Volume 102 — Maryland Reports

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

<p>Contract for Exemption from Taxation of Manufacturing Plant — Municipal Authority — Enforcement of Contract in Equity.</p> <p>In 1889 a contract was made between the city of Havre de Grace and one F, by which the latter agreed to establish and maintain in that city a shoe factory of certain dimensions, to operate same continuously to its full capacity for ten years, and to give a mortgage conditioned for his performace of the contract. The municipality in consideration thereof agreed to pay to F the sum of $25,000 to be used in the construction of the building, to exempt the factory from taxation for fifty years and</p> <p>to convey a designated lot of ground for the factory building. The factory was erected and subsequently was conveyed to the plaintiff. It - had been operated, but not to its full capacity, for eleven years, during which time no taxes were levied upon it. At the time the contract was . made it was unauthorized by the charter of Havre de Grace, but the Act of 1890, ch. 180, empowered the city to abate taxes upon real estate actually used for manufacturing purposes, and to contract with the owners of such property for tax exemption for a period not longer than fifty years, and to confirm the contract made in 1889 with F to the same extent to which the city could under the Act make a binding contract. Held, that the city was not authorized to contract for the exemption of the F factory from taxation for fifty years on condition that it was kept in, operation for ten years, since.the Act of 1890 only authorized the city to provide for the abatement of taxes upon property actually used in the business of manufacturing.</p> <p>Held, further, that if the contract be construed as providing for the exemption of the factory from taxation only so long as operated as a factory, the plaintiff, as the present owner of the property, is not entitled to the injunction restraining the collection of the municipal taxes upon it, because the factory had not been operated as a shoe factory continuously to its full capacity for ten years as provided by the contract, and also because the indemnify mortgage to the city called for by the contract had not been executed.</p> <p>A party who seeks the aid of equity in enforcing a contract must show that he has performed or is ready to perform his own part of it, or set forth adequate reasons why he should be excused from doing so.</p> <p>When a party has agreed to give to a municipality a mortguge on certain property, the failure so to do is not excused by the fact .that the municipality neglected to construct a sewer in pursuance of an independent agreement, not a part of the contract relating to the mortgage.</p>

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

<p>Promissory Note Endorsed in Firm Name by One Partner for His Use —Acquiesence in Claim Against Partnership — Estoppel—Interest— Evidence.</p> <p>One of the two members of a firm made a promissory note payable to one H, which was endorsed by the maker in the firm name. This note was discounted by the defendant bank. The firm was subsequently dissolved and plaintiff", the other member of it, who had not made the note, continued his account with the bank. The note became due after the dissolution of the firm and the bank charged it to plaintiff’s account Plaintiff did not then object to the right of the bank to make such charge, and when his bank-book waS balanced he received this note as one of his vouchers. Plaintiff sued H and the other endorsers of the note and recovered judgment. Afterwards he brought this action against the bank alleging that the charge of the note against his account was wrongful. Held, that even if the note was not originally endorsed for the purpose of the partnership so as to impose a liability upon the plaintiff, yet since he had acquiesced in the bank’s action in charging the note to his account, and had obtained the same from the bank and sued the endorsers, he is estopped to claim now that the money was improperly charged to his account.</p> <p>A prayer is erroneous which assumes the existence of facts and takes from the jury the finding of the same, since they have the right to refuse fo believe evidence although it is uncontradicted.</p> <p>The allowance of interest on an open account is a matter within the discretion of the jury.</p> <p>Upon the trial of a case in one of the Courts in Baltimore City the original pap.ers in another case tried in another Court of said city are admissible in evidence without a transcript under seal of the docket entries therein, since such transcript is not required under the Act of 1898 ch. 123, sec. 388.</p>

<p>Construction of a Will Directing Trustees to Apply Income 'to the Support of Children — Disposition of Accumulated Income— Termination of Trust.</p> <p>A will directed the trustees, to whom certain property was devised and bequeathed, to apply so much of the rents and profits thereof as may be necessary and fully sufficient for the proper education and maintenance of the children of the testator and of their respective issue, until the period of twenty years after the death of the testator and the death of his wife at which time the trust was to terminate. The testator left surviving him a widow and three children and the trust was administered under the supervision of a Court of equity. A new trustee was . substituted in the place of those named in the will and he found that a .- considerable sum had been accumulated from income unexpended. Upon his application for directions as to the administration of the trust, held, that the whole income of the estate is to be treated by the trustee as a common fund, applicable to the education and maintenance of the children and of their issue, as forming one class of individuals, the amount to be applied to each to be determined from time to time by the trustee with the concurrence of the Court.</p> <p>■ Held, further, that the accumulated income, being a surplus not heretofore used for the maintenance of the children, does not form a part of the capital of the estate,' but is to be held by the trustee as income, so. that if at any time during the continuance of the trust that amount should be required for the -maintenance of the children and their issue it may be used for' that purpose as a common fund.</p> <p>A testator devised property to trustees with directions to apply the in- ' come to the support of testator’s children “until the expiration of the . period of twenty years after my death and the death of my wife, at which period” the property was made to vest absolutely in the children. By another clause of the will one-third of the testator’s real estate was given to his wife for life, and the trustees were directed to apply the income arising from that after her death also to the maintenance of his children. Held, that the trust does not terminate upon the death of the testator’s wife, in case that should occur twenty years after the death.of the testator, but it lasts until twenty years after the death of the testator’s wife, and although the trust may continue for more than fifty years it is not in conflict with the rule against perpetuities.</p>

<p> Right to Extra Stock Dividend as Between Life Tenant and Remaindermen. </p> <p>When the directors of a railway company pass a resolution declaring that the surplus net earnings of the company justify the payment to the holders of the capital stock of an extra dividend, and this is made payable partly in new shares of stock and partly in certificates of indebtedness, such shares and certificates are income and as such the property of a tenant for life of shares of stock in the company held under a deed of trust which directs the trustee to pay to the life tenant all the rents, issues, income and profits of the estate, with remainder after the life estate to other parties.</p>

<p>Legalized Primary -Election — Power of State Central Committee of a County to Change Date for Holding Primary Election Under Act of. 1904, ch. 603.</p> <p>The Act of 1904, ch. 603, provided that the primary elections of political parties in Anne Arundel County should be held under the direction of the Supervisors of Elections and that candidates tor public office should be nominated, and delegates to party conventions elected, under the provisions of that Act. Before the passage of the Act, according to the usage of the Democratic party, the State Central Committee for the county had the power to select the time for holding the primary election and the county convention and had the power to postpone or change a .time first appointed for holding a primary. On June 6th, 1905, the said Central Committee for that county issued a call for primaries to be held on July 22nd for election of delegates to a county convention to meet on July 26th, and nominate candidates for office to be ' voted for on November 7th. On account of vacancies in the Board of Election Supervisors and the failure to appoint the full number of election judges and clerks within the time prescribed by the Act, which was seven days after the issuing of the call, the said Central Committee for the county issued a new call for primaries to be held on August 12th, and a convention on August 15th. One faction of the Democratic party voted at primaries held on July 22nd, the date named in the first call, and another faction voted at the primary held on August 12th, the date named in the second call. Upon a petition by candidates nominated at the first convention for a mandamus requiring the Election Supervisors to place their names upon the official ballot as the duly nominated candidates of the party, held, that the Act of 1904, does not limit or restrict the power of the Central Committee for the county to change the time first fixed for holding primaries; that the change in this case was made by the committee in good faith and upon reasonable grounds, and the primaries of July 22nd and the convention of July 26th were not legally held, and therefore the petitioners are not entitled to have their names placed upon the official ballot, but the nominees of the convention of August 15th, are so entitled, if the primaries held uuder the postponed call were conducted in conformity with the Act of 1904.</p>

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

<p> Correction Upon Petition of Clerical Error in Order Ratifying Sale After Enrollment. </p> <p>In the order nisi and reports relating to a mortgage sale of land in Queen Anne’s County, the papers stated on their face that the proceedings were had in the Circuit Court for that county, but the final order ratifying the sale, erroneously, set forth that it was passed by the Circuit Court for Kent County, although this order was filed with the papers in the other Court. Both counties were in the same judicial circuit, and the Judge who signed the order was a Judge of both of the said Circuit Courts. The mistake was not discovered for ten years, when the heirs of the mortgagor filed exceptions to the sale and the purchaser, who had paid the purchase-money and who had been in possession, petitioned the Court to correct the error in the order of ratification. Held, that the misnomer was a mere clerical error, which should be corrected now in the presence of the Court, and the exceptions to the sale dismissed.</p> <p>A Court of equity has the power, upon petition or motion, to correct a clerical error in a decree or order after its enrollment, and this power of the Court to correct mistakes in its own proceedings at any time is not affected by Equity Rule 51, which provides that clerical mistakes in decrees or decretal orders may, at any time before the enrollment thereof; be corrected by order of the Court upon petition.</p>

<p>Appeal from the Circuit Court for Talbot County, where there was a verdict for the plaintiff for $10,000.</p>

<p>Ademption of Legacy — Jurisdiction of Orphans' Court to Determine Whether a Legacy had Been Adeemed by Payment in Lifetime of Testator — Erroneous Dismissal of Petition of Executor to Set A side Account.</p> <p>When a testator in his lifetime pays to a party the amount of the legacy given to him by his will, and such payment is intended to be in satisfaction of the gift, the legacy is thereby adeemed.</p> <p>Under the power conferred upon Orphans’ Court by Code, Art. 93, sec. 234, to direct the settling of accounts of executors, and to administer justice in all matters relating to the affairs of deceased persons, that Court is authorized to determine whether a legacy had been adeemed in the lifetime of the testator by the payment of the amount thereof to the legatee.</p> <p>After the passage of an executor’s account in the Orphans’ Court, by which a legacy of two hundred dollars was audited to a party in accordance with the will, the executor filed a petition asking that the account be set aside because the amount of the said legacy had been paid to the legatee in the lifetime of the testator in full satisfaction thereof. The legatee answered denying the payment. Held, that the Orphans’ Court should have set the case down for a hearing on evidence arid that it was error to pass an order, without taking any testimony dismissing the petition of the executor.</p>

<p>Constitutional Law — Authority of Legislature to Regulate Primary Elections of Political Parties — Property Qualification — Requirement of Fee From Candidates — Public Policy — Equal Protection of the Law — Jurisdiction oj Equity — Levy Oj Tax for Expense of Primary Election.</p> <p>The Genera] Assembly possesses all legislative power and authority except in such instances and to such extent as the Constitutions of the State and of the United States have imposed limitations and restrictions thereon.</p> <p>The General Assembly has the power to enact a law regulating the manner of holding primary elections to select candidates for office by one of more political parties, since there is no provision in the Constitution depriving it of that authority.</p> <p>The Act of 1904, ch 508, provides that the primary elections in Allegany County by the two leading political parties to select candidates to be voted for at ensuing State and Congressional elections, shall be held in a certain manner and imposed duties relating thereto on the Board of Election Supervisors. One section of the Act directs that each candidate for nomination shall pay to the chairman of his party a fee to be used for defraying expenses of holding the primary. Held, that the exaction of such fee is not the imposition of a property qualification upon candidates for public office.</p> <p>Held, further, that the Act is not invalid as against public policy or as contrary to fundamental principles of justice, since public policy, not founded in some Constitutional provision, cannot circumscribe the legislative authority, and nothing in the Act affects the life, liberty or property of the citizen.</p> <p>The said Act directs that all candidates for election nominated by the two parties having the highest number of votes cast at the last general election shall be nominated by the direct vote of the members of said party, and the party casting the highest number of votes at the last general election shall hold its primary election on the first Saturday of September, and the party casting the next highest number of votes shall hold its primary election of the first day of registration prescribed by law. Held, that neither because the Act fixes different days for the primaries of the two parties, nor because it applies only to two political parties and does not include others nor because under a dishonest administration of the law the nomination of the minority party may be postponed until a day or two before the election does the Act conflict with the Fourteenth Amendment of the Constitution of the United States relating to the equal protection of the law.</p> <p>The Act requires the Election Supervisors to provide, for the primary elections, the voting booths, ballots and other things which involve the expenditure of money. Under Code, Art. 33, secs. 2 and 5, the County Commissioners of a county are. required to pay the expenses incurred by Supervisors in the performance of duties imposed on them by law. Consequently the County Commissioners are required to make a levy ' to pay the indebtedness contracted by the Supervisors in discharging the duties prescribed by the Act of 1904.</p> <p>A Court of equity has no jurisdiction of a bill by a taxpayer to restrain the levy of a tax on the ground of the unconstitutionality of the law under which it is .made, when it appears that the amount of the tax imposed upon the plaintiff is only about 66 cents, since Code, Art. 16, sec. 102, provides that the Courts of equity in this State shall not hear or give relief in any cause or matter wherein the debt or damage does not amount to twenty dollars.</p> <p>After a levy has been made for the expense of holdings primary election and most of the tax has been collected, and the election has been held, it is too late, by a bill to restrain the collection of a tax, to ask a Court of equity to strike down everything which has been done under the apparent authority of the law authorizing the levy.</p>

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

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

Plaintiff’s 2nd Prayer. — If the jury shall find that Oldenburg & Kelly, defendants, undertook the construction and repair of certain houses on lots owned by them and that George Billings was employed in the construction and repair of said buildings and he submitted proposals for furnishing material for the same and accepted the proposal and estimate of the plaintiff for a portion of said material; and further that plaintiff declined to furnish said material upon the credit…

<p>Lease of North Side of a Building Held Not to Give Exclusive Right to a Bathroom on that Side— General Description Restricted by Special Clause.</p> <p>Plaintiff owned a large double house three stories in height, the entrance being in the middle, with a large storeroom on one side of the first floor to the north and another one to the south side. The rooms on the second and third floors were rented out for housekeeping and lodging, hallways running between the north and south sides. There was a bathroom at the rear end of the wall on the north side of the building, which was reached from a porch on the outside, access to the porch being had from the hall on the second floor. This bathroom had been . used by all the occupants in the house in common and was the only otte open to them all. The only other bathroom in the building had been constructed by an occupant of the rooms on the second floor on the south side for his own use, access to it was had through the rear room, and it had been used exclusively by the occupant of that room.</p> <p>, When such was the condition of the premises, plaintiff leased to the defendant, “the north side of the building known as, &c., consisting of a storeroom and five rooms on the second and third floors, together with access to the same through the hallways and porch, the storeroom to be used,” &c. Defendant, claiming the exclusive right to the use of the first-mentioned bathroom, because it was on the north side of the building, locked the same and deprived plaintiff and the other tenants of its use. Upon a bill for an injunction, held, that the general description of the “north side” of the building in the lease to the defendant does not convey an exclusive right to the bathroom, because that description is followed by words specifying certain rooms and thus restricting the general description,and that defendant should be enjoined from excluding the other occupants of the building from the use of the bathroom.</p>

<p>Injunction to Restrain- Trespass and to Remove Obstruction From Alley —Doubt as to the Plaintiff's Title — Allowing Improvements to be Made on Land Claimed Without Objection — Remedy at Law.</p> <p>An injunction will not be granted to restrain a trespass on land, or to require the defendant to remove his erections therefrom, when the plaintiff’s title to the land is disputed and is not free from reasonable doubt, and when no irreparable injury will be caused to plaintiff by a continuance of the alleged trespass.</p> <p>When the plaintiff’s title to an easement of way is denied and is involved in doubt depending as it does upon the construction of title deeds and the question of adverse user, a temporary injunction to restrain interference with the easement pending proceedings at law to establish plaintiff’s title will not be granted, unless the injury to the plaintiff from defendant’s obstruction of the way is likely to be ruinous or irreparable.</p> <p>A lot of ground was conveyed to plaintiff’s predecessors in title described as running to a three-foot alley and binding thereon in one of the courses, with the privilege of said alley in common and subject to the right of the owner of the adjoining lot to build over the alley. The owners of the adjoining lot had for more than fifty years maintained a structure over the alley; the only entrance to it was by a door which was kept locked, and a stairway leading to the second floor of the building on this adjacent lot covered the whole space of the alley a short distance from the door. One of the defendants became the lessee of this adjoining lot in February, 1881, and had since then had complete and visible control over the alley. Plaintiff allowed improvements to be made on this lot which covered the alley at that time, without making objection. In 1901 defendants erected a new building, which covered the alleged alley way, and when the same was about completed the plaintiff filed the bill in this case in June, 1901, alleging his right to the use' of the alley under the conveyance to his predecessor in title, and asked for an injunction restraining the defendants from closing the alley and require them to remove the building material therefrom. Held, that since the right of the plaintiffs to the use of the alley is doubtful and defendants’ title thereto by adverse possession appears to be valid, and since the plaintiff- with full knowledge and without objection stood by and allowed defendants to erect the building over the alley the injunction asked for will be refused, without prejudice to the right of the plaintiff to bring an action at law to establish his title.</p> <p>When a party who claims a right to use an alley in common with others, under an ancient deed, makes no use of it but allows the owners of the adjoining lot to close the alley and be in exclusive possession thereof for more than twenty years, and then suffers them, without making objection, to expend money in erecting a building over the alley, he is not entitled to the aid of a Court of equity to establish his right to the easement claimed, but is remitted to his remedy at law.</p>

<p>Passenger on Step of Electric Car Struck by Trolley Pole — No Evidence of Carrier’s Negligence.</p> <p>Plaintiff in boarding one of defendant’s electric cars had gotten on the lower step of the rear platform, facing the car, with his hands on the bars and a tin bucket on his left arm, when the car started. After it had gone about 136 feet the plaintiff’s head was struck by a trolley pole standing between seven and eight inches from the side of the car. Plaintiff’s right side was towards the direction in which the car was going when he got on, and he was struck on the left side of the head. When the car started the plaintiff, being within the alignment of the car, was in such a position that he could not have been struck by the pole, and there was no evidence that the starting of the car caused a change in his position. Held, that there was no legally sufficient evidence that plaintiff’s injury was caused by the negligence of the defendant in starting the car prematurely before the plaintiff had reached a position of safety.</p>

<p>Action of Criminal Conversation — Connivance of Husband a Bar — Evidence— Confession 'by Wife.</p> <p>Connivance on the part of a husband is a bar to an action for criminal conversation with his wife, and whether there has been such connivance is generally a question of fact for the jury.</p> <p>But when the conduct of the husband, as established by undisputed evidence or admitted in his own testimony, is such that a rational mind could draw no other conclusion therefrom than that he consented, actively or passively, to the illicit intercourse between his wife and the defendant, then the Court should withdraw the case from the jury and direct a verdict for the defendant.</p> <p>If a husband passively permits and consents to the commission of adultery b> his wife, it is as much connivance as an active conspiracy, and is a bar to an action of crim. con. ’</p> <p>The evidence in this case examined and held to establish that the plaintiff connived at the adultery of his wife with the defendant.</p> <p>In an action of criminal conversation a written confession of the adultery charged in the form of a recital of past events signed by the plaintiff’s wife, out of the presence of both plaintiff and defendant, is not admissible in evidence.</p>

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

<p>Parol License to Use Another's Land — Revocation—Rights of Purchaser-Notice from Possession of Land — Specific Performance— Injunction Against Tearing Down Building.</p> <p>When a bill for specific performance alleges that a defendant agreed to give certain land, that may be construed as alleging an agreement to convey, and a demurrer to the bill, on the ground that it alleges a mere promise to give, is properly overruled.</p> <p>A parol license given by the owner of one parcel of ground to the owner of an adjoining parcel to erect a wooden, structure partly on the former lot, creates no interest in the land, but is revocable, and a conveyance of the land belonging to the licensor to a purchaser without notice revokes the license.</p> <p>A permanent right to use the land of another cannot be created by a parol license, but such interest in land is required by the statute to be granted by deed.</p> <p>The rule that possession of land is notice to the purchaser thereof of the rights of the party in possession is only applicable to a case where the possession is under a claim of title to some estate in the land, which may be established by proof, and does not apply when the possession is under a parol license subject to revocation by the owner of the land, and which is in fact revoked by a conveyance thereof.</p> <p>When the owner of land allows another to expend money in the erection of a structure thereon under a parol license, he cannot revoke the same without making compensation. But the purchaser of the land without notice of the rights of the licensee may revoke the license without compensation.</p> <p>When a Court of equity has once acquired jurisdiction of a cause it will retain the same in order to do full and complete justice between the parties with respect to the subject-matter.</p> <p>A and B were the respective owners of lots with houses thereon, A’s house being about five feet from the dividing line between the two properties and B’s house about three feet from said line. A’s tenant was about to erect a wooden structure for use as a shop on his lot running up to the dividing line and back therefrom past the window of B’s dining-room when B orally agreed that if A’s tenant would not build in front of said window he might use the three feet of B’s lot and build over the same and against the wall of B’s house. The structure was made in accordance with this agreement. Afterwards B’s property was conveyed to the defendant, the deed making no reference to this easement. Upon a bill to restrain defendant from tearing down said structure on his lot and for specific performance of B’s alleged agreement to convey the said three feet covered by the structure, held, that since the evidence fails to show that B ever promised to convey the land, or that the agreement between the parties was anything more than a license to use the same, A is not entitled to demand a conveyance.</p> <p>Held, further, that the defendant should be enjoined from tearing down the structure until the plaintiff has a reasonable opportunity to remove the same from defendant’s lot without unnecessary injury thereto.</p>

<p>Master and Servant — Injury to Employee From Fall of a Wall of a Burned Building — Insufficient Evidence of Negligence — Assumption of Risks by an Employee — Concession of Prayer.</p> <p>In an action by an employee to recover from the employer damages for an injury caused by the fall of a wall of a burned building, while at work in the cellar, on the ground of defendant’s negligence in putting him to work in a dangerous place, the plaintiff must prove that the wall which fell was m a dangerous condition when he wras placed in proximity to it; that the defendant had knowledge of this dangerous condition before the injury, and that he, the plaintiff, was ignorant of the danger and by the use of proper care could not have discovered it before the wall fell.</p> <p>The fact that the wall of a building destroyed by fire falls a month after-wards is not in itself evidence to prove that the wall was then in a dangerous condition, in a case where there is nothing to show why it fell.</p> <p>The rule that an employee who contracts to do hazardous wqrk assumes the risk of injury from obvious dangers, of which he knows, applies to the case of a workman employed to remove goods from the cellar of a building destroyed by fire who is injured by the fall of a wall which the employer had no better .reason than he to think was dangerous.</p> <p>A conceded prayer whether right or wrong becomes the law of the particular case.</p> <p>After the destruction of a building by fire there were left standing some of the walls and a brick vault, about five feet square, extending from the cellar to a height of'about thirty-five feet, which presented the appearance of a square stack or chimney with iron doors opening into it at each floor. The cellar was divided into arched compartments . where canned goods had been stored. A month after the fire the defendant company was engaged in getting out these goods, by digging through the doors of the compartments, and plaintiff was employed as a laborer in this work, under a foreman of the defendant. A subordinate of the city building inspector, without making an examination of the premises and without designating any particular wall as dangerous, notified the foreman to take care of the walls if work was contined there. One of the walls was thereupon thrown down, but the vault stack was allowed to remain, and it seemed to be solid and secure. Afterwards, while the business of removing the debris from the cellar was in progress, the upper half of the vault stack toppled over and injured the plaintiff. In an action to recover damages for the injury, under a declaration alleging that the defendant put the plaintiff to work in a place known to be dangerous by the defendant and unknown so to be by the plaintiff, held, that the mere falling of the wall was not in itself evidence of the defendant’s negligence; that there is no evidence to show that the walls were in fact in a dangerous condition before the accident happened, or that the defendant had any reason to believe that they were unsafe, since they formed a square compact column, which had stood firmly for a month after the fire seemingly unaffected by it, and therefore there is no evidence that defendant put plaintiff to work in a place which he knew, or ought to have known, to be dangerous.</p> <p>Held, further, that the opinion of a witness that if the debris were removed the walls would fall, is only a speculation, because there is nothing to show either that the debris had been removed, or if removed to what extent it had been taken away, or what casual relation, if any, existed between its removal and the collapse of the wall.</p> <p>Held, further, that if it be assumed that there was evidence legally sufficient to show that the walls were in an unsafe condition when the plaintiff was put to work in the cellar, then, in the absence of any proof as to what caused them to fall, the means of knowing the danger incident to the work were as apparent to the plaintiff as to the defendant, and the plaintiff, being employed in a hazardous occupation, assumed the risk of injury from the possible collapse of a wall left standing after a great fire, when he must be presumed to have known that a gale of wind, or a vibration produced by the dynamiting of other walls in neighboring parts of the burned district, or a jar resulting from the fall of other walls in the vicinity, or the absorption of rain by the exposed mortar, might cause the wall in question to totter and fall.</p>

) ■ Plaintiff's 2nd Prayer. — That if the jury find from the evidence that the plaintiff was on the second floor of the store of the defendants in Baltimore City as a prospective purchaser for the purpose of buying shoes, and was at a counter containing shoes and had a pair of shoes in her hand, and walked to another counter close by and was there looking over other shoes, and Leo Seligman, one of the employees of the defendants, and acting as the agent and servant of the…

<p>Contributory Negligence — Driving Across Railway Tracks Without Stopping When the View is Obstructed.</p> <p>When a person attempts to drive across railway tracks at a crossing in the country of more than ordinary danger because the view is obstructed, without first stopping to look and listen, and is struck by a passing train, his failure to stop, look and listen is contributory negligence as matter of law.</p>

<p>Appeal from the Court of Common Pleas (Sharp, J.), where there was a judgment for the plaintiff for $1,800.</p>

<p>Appeal from the Circuit Court for Kent’County (Brown, J.), where there was a judgment for the plaintiff for $1,200.</p>

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

<p>Carriers — Starting Car While Passenger is Alighting — Contributory Negligence — Instructions to the Jury.</p> <p>A railway company which stops its cars to allow passengers to alight is under obligation to stop a sufficient length of time to enable them to alight in safety, and if a passenger is injured by reason of the failure of the company to observe this obligation it is liable for the injury. •</p> <p>Plaintiff’s evidence was that she was a passenger on defendant’s street railway car and began to alight therefrom after the car had stopped and while she was in the act of getting down from the foot-board to the street, the car suddenly started and she was thereby thrown down and injured. Defendant’s evidence was to the effect that the plaintiff began to alight after the car had started. Held, that if plaintiff’s evidence be found to be true defendant was guilty of negligence, and the trial Court properly refused defendant’s prayers, one of which asked the Court to rule that there was no evidence legally sufficient to entitle the plaintiff to recover, and the other to rule that the verdict must be for the defendant because the undisputed evidence showed that the plaintiff’s negligence contributed to the injury.</p> <p>Held, further, thai the jury should not be instructed that if they found that the plaintiff attempted to alight from the car while it was in motion and before it came to a full stop, the verdict must be for the defendant.</p> <p>It is not always, as a matter of law, negligence for a person to attempt to get off a car while it is in motion, but whether such attempt be negligence or not depends upon the circumstances of the particular case.</p>

<p>■Real Estate Broker's Right to Commissions When Lessee's Option to Purchase is Exercised — Limitations—Contract by Unlicensed Real Estate Broker.</p> <p>When a broker is employed by the owner of land to effect a sale, but instead of making a present sale procures a person who takes a lease with an option to buy within a certain time, and the owner of the land agrees that if the option is exercised by the lessee then the broker shall be entitled to commissions on the purchase price, the broker is entitled to recover the stipulated commissions when the sale is made under the option since he is the procuring cause thereof.</p> <p>In such case the broker’s right .to the commissions accrues when the option is exercised and not when the lease creating it was made, and consequently the Statute of Limitations begins to run against his claim from the former period and not the latter.</p> <p>Local Code, Art. 4, sec. 695, provides that real estate brokers in Baltimore City must obtain and pay for a license to carry on business, and sec. 696 imposes a fine for acting as a real estate broker without a license but does not declare invalid a contract made by an unlicensed broker. Held, that the object of the statute is to raise revenue and not to make illegal contracts made by a broker acting without a license, and consequently an unlicensed broker may recover compensation for services rendered by him.</p> <p>When under the agreement between the parties a real estate broker is entitled to commissions in case the lessee of property, who has been procured by him, exercises his option to buy the same, and the option is exercised and a part only of the purchase-money is paid, the broker is entitled to commissions at least on the amount paid.</p>

<p> Taxation of Landed Property in Annexed District of Baltimore City. </p> <p>Under the Act of 1888, ch. 98, by which certain adjacent territory was annexed to Baltimore City, it was provided that after the year 1900 the then county rate of taxation shall not be increased on any landed property within the said territory until streets or alleys shall have been opened and constructed through the same, nor until there shall be upon every block of ground so to be formed at least six houses ready for occupation. The Act of 1902, ch. 30, directed that this reference to streets shall be construed to mean until streets or alleys shall have been opened, graded and otherwise improved from kerb to kerb by pavement or other substantial material. A certain block of ground in the annexed territory was bounded on three sides by regular city streets paved and kerbed and on the fourth side by an alley graded and paved throughout its length with cobble-stones but without kerbs. This alley was graded and paved in the same way as many of the alleys of the city, where no sidewalks are used and where no kerbs are placed because not necessary. Held, that this block of ground is bounded by streets and alleys graded and opened within the meaning of the Act of 1902, and the fact that the paving of the alley was in bad condition and it was not kerbed does not prevent it from being considered as a boundary within the requirements of the statute, and consequently that landed property within this .block is subject after the year 1900 to the city rate of tax.</p>

<p>Corporations — Ultra Vires Contract — Guaranty by Railroad Company of Indebtedness of a Hotel Company — Part Performance of Void Contract — Estoppel.</p> <p>A contract by which a railway company, not empowered by its charter so to do, guarantees the payment of interest and dividends on the bonds and stock of a hotel company on the line of its road, is ultra vires and void; and it-makes no difference that the payment is called commissions on traffic receipts from and to certain stations.</p> <p>The fact that the hotel company expended money in the erection of its building upon the faith of such a guaranty does not estop the railway company to set up the defense that the contract is void.</p> <p>When a corporation has received money or property under an executory contract which is ultra vires, an action by the other party to the contract lies against the corporation to recover the money or property so received. In such case the action is not on the contract but to enforce ■ the obligation of the corporation to restore that which it obtained by its illegal action and to which it has no just title.</p> <p>A railroad company chartered to construct and operate a railroad, and authorized in addition to aid other companies in the construction of railroads, made a contract with a hotel company by which, in consideration of. the erection or enlargement of a summer hotel at a point on the line of the road, it was agreed that if, in any one year, the net earnings of the hotel company shall not suffice to pay a five per cent dividend on its capital stock, and interest on its first mortgage bonds, then the railroad company would pay to the hotel company for its stock and bondholders such commissions upon its. receipts from traffic to and from two stations near the hotel as will be sufficient to make up the deficit. For some years the railway company made good the insufficiency of the earnings of the hotel to pay the stipulated dividends and interest; and upon its refusal to make further payments for this purpose this action was brought on the contract to recover the amount of one year’s deficit. Held, that under the contract the full amount of the gross receipts from traffic from the stations, named was pledged as an absolute guaranty to the holders of the stock and bonds of the hotel company; and the agreement is not a contract for commissions on, or a rebate from, the gross receipts of these stations.</p> <p>Held, further, that this contract is ultra vires and void because the rail way company has no power under its charter to guarantee the payment of interest and dividends by a hotel company, and consequently no action lies against the railroad company on the contract.</p> <p>Held, further, that the performance of the contract by the hotel company in the erection of its building does not estop the railway company to set up the defense of ultra vires, since it has not received any money from the hotel company under the contract and is not withholding money received under a void contract.</p>

<p>Elections and Voters — List of Suspected Names — Leaving Summons at Residence as Given on Registry.</p> <p>Code, Art. 33, sec. 24, provides that when the object of a petition is to strike off from the registry of voters the name of any person alleged to be fictitious, deceased or disqualified, summons shall be issued to such person'and served at the place of his residence given in the registry. Held, that in the case of a suspected voter the statute provides for constructive notice of the petition to strike his name off, and the leaving of the summons at his place of residence, as given in the registry, is equivalent to the service of the summons at such place, although the voter has removed therefrom.</p> <p>Under Code, Art. 33, secs. 20, &c., a name upon the registry of voters suspected to be improperly there, because fictitious or because that of a person deceased or disqualified, may be stricken off without actual proof of disqualification in either one of two ways. (a) Any voter of a ward or county may appear before the Board of Registry and make " oath that he believes the specified person upon the registry is not a qualified voter, stating the grounds of such belief, and the name is then put upon the suspected list. (¿) When one of the officers- of registration himself suspects a name to be improperly on the registry the name shall be put upon the suspected list. Other provisions relate to the giving of notice to such persons and the erasure of their names from the registry after a certain procedure Held, that when a party' worker hands to an officer of registration a list of names as a list of suspected voters, the list not being verified by affidavit, and the officer of registration himself has no knowledge or belief as to the disqualification of such voters, but presents the list to the board of registration, it is no,t such a list of suspected voters as the board is.authorized to act upon under the statute.</p>

<p>Elections and Voters — Ccmstructive Service of Summons Upon Voter Suspected to be Disqualified.</p> <p>The house given upon the registry as the place of residence of a voter was destroyed by fire. His name was noted as that of a person suspected to be disqualified, and a summons was served by being deposited upon the vacant lot where this house formerly stood. Held, that this was a proper notice under Code, Art. 33, sec. 24, requiring summons in such cases to be served at the voter’s place of residence given in the registry.</p>

<p>Offer Under Seal of a Promise for an Act--Acceptance — Acknowledgment* of Indebtedness Under Seal — Agreement Between Endorsers as to Payment of Note — No Appeal from fudgment by Default.</p> <p>When there is an offer ynder seal of a promise for an act, the con tract is completed by the doing of the act, and it is not necessary that there should also be an acceptance under seal.</p> <p>Any instrument under seal whereby a debt is acknowledged to be owing obligates the party to pay.</p> <p>Four of the five endorsers of a promissory note signed and delivered an instrument under seal by which they requested the fifth endorser — the plaintiff — to pay the note at maturity, and agreed to refund the amount thereof in certain designated proportions within thirty days after such payment, and further agreed to pay pro rata within ten days additional the share of anyone of the obligors who should fail to pay his proportion. Plaintiff paid the note at maturity and hrought this action against one of the obligors to recover the amount due him, thirty days after the payment and before the expiration of the additional ten days. Held, that upon the payment of the note by the plaintiff a binding contract was made by the offer under seal, and no other acceptance of it by the plaintiff was necessary, and the action is properly brought oh the contract under seal.</p> <p>Held, further, that the action is not prematurely brought, since thirty days had elapsed after the payment of the note, and the action is not to recover the proportion owing by the defendant on the share of a delinquent obligor, but only for the specific sum he agreed originally to pay.</p> <p>A judgment by default is interlocutory and only establishes the right of the plaintiff to recover a sum yet to be ascertained. No appeal lies from such a judgment. In this case, where the appeal was from a judgment by default, but the whole case was argued, the Court determined the merits of the case before passing an order of dismissal.</p>

<p>Contract by the Trustees of a Lunatic Relating to His Estate — Specific Performance — Evidence.</p> <p>Specific performance of a contract by which the trustess of a lunatic agreed to charge his property with the payment of money advanced for his support will not be decreed unless it be established that the contract alleged was actually made, that if made it was one which the Court would have authorized at the time if had been in possession of all the facts and circumstances, and that the money sought to be recovcovered was advanced upon the faith of the contract.</p> <p>A bill alleged that the two trustees of a lunatic had received from a firm, of which one of the trustees was the managing director, a sum of money to be expended in the support of the lunatic under an agreement that his undivided interest in certain real and personal property should be made responsible for the debt. The bill asked that the agreement be declared to create an equitable lien upon such property ' and that the interest of the lunatic therein be sold and the proceeds applied to the payment of the debt. The contract was never reported to, or ratified by, a Court of equity, and one of the trustees, who was the said managing director, had wasted and misapplied a large estate belonging to the lunatic. Held, that the evidence fails to show that the alleged contract was made by the trustees with the firm.</p> <p>Held, further, that even if the contract had been made and the money-had been advanced on the faith of it, it would not have been authorized by the Court of equity having jurisdiction over the estate of the lunatic, if the trustees had made a full disclosure of all the facts connected with their management of the trust and of the condition of the estate at that time.</p>

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

<p>Motion to Dissolve Injunction — Answers—Dismissing Bill — Nuisance— Railway Siding in Front of Plaintiff's Property.</p> <p>When a motion to dissolve a preliminary injunction is granted upon hearing, the bill will be dismissed, and not retained for further proceedings, if it appear that the injunction is not ancillary but the principal relief asked for, and that there is no ground for issuing the same upon the merits of the case.</p> <p>A railway switch or siding in front of one’s property is not a nuisance per se, although it may become such from the mode of its construction or location or the manner of its use.</p> <p>An injunction to restrain the construction of a railway switch or siding alongside of a county road and passing in front of plaintiff’s property abutting on said road, was asked for on a bill alleging that the smoke, noise and danger arising from the operation of engines and cars on the siding will constitute a nuisance to the plaintiff, and to the public, by frightening horses, and depreciating the value of plaintiff’s property. There was no allegation as to whether the use of the siding would be frequent or otherwise, or as to how the smoke and noise would depreciate the value of plaintiff’s property, or seriously interfere with its enjoyment, and the proximity of the railway to the county road was not alleged to be a greater source of danger to plaintiff than to the public generally. Held, that the allegations of the bill are too indefinite to authorize the granting of a^preliminary injunction.</p> <p>Held, further, that since the testimony upon which the motion to dissolve the preliminary injunction was heard was as vague as the allegations of the bill, there being no evidence to show any diminution, present or prospective, in the value of the plaintiff’s property, nor as to how the smoke and noise will affect it, nor as to any danger to plaintiff from the operation of the road different from that of the public, and there being no actual obstruction of the county road, it was proper to dismiss the bill and not retain it for further proceedings.</p> <p>The rule that to authorize a motion to dissolve an injunction all of the defendants must have answered under oath has certain recognized exceptions. When one of the defendants, although a proper, is not a necessary party, and his answer would not be essential in regard to the facts on which the right to the injunction is founded, a motion to dissolve will be heard although his answer be not filed.</p> <p>Upon a bill against a railroad company and other parties to restrain the construction of a siding by these other parties under an agreement with the railroad company, the company is a proper but not a necessary party to the proceedings.</p>

<p>Infamous Crime — Violation of Federal Statute Relating to Pension Claims — Disqualification of Executor.</p> <p>Infamous crimes are those which evince moral turpitude, and those other offenses classified generally as crimen falsi, which impress upon their perpetrator such a moral taint that he is held to be unworthy of credit and incompetent to testify.</p> <p>The mere fact that the violation of a statute is punishable at the discretion of the Court by imprisonment in the penitentiary does not make the offense an infamous crime at law.</p> <p>The Act of Congress of June 27th, 1890, prohibits any pension agent from receiving a larger sum than ten dollars for prosecuting a pension claim, and directs that the violation of the statute shall be punished by a fine, or by imprisonment at hard labor in the discretion of the Court. Held, that the violation of this statute does not involve the degree of moral turpitude requisite at common law to make the transgression an infamous crime.</p> <p>Code, Art. 93, sec. 51, provides that if a person named as executor in a will shall have been convicted of any crime rendering him infamous according to law, administration may be granted in the same manner as if such person had not been named in the will. Held, that a person appointed as executor is not disqualified because he had been convicted of a violation of the Federal statute relating to charges for prosecuting pension claims and sentenced to imprisonment therefor, since that statutory offense is not an infamous crime at common law.</p> <p>Although the offense of which the party was convicted in a Federal Court may be infamous according to Federal jurisprudence, yet in the Courts of this State that offense will not be regarded as infamous, so as to disqualify the party convicted, the same not being infamous according to the jurisprudence of this State.</p>

) Plaintiffs' 2nd Prayer. — If the jury shall believe from the evidence that the whole amount of grain called for by the contract between the parties in this action, which has been offered in evidence was not in fact shipped on the “Indore” on the voyage mentioned in the evidence, then the plaintiff is entitled to recover under the pleadings in this case the market value in Liverpool on the day when the rest of the corn was delivered of so much of said whole amount as they…

<p>Equitable Conversion of Really into Personalty — Invalidity of Mortr gage by Devisee of Interest in Land Directed by Will to be Sold.</p> <p>When a testator manifests a clear intention that his real estate shall be sold and converted into money, it is in equity generally treated as so converted from the time of his death, in the absence of a provision in the will postponing the time of conversion.</p> <p>In order to create such conversion it is not necessary that the direction to sell the real estate be imperative in terms. If a power of sale be given and the provisions of-the will cannot be carried out unless there be e sale, then the power to sell is equivalent to an express direction to sell, and the conversion takes place.</p> <p>A mortgage by a devisee of his share in real estate, which was converted by the will into personal property because directed to be sold, is invalid and creates no lien on .the land.</p> <p>A testator, who left surviving him eight children, bequeathed five hundred dollars to a grandchild and directed that the balance of the estate be divided share and share alike between his children. The will appointed executors with full power to sell and convey all the property real and personal. Testator’s estate consisted of three parcels of land and personal property which latter was in itself insufficient to pay debts and the legacy. The real estate was not susceptible of equal division among the children and a sale was necessary for the purpose of paying the debts as well as for a division. Held, that the testator’s intention was that his executors should sell all the real estate and divide the proceeds among his children after the payment of his debts, and that consequently the real estate will be treated in equity as personal property from the time of his death.</p> <p>Held, further, that a mortgage by one of the testator’s children conveying his interest in the real estate, executed before the sale thereof, creates no lien on the land because the mortgagor had no interest therein.</p>

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

<p> Exceptions to Mortgage Sale by Minority Stockholders of Corporation . Mortgagor. </p> <p>The ratification of a sale of land under a mortgage made by a corporation was excepted to by two stockholders owning one-eighth of the shares of stock. The corporation itself and the holders of the remaining seven-eighths of the shares of stock desired the sale to be ratified. There was no allegation that the directors of the corporation had been guilty of fraud or any ultra vires act, but it was alleged that the price obtained at the sale was inadequate and the mode of conducting it disadvantageous. Held, that these minority stockholders are not authorized to except to the ratification of the sale. .</p>

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

<p>Suspension of Statute of Limitations in Favor of Creditor’s Claim Against Real Estate of a Decedent — Recovery for Services Rendered a Decedent.</p> <p>Under Code, Art. 57, sec. 8, when a decedent’s personal property is insufficient to pay his debts, and there is a proceeding against his real estate to enforce payment, the Statute of Limitations is suspended in favor of the creditors for the period of eighteen months from, the death of the decedent. The creditor’s bill in this case against the real estate of an intestate debtor was filed in September, 1904. The intestate died in May, 1900, having made a new promise as to plaintiff’s claim in the preceding month. Held, that the Statute of Limitations prescribing three years as the time within which to bring suits on contracts having been suspended for eighteen months, it is not a bar to the claim.</p> <p>Upon a bill in equity by a creditor against the heirs of an intestate to enforce a claim for services rendered the decedant in boarding, lodging and nursing him for several years until his death in 1900, held, that the evidence shows that the decedent lived with, and was cared for by, the plaintiff from 1896 until the date of his death ; that he promised from time to time to pay the plaintiff and that the plaintiff expected to charge for her services, and that consequently plaintiff’s claim is enforceable.</p>

<p>Bill of Review in Lower Court After a Decree in Conformity with Opinion of Appellate Court — Newly Discovered Evidence Insufficient to Aiithorize Bill of Review — Appeal.</p> <p>When the Court of Appeals has remanded an equity cause to the lower Court with directions to make a decree in conformity with its opinion and such a decree has there been entered, a bill of review upon the ground of material evidence discovered since the passage of the decree, may be filed upon leave granted by the lower Court.</p> <p>The executor of a married woman filed a bill against her husband alleging that he had received from her certain sums of money, which he had promised to invest for her, sp that it should become part of her estate upon his death. The defendant alleged that the money had been given him as an absolute gift. It was adjudged upon appeal that the money belonged to the estate of the wife and a decree was made accordingly. After the death of the husband, his executor petitioned for leave to file a bill of review on the ground of newly discovered evidence, showing the exact investment made by the husband of the money received by him from his wife, and asked that this investment be restored to the estate of the married woman, instead of a decree for the payment of a sum of money. Held, that leave to file the bill of review was properly refused, since the facts relied on were known by the husband, and his failure to remember them does not entitle his executor to treat them now as newly discovered evidence, and thus enable him to set up a different defense from that made by the husband and to discharge a money decree by surrender of securities held in his own name, and which have declined in value since his purchase of them.</p> <p>Quaere. Whether an appeal lies from an order refusing leave to file a bill of review.</p>

<p>Remand of Equity Cause — Further Proceedings in Conformity with Opinion of Appellate Court — Interest.</p> <p>The Court of Appeals in its opinion on an equity appeal stated that the amount due to the plaintiff by the defendant should be ascertained as being $29,000, and passed a decree remanding the cause to the lower Court to the end that further proceedings might be had in conformity with the opinion of the Appellate Court. The lower Court thereupon made a decree for the payment of the sum of $29,000. Code, Art. 5, sec. 36, authorizes.the Court of Appeals either to nass a final decree or-to remand a cause for further proceedings. Held, that the opinion of the Court of Appeals declared that the plaintiff was entitled not to an accounting but to a money decree for $29,000 ; that it makes no difference whether the formal mandate for such payment is found in a decree of the Appellate Court or in a decree of the lower Court passed upon the remand of the cause, and that the passage of the said decree by the lower Court was a further proceeding in strict conformity with the decree of the Court of Appeals.</p> <p>It was adjudged that a husband had received certain property from his wife to be invested in her name and that he was to be entitled to the income therefrom during his life. The cause in which this ruling was made had been defended by the husband and afterwards by his executor upon the ground that the wife’s property had been transferred to the husband as an absolute gift. The final decree directed the payment of a definite sum which was held to be the value of the property received by the husband. Held, that interest on this sum should not be allowed from the date of the husband’s death but only from the date of the decree.</p>

<p>Criminal Law — Limitations—False Pretenses— Witness Not on List Furnished by State’s Attorney — Obtaining Check on Bank by False Pretenses is Obtaining Money.</p> <p>The offense of obtaining money by false pretenses is a misdemeanor to be punished at the discretion of the Court by fine or imprisonment, or by confinement in the penitentiary: Code, Art. 57, sec. xi, provides that no prosecution for any penalty or misdemeanor, except those punished by confinement in the penitentiary, shall be commenced unless within one year from the time the offense was committed. Held, that since the offense of obtaining money by false pretenses may be punished by confinement in the penitentiary it is not within the Statute of Limitations.</p> <p>On a trial for false pretenses the State may call other witnesses than those whose names have been given to the defendant, uuder Code, Art. 27, sec. 440, which provides that a party indicted for false pretenses shall be entitl.ed to apply to the State’s Attorney before trial for the names of the witnesses' and a statement of the false pretenses to be given in evidence.</p> <p>An indictment for obtaining $1,800 current money is supported by evi dence that a check for that sum was given to the defendant and that he obtained the money by means thereof.</p>

<p>Specific Performance — Inability of Vendor to. Convey Title Within a Reasonable Time — Rescission by Municipality of Contract. to Buy Land.</p> <p>In a contract for the sale of a tract of land to a municipality for a reservoir site, which both parties understood to be urgently needed, time is of the essence, and the vendor is not entitled to specific performance of the contract when he fails to perfect his title to part of the land until several months after the time fixed by the contract for the conveyance.</p> <p>When a purchaser has rescinded a contract to buy land on account of the delay of the vendor to acquire title thereto for several months after the time stipulated for making the conveyance, such rescission being justified by the delay, the fact that the vendor afterwards acquires title and offers to convey does not operate to revive the contract.</p> <p>Certain municipal officials accepted an offer from C to sell a certain tract of land containing 114 acres to be used as a reservoir site for storing water. C offered 92 acres of the tract as holder of an option for its purchase from certain trustees, and the remainder he offered as the agent of two different owners C’s offer stipulated that the purchase-money should be paid within sixty days from its acceptance, subject to the allowance of further reásonable time for the examination of the title to land. This contract with the city was made in May, 1903. When the trustees from whom C had agreed to purchase the 92 acres reported the sale to the Court of equity in which their trust was being administered, exceptions were filed and the sale was set aside. In July, 1903, the municipality notified C that they repudiated the acts of the officials in accepting his offer; and in January, 1904, a municipal ordinance was passed repealing the contract. In August, 1904, C made another contract with the trustees owning the 92 acres by which he became entitled to convey the same, and afterwards the bill in this case was filed by C and the other two vendors asking for specific performance of the contract made in May, 1903, to purchase the land. Held, that, assuming the validity of the original contract to purchase and that it could not be rescinded by the city, yet that contract required the land to be conveyed and the payment to be made within sixty days; that C had a reasonable time thereafter in which to perfect his title, and having failed to do so for more than a year, and time being of the essence of this contract, the plaintiffs are not entitled to specific performance and the municipality was authorized to rescind the contract.</p> <p>Held, further, that the city was not a party to the agreement of August, 1904, by which the trustees were authorized to sell the 92 acres to C, and that agreement affords no ground for the relief sought in this case.</p> <p>Held, further, that since the contract was an entire one for the purchase of 114 acres from three different parties, and no conveyance could be made of 92 acres within the stipulated time, the other vendors are not authorized to ask for performance of the agreement to purchase the remaining portions of the tract.</p>

<p>Specific Performance — Contract by Three Vendors of Adjoining Tracts — Failure of Title as to One.</p> <p>When the owners of three adjoining tracts of land make a contract to sell them as a whole to a city for a reservoir site, and the city does not intend or agree to buy any one tract separately, then, if the title to one of the tracts is not perfected within the time agreed upon, the other vendors are not authorized to enforce performance of the contract to purchase their portions of the land.</p>

<p> Regulations of Stock Exchange —Sale of Seat for Debts of Member. </p> <p>Under the Constitution and by-laws of the Baltimore Stock Exchange, a voluntary, unincorporated association, the seat of a member in the exchange may be sold by it, and the prqceeds of the sale applied to the payment of his debts to other members of the exchange, to the exclusion of other creditors of such member. ' A and B were partners in the stock brokerage business. B was elected a member of the Stock Exchange and A furnished the money for the purchase of a seat or membership, which was placed in B’s name. As the result of his individual transactions, and not those of the firm, B became indebted to other members of the exchange, and a sale of his seat was threatened in order to liquidate this indebtedness. A then filed the bill in this case alleging that the seat was his property, by way of resulting trust, and had been put in the name of B merely for convenience and asked that the sale be restrained. Held,, that the right to the seat in the exchange was subject to the provisions of the constitution of the exchange, and under these provisions the seat being in the name of B is liable primarily for his debts to other members of the exchange, and it makes no difference that these members knew that B’s partner had bought the seat for him.</p>

<p>fihlls — Caveat—New issues.</p> <p>Upon the trial of a caveat to a will, the verdict of the jury determined that the will was executed according to the requirements of the statute; that it was executed by the testator when he was of sound and disposing mind and capable of executing a valid contract; that the contents of the will were read to, or by, him and known to him at or before the time.of its execution; that no part of the will was unknown to or misunderstood by the testator at the time of its execution, and that the execution of the will was not procured by undue influence exercised upon him. Subsequently the caveators petitioned the Orphans’ Court to submit two additional issues for trial, alleging, first, that the paper writing purporting to be the same testator’s will was and is not his last will because its execution was procured by fraud practiced upon him, and, second, that the provisions of the will do not carry out all the material and important intentions of the testator as given by him to its draftsman. Held, that the caveators are not entitled to have these two issues tried by a jury since these were substantially embraced in the issues already determined, and the matter is therefore res adjudicata.</p>

<p>Corporations — Subscriptions to shares of stock before payment of bonus tax — Ratification—Non-Payment of franchise tax- — Forfeiture of charter — Liability of stockholders of trust company to creditors.</p> <p>Under Code, Art. 81, sec 88F, a corporation is not authorized to carry on business or to do any act until the bonus tax upon its shares of stock be paid. Certain parties subscribed to shares of stock in a corporation before the bonus tax was paid, but they accepted dividends from the company after payment thereof. Held, that the acceptance of the dividends was a ratification of the subscriptions after the corporation was authorized to act, and these parties are to be treated as stockholders.</p> <p>A corporation chartered in 1896, was organized in 1899 and carried on business, paying dividends to its stockholders, until 1903, when it became insolvent. The corporation did not pay to the State the franchise tax as directed by the Act of 1900, Chap. 272, (Code, Art 23, Secs. 85A and 85C.) These sections provide that all corporations previously chartered which have not, within two years from the date of their charters, actually organized, shall be conclusively presumed to have surrendered all corporate or charter rights, unless within the six months from June 1st, 1900, each of said corporations shall pay to the Treasurer of the State a franchise tax of a certain amount; and that the State Tax Commissioner shall assess said franchise tax upon the several corporations required to pay the same. Held, that the forfeiture of the charter for non-payment of the franchise tax is not a self-executing provision, but it can only be declared and enforced bv the State, and hence, in a suit by the creditors of a corporation against stockholders the latter can not rely upon the defense that they are not stockholders because, by non-payment of the franchise tax, the corporation ceased to exist on December 1st, 1900.</p> <p>Under Code, Art. 23, sec. 85L, each stockholder of a trust company is made liable to depositors and creditors “for double the amount of stock at the par value held by such stockholder in such corporation.” Held, that stockholders are liable for twice the par value of the stock held by them in addition to their payment to the corporation of the amount of their subscription for the stock.</p> <p>Under Code, Art. 23, sec. 85L, making stockholders in a trust company liable to depositors and creditors of the corporation, the stockholders are not liable to creditors who became such prior to the time they acquired their shares of stock. The stockholders are only liable to creditors whose debts were contracted while they were stockholders.</p>

<p>Trusts — Power of Equity Court to Designate the Banks m Which Trustees Should Deposit Funds — Appeal.</p> <p>When a Court of equity has assumed jurisdiction over the managment of a trust estate, that Court has the right to designate the banks in which the trustees should deposit the current funds of the estate.</p> <p>The orcler of a Court of equity designating the banks in which trustees should deposit the funds of an estate, there being administered, is discretionary in its nature, and no appeal lies therefrom.</p>

<p>Liability of Parties Aiding a Trustee in Misappropriating the Trust Property — Jurisdiction of Equity — Payment of Proceeds of Sale of Trust Property to one of two Trustees Individually — Limited Partnerships — Stock Brokerage Business — Liability of Special Partner to suit in Equity with General Partner After Dissolution of Limited Partnership — Assumption of Liabitiiies of one Firm by a New Partnership.</p> <p>Those who aid a trustee in his misappropriation of the trust funds become themselves trustees of the diverted property, and are liable therefor in a Court of equity, because by becoming trustees ex delicto they have brought themselves within the jurisdiction to which the original trustee was amenable.</p> <p>When a testamentary trustee has been removed because a defaulter and a substituted trustee appointed in his place, the new trustee is authorthorized to maintain a suit in equity against parties who knowingly participated with the defaulting trustee in his misappropriation of the funds of the estate.</p> <p>A Court of equity in which a trust estate was being administered ordered a sale of certain shares of stock in different corporations, the certificates of which stood in the names of two testamentary trustees. The defendants, a firm of stock brokers, with full knowledge of the trust estate’s ownership of the shares, sold them, and paid the proceeds by check to one of the trustees individually, and not as trustee, and he converted the proceeds to his own use without accounting to his co-trustee or to the trust estate therefor. Upon a bill by a substituted trustee to recover the sums so paid by the defendants, held, that the de- ' fendants are liable to make good to the trust estate the amount which they thus aided the trustee in misappropriating.</p> <p>Held, further, that this liability is enforceable by a bill in equity and the substituted trustee is not remitted to an action at law.</p> <p>Under Code, Art. 73, sec. 1, authorizing the formation of limited partnerships for the transaction of any mercantile, mechanical, manufacturing or banking business within the State, such a partnership may be formed for carrying on the business of stock brokers since that is a mercantile transaction.</p> <p>Code, Art. 73, sec. 4, requires the certificate of a limited partnership to be recorded in the office of the Clerk of the Superior Court if the principal place of business of the partnership be in Baltimore City. Held., that a limited partnership, when the certificate was there recorded, is not converted into a general partnership merely because its principal office is without the State, when its principal place of busines within the State was located in the city where its certificate was recorded.</p> <p>Code, Art. 73, sec. 2, provides that a special partner in a limited partnership shall not be liable for the debts of the firm beyond the amount of his cash contribution to the capital; and sec. 19 directs that all suits respecting the business of the partnership shall be brought by and against the general partners only. Held, that the provision in sec. 19 must be construed to apply to suits brought while the firm is a going concern and to suits brought after its dissolution but while the special partner’s cash contribution still forms part of the assets, or has been wholly absorbed in the liquidation of debts due by the firm.</p> <p>While a limited partnership was in existence the firm aided a trustee in converting to his own use the trust property and thereby became liable to make good the loss to the trust estate. Afterwards the firm was dissolved and the special partner’s contribution to the capital was restored to him in full. Held, that the special partner may be sued in equity jointly with the general partners to enforce this liability of the limited partnership.</p> <p>A firm of stock brokers became liable to restore to a trust estate the amount they had aided the trustee in misappropriating to his own use. Upon the dissolution of this firm a new one -was formed which assumed all the liabilities of the former. Held, that the liability of the first partnership to the trust estate was an obligation assumed by the new firm, and also that both firms can be held therefor.</p> <p>When a trustee, who is directed by an order of Court to sell certain shares of stock at the public stock board, sells them at private sale, the purchaser takes the shares impressed with the same trust to which they were subject in the hands of the trustee.</p>

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

<p>The cause was submitted to the Court on briefs by:</p>

<p>Negligence — Collision Between Vehicles on Country Road on a Dark Night — Questions for the Jury.</p> <p>Defendant’s large, heavy wagon, drawn by three horses abreast, with the single trees projecting beyond the hub on either side and the outside horses going outside the wheel tracks, was being driven along a much travelled country road on a dark winter evening, when it collided with plaintiff’s one-horse buggy. At the point of collision all of the roadbed, which was about twenty-nine feet wide, could be used, but defendant’s wagon was being driven so far to the driver’s left that plaintiff, who was coming from the opposite direction and driving to her right, did not have space to pass between the wagon and a fence to the right. There was no light'on defendant’s wagon, and after perceiving its proximity, plaintiff did not have time to avoid the collision. ' Both drivers were well acquainted with the road. Held, that there was sufficient evidence of negligence on the part of the defendant to be submitted to the jury, and that the jury was also properly instructed that the burden of proof was upon the defendant to show that plaintiff’s negligence contributed to the injury.</p>

<p>Bills of Lading — Condition Requiring Surrender of Bill Before Delivery of Goods — Assignment Bill by Holder After Receiving the Goods — Fraudulent Alteration of Bill of Lading— Transfer of Altered Bill — EstoppeL- Usage.</p> <p>When a non-negotiable bill of lading issued by a carrier provides that the surrender of the bill, properly endorsed by the consignee, will be required before delivery of the goods, then if the carrier does make delivery of the goods without requiring the surrender of the bill, that is an act of negligence as against a subsequent assignee for value of • the bill of lading ; and the carrier is liable to such assignee for the loss occasioned by his taking the bill as being a representation by the carrier that the goods are still in his possession.</p> <p>But when the holder of such a bill of lading obtains possession of the goods without surrendering the bill, and afterwards fraudulently alters the date of the bill, and assigns the same for value, the alteration renders the bill null and void and the carrier is not liable thereon to the assignee. And the neglect of the carrier to demand a surrender of the bill of lading does not estop it to set up the defense against the assignee that the bill was made void by the alteration.</p> <p>A condition in a bill of lading that any alteration, addition or erasure in the bill which shall be made without the special notation thereon of the agent of the carrier issuing the bill shall be void, cannot be construed to relate to a fraudulent alteration in the bill made after it was issued, and does not change the rule of law that a fraudulent material alteration of a written contract avoids it even in the hands of a bona fide assignee for value.</p> <p>The rule that where one of two innocent persons must suffer by the wrongful act of a third, he must bear the loss who put it in the power of the third person to do the wrong, has no application to a case where the third person has fraudulently altered a commercial instrument issued to him by one of the parties. In such case the assignee of such altered instrument acquires no rights thereunder.</p> <p>A steamship company issued bills of lading for cotton received from different shippers;, the goods being consigned to the orders of the several shippers with directions to notify M. Each bill was declared on its face to be non-negotiable and contained these provisions : “If the word ‘order’ is written immediately before or after the name' of the party to whose order the property is consigned without any condition other than the 'name of a party to be notified of the arrival of the property, the snrrender of the bill of lading properly endorsed shall be required before the delivery of the property at destination.” Also that if the cotton described in bills should not be called for within twenty-four hours after arrival it would be stored by the carrier at the expense of the owners. These bills of lading, endorsed in blank by the shippers, were transferred to M. and he obtained/ delivery of the cotton they represented without surrendering the bills to the steamship company as required by the above mentioned condition. Afterwards M fraudulently altered the dates of the bills and pledged them with the plaintiff .bank as collateral security for loans. In an action by the bank against the steamship company held, that the bills of lading were non-negotiable instruments and the bank as assignee thereof took them subject to the equities existing between the parties.</p> <p>Held, further, that the alterations in the dates of the bills of lading were material and rendered them wholly void, and consequently the bank acquired no rights by the assignment of such void instruments.</p> <p>Held, further, that the steamship company is not estopped to make this defense by reason of its failure to require the surrender of the bill, since the proximate cause of the loss to the bank is not the neglect of the carrier but the. wrongful act of the holder of the bills.</p> <p>Evidence of a usage to change or alter dates on bills of lading at the time of and prior to the issue thereof whenever necessary to makes the dates upon the bills presented to the carrier for issue conform to the true date of the issue, is not admissible to affect the rights of parties when the . alteration of the bill of lading is fraudulently made by the hplder after the issue thereof.</p>

<p>Bills of lading — Assignment for value — Liability of Carrier, who Delivers Goods Without Requiring Surrender of Bills of Lading— Action of Tort.</p> <p>One M. was the holder of certain non-negotiable bills of lading for cotton issued by the defendant company as carrier, the bills providing that they must be surrendered before the goods would be delivered, with the endorsement of the consignees. M. contrived to get possession of the cotton without surrendering the bills, which had been endorsed to him, and afterwards he assigned them to the plaintiff as collateral security for loans then made to him, or in exchange for other bills of lading or warehouse receipts for other loans already made. Held, that since the negligence of the carrier induced the plaintiff to make advances upon the faith of the bills of lading, the plaintiff is entitled to recover the amount of his loss.</p> <p>When a party in consideration of the assignment of a bill of lading sur- ' renders other bills or commercial instruments held by him as collateral security for a loan, he is an assignee for value of such bill of lading.</p> <p>When a bill of lading provides that it must be surrendered before delivery of the goods, the carrier owes a duty to all persons dealing with the bill not to deliver the goods without requiring its surrender ; and if by reason of a breach of this duty, a party is induced to take a bill of lading of goods already delivered, he is entitled to maintain an action of tort to recover the damage thereby caused. Such action lies in the name of the assignee of the bill and is not an action ex contractu or dependent upon the negotiability of the bill of lading.*</p>

), where there was a judgment for the plaintiff for $5,000. Defendant's 2nd Prayer. — That there has been no evidence introduced legally sufficient to prove that there was any permanent diminution in the value of plaintiff s lot by running of defendants’ train, or that the plaintiff suffered any loss or damage from the alleged diminution in the value of his lots between the time of the construction of defendants’ railroad and the time of bringing this suit and therefore the…

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

<p> Insufficient Averments of Bill to Remove Cloud from Title. </p> <p>An injunction to remove a cloud from plaintiff’s title to land, created by defendant’s claim of title and interference with the land, will not be granted when the bill fails to show distinctly that the plaintiff not only has the legal title but is in actual possession, or that his title has been established at law, or that any irreparable injury will be occasioned by the acts of the defendant, and when it appears that the question of ownership — in this case of land formed by accretion- — is not clear; but depends upon the determination of questions of law and fact, peculiarly within the province of a Court of law.</p>

<p>Construction of a Deed of .Trust — Charges Upon an Equitable Dife Estate.</p> <p>A deed of trust conveying property after reserving an equitable interest therein for life to the grantor, provided that upon her death the trustee should hold three-fourths interest in the estate for three of the grantor’s children, discharged from the trust, and hold the remaining one-fourth interest in the estate in trust for the benefit of the grantor’s son Howard, paying to him the income thereof during his life, and upon his death leaving children that share to vest in them absolutely and if he die without issue then the remainder over to other parties. The deed further directed that upon the death of the grantor an account should be taken of all sums advanced by her or by her husband to any of the four children, and that these sums should be a “charge upon the share of such child or children respectively;” also that the share oi Howard should be charged with the sum of $1,700 in favor of a brother for the money advanced by the latter. Held, that the sums directed to be charged against the share of Howard are charges upon his equitable life estate only, and not on the entire one-fourth interest in the property, held in trust for him for life with the remainder over.</p> <p>Held, further, that the sum of $1,700 charged upon the share of Howard in favor of his brother has no priority over the other charges on his share for advancements from the grantor.</p>

<p>Extrinsic Evidence in the Construction of a Will — Competency of Witness— Gift to Widow of Dower and Thirds in Residuary Estate— Direction for Valuation of the Estate by Agreement between Widow and Testamentary Trustee — When Land may be Sold Discharged from Dower — Waver of Right to Have Dower Assigned.</p> <p>Evidence of declarations of a testator as to the meaning of the words used by him in his will is not admissible to aid or control in its construction when the will is in itself free from ambiguity or uncertainty.</p> <p>Under Code, Art 35, sec. 3, in a proceeding by or against executors, devisees or legatees of a testator, his widow and legatee is not a competent witness to testify as to statements made by the testator as to the meaning of words used in his will.</p> <p>When a testator gives to his wife “dower and thirds” in the residue of his estate, the words are to be construed in their ordinary technical meaning, and the wife takes a life estate in one-third of the residuary real estate and one-third, absolutely, of the residuary personal property.</p> <p>A testator d'evised and bequeathed equal shares of the rest and residue of his estate to his seven children, to three of them directly and to a trustee for the other four, and declared that each share shall be “subject to the dower and thirds of my wife in said rest, residue and remainder.” The will further provided that if the testator’s wife should be willing to capitalize -and convert her dower and thirds and receive the value thereof according to the standard of Courts of equity then the trustee was authorized to agree with her for such capitalization, and set apart to her property equal to the agreed capitalization of her dower and thirds. Upon a bill for the administration of the trust in a Court of equity, and for a division of the residue of testator’s estate, the widow consented to the assumption of jurisdiction and declared her willingness to free the residue of the estate from her dower right after an agreement with her as to the capitalization and as to the construction of the devise to her. Held., that it was the intention of the testator that if his widow should consent to the conversion of her dower, either before or after the division of the estate, upon a valuation agreed upon by her and the trustee, then she should be entitled, to receive as her absolute property, in lieu of dower in the real estate, not more than one-seventh nor less than one-tenth of the Value of the real estate, according to her age, health and condition, payable in money or in property at an agreed valuation, and that she should be entitled to re-receive in satisfaction of. her one-third in the personal property, one-third in value thereof, payable in money or in property; and that for the purpose of effecting such conversion, the trustee should have the power under a decree to sell any of the property of the testator free from the widow’s claim to dower and thirds therein.</p> <p>Held, further, that if there be no agreement with the widow as to the value of the property as a basis for capitalization, then the Court has no power to direct a sale of the land free from her dower, since neither her consent to the assumption of jurisdiction over the administration of the trust, nor her declaration of willingness to free the residue from her dower after the construction of the words dower and thirds, can be regarded as a waiver of her right to have her dower assigned, but in case of a failure to agree there must be an assignment of her dower to . the widow.</p> <p>When a widow is entitled to dower in land a Court of equity has no power without her consent to direct a sale of the land free from her dower aud the payment to her of a sum of money from the proceeds in lieu thereof, but she is entitled to an assignment of dower in the land.</p>

<p>Practice Act of Baltimore City — Filing with Declaration the Writing by which Defendant is Indebted.</p> <p>A declaration alleged that a mortgagor had convenanted with the mortgagee and assigns to pay the mortgage debt ; that the plaintiff was an assignee of the mortgage ; that the defendant K. was the real owner of the equity of redemption and in consideration of plaintiff’s forbearance to foreclose, guaranteed payment of the mortgage debt, that plaintiff did forbear and upon subsequent foreclosure there was a deficiency, to recover which this suit was brought. The action was under the Practice Act of Baltimore City, by which it is provided, (Local Code, Art. 4, secs. 312, 313) that if there shall be filed with the declaration any paper purporting to be signed by any defendant the genuineness of such signature shall be deemed to be admitted for the purposes of the cause unless the defendant shall state under oath that such signature was not written by or by the authority of the person whose signature it purports to be ; also that the plaintiff shall not be entitled to judgment under ' the Act, unless he shall file with the declaration the writing or account by which the defendant is indebted. The only paper filed with the declaration was one signed “O. A. K. (Seal), perj. M. W.” and set forth that there was received of O. K. a certain sum for six months’ interest on mortgage, and that “it is understood that this interest is accepted from O. K. with the understanding that he guarantees the payment of the said mortgage debt.” The defendant pleaded the general issue and no plea denying the signature to the alleged guaranty. At the trial, plaintiff offered no evidence of the execution of the guaranty : Held that by these proceedings the execution of the guaranty is not admitted so as to entitle the plaintiff to a judgment under the Practice Act, because that Act requires the writing by which the defendant is indebted to be filed with the declaration and the paper filed with the declaration in this case is unintelligible in itself and does not show any promise by the defendant to the plaintiff.</p> <p>Held, further, that since the declaration does not allege that the defendant executed any written instrument, but merely that he guaranteed the payment of the mortgage debt, the plaintiff is not entitled to the benefit of Code, Art. 75, sec. 25, sub-sec. 108, which provides that ■ when the execution of any written instrument filed in the case is alleged in the pleadings, the same shall be taken as admitted unless it shall be denied, in the next succeeding pleading.</p>

<p>Cross-Examination — Harmless Error — Evidence—Master and Servant. Injury to Trespasser Expelled from. Railway Train — Instructions.</p> <p>Upon the second trial of a case a witness cannot be cross-examined as to testimony given at the first trial when no reference thereto is made upon his examination in chief.</p> <p>The rejection of admissible evidence at a certain point in the trial is not reversible error when the same evidence is admitted at a later stage.</p> <p>Plaintiff alleged that he had been wantonly shot by a railway policeman after leaving a train upon which he had been stealing a ride. Held, that the defendant railway company is not entitled to ask one of its witnesses, “How often do you get messages, announcing that gentlemen have drawn pistols upon and threatened trainmen?”</p> <p>The evidence of both plaintiff and defendants was to the effect that plaintifif with certain companions, had been stealing a ride on a freight train and when the train stopped at a certain point one S, a special railway policeman commissioned by the State and employed by the railway company, told the men that they were under arrest and that plaintiff was shot — the evidence being conflicting as to when and by whom the shooting was done. Held, that it was error to instruct the jury that the plaintiff is entitled to recover if they find that he was walking near the track of the railway and that S, while acting within the scope of his authority as the company’s special officer, attempted to drive trespassers from the train and wantonly fired a pistol towards the plaintiff. There was no evidence in the case that S was at the time plaintiff was shot attempting to drive off trespassers from the train.</p> <p>Held, further, that the question whether S was acting in the scope of his employment by the railway company at the time plaintiff was shot, was a question for the’ jury.</p> <p>There is legally sufficient evidence to prove that plaintiff was shot by a certain employee of a railway company when a third person testifies that the employee said to him, just after the shooting, “Yes, if I hadn’t shot him I would have kicked his ribs in.”</p>

<p>Evidence of Offer to Purchase Inadmissible to Prove Value of Property — Trespass — Damage Caused by Cutting Trees — Competency of Evidence as to the Value of Property and Amount of Damage.</p> <p>Evidence that a certain sum was offered for property is not admissible to prove the value of such property.</p> <p>In an action of trespass to land caused by the cutting of shade and fruit trees, the plaintiff may offer evidence to show the depreciation in value caused by the trespass and the value of the property before the trespass ; but this value cannot be proved by evidence that a certain sum had been offered for the property or a part of it.</p> <p>In an action against a telegraph company to recover damages for cutting trees on plaintiff’s land, the plaintiff on cross-examination testified that he settled for $50. a suit against a telephone company for cutting trees on his land. The declaration in the suit against the telephone company, wherein $2,000. damages were claimed, was then read to him, and he was askecj if the trees which the telephone company had cut down were of the value of $2,000. Held, that this question was incompetent, the injuries complained of in that suit being different from those alleged in the present action.</p> <p>When the suit is to recover damages for a trespass by the defendant, evi dence as to injuries caused by the trespass of other persons is inadmissible.</p> <p>In order to prove the amount of injury caused by the cutting of plaintiff's trees by a telegraph company, it is not competent for a witness, whether expert or not, to express his opinion or estimate of the amount of damage done in dollars and cents, or to testify as to his reasons for such estimate.</p> <p>When the trespass complained of consisted in the cutting down of walnut trees a witness should not be allowed to testify as to the value of walnut trees unless it be first shown that he has knowledge of the subject.</p>

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

<p>Nuisance — Injury to Adjoining Property from Defective Condition of Rain-spout and Drain — Liability of Lessor of Premises — Assumption of Fact in Prayer.</p> <p>The provision of Code, Art. 5, sec. 9, that no instruction actually given shall be deemed defective by reason of any assumption of fact therein, unless objection thereto for such defect was taken at the trial, does not apply to rejected prayers, and hence a prayer assuming a fact, instead of leaving it to the finding of the jury, will be held to be properly rejected although no special exception to it was taken at the trial on that ground.</p> <p>If at the time premises are rented a rain-spout and gutter on them are in such a condition that the water is turned upon the adjoining house, flooding the cellar and injuring the walls, the lessor is liable for the damage so caused.</p> <p>When at the time premises are rented they are in good condition and the landlord is under no obligation to make repairs, he is not liable for injuries to third persons causéd by the defective condition of the property subsequently arising while it is in the possession of the tenant.</p> <p>But if the premises when rented are in a defective condition then the landlord is liable to third parties for damages directly caused by such condition.</p> <p>Defendant leased a house and lot to one S in 1899 and the premises, were then in good order. In 1902 th.e leasehold interest was transferred to one F, who was accepted by defendant as his tenant. Plaintiff, owner of the adjoining house, brought this action to recover damages for injuries to his walls and the flooding of the cellar caused by the defective condition of the rain-spout and gutter, which ran alongside of his wall. Held, that the defendant is liable if the defective condition existed at the time his house was rented to F, the second tenant, and there is legally sufficient evidence of that fact to go to the jury.</p> <p>Held, further, that since the evidence shows that some of the injury complained of was sustained while S was the tenant, for which the defendant is not liable, a prayer is erroneous which instructs the jury that if' they find a verdict for the plaintiff he is entitled to recover such damages as will fairly compensate for the injuries to his property according to the evidence in the case. Under this instruction the jury might consider themselves authorized to award damages to the plaintiff for all the injury sustained by reason of the defective condition of the spout and gutter without regard to the time when it occurred.</p>

<p> Right of Doweress to Redeem Mortgage. </p> <p>When a married woman has united with her husband in a mortgage of his real estate she is entitled upon his death, as the owner of an unassigned dower interest in the land, to redeem the mortgage by paying the amount thereof.</p> <p>In such case the right of the widow to redeem the mortgage is not affected by the fact that her husband had executed a second mortgage of the land to the same mortgagee in which she did not unite; nor can she be required to pay the second mortgage or other debts of her husband for which she is not liable.</p> <p>Upon a bill in equity by a widow having a dower right in mortgaged land to redeem the mortgage, it is not necessary to consider the rights of the heirs-at-law of the mortgagor who are not parties to the cause.</p>