Volume 101 — Maryland Reports

<p>’ Appeals from the Circuit Court of Baltimore City (Stock-bridge, J.)</p>

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

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

) Plaintiff’s Prayer.—If the Court sitting as a jury shall find that on or about the 8th day of May, the National Coliseum Company, a body corporate, by C. Ross Klosterman, its secretary and treasurer, made to the plaintiff the written proposal, offered in evidence, for the service of electric current, for a period of twenty weeks and agreed to pay the sum of $470 for the service of said electric current and shall further find that C. Ross Klosterman, the defendant, promised…

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

<p>Appeal from the Circuit Court for Wicomico County (Page, C. J., and Lloyd, J.)</p>

<p>Appeal from the Superior Court of Baltimore City (WickesJ.)</p>

<p>Crossing Bumpers of Stationary Freight Train Blockading Street— Contributory Negligence a Question of Fact.</p> <p>A long freight train became stalled on an up-grade in a factory district of Baltimore City and blockaded two or more street crossings. For several years heavy trains had been from time to time thus stopped there, and remained at rest until helping engines arrived, and then the two engines gave answering signals before the train started. It had been customary for persons obliged to cross the tracks thus blocked to do so by crawling over or under the freight cars, and this custom was well known to the railway company’s employees. On the day of the accident to the plaintiff in this case, he found his way across the street blocked by the train above mentioned, and a railway brakeman told him to cross the train, which he did. Upon his return, an hour laterj the plaintiff found the train still stationary. The same brakeman again told him to cross, adding that there was plenty of time to do so, and that a signal would be given before the train started. The plaintiff took hold of two cars and was in the act of getting on the bumpers when the . train started, without signal or warning, and plaintiff’s foot was crushed between the bumpers and so severely injured as to require amputation. Held, that under the special circumstances of this case the plaintiff was not a mere trespasser, and was not guilty of contributory negligence as matter of law, but that the question of contributory negligence should be submitted to the determination of the jury, that a jury might conclude that the custom of the railway company in allowing its stalled trains thus blockading streets to be crossed by pedestrians amounted to an implied invitation to the plaintiff to cross, and if so, that the railway company was bound to exercise reasonable care to protect him while so crossing.</p>

<p>Appeal from the Orphans’ Court of Baltimore City.</p>

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

<p> Bill Proposing Amendment to the Constitution Passed by the General Assembly Does not Require the Approval of the Governor—Proposed Amendment not Containing Distinct Legislation—Mandamus Directing Publication of Amendment. </p> <p>Art. 14 of the Constitution provides that “the General Assembly may propose amendments to this Constitution, provided that each amend- • ment shall be embraced in a separate bill * * and passed by three-fifths of all the members elected to each of the two Houses. * * The bill proposing amendment shall be published by order of the Governor,” etc. Art. 3, sec. 1, declares that the Legislature shall consist of a Senate and House of Delegates and shall be styled the General Assembly of Maryland. In other articles of the Constitution the words “General Assembly” are used in a sense which excludes the Governor. By Art. 2, sec. 17, it is provided that to guard against hasty or partial legislation and encroachments of the legislative department, every bill which shall have passed the House and Senate shall, before it becomes a law, be presented to the Governor. If he signs it, it becomes a law. If he does not approve it, and it is passed' by a three-fifths vote of the two houses over his veto, it also becomes a law. Held, that a bill proposing an amendment to the Constitution, formulated by the General Assembly in the manner prescribed by Article 14, does not require the approval of the Governor before it can be voted on by the people, and that the Governor has no authority to veto such bill.</p> <p>In 1904 the Legislature formulated an amendment to Art. x of the Constitution relating to the elective franchise. Section 2 of the bill directed that the amendment be submitted to the voters of the State at the next general election, “and at said election the vote on said proposed amendment shall be by ballot, and upon each ballot there shall be written or printed the words, ‘For the Constitutional Amendment,’ or ‘Against the Constitutional Amendment’ as the voters shall elect.” Art. 1 of the Constitution declares that all elections shall be by ballot. Code, Art. 33, sec. 56, enacts that when a constitutional question is submitted to popular vote, the question shall be placed upon the ballot in the form following, “For Constitutional Amendment,” “Against Constitutional Amendment,” in a space where the voter may indicate whether he shall wish to cast his ballot for or against the amendment. Held, that the second section of the bill proposing the amendment, relating to its submission to the vote of the people, does not contain such distinct legislation as to demand the approval of the. Governor, since some of its provisions are those required by the Constitution and the other provisions are in accord with the existing enactments of the Code.</p> <p>Another bill proposing an amendment to the Constitution provided that it should be submitted to the voters of the State “for their adoption or rejection, in pursuance of the directions contained in Art. 14 of the Constitution, and at the said general election the vote on said proposed amendment shall be by ballot, and upon each ballot shall be printed the words: ‘For Constitutional Amendment’ and ‘Against Constitu. tional Amendment,’ as now prescribed by law, and immediately after said election due return shall be made to the Governor of the vote for and against said proposed amendment as directed by said 14th Article of the Constitution.” Held, that these provisions do not contain distinct legislation requiring the Governor’s approval.</p> <p>A mandamus will be issued to require the Governor to publish in the manner directed by the Constitution, Art. 14, a proposed amendment of the Constitution passed by a three-fifths vote of the General Assembly, and not containing essentially legislative provisions, although such proposed amendment had not, when passed as a bill, been submitted to the Governor for his approval.</p>

, and concurred in by Pearce, C. J., and Brown, J. This suit was instituted for the purpose of having set aside a deed from the plaintiff to the defendant executed on the tenth day of October, A. D., nineteen hundred and two, on the ground that the same was obtained by undue influence and fraud. In cases of this character proceedings are not often taken during the lifetime of the grantor, but generally after his death by those claiming to be in interest.

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

<p>Appeal from the CircuipCourt of Baltimore City (Sharp, J.)</p>

<p> Injury to Brakeman in Coupling Cars—Insufficient Evidence of Negligence. ' </p> <p>Plaintiff, a brakeman. employed by defendant, was injured while coupling cars by being crushed between them. He alleged that the drawheads or bumpers of one of the cars were pushed back through a sill which was of rotten wood. Plaintiff was made unconscious at the time of the accident and did not explain how it was occasioned. The defect in the car alleged to have caused the'injury was not visible upon examination and there was no evidence that it could' have been discovered by a proper inspection. There was also an absence of proof to show why the bumpers gave way on the occasion in question. There was evidence that the alleged rottenness of the sill was not the cause since the bumpers go through the sill and are fastened to the car underneath. Held,- that since the plaintiff failed to prove either that the defendant did not exercise due care in providing sound appliances or that there was some defect in them which could have been discovered by a reasonable inspection the jury was properly instructed that there was no evidence of negligence on the part of the defendant.</p>

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

<p> Fall from Platform of Electric Car—No Evidence of Carrier's Negligence. </p> <p>A man boarded an electric railway car just before it started across a long bridge over a river. There were only two passengers in the car but this man stood on the rear platform. The conductor was inside the car near the rear door. The car, going at a rate of speed not excessive, ran into a switch and stopped a little beyond it at the draw of the bridge. When it entered the switch the car received a jolt or oscillation, but not of an unusal kind. After the car stopped the man who had been standing on the rear platform was seen to be lying on the tracks at the switch. He had suffered a fracture of the skull which caused his death. No one of the persons in the car saw him fall. In an action to recover damages for the death so' occasioned, held, that under these circumstances the fact that the deceased was injured while a passenger does not of itself raise a presumption of negligence on the part of the carrier, and there being no evidence of any defect in the track, or in the car, or in its management, or as to how or why the deceased fell from the car the jury was properly instructed that there was no legally sufficient evidence to entitle the plaintiff to recover.</p>

<p> Summary Judgment Under Baltimore Practice Act—Striking Out Judgment—Insufficient Statement oj Defendant's Indebtedness. </p> <p>Upon a.motion to strike out a judgment under the Practice Act of Baltimore City (Local Code, Art. 4, sec. 313, etc.) the question whether the proceedings in the case were suchas to justify the entry of the summary judgment, as well as the .question of the jurisdiction of the Court, is open for review.</p> <p>The Practice Act of Baltimore City (Local Code, Art. 4, sec. 313, etc.) directs that in order to obtain a speedy judgment under the statute the plaintiff must file with his declaration an affidavit as to the indebtedness of the defendant and also the writing or account by which the defendant is indebted,' or, if the action be founded on a verbal or implied contract, a statement of the defendant’s indebtedness thereunder. In this case the declaration averred that the defendants operated gambling devices by which they caused the plaintiff to lose I285, and the account filed with the declaration stated the indebtedness of the defendants to be “for cash money received from the plaintiff.” Held, that this account was not such a statement of the particulars of the defendant’s indebtedness as is required under the statute, since it does not give definite notice or information as to the nature of the plaintiff’s claim.</p> <p>When the account filed with a declaration under the Practice Act is an insufficient statement of the defendant’s indebtedness, and the plaintiff afterwards files a new account, he is not entitled to a summary judgment on the new account since it was not filed with the declaration at the time of bringing the action as directed by the statute.</p>

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

<p>Appeal from the Circuit Court for Montgomery County (J. B. Henderson, J.)</p>

Appeals from the Circuit Court, No. 2, of Baltimore City (Sharp, J.) The contract between The Evans Marble Co. and E. M. Noel, referred to in the opinion of the Court, was as follows; This agreement, made this 18th day of April, nineteen hundred and two, by and between Edgar M. Noel, party of the first part and The Evans Marble Company, parties of the second part,— Witnesseth, for the consideration hereinafter named, the party of the second part hereby agrees to furnish and…

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

<p> Plaintiff’s Contributory Negligence Need Not be Proved by the Defendant—Delay of Passenger in Alighting from Train—Instructions to the fury. </p> <p>In an action to recover damages for an injury caused by defendant’s negligence, if it appear from the plaintiff’s evidence that his own negligence contributed to the occurrence of the injury, he is not entitled to recover, and the defendant is not obliged to offer proof of such contributory negligence. Consequently a prayer is erroneous which instructs the jury that if the defendant relies upon the defense that the plaintiff was guilty of negligence that fact must be proved by the defendant by preponderating testimony.</p> <p>Plaintiff, a passenger, about to alight from a railway car, was standing on the platform when the train lunged forward five or six feet and then suddenly stopped, whereby plaintiff was thrown down the steps of the car to the ground. The evidence showed that several passengers in advance of the plaintiff had all alighted and had gone away from the station when the injury occurred. Held, that since it is the duty of a passenger to leave the train at his destination with reasonable promptness, the evidence in this case is such that a prayer should have been granted which instructed the jury that “it was the duty of the plaintiff to leave the train upon its arrival * * with reasonable promptness and if she was negligent in this respect and such negligence directly contributed in any degree to cause the accident complained of, then the plaintiff is not entitled to recover.”</p>

<p>Negligence— Walking on Track of Electric Railway—Knowledge of Danger—Failure to Give Signal.</p> <p>When a person walking on the track of an electric railway sees, or is told, that a car is approaching, in time to avoid injury, the failure of the motorman to sound the gong is not negligence as to such person.</p> <p>When a man is seen walking on a track at a point where he can easily step aside, and sees or knows that a car is approaching, the motorman is justified in assuming that he will use his senses and get out of the way of danger.</p> <p>Plaintiff, with two other men, was walking on the track of a suburban electric railway, when one of the men said, upon the approach of a car coming up hill in the same direction, “Look out! Here comes a car.” The two men got off the track to the left and the plaintiff went to the right and was struck by the passing car. They testified that no gong was sounded as the car approached and that it was not going very fast. In an action to recover damages for the injury so occasioned, held, that there was no evidence of any negligence on the part of the defendant, and also that if there had been such evidence, the plaintiff was guilty of contributory negligence, because while walking in an obviously dangerous place he failed to keep a lookout for cars coming from behind, and also neglected to obey the timely warning given him by his companion.</p>

<p> Appeal from Lower Court Acting in Exercise of a Special furisdiction —Property Cannot be Condemned for a Private Use—Unconstitutionality of Statute Authorizing Land to be Condemned for a Private Road. </p> <p>Where the Circuit Court sits as an appellate Court under statutory authority, no appeal will lie to this Court from the judgment of the Circuit Court, unless expressly given by statute.</p> <p>No appeal lies to this Court from the action of the Circuit Court under Code, Art. 25, sec. 117, confirming an inquisition and award upon the condemnation of a private road; since the statute provides for no further appeal.</p> <p>A law which authorizes the taking by condemnation of private property for a private use is unconstitutional under sec. 40 of Art. 3 of the Constitution, which provides that no law shall be enacted authorizing private property to be taken for public use without just compensation being first paid or tendered; and Art. 23 of the Declaration of Rights, which declares that no man shall be deprived of his property except by the law of the land. These provisions must be construed to mean that private property can be taken only for a public use.</p> <p>Whether the use for which a statute authorizes private property to be condemned is a public or a private use is a question for the judiciary and not for the Legislature.</p> <p>A public use of property means, not a use that will be to the interest or to the advantage of the public, but a use of the property by the public.</p> <p>Land cannot constitutionally be condemned for a private road for the use of particular individuals who may lawfully exclude therefrom the public.</p> <p>Code, Art. 25, sec. 100, provides that any owner of lands has the right to a road to and from his land to places of public worship, market-towns, court-houses, &c., and may obtain a private road by application to the County Commissioners; that after the payment of damages assessed and the cost of laying out such road by the applicant for the same, such road shall be considered as the private way of such person, who shall keep open and repair it at his own expense, and that no person shall obstruct such private road under a prescribed penalty. Held, that the statute is unconstitutional because such a road is for a private and not for a public use.</p> <p>Private roads heretofore established under the provisions of Code, Art. 25, sec. 100, &c., are not affected by a subsequent adjudication that this statute is unconstitutional, since the acceptance of the damages awarded in such cases is equivalent to a grant of a private way, and operates as an estoppel upon the party so accepting them.</p> <p>The fact that an unconstitutional statute has been enforced without objection for a long time is no reason why it should not be declared invalid when the objection is made.</p>

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

<p> Presumptions of Marriage and Legitimacy—Strict Proof Requited of Antecedent Marriage When it Invalidates Subsequent Formal Marric ge—Sufficiency of Evidence—Declarations—Marriage Certificate—Proof of Identity—Harmless Errors. </p> <p>The question whether a formal marriage is valid or not cannot be tried like any other question of fact which is independent of presumptions, for the law will presume in favor of marriage, and this presumption must be met with distinct and satisfactory disproof.</p> <p>When it is proved that a man was married to a certain woman by a lega ceremony and had issue, and another woman claims that the man had previously been married to her, there must be strict proof of the alleged antecedent marriage as an actual fact, because the presumptions of law are in favor of innocence and legitimacy.</p> <p>After the death of one G. Walter Bowman of Hagerstown, Md., in 1903, leaving a widow, to whom he had been married by a legal ceremony, and a child, another woman, the plaintiff, alleged that she was the lawful widow of Bowman arid claimed a share of his estate.. To establish her marriage she offered the certificate of a clergyman in Camden, New Jersey, setting forth that in 1887 he had married one George W. Bowman of Hfleystown, Md., to one Catharine McGranagan, alleged to be the plaintiff; also the testimony of plaintiff’s mother that Bowman had told her that he had married her daughter; -that she had visited them for a few days when they were living at a certain house; and also the testimony of a physician that when employed to attend the plaintiff Bowman had stated that she was his wife. Held, that since there is no evidence that the deceased Bowman was the identical person who was married in Camden and that the plaintiff was the woman who was then married, this evidence is legally insufficient, to rebut the presumptions that Bowman did not commit bigamy and that his issue is legitimate and to established by strict proof the fact of the alleged antecedent marriage.</p> <p>A marriage certificate is not in itself proof that certain parties were married but there must be also evidence that they were the identical parties the question of whose marriage is at issue. Identity cannot be proved by the admissions of one of the parties in a case where it is necessary to rebut the presumptions of innocence and legitimacy.</p> <p>The fact that a man said that the woman with whom he was cohabiting . was his wife is not sufficient evidence to prove a marriage, when he was subsequently formally married to another woman.</p> <p>The plaintiff in this case alleged in a suit against an administrator that she had been married to the decedent Held, that the plaintiffis not a competent witness to prove the marriage, either directly or indirectly, under Code, Art. 35, sec. 3, which provides that in proceedings by or against administrators, etc., no party to the cause shall be allowed to testify as to any transaction had with the deceased.</p> <p>When it is sought to prove that a man and a woman were married by a formal ceremony at a certain time and. place, evidence that these parties were reputed to be married is not admissible.</p> <p>The rejection of prayers offered by the plaintiff'that were correct, or the admission of incompetent evidence, is not reversible error when upon the whole case it is proper to instruct the jury that the plaintiff’s evidence is legally insufficient to authorize a recovery.</p>

<p> Liquor License Issuable at Discretion of Clerk of Court—Bill in Eqiriiy to Compel Issue—Form of Order Sustaining Demurrer to Bill. </p> <p>Local Code, Art. 24, directs that a license to sell liquor in Worcester County shall be issued by the Clerk of the Circuit Court only to persons possessing certain designated qualifications, and the Clerk is empowered to determiné whether an applicant for a license has complied with the statutory requirements. Plaintiff’s bill in this case alleged that he had complied with the provisions of the statute but that the Clerk had refused his application for a license, and asked a Court of equity to review the proceedings before the Clerk and direct him to issue a license. Held., upon demurrer, that since under the statute the issuing of a license depends upon the judgment of the Clerk as to the possession by the applicant of the prescribed qualifications and no appeal is given from his determination in the premises, the Court is without jurisdiction to grant the relief asked for in the bill.</p> <p>When a demurrer to a bill in equity is ruled good, the proper order of Court is to sustain the demurrer with leave to the plaintiff to amend, and upon his failure so to do, to dismiss, the bill; but when upon sustaining a demurrer, the bill is at once absolutely dismissed, the plaintiff is not injured in a case where it is apparent that the Court is without jurisdiction to entertain the bill.</p>

<p> Bond Conditioned for Cmnpletion at Specified Time of Houses Subject to a Mortgage—Release of Some of the House, s After Default—Li. ability of Obligor. </p> <p>A bond given to the mortgagee of property conditioned for the completion within a designated time of houses being erected on the land is not a guaranty of the mortgage debt, but an agreement to indemnify against loss to the mortgage arising from the non-completion of the houses at the time specified. After a breach of the condition of such bond, a release of part of the property from the mortgage does not relieve the obligor from liability when he suffers no loss by such release.</p> <p>A mortgage of nineteen lots of ground, upon which houses, were being erected, was assigned to the plaintiff by one W, and at the same time the defendant executed to plaintiff a bond conditioned for the completion of the houses by W on or before July ist An independent agreement between W and the plaintiff provided that upon payment of one nineteenth of the mortgage debt the plaintiff would release any lot, but the defendant was not notified of this agreement. The bond was procured ■ from the defendant by W and not by the plaintiff. The houses were not finished by July ist. At different times, beginning four months after that date, the plaintiff released nine of the lots from the operation of the mortgage—the houses being still incomplete. The money paid for the releases was credited on the mortgage debt, and the proceeds of the sales of the released lots were used by W. in work on the other houses. Upon foreclosure of the mortgage there was a deficit, and the plaintiff brought this action on the bond. The evidence established that the house's could have been sold for a larger amount, and enough to discharge the mortgage, if they had been completed by July ist, and that the defendant had not been injured by the releases. Held, that the bond sued on was not a guaranty of the mortgage debt but a stipulation that the houses should be completed by July ist, and since it is shown that the plaintiff sustained a loss by reason of their non-completion, he is entitled to recover.</p> <p>Held, further, that the release of some of the lots from the mortgage, after default on the bond, did not relieve the defendant from liability under ■ the circumstances of this case.</p>

<p>Appeal from the Circuit Court for Cecil County (Brown, J.), where there was a verdict for plaintiff for $2,500.</p>

J., and Li.oyd, JJ.) Defendants yth Prayer.—If the jury find from the evidence that the plaintiff at the time the farm and the personal property mentioned in the contract, and the keys to the Westover house were delivered to him and he took possession of the same, expressed himself as satisfied and willing to receive the same as fulfillment of the contract, he is estopped from denying that he received what he was entitled to receive under the contract of sale, if they…

<p>Negligence— Trackwalker Struck by Engine Running Back Westerly on East-Bound Track.</p> <p>A freight train going east on a dark night on one of the outer of three parallel tracks was broken in two. A few miles further on it was halted and the engineer was directed to go back for the detached cars. The locomotive was switched to the middle track and while proceeding back ran over and killed a young man employed as a trackwalker. In an action to recover damage's for the death so occasioned the plaintiff’s evidence was that about half an hour before the accident the deceased started to go west on the tracks, carrying a lighted lantern; that the middle track was used for east-bound trains, and that the deceased was struck by the tender of the engine going back west on this track. Defendant’s evidence was that there was a light on the end of the tender as it ran back; that the whistle was sounded from time to time and the bell constantly rung, and that the engine driver did not see the deceased before he was struck. Tnis evidence was not contradicted, but one of plaintiif’s witnesses testified that after the accident there was no light on the tender. There w'as no evidence as to why the deceased failed to see or hear the engine or to show' that the accident w'as caused by the absence of a light. It was shown to be proper under the circumstances for the engine to run back westerly on the east-bound track. Held, that the evidence is not legally sufficient to show that there was any negligence on the part of the railway company causing the injury.</p>

) Plaintiff's 3rd Prayer.—If the Court, sitting'as a jury, finds that the plaintiff authorized the defendant as his agent to purchase said stock for him, and if it finds that the defendant did purchase said stock through Morrison & Company in his own name, without the knowledge, assent or subsequent ratification of the plaintiff of the purchase in such manner and if it finds from the evidence that the defendant did not make the payments on account of said stock as and when…

<p>Appeal from the Circuit Court for Carroll County (Thomas, J.), where there was a j'udgment for plaintiff for $10,000.</p>

) Plaintiff’s 1st Prayer.—If the jury find that the plaintiff was employed by the defendant as a conductor on one of its street railway cars and that it was the duty of the plaintiff under said employment, on each trip, at a certain part of the line, to step while the car was in motion from rear platform to foot-board and go along the foot-board to the front of the car, where was situated the indicator which registered the fares of each trip, and insert said fares so shown…

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

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

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

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

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

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

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

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

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

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

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

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

<p> Jurisdiction in Divorce—Adultery Committed in This State by a NonResident. </p> <p>While a husband and wife were residents of another State, the husband committed adultery in this State. Subsequently the wife became a resident of this State and within a few months filed a bill for a divorce on the ground of such adultery. Held, that the Court has jurisdiction of the suit under Code, Art. 16, sec. 35, which provides that a bill for divorce may be filed against a non-resident in the Court of the county where the plaintiff resides, and under Code, Art. 16, sec. 38, providing that no person shall be entitled to apply for a divorce, when the cause for a divorce occurred out of this State, unless the plaintiff or defendant shall have resided within this State for two years next preceding the application. In this case the cause for the divorce was the adultery which was committed in this State.</p>

<p>Appeal from the Circuit Court for Wicomico County (HolI„AND, J.)</p>

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

<p>Appeal from the Circuit Court for St. Mary’s County (Crane, J.)</p>

<p>Appeal from the Circuit Court for Allegany County (Keedy and Henderson, JJ.)</p>

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

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

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

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

<p> Contract by Telegraph—Delay in Acceptance—Lapse of Offer—Meaning of Word for the Court. </p> <p>A’s offer to purchase goods was met by a counter offer from B contained in a telegram agreeing to the terms proposed, but stating that “we are to have an immediate wire routing.” This telegram was sent' on the evening of October 1st, and delivered to A in Chicago early on, ‘the morning of October 2nd. A did not reply until after 6 o’clock P. M. on October 2nd, when he sent a night message, which was not delivered to B until the morning of October 3rd. The time required for the transmission of a telegram from A to B during the day was about one' hour. Held, that B’s offer required a prompt acceptance; that the de-t lay of nearly a whole day caused it to lapse and that no contract was, made by the despatch of the acceptance on the evening of October 2nd.</p> <p>When an offer is conditioned upon an immediate acceptance, the meaning of the word immediate, under the circumstances of the case, is for the Court to determine.</p>

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

<p>Appeal from the Baltimore City Court.</p>

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

<p>Appeal from the Circuit Court for Garrett County.</p>

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

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

<p> Rescission of Contract Obtained by Misrepresentation. </p> <p>Equity may rescind a contract made in consequence of material misrepresentations, although they do not constitute such fraud as will support an action at law for deceit.</p> <p>A building association issued two classes of certificates of indebtedness, the one secured by certain mortgages and the other unsecured. The plaintiff, a woman inexperienced in business, was the holder of a certificate of the former class, when the general manager of the association, who had been the friend and business adviser of plaintiff’s deceased husband, induced her to surrender the certificate she held and accept in exchange therefor a certificate of the other and inferior class by representing that it would be for her advantage to do so, while in fact such exchange was for the benefit oí the association only. Upon a bill for the rescission of the surrender and the restoration to plaintiff of the surrendered certificate, held, that whether the general manager’s representations were made with fraudulent intent or not, the plaintiff is entitled to have the contract rescinded.</p>

) The trial Court, sitting as a jury, found “that Ferdinand C. Latrobe et al., trustees, owners of a ground rent on the lot described, to wit, a lot 28x123 will be damaged to the amount of $2,500'by being restricted to the collection bf the same to a lot of 28x33; said amount being the damage on the market value of the said ground.rent.”

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

<p> Appeal From Orders on Auditor's Accounts—Dower in Equitable Estate of FFusband Acquired F*rior to Act of i8g8—Res Adjudicata. </p> <p>An order declaring the principles upon which an auditor should state an account is not a final order, but is brought up for review on appeal from a subsequent order ratifying an audit stated in accordance with the prin' pies so declared.</p> <p>Prior to the Act of 1898, ch. 457, a wife was entitled to dower in an equitable estate owned by her husband only in case he died seized of such estate. The said Act of 1898 provides that the wife shall be entitled to dower in the equitable estates of her husband to the same extent as in his legal estates. Held, that where the parties were married and an equitable estate was acquired by the husband prior to the passage of the Act of .1898, the right of the wife to dower in such estate is not affected by the Act but her rights are to b'e determined by the pre-existing law.</p> <p>When an order is passed ratifying an account by which certain commissions were allowed to a trustee, and no appeal is taken therefrom, and subsequently another account is stated allowing the same commissions, then upon appeal from an order ratifying the last account, the propriety of allowing the commissions is not open to review but that question is res adjudicata.</p>

) Defendant's 1st Prayer.—That there is no evidence in the cause of any such negligence on the part of the defendant in the discharge of its legal obligations to the plaintiff as would entitle him to recover in this action under the pleadings. {Refused. ) Defendant's 2nd Prayer.—That upon the undisputed evidence it was apparent that the plaintiff directly contributed to the accident by his own want of ordinary care and prudence and the verdict should be for the defendant.

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

<p>Appeal from the Circuit Court for Harford County where the following opinion was delivered by</p> <p>Van Bibber, J. This is a creditor’s suit for the proper distribution of the property and estate of James S. Calder amongst his creditor’s according to their legal priorities.</p> <p>It appears from the proceedings that the record liens are more in amount than the proceeds of sale and that there will be nothing for the general creditors.</p> <p>From the papers it appears that after costs and trustees expenses the liens of record have priority as follows :</p> <p>1st. Alexander S. Bell, mortgage, 21st April, 1887, $ 1,000.</p> <p>2nd. Otho S. Lee, mortgage, 21st April, 1897, $800.</p> <p>3rd. Frank H. Jacobs, judgment, 15th October, 1897, $500.</p> <p>4th. Bradley’s admr., judgment, 18th May, 1900, $705.24.</p> <p>Sfh; Jas. C. Calder, mortgage, 14th September, 1903, $1,200.</p> <p>6th. Second National-Bank, judgment, 15 September,. 1903, $30475-</p> <p>7th. Harford National Bank, judgment, 17th September, 1903. $293.01.</p> <p>Bradley’s admr., in her answer to the bill of complaint, admits that the mortgage to Bell and Lee are liens prior to her judgment and that the judgment for $$00 held by F. H. Jacobs is also prior in date to her judgment, but alleges that it was given as collateral security for a mortgage which Jacobs holds against a certain .Adam Bond for $5°° an<^ that he should be required to exhaust all of the mortgaged property and only claim the deficiency against Calder’s estate.</p> <p>The deed of trust was made by Calder to Carver October 9th, 1903, and upon it a bill was filed the same day asking that the trust be executed under the orders and directions of this Court. The parties to the bill, besides Calder and wife and Carver, trustee, are the holders of the seven above enumerated liens. The decree was passed on the 24th day of November, 1903.</p> <p>The question now before the Court is raised by a petition filed by one Adam Bond on December 30th, 1903, in which he claims that the judgment for $500 held by Frank H. Jacobs should be paid in full before anything is paid upon the liens subsequent to its date, which is in direct conflict with the claim set up by Bradley’s administratrix in her answer.</p> <p>From the proceedings and testimony it appears that in 1892 and for sometime prior thereto James S. Calder was indebted unto Adam Bond upon open accounts for a sum of money exceeding $650 in amount, that in October of 1892 Bond bargained with S. A. Williams, trustee, for the purchase of a house and lot for $650 cash and then made demand upon Calder for the payment of that amount. In reponse to this demand, Calder raised $150 in cash and undertook to arrange the purchase with Williams and took Bond to Williams’ office for that purpose. The purchase was completed by a deed being given to Bond and by his giving Williams a balance of purchase-money mortgage for $500 upon which' was endorsed Calder’s guarantee for its payment. Thereafter up to the time of his assignment, Calder always paid the interest. The mortgage was assigned by Williams to a certain Schuster, who in 1897 became dissatisfied with the security and at his instance Calder, as further security, confessed a judgment in the Circuit Court for Harford County for $500. The mortgage and judgment shortly afterwards were both assigned to Frank H. Jacobs, who held them at the time of Calder’s assignment. Bond, in his petition denies all knowledge of the mortgage and said he supposed Mr. Williams and Calder had arranged for the payment of the $500 independent of him, but the testimony and papers do not bear out his contention.</p> <p>In this case the familiar principle, that where there is a lien on two different parcels of land and a junior lien on one of them and the party holding the elder liens elects to have his whole debt paid out of the land bound by the lien of the junior creditor, the latter may have the prior creditor thrown upon the other fund, or have the prior lien assigned to him and receive all the aid it can afford him, does not apply because the fund or property answerable for the $500 debt are not all the property of the same debtor, the house and lot described in the mortgage belonged to Adam Bond and the property covered by the judgment lien belonged to Calder. Hall v. Farmers' National Bank, 53 Md. 124; Exparte Kimble, 17 Vesey, 520.</p> <p>The facts disclose a clear case of principal and surety, the mortgagor Bond is the principal debtor and Calder- his surety, first by his personal guarantee endorsed on the mortgage and subsequently by his giving a lien on his farm. In Jolms v. Reardon, 11 Md. 470, it was decided that where there are two mortgagors of distinct estates, one being surety for the other for the payment of the same debt and- a subsequent mortgagee has a lien only on the estate of the principal in the first debt, it was the equity of the surety to have her principal’s estate applied, first to the payment of that debt for which her’s stood as security before the subsequent mortgagee could come upon the fund. If there had been no deed of assignment and there was an absence of dealings and agreements between Calder and Bond and Jacobs undertook to collect the $500 due him from Calder, the latter upon proof that he was simply the surety for the original indebtedness, would clearly under the rulings of the Court of Appeals in Johns v. Reardon, have the right to compel Jacobs to exhaust the property of Bond covered by the mortgage and only come upon his property for any deficiency, if any. But under the facts disclosed by the testimony in this case, Calder would have been estopped from enforcing what would otherwise have been his equity against Bond and would have been required to pay the full amount of Jacobs’ claim.</p> <p>The next inquiry is to ascertain, whether after the deed of assignment from Calder, the lien holders on his property subsequent in date to that held by Jacobs, acquired any other or additional rights as against Bond and Jacobs than Caldwell himself would have had. In Barron v. Whitesides, 89 Md. 458, it was decided “that an assignee for the benefit of creditors, succeeds only to the rights of his assignor and takes the property subject to all existing liens and equities. The assignee is the mere representative of the debtor, enjoying his rights only, and bound where he should be bound” and it is recognized generally that in cases where an assignment for benefit of creditors has been made, the creditors, as between themselves have no better or different rights to the funds in the assignees hands, than they had against the original debtor before the assignment.</p> <p>Taking this view of the question, it follows, that the equity of Adam Bond in this case compels a distribution of the funds after the payment of the costs, expenses and commissions and the two mortgages of Bell and Lee, to the Frank H. Jacobs’ judgment and the surplus, if any, to the remaining creditors according to their priorities.</p> <p>A question was raised as to the right of Bond to intervene in the proceedings. An examination of his petition and the proceedings discloses the fact that he was not a party to the original proceedings and that except for the facts disclosed dehors the record he was not a necessary part.</p> <p>An examination of the decisions of this State throwing light upon the proper practice in equity in this particular, shows, that a party interested in a fund under the control and jurisdiction of the Court of equity, at any time, before distribution and while it is still under the control of the Court, has a right to come in by petition and establish his right, but only by leave of the Court and with such restrictions as to the method of procedure as the Court may in its proper discretion impose. The customary method is for a party to present to the Court his petition containing a full and complete disclosure and statement of his contention and upon it the Court determines whether the case so presented is one of equitable merit and upon it passes an order; if the prayer is granted then the order will provide for such notice to the parties interested as will be proper and timely and the subsequent proceedings under the petition will then proceed in the usual course under our equity practice. On the petition in this case no application was made to the Court for an order and none was passed. In all other respects the proceedings appear to be regular, notice was given to all the parties by subpoena properly issued and served, testimony was regularly taken before the Examiner and returned, and all the parties who desired had an opportunity to present their contention' to the Court. If application had been made to the Court for an order it would have been passed with only such restrictions as would have provided for practically the same notice that was actually given. It is therefore my opinion, the parties not appearing to have suffered, that the defect can be properly supplied by a formal order passed nunc pro tunc. I will sign orders in the case in accordance with the aforegoing opinion.</p>

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