Volume 107 — Maryland Reports

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

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

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

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

<p>Appeal from the Circuit Court of Baltimore City (Elliott, J.)</p> <p>The plat referred to in the opinion of the Court is as follows:</p> <p>Defendant's Exhibit No. i.</p> <p> </p>

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

<p>Building Associations — Provision for Weekly Payment of Dues and Interest — A c counts.</p> <p>When a shareholder in a mutual building association executes to it a mortgage to secure a loan amounting to the par value of his shares, and covenants to pay each week legal interest on the sum borrowed together with weekly dues as a member until the weekly dues together with the dividends or profits to which his shares may be entitled shall •have fuily paid up the shares, the stipulation for the payment of weekly dues as well as interest on the loan weekly does not render the transaction usurious.</p> <p>An exception to an auditor’s report stating an account between a building assocition and a borrowing member on the ground that the account is not stated in accordance with the decisions of the Court of Appeals is too vague.</p> <p>When a building association as mortgagee, after making advertisement of a sale of the mortgaged property for a default, withdraws the sale upon payment by the mortgagor of the costs incurred in advertising the mortgagor member is not subsequently, upon a statement of the account, entitled to a credit for the sum so paid.</p>

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

<p>. Covenant in Deed not Running with the Land — Performance of Future Act as Consideration in Deed — Rights of Assignees of Grantor— Condition in Deed of Land to a Canal Company Providing for Construction of a Basin — Ultra Vires Contract.</p> <p>The grantee in a deed, signed and sealed by the grantor only, does not, by accepting it, become bound on the covenants therein contained as a covenantor.</p> <p>When a deed by which land is conveyed to a canal company provides, as part of the consideration and as a condition, that the canal company shall thereafter construct a basin on the land conveyed but the company as grantee does not execute the deed, and it does not state that the condition is for the benefit of the assigns of the grantor, such stipulation is not a covenant running with the land.</p> <p>When part of the consideration upon which land is conveyed is that the grantee shall erect a certain structure upon it, but that is not expressed to be for the benefit of the land retained by the grantor, and there is no covenant that the conditon shall enure to the benefit of the assigns of the land retained by the grantor, then such an assignee is not entitled to enforce performance of the condition by the grantee or his assigns, or to complain that the original grantor did not receive the consideration for which the deed was made.</p> <p>A contract by a canal company to construct a basin on part of the land purchased by it as a part of the consideration is not ultra vires.</p> <p>The deed by which certain land was conveyed to a canal company stated that it was made in part on the consideration and condition that the canal company should construct a basin connected with its canal within the limits of the land conveyed. The canal company did not execute the deed or make any express covenant, and there was in it no reference to the heirs or assigns of the grantor. The deed did not reserve any right to the grantor to use the basin. The basin was constructed and used by the grantor in connection with a mill erected on his land. Seventy years afterwards, the land of the canal company was conveyed to the defendant Railroad Company, which filled in the basin. On a bill by the owner .of the mill and land of the original grantor, who had become such by mesne conveyances, asking that the defendant company be decreed to restore the basin and maintain the same, and that it to be enjoined from obstructing the use of the basin by the plaintiff. Held, that although there was no express covenant by the canal company to maintain the basin yet having accepted the deed under that condition, it was bound to the grantor to maintain the same, and that the Railroad Company as assignee would likewise be bound to the grantor in the deed.</p> <p>Held, further, that the deed made no reservation or condition as to the construction of the basin in behalf of the assignee of the grantor, and that the plaintiff as assignee is not entitled to enforce against the de fendant the rights which the original grantor had.</p> <p>Held, further, that if the deed be treated as attempting to create an easement in the land conveyed in favor of the grantor, it is ineffectual, because not executed and acknowledged by the creator of the easement; and that if the provision in this deed be treated as a condition it was a condition subsequent, and as such could not be taken advantage of by the plaintiff as assignee.</p>

<p>Fire Insurance— Waiver of Provision Requiring Endorsement of Change. on Policy and of Stipulation as to Time of Bringing Suit — Suit on Policy Under the Practice Act.</p> <p>A fire insurance policy provided that the insured might take out other insurance‘to the amount of $1,500, also that no officer or agent of the company should have the power to waive any of the conditions, unless such waiver be written upon or attached to the policy. Upon receipt of the policy, the insured took it to the company’s agent and said that; he had other insurance in excess of $1,500 and requested that a change be made. Thereupon, the agent erased the figures $1,500 in the policy so as to make it read, “other insurance permitted without notice until required.” Held, that the agent had the power to waive this provision and that the insurer is equitably estopped to allege that the waiver was invalid because not written on the policy.</p> <p>A policy stipulated that “the sum for which this company is liable pursuant to this policy shall be payable sixty days after due notice, ascertainment, estimate and satisfactory proof of loss shall have been received by this company.” Held, that where the insurer after claim made, demands the production by the insured of the contract showing the amount of other insurance which he was permitted to have when it knows that there was no such contract, and where it practically refuses to pay the loss, there was a waiver of this stipulation.</p> <p>A suit on a fire insurance policy, when the assured can make affidavit as to the amount of the loss, may be brought under the Practice Act 1886, chap. 184.</p>

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

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

<p>Appeal from the Circuit Court for Prince George’s County (Merrick, J.), where there was a judgment for the plaintiff for $6,ooo.</p>

<p>Action on Tax Collector's Bond — Pleading— Variance Between Declaration and Bond - Liability of Collector's Bond for Proceeds of Property Sold for Taxes.</p> <p>The averment in the declaration in an action on a bond, by t\yo or more equitable plaintiffs that one of them had assigned his interest in the subject matter to another is not a ground of demurrer to'the declaration. The declaration in a suit on tax collector’s bond, which in a public record, is not liable to demurrer on the ground that it does not make profertof the bond,</p> <p>A variance between the condition of the bond sued on and the condition of the bond as set forth in the declaration in a suit on it is ground for a general demurrer.</p> <p>The condition of the bond .of a tax collector was that he “shall well and faithfully execute his office and the several duties required of him by law, and shall well and truly account for and pay to the county commissioners of Kent county or their order, the several sums of money • which he shall receive for the county or be answerable for by law - at such time as the law shall direct.” In an action on the bond the declaration alleged its condition to be that the collector “should well and faithfully execute his office and the several duties required of him by law and would well and truly account for and pay all moneys which might be received by him as said collector and be answerable for by law at such times as the law may direct.” Held, that there is a variance between the condition set forth in the declaration and that in the bond, and that therefore a demurrer to the declaration should be sustained.</p> <p>Code, Art. 8i. sec. 51, directs tax collectors to sell the property levied on for takes,-retaining out of the proceeds of sale the amount of the taxes - due from the delinquent with interest and costs, and to pay the surplus if any, to the owner of the property. A subsequent section of that article provides for a report by the collector of the sale for taxes to the Circuit Court for the county and for its ratification, but makes no provision for the distribution of the proceeds of sale under an audit. A declaration in a suit on a tax collector’s bond alleged he had failed to pay over the surplus proceeds arising from a tax sale in the manner directed by an audit. Held, that this declaration is bad upon demurrer since it does not appear that the Court had the power to state an audit binding upon the collector, or that the person named in the audit was entitled to the proceeds of sale as owner under said section 51.</p> <p>When land is sold for non-payment of taxes the collector’s bond is liable to the owner for any surplus of the proceeds of sale after payment of taxes and costs under that part of the condition of his bond which provides that he shall well and faithfully execute his office and the several duties required of him by law.</p>

), where there was a judgment on verdict for the plaintiff for $900. Plaintiff’s 1st Prayer. If the jury find from the evidence that the defendant was the owner of the street railway mentioned in the declaration and evidence, and that the said defendant received and accepted the said plaintiff as a passenger, then the said defendant was bound to exercise for the plaintiff’s safety, the highest degree, of care and skill which was consistant with the nature of its undertaking.

) Plaintiffs ist Prayer. — The jury are instructed that if they find from the evidence the Canton Lumber' Company, the defendant, agreed to furnish to William A. Liller, the plaintiff, 409,943 feet of lumber for the erection of a coal tipple at Keyser, West Virginia; and if the jury further find that the Canton Lumber Company, the defendant, understood that all of said lumber was to be subject to B. & O. inspection; and if the jury further find that the Canton Lumber…

<p>Appeal from the Circuit Court of Washington County (Keedy, J.)</p> <p>The cause was argued before Briscoe, Boyd, S.chmucker, Burke and Rogers, JJ.</p>

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

<p>Appeal from the Circuit Court of Baltimore City (El7 liott, J.)</p>

(Duncan, J.). where there was a verdict for the plaintiffs for $3>S°°- Plaintiff's ist Prayer. — If the jury find that the bridge mentioned in the declaration in this case, was on, and a part of, one of the public roads of Anne Arundel County, that it spans the Severn river in said county; that the bridge was constructed with a draw so arranged as to allow vessels to'pass through, that when the draw was turned so as to allow vessels to pass a space was left between the sides…

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

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

), where there was a verdict for the plaintiff for $400. Plaintiff's 1st Prayer. — If the jury find that the plaintiff is a blind man twenty-five years old, a broom sewer by trade, and accustomed to going about the streets alone, well acquainted with the west side of Bradford street between Federal and Lanvale streets, the particular locality mentioned in evidence in this case, and was lawfully passing along the footway or pavement on the west side of Bradford street between…

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

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

<p>Liability of Street Railway Company to Park Tax in Baltimore City— Neglect to Claim Right to Tax.</p> <p>The Acts of 1882, chap. 229, and 1894, chap. 550 (Baltimore City Charter secs. 797, etc.,) impose a park tax of nine per cent on the gross receipts of street railway lines within the city limits. The ordinances granting the right to operate street railways had, prior to said Acts, provided that the companies should pay a certain percentage of their gross receipts accruing from passenger travel upon the railways within the city limits. Previous to the extension of the limits of the city by the Act of 1888. chap. 98, certain railways, now constituent companies of the United Railways Company, had constructed lines on public roads in the adjacent county under legislative or county grants, and on roads in that county under private grants, which roads afterwards became public roads. These roads since the annexation became streets of Baltimore City. Held, that the railway company is liable for the park tax upon its gross receipts from all its lines operated upon public streets within the present city limits including the roads that were formerly county roads.</p> <p>Held, further, that the railway company is not liable to the tax upon its receipts from lines constructed on turnpikes and other. rights of way acquired by private grant, and which have not been made public streets.</p> <p>The failure of a municipality for some years to assert its right to demand a franchise tax from a street railway company is not a bar to the recovery of the tax when the right is asserted.</p>

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

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

) Plantiff’s 2nd Prayer. — If the jury shall find from the evidence that the defendant, in the town of Cambridge, Maryland, on or.about the month of April, 1905, in the presence and hearing of Wm.

<p>Appeal from the Baltimore City Court (Stockbridge, J.)</p> <p>The cause was argued before Boyd, C. J., Briscoe, Pearce, Schmucker Burke and Worthington, JJ.</p>

<p>Acquiescence of Appellant in Order Appealed Against — Failure to Pay Interest on Mortgage Debt When Due.</p> <p>A party cannot, on appeal, attack an order of Court under which, after taking the appeal, he acted and received benefits.</p> <p>An injunction restraining a mortgagee from making a foreclosure sale on account of certain alleged defaults was issued under an order of Court which also provided that the injunction should not interfere with the foreclosure of the mortgage for any default thereafter occurring. The mortgagee appealed from this order and pending the appeal, he advertised the property for sale on account of a default which occurred after the passage of said order, and relied upon the same as his authority for so doing. Held, that since the mortgagee had thus acquiesced in the order restraining the first sale, and relied upon it in advertising the second sale, he cannot now be allowed to question the validity of that order, and his appeal therefrom will be dismissed.</p> <p>When under the terms of a mortgage, the failure of the mortgagor to pay interest and taxes when due, makes the whole mortgage debt payable, the right of the mortgagee to foreclose on account of such non-payment is not divested by the subsequent tender of the interest and payment of the taxes.</p>

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

<p>Appeal from thé Orphans' Court of Calvert County.</p> <p>The cause was submitted to the Court on briefs by:</p>

<p>Divorce — Extra Territorial Effect of Decree Prohibiting Re-Marriage of Guilty Party — Legitimacy of Children — Proof of Law of Another State.</p> <p>A decree in a divorce suit which prohibits the defendant from again marrying during the lifetime of the plaintiff has no effect beyond the limits of the State in which such decree is made, and does not in itself render invalid the re-marriage of the defendant in another State, when such marriage would otherwise be valid.</p> <p>D’s wife obtained a divorce a vinculo from him in New York by a decree which dissolved the marriage and prohibited D from re-marrying during the lifetime of the plaintiff. Under the New York statute, as construed by the Courts of that State, such .decree did not operate to restrain D from marrying in another State. Afterwards, D married again in the District of Columbia, while his former wife was still living. The Act of Congress relating to the District of Columbia (12 U. S. Statutes At Large, 59) provides that it shall be a ground of divorce if the marriage was contracted while either party thereto had a former wife or husband living, unless the former marriage shall have been dissolved and no restraint shall have been imposed upon the party contracting such second marriage. Held, that D’s second marriage was not void but only voidable upon a bill for a divorce, and that the issue of that marriage is legitimate, unless the construction placed in the District of Columbia upon the Act of Congress be to the effect that the restraint imposed by the decree of the New York Court operated in the District of Columbia to render the re-marriage there null and void.</p> <p>The construction placed upon the statutes of ahother State by its Courts, and the common law of that State, may be proved by the testimony of Judges or lawyers of that State. ^ , , ,, t</p>

Appeal'from the Superior Court of Baltimore City(SHARP,J.) Plaintiff’s 2nd Prayer. — That the measure of damages is the actual loss of such rents, if any, from the property described in the evidence, that the jury shall find that the plaintiff has sustained, not exceeding the sum insured, from the date of the fire until such time as the premises could be restored or rebuilt, as promptly as the nature of the case would admit, with interest on such rents as they may find…

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

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

<p>Misjoinder of Counts in Declaration — Action to Recover Premiums Paid Assessment Life Insurance Company — Cancellation of Policy— Fraudzilent Representations — Plea of Limitations.</p> <p>A declaration is bad on demurrer that unites counts alleging a breach of contract by the defendant with a count alleging, that the defendant fraudulently obtained money from the plaintiff.</p> <p>When the holder of a policy in a mutual life insurance assessment company, with full knowledge of all the facts, refuses to pay an assessment and directs the company to cancel his policy, which was done, there is no right of action against the company by the assured or his personal representatives to recover premiums paid.</p> <p>In an action by an executor against an assessment insurance company, the declaration alleged that the defendant had induced the deceased to make payments by means of fraudulent representations as to the nature of the contract, and by the same means had induced him to cancel his policy. The defendant pleaded limitations, and that the deceased had full knowledge of all the facts at that time. The plaintiff replied that the defendant had made fraudulent representations as to the meaning of the contract. Held that this plea of limitations is good.</p>

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

<p>Wills — Undue Influence — Bequest of Property to Testator's Mistress.</p> <p>The fact that a testator bequeathed his property to his mistress, and that suclq dispositiou ignored the claims of his relatives, is not in itself evidence that the will was procured by the exercise of undue influence.</p> <p>A testator, who left surviving him as his only heirs at law and next of kin two sisters and certain nephews and nieces, the children of two deceased sisters, gave and bequeathed all of his property to a woman who at the time of the execution of the will, five years before the testator’s death, and afterwards, was his mistress. Upon a caveat to the will by one of the sisters, who was old and dependent upon others for support, there was no evidence that any fraud or undue influence had been practiced upon the testator, who possessed testamentary capacity. Held, that the existence of the illicit sexual relation between the testator and the legatee raises no presumption that the will was procured by undue influence, and there being no other evidence of such influence, the jury was properly instructed to return a verdict for the caveatee.</p>

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

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

<p>Appeal from the Circuit Court for Dorchester County (Lloyd, J.), where there, was a judgment for the plaintiff for $3,ooo.</p> <p>Plaintiff's 6th Prayer. — If the jury find that the plaintiff was driving her horse on High street in the town of Cambridge, and was using due care and caution, the defendant approached in an automobile from the opposite direction, driving the automobile along or near the middle of the street; and shall further find that the defendant, by the exercise of reasonable care and diligence could have seen that the horse driven by said plaintiff was frightened by the approach of said automobile; and shall further find that notwithstanding the fright of said horse the defendant continued to run his said automobile in or near the middle of said street towards said horse and did not run to the side of the road or slacken his speed, and that said horse became thereby so frenzied with fright that it became wholly unmanageable and ran away and threw the plaintiff out of the carriage to which said horse was being driven, thereby injuring the plaintiff, and shall further believe that the defendant in so operating said automobile, if he so operated it', was an act of negligence on the part of the defendant, then their verdict should be for the plaintiff, unless they shall find the injury complained of resulted from the want of care and prudence in the plaintiff directly contributing to the accident. (Granted.)</p> <p>Plaintiff’s gth Prayer. — That in order to defeat a recovery in this suit, on the ground of contributory negligence upon the part of the plaintiff, the burden of proof is upon the defendant to show that the plaintiff was guilty of negligence, and that such negligence on her part directly contributed to produce such injury. {Granted.)</p> <p>Defendants'' rst 'Prayer. — The jury are instructed that while automobiles áre comparatively new iñ use, and novel in construction, operation and movement, there is nothing new or exceptional in the principles of law that apply to their use upon the public highway; that the owner of an automobile has the same right as the owner of other vehicles to use the highways or streets of a city, and,- like them, he must exercise reasonable care and caution for the safety of others. {Rejected.)</p> <p>Defendant's 2nd Prayer. — Notwithstanding the jury shall believe from the evidence that the defendant was guilty of negligence (and the burden of proving the same is upon the plaintiff), yet if they shall further believe from the evidence that the plaintiff, Nannie S. Dixon, was also guilty of negligence, and that the accident was directly caused partly by the defen lant’s negligence and partly by the plaintiff’s negligence, then the verdict of the jury must be for the defendant, without regard to whose negligence was the greater. (Granted.) •</p> <p>Defendant's 3rd Prayer. — That if the jury shall believe from the evidence that- the plaintiff, Nannie S. Dixon, while driving in her carriage on the second day of June, 1905, as :estified to in the evidence, knew of the near approach of the automobile of the defendant, or could have known of the same by the exercise of reasonable care; and shall further find that the said Nannie S. Dixon knew that the horse that she was driving was afraid of said automobile; and shall further find that the said Nannie S. Dixon could have, then and there,_ by the use of ordinary care and prudence, gotten out of the way of danger, then it was the duty of the said Nannie S. Dixon to have gotten out of the way of danger, and that if she was negligent in this respect, and such negligence directly • contributed in any degree to cause the accident complained of, that then the said Nannie S. Dixon is not entitled to recover in this case, and their verdict should be for the defendant, William M. Fletcher. (Granted.)</p>

<p>Resulting Trust — Insufficient Evidence.</p> <p>Thirteen years after certain land had been purchased and conveyed to a woman, who afterwards married the plaintiff, and after her death, plaintiff filed a bill alleging that he had furnished the purchase money for the land, and asked that a resulting trust in his favor be declared. There was no evidence to show whose money was actually used in the purchase. Held, that the plaintiff is not entitled to the relief asked for.</p>

<p>Constitutional Law — Taxation of Mortgages in Certain Counties Special Laws— Title of Statute.</p> <p>The Legislature has the power to create separate taxing districts within • the State, and if the taxes levied are uniform within a district, there .is no violation of Declaration of Rights, Art. 15, which provides for uniformity of taxation.</p> <p>The Act of 1906, chap. 794, provided that holders of mortgages on prop, erty in certain designated counties of the State should pay a tax of eight per cent on the amount of interest payable on such mortgages annually. Held, that this Act is not in violation of the constitutional provision relating to uniformity of taxes, (Declaration of Rights, Art. 15), since it merely constitutes the designated counties a taxing district for local purposes, and directed that the taxes so collected should be applied solely for county purposes.</p> <p>The Act of 1906, chap. 794, provided for the taxation of mortgages in certain counties when there was no general law in force making mortgages liable for taxation. Held that the Act is not in conflict with the Constitution, Art. 3, sec. 33, which prohibits the General Assembly from passing a special law in any case for which provision is made by an existing general law. .</p> <p>The title of the Act of 1906, chap. 794, is “an Act to repeal sec. 183, Article 81, Code of Public General Laws of Maryland, title, Revenue and Taxes, sub-title, Tax on Mortgages, and to re-enact the same with amendments.” Held, that this act is not in conflict with Constitution, Art. 3, sec. 29, which prescribes that the subject of every law shall be expressed in its title.</p>

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

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

) Plaintiff’s 1st Prayer. — If the jury find that the plaintiffs are the executors of the late Catherine T. Mullan and that the defendant executed the policy of insurance offered in evidence and delivered the same to John Joseph Mullan in his lifetime, and that the said John Joseph Mullan paid the defendant all the premiums payable thereon up to the time of his death, and complied with all the undertakings and stipulations to be performéd on his part, in said policy, and…

<p>Surety of Contractor Making Default Subrogated to His Rights — Attachment by Creditor of Contractor.</p> <p>The contractor for doing certain work for a railway company furnishecTa bond conditioned for its due performance with the appellee company as surety, by which it was provided that if the contractor should abandon the work, or be compelled to desist thereupon, then- the surety should have the right to assume the contract and complete the same, in which event any reserve, deferred payment and all other money payable under the contract to the contractor should be paid to the surety in the same manner as it would have been paid to the principal, if he had duly performed the contract. This bond was executed in pursuauce of the contractor’s written application for it in which the same stipulation was made. The contractor abandoned the work in the course of performance and at that time a certain §um was due to him by the railway company. The surety then assumed the coutract and completed it. The plaintiff, a creditor of the contractor, laid an attachment in the hands of the railway company to affect said sum, and the surety intervened as claimant thereof. Held, that nnder the terms of the bond and agreement, the money owing by the railway company to the contractor became payable to the surety, and that it is not liable to attachment by the plaintiff.</p>

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

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

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

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

<p>Mortgage Sales — Inadequacy of Price — Advertisement—Time of Sale — . Counsel Fees.</p> <p>An exception to the ratification of a mortgage sale on the ground that the price paid was grossly inadequate, held, not to be sustained by evidence.</p> <p>When a mortgage sale was duly advertised in a newspaper published in the county where the property was located and circulated throughout that county, the fact that the newspaper had but a limited circulation in that part of the county where the property was situated, is not a sufficient reason for setting aside the sale, since the statute provides merely for the advertisement of sale in some newspaper printed in the county.</p> <p>The fact that a mortgage sale took place on the county market day affords no ground for excepting to its ratification, when it is not shown that prospective purchasers were kept away from the sale for that reason.</p> <p>A person to whom a deed has been executed conveying the equity of redemption in mortgaged property is entitled to except to a sale under the mortgage, although the validity of his title is not established.</p> <p>No allowance of counsel fees can be made out of the proceeds of a mortgage sale to an attorney employed by the mortgagee to defend the sale against exceptions filed to its ratification.</p>

<p> Injtmction to Protect Lessee's Interest in the Property Demised. </p> <p>The V. Brewing Company rented a building for five years, agreeing not .to permit the use of the property for other purposes than that of a saloon or restaurant, and not to sub-let or assign without the consent in writing of the lessor. The company placed bar fixtures in the building and rented it to one L. as a monthly tenant, with the knowledge and consent of the landlord. L. agreed to conduct a saloon and to purchase all the beer there sold from V. Company. Several months afterwards, the landlord notified the V. Company that its lease had been forfeited and that the premises had been rented to the C. Brewing Company. This company took out the fixtures in the building and agreed with L. that he should occupy as its tenant. ' Upon a bill for an injunction, alleging a conspiracy between the C. Company, the landlord and L. Held, that the V. Company had done nothing to forfeit its lease, and that it was entitled to an injunction to restrain the rival brewing company and L. from carrying on business in the premises and from interfering with the plaintiff in the enjoyment of the property, because under these circumstance, an action at law would not afford an adequate remedy.</p>

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

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

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

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

Two appeals from the Superior Court of Baltimore City, (Sharp, J.), where there was a judgment on verdict for the plaintiff for $2,000.

<p>Eminent Domain — Objection to Right of Railway Company Under Its Charter to Condemn Additional Land Must be Made in the Inquisition Proceedings and not by Bill for Injunction — Power of Western Md. R. Co. to Condemn Land for Addition to its Right of Way.</p> <p>The question whether a railway company has the right under its charter, to condemn certain land for an addition to its roadbed, is a matter exclusively within the jurisdiction of the Court to which the inquisition is returned, and which is authorized to confirm or reject the same.</p> <p>Consequently if a party whose land has been condemned for the use of a railway company neglects to except to the ratification of the inquisition of condemnation in the Court to which it is returned, or to appeal from an order of that Court determining that the company has the power of condemnation, he cannot afterwards rely upon this lack of power as a ground for an injunction to restrain the railway company from taking possession of the land condemned.</p> <p>The Western Maryland Railroad Company' was authorized by its charter to condemn land, not exceeding 66 feet in width, for its right of way. By an amendment, the company was authorized to use any land necessary or convenient for the site of the road, or for warehouses or other work necessary and useful in the construction of the road. The company was also authorized to condemn land necessary in changing the location of any part of its road. By another amendment, the company was authorized to exercise the powers of condemnation prescribed by the general railroad incorporation law of the State. Under this general law', there is no limitation as to the width of the right of way that may be taken by a railw'ay company, and such company has the power to change its location. The Western Maryland Railroad Company acquired by condemnation a right of way 66 feet wide through plaintiff’s land and constructed its road thereon. Subsequently, the company instituted condemnation proceedings for the purpose of acquiring a part of plaintiff’s land, one hundred and thirty-two feet wide contiguous to the aforesaid road bed. The inquisition in this proceeding was confirmed by the lower Court to which it w'as returned. After-w’ards, the plaintiff filed the bill in this case alleging that when the company had taken the first parcel of land, 66 feet wide, its power to condemn was exhausted, and that it had no right to take more of plaintiff’s land, either to change, or to add to, its right of way, and the bill asked that the company be enjoined from so doing. Held, upon demurrer, that the bill should be dismissed not only because the question of the power of the company to make the condemnation should have been raised in the condemnation proceeding,'but also because the company had the right under its charter and the general law to condemn the additional land'.</p>

<p>Liability of Employer for Negligence of Independent Contractor — Making Highway Dangerous — Falling of Hammer from Bridge Upon Pedestrian in the Street — Fright or Mental Suffering Resulting from Negligence — Physical Impact Catistng Fright.</p> <p>When work is being done by an independent contractor, the employer is not liable for an injury caused by the contractor’s negligence in a collateral, matter, but he is liable if the injury is caused by the thing contracted to be done, or if it be such as might have been anticipated as a probable consequence of the work let out to the contractor, and no precaution is taken to prevent the injury.</p> <p>The duty to refrain from interfering with the right of the public to the safe and unimpeded use of highways, is one of which an employer cannot divest himself by committing the work to a contractor.</p> <p>Whether an injury might reasonably have been anticipated as a probable consequence of the work let out to a contractor is a question of fact for the jury.</p> <p>While plaintiff was passing in a city street under a bridge that was being constructed by independent contractor for a railway company, she was struck by a hammer, or some other heavy object, which fell from the trestle. Held, that the jury was properly instructed that it was the duty of the railway company to see that the street was safe for travellers at that point during the construction of the bridge, and if it negligently failed to do so, and plaintiff's injury was caused by such negligence, plaintiff is entitled to recover, and that it is no defense that the bridge was constructed for the railway company by an independent contractor.</p> <p>There can be no recovery of damages for mere fright or mental suffering, caused by defendant’s negligence, when there has been no physical impact or injury to the plaintiff.</p> <p>But when a physical impact causes a fright which directly results in an injury, damages may be recovered for such injury.</p> <p>Plaintiff, a woman, was walking in a street under a bridge in course of construction, with an umbrella raised over her head, when a hammer fell from the bridge and struck and broke her umbrella. She was thrown back by the blow upon the umbrella and she also jerked herself away with a violent wrench, on account of the fright thereby occasioned. Soon afterwards, she suffered a miscarriage and also developed an aneurism of the abdominal aorta. The medical evidence was that this aneurism was caused by the accident. Held, that the striking of the umbrella in plaintiff’s hand was a physical impact upon her, and that this evidence is legally sufficient to go to the jury for them to determine whether or not the aneurism, which consisted of a rupture of one of the walls of the artery, was produced by the wrench or twist of the plaintiff’s body when the hammer fell, and also whether the blow of the hammer on the umbrella caused the movement of her body.</p>

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

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

) Plaintiff's 2nd Prayer. — If the jury find for the plaintiffs, that they may consider in estimating the damages to which they may find the plaintiffs are entitled, the reasonable cost to the plaintiffs for installing an elevator of the kind to be furnished by the defendant, and the cost of the reasonable and necessary repairs expended by the plaintiffs on the elevator installed by the defendant in their efforts to make it operate (if the jury so find), together with the…

<p>Objection to Question as Leading — Collision of Wagon with Train at Railway Crossing — Evidence—Right of Trial fudge to Exclude Evidence on His Own Motion — Discrediting Party's Own Witness - — Overdue Train — Lack of Evidence as to Cause of Injury.</p> <p>The objection to a-question as leading must be made at the time it is asked and before it is answered. The objection must be made on that ground and not generally.</p> <p>A question is not necessarily objectionable as leading because it may be answered, Yes or No.</p> <p>Upon the trial of a case where a vital point in dispute was whether a wagon had been struck by the engine of a passing train, or whether the collision was between the wagon and the rear cars of the train, a witness who was sitting in a shut-in room, nearly two hundred feet from the point of- collision, cannot be allowed to testify that he could tell from the sound where the engine was at that time, since such evidence is merely the conjecture or opinion of the witness.</p> <p>In an action to recover damages for an injury at a railway crossing, evidence is admissible to show the distance at which a man in a wagon near the track at that point, could see an approaching train, and how the dampness of the atmosphere would affect the sound of the train.</p> <p>When a man driving a vehicle was struck by a train at a railway crossing, evidence is not admissible that he was generally and habitually a careful driver, for the purpose of proving that he was not guilty of contributory negligence on that occasion.</p> <p>In an action to recover damages for a death alleged to have been caused by defendant’s negligence, evidence as to whether the deceased was a prudent and economical man, is admissible because relevant as to th'e pecuniary loss sustained by the plaintiffs.</p> <p>The Judge presiding at a trial is not a mere moderator between the parties,but has active duties to perform in seeing that the truth is impartially brought out. Hence, it is his privilege, and may be his duty, to examine a witness or to recall him to supply an omission of proof necessary to do justice in the case.</p> <p>The Judge presiding at a trial may on his own motion exclude irrelevant and incompetent evidence, but this power should be exercised very cautiously.</p> <p>When a witness originally called by the plaintiff is afterwards called as a witness by the defendant, the plaintiff cannot offer any evidence for the purpose of discrediting him, because by first offering the witness, he represented him as being worthy of belief. The witness may however be contradicted as to any material fact.</p> <p>The running of an overdue train at high speed over a crossing in the country is not in itself evidence of negligence on the part of the railway company.</p> <p>Plaintiff’s deceased, driving in a wagon on a dark and foggy night, was killed at a railway crossing, along side of a station, by a freight train. There was no eye-witness of the accident. The train was halted at the next station and an examination of it made which showed no marks on the engine or pilot, but which did show marks of a contact with some external object upon the three rear cars of the train. The deceased was thrown upon the platform of the station at the crossing together with the wheels of one side of the wagon and some of the flour which it contained. The other side wheels were uninjured, as was also the horse. The body of the wagon was found close to a signal-post on the same side of the track. The evidence was conflicting as to whether the head-light of the engine was burning, and as to whether a whistle or bell was sounded for the crossing. Held, that the physical facts of the case clearly show that there was no collision of the engine with the wagon, that therefore the alleged negligence of the railway company in not blowing a w'histle or having a head-light on the engine, if found to exist, was not the cause of the injury, and that since there is no evidence of any negligent act or omission on the part of the defendant which did cause the injury, the case should have been withdrawn from the jury.</p>

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

<p>Appeal from the Circuit Court of Baltimore City (Elliott, J.)</p> <p>The cause was submitted to the Court on brief by:</p>

J.), where there was a judgment on verdict for the plaintiff for $5,000. Defendant's iyth Prayer. — That from the failure of the plaintiff to produce as a witness Dr. R. H. Follis, the jury may infer that his testimony would be unfavorable to the plaintiff.

<p>Specific Performance — Lack of Good Faith on Part of Plaintiff.</p> <p>The owner of a house and lot executed a mortgage of it to a Brewing Company, to which he also gave an option to buy the property at a designated price. Afterwards the owner agreed to sell the property to the plaintiff who paid a sum on account of the purchase money. On the same day the plaintiff was informed by the Brewing Company that they had a claim on the property and it offered to return the sum paid by him, which was refused. Subsequently, the owner conveyed the property to the Brewing Company, in pursuance of the option, and the company entered into possession. After that, and with knowledge of that, the plaintiff tendered the balance due on the purchase money to the former owner and demanded a conveyance. Upon a bill by the plaintiff against the former owner, to which the Brewing Company was later on made a party defendant, asking for specific performance, held, that since the plaintiff had not acted in good faith throughout the transaction, and knew of the claim of the Brewing Company, he is not entitled to the decree asked for as against the legal title now held by the Brewing Company.</p>