was brought against one C. After several writs had been returned non est the plaintiff issued an attachment under Code Art. 9, sec. 24, which provides that when two summons have been returned non est, the plaintiff shall be entitled to an attachment in the same manner as in cases against non-resident debtors. The attachment so issued was quashed because plaintiff’s cause of action was held to be for unliquidated damages for a breach of contract. Plaintiff then in the same case filed an amended declaration claiming unliquidated damages for a breach of contract and issued an attachment upon a petition verified by affidavit, but no new writs of summons were issued and returned non est. Code Art. 9, sec. 43, provides that an attachment in an action ex contractu for unliquidated damages maybe issued against non-residents, after the filing of a declaration setting out in detail the breach .of contract verified by affidavit, etc., and the practice shall conform to the proceedings in attachment for liquidated damages against non-residents. Held, that this second attachment was properly quashed because the two returns of non est on the declaration for liquidated damages cannot be made the basis for the attachment issued upon the amended declaration for unliquidated damages; and also because an attachment for unliquidated damages provided for by sec. 43 must be by an original and not an ancillary proceeding, and must be supported by an affidavit similar by that required by sec. 4 in an attachment against non-resident debtors; and in this case no such affidavit was filed.</p>

) The letter referred to in the opinion of the Court is as follows: Baltimore, Md., April 24th, 1901. Charles N. Boulden, Esq., City. Dear Sir: I have sold my stock in the Structural Iron & Steel Co. to J. W. Leroux, subject to the terms and conditions named to him in my proposition of April 12th. Respectfully yours, W. T. Stilwell.

) The first exception is as to the legitimacy of testimony showing the rate of commission, the appellant paid to agents. It was admitted, evidently on the theory that the larger the commission the greater the desire to sell, and the greater the desire to sell, the greater the inducement to commit fraud. Therefore, the more likely that the agent did commit fraud, and that the plaintiff’s testimony thereon is true.

<p>' Appeal from the Court of Common Pleas (Stockbridge, J.)</p>

<p>Appeal from the Criminal Court of Baltimore (Phelps, J.)</p>

As indicated by the defendant’s plea, he was an inter-state passenger, having purchased a railroad ticket for an entire, continuous and uninterrupted passage on the day and date named in said plea, from New York City, in the State of New York, a point outside of the State of Maryland, through the States of New Jersey, Pennsylvania, Delaware and Maryland, . to the city of Washington, in the District of Columbia, a point outside of and beyond the State of Maryland.

<p>Appeal ' from the Circuit' Court of Baltimore City (Dennis, J.)</p>

<p>Appeal from the Circuit Court for Prince George’s County.</p>

J.) Defendants ist Prayer. — That there is no evidence in this case legally sufficient to show that this defendant was guilty of any negligence by reason of either the breakage of the telephone- wire mentioned in the evidence or by reason of said wires remaining broken and suspended as mentioned in the evidence from the time of the breakage until the time of the accident.

<p>Appeal from the Baltimore City Court (Harlan, C. J.), where there was a judgment on verdict for the plaintiff for $800.</p>

<p>Writ of error to the Criminal Court of Baltimore (Wright, J.)</p>

<p>Bill to Vacate Assignment For Fraud — Insttfficient Evidence — Laches.</p> <p>A bill to vacate an assignment of city stock to their mother by her children, the plaintiffs, alleged that the plaintiffs were induced to make the assignment by reason of fraudulent representations made to them by the assignee. The bill was filed eight years after the assignment and nearly a year after the death of the assignee. Held, that the evidence in the case fails to show that the assignment was made in consequence of any false statement by the assignee; that the plaintiffs were fully informed as to their rights in the stock when they made the assignment and there was an adequate consideration therefor, and that the acquiescence and laches of the plaintiffs constitute an additional bar to the relief asked for.</p>

<p>Wills— Testamentary Capacity — Evidence.</p> <p>The law presumes that every man is sane and. has capacity to make a valid will.</p> <p>Evide nee to show lack of testamentary capacity must relate to the mental condition of the testator at the time of making the will, and for the purpose of throwing'light upon his condition at that time, evidence of his bodily and mental condition before and afterwards may be produced.</p> <p>The existence of a delusion in the mind of a testator, even at the time of making his will, as to particular persons tor things, does not invalidate the will unless it is the product of the delusion.</p> <p>The fact that a testator makes an unequal division of the property among his family and gives the greater part of his estate to a grandson to the exclusion of his children does not invalidate the will if the testator had the requisite mental capacity and was free from undue influence.</p> <p>The evidence adduced by the caveators in this case to show that a testator was mentally incapable of making a valid will examined and held to be legally insufficient to prove that he did not possess the requisite testamentary capacity at the time when the will was made.</p>

<p>After the judgment in this case reported ante, p. 125, a motion for a re-hearing was made and in disposing of the same,</p>

<p> Authority of Municipality to Impose License Fees. </p>

<p>Appeal from the Court of Common Pleas (Stockbridge, J.)</p>

<p>Appeal from Circuit Court No. 2, of Baltimore City (Sharp, J.)</p>