Volume 108 — Maryland Reports

<p>Bill in Equity to Enforce Liability of Directors of Corporation for Negligence — Parties—Contribution—Amendment of Bill.</p> <p>In a bill by a receiver of an insolvent bank to enforce the liability of directors .for negligence in the management of its affairs, in that they made loans to certain parties in violation of statute, and also declared dividends, which were likewise unlawful, it is not necessary that all of the directors who participated in the unlawful acts be made defendants in the same proceeding.</p> <p>A bill of equity was filed by a receiver of an insolvent bank against all the persons who were directors of the bank during certain years when negligent and unlawful acts were authorized by the directors which resulted in loss. Some of the defendants were directors duringonly a part of the time, and others of them did not participate in the alleged unlawful acts. The bill having been adjudged to be multifarious, it was dismissed by order of counsel as to all the defendants except those who were directors throughout the whole period in question, although some of the defendants dismissed participated in some of the unlawful acts complained of in the bill. Held, that this dismissal from the case of some of the defendants does not deprive the remaining defendants of any right that they may have to call upon the dismissed defendants for contribution in respect to losses caused by acts in which they also participated.</p> <p>A bill in equity by the receiver of an insolvent bank to enforce the liability of directors for losses incurred through their unlawful acts in the managment of the affairs of the bank was held to be multifarious in that included among the defendants directors who were not charged with any participation in the acts complained of. Leave was granted to the receiver to file an amended bill, and this he did by dismissing the bill as to all of the defendants, except those alleged to have participated in all of the unlawful acts charged in the bill. Some of the dismissed defendants participated in some of the alleged unlawful acts. Held, that the allegations of the bill concerning the dismissed defendants are not inconsistent with the relief asked against the remaining defendants, and the dismissal of some of the defendants should be regarded as a substantial compliance with the order of Court relating to the amendment of the bill.</p>

) The deed referred to in the opinion of the Court is as follows: ■This Indenture made this 5th day of May, in the year of our Lord, 1848, between Thomas B. Dorsey and Milcah Dorsey, his wife, of Howard District of Anne Arundel county in the State of Maryland of the first part and The Baltimore and Ohio Railroad Company of the second part.

<p>Restrictive Covenant in Deed, as to Use of Land — Discharge of Covenant by Failure of Grantor to Insert Similar Covenant in Other Deeds According to His Agreement.</p> <p>In the deed under which plaintiff took title, and by which a part of an estate or tract of suburban land was conveyed, it was covenated between the grantor and grantee and their respective heirs and assigns, for the benefit of all other purchasers of the remainder of the estate, as well as for the grantor, that the grantee and his assigns would erect • only a private residence or residences on the land conveyed, and would not at any time erect or use thereon, any public house, or house of amusement, provided however that the grantor “shall cause to be inserted similar clauses in all other deeds to said purchasers,” which he thereby covenanted to do. In fifteen out of seventeen deeds conveying other parts of said tract, a similar restrictive covenant was inserted, but in two deeds conveying parts thereof, there was no such covenant. Held, that the restriction was part of a general scheme for the benefit of all of the purchasers of the designated tract; that the expression in plaintiff’s deed, “remainder of the estate,” means all of the said tract not embraced in that deed, whether previously or subsequently conveyed to a purchaser; that the restrictive covenant in plaintiff’s deed was not absolute, but was expressly made dependent upon the condition that the grantor should cause the same covenant to be inserted in all other deeds of the remainder of the tract, which the grantor covenanted to do; that the omission of this covenant from two deeds conveying part of the estate was a breach of his covenant by the grantor, and operated to release the land conveyed to plaintiff’s assignor from the restriction, and to discharge the plaintiff from the obligation of the covenant.</p>

<p>Building Contract — Action of Assumpsit on Contract Under Seal — Refusal by Architect of Certificate — Use of Building.</p> <p>A contract under seal provided that the plaintiff should make alterations m a building, according to certain specifications for a designated sum, to be paid in three instalments upon certificates from the architect. The plaintiff brought an action of assumpsit to recover a balance alleged to be due upon the contract. The defendant pleaded that the work was not done according to the specifications and not within the time stipulated. The architect refused to give a certificate. Held, that since the original contract was not abandoned or waived by the parties, and the action is on the contract and not for extra work outside of the contract, and the work done by the plaintiff was not accepted by the defendant and there is no evidence that the architect wrongfully refused to give a certificate, the plaintiff is not entitled to recover.</p> <p>When a building contract provides that payment shall be made upon the certificate of the architect that the work has been done in conformity with the specifications, the fact that the party for whom the work is done makes use of the building is not in itself a waiver of this condition.</p>

<p>Judgment on Former Appeal Conclusive on Remand of Cause — Res Judicata Pro Vertíale Accipiinr — Opinion of Trial Court to be Inserted in Record on Appeal.</p> <p>Upon a former appeal, it was adjudged that certain lien claims were entitled to payment in the distribution of a fund in Court, and that exceptions filed to certain other lien claims was so insufficient in form as not to be entitled to consideration, and the cause was remanded to the end that a new account should be stated in accordance with that adjudication. Held, that the validity of those other lien claims cannot be attacked by new exceptions filed to the second distribution account stated in accordance with the opinion of the Court of Appeals, since the question relating to those claims is res judicata.</p> <p>Although the Judges of the equity Courts in Baltimore City are not required by statute to file written opinions in the causes decided by them, yet, when they do so, the opinions should be inserted in the record when an appeal is taken.</p>

<p>Cross appeals from the Circuit Court for Prince George’s County (Merrick, f.)</p>

<p>Trustee in a Mortgage to Secure Bonds Represents the Holders — Power of Court to Authorize Sale of Property Discharged from Mortgage.</p> <p>The trustee in a mortgage executed to secure the payment of a number of bonds represents the holders of the bonds in a legal proceeding respecting the trust property, such as an equity suit for the sale of part of the property covered by the mortgage, and the re-investment of the proceeds.</p> <p>The United Railways Company executed a first mortgage of all its property to secure the payment of certain first mortgage bonds, and after-' wards executed another mortgage, to secure certain income bonds. The first mortgage contained a clause authorizing the trustee to release from its operation property not necessary for the use of the company, and which the company might desire to sell. There was no similar authority in the second mortgage, but it was declared to be subject to ■ the provisions of the first mortgage. Upon a bill by the railway company against the trustee in the second mortgage, alleging that it was for the interest of all parties that certain unproductive property be sold and the proceeds invested, subject to the lien of the mortgage, held, that the trustee in the mortgage represented the bondholders, and that the Court had the power to authorize the sale of such property, discharged from the lien of the mortgage.</p>

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

), where there was a verdict for the plaintiff for $100. Plaintiff’s 2nd Prayer. — If the jury find from all the evidence in this case'that the plaintiff was upon the premises of the defendant in Baltimore City for the purpose of transacting business with the said defendant, and while so upon said premises he was arrested and detained against his will by Herman E. Fischer, as testified by him, upon the charge of the larceny of the property of the defendant, and said Fischer…

J.) Plaintiff's 1st Prayer. — If the jury find that on the 28th day of July, 1906, the plaintiff was a .passenger in a carriage driven by her father, Wolf Miller, along and upon Baltimore street, at or near its intersection with Wolfe street, and that theretofore the defendant caused and procured certain tracks to be laid thereon for the propulsion of its cars, and caused and procured within the limits of said tracks certain conduits to be constructed for cable connection…

J., Adictns and Crothers, JJ.), where there was a judgment on verdict for the plaintiff for $12,500.

<p>Gift from Principal to Agent — Independent Advice — Validity of Gifi from Servant to Master.</p> <p>A gift from a principal to his agent, when it is the voluntary act of the donor free from undue influence, will not be annulled merely because the donor did not have independent advice at the time of the transaction.</p> <p>There is no such presumption of law against the validity of a gift from a principal to his agent, as there is in the case of a gift to one holding a confidential relation to the giver in which dominion is implied, but the burden of proving that a gift by the principal was not his deliberate and uncontrolled act, is upon the party attacking its validity.</p> <p>A woman who was a domestic servant in the family of the defendant’s father at the time of defendant’s birth, and who continued in that ser- • vice, and afterwards in the service of the defendant himself upon his marriage, and until her death, serving thus altogether for upwards of forty years; who had always been treated as a member of the family, and who had invariably exhibited great affection for the defendant, gave to him fifteen hundred dollars to be used in buying a farm. The defendant had acted as the woman’s agent in managing her bank account, in which were accumulated her wages. After her death, the administrator of her estate filed the bill in this case to vacate the transaction and recover said sum. The evidence examined, and held to show that the transfer of the money to the defendant was intended to be a gift and not a loan, that it was the voluntary and deliberate act of the donor and that the gift was not voidable on the ground that the donor did not have the competent and disinterested advice of some third party at the time of making it.</p>

<p>Appeal from the Circuit Court for Cecil County (Crothers and Adkins, JJ.)</p>

2, of Baltimore City (Gorter, J.) . The decree referred to in the opinion of the Court is as follows: This cause coming on to be heard, and the testimony and arguments of counsel being considered it is this 17th day of October, 1907, by the Circuit Court No. 2, of Baltimore City, ordered adjudged and decreed.

), where there was a judgment on verdict for plaintiff for $10,000.

) Defendants 3rd Prayer. — If the jury shall find from the evidence that in the latter part of February nineteen hundred and seven or in the early part of March of the same year, the defendant company through its president, J. M. Jackson, assigned to the plaintiff an order on Newman & Company for fifteen thousand bushels of malt; and if they shall further find from the evidénce that the consideration for the assignment of this order was the sum of nine hundred and…

<p> Billfor Injunction to Restrain Maintenance of Stable Alleged to be a Nuisance. </p> <p>The bill in this case alleged that the defendants maintained a stable on the side of an alley opposite to one end of plaintiff’s apartment house; that the unsanitary condition in which the stable was kept, the offensive and unhealthy odors arising therefrom, and the noisy conduct and profane language of the stablemen caused great annoyance and danger to the tenants in plaintiff’s house, some of whom went away on account thereof, while the rent of others was for the same reason reduced. The bill prayed for an injunction restraining the owner ofthestable and the lessee thereof from so using it as to cause discomfort or injury or the danger thereof, to the tenants in plaintiff’s building. The evidence examined, and held not to show that the stable was managed so as to be such a nuisance as entitles the plaintiff to an injunction, but that he should be remitted to his remedy at law, and to the enforcement of the municipal ordinances relating to the deposit of manure on city lots, and to the prevention of offensive odors from stables, and for the repression of disordely conduct and profanity.</p>

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

) Plaintiff's 6 th Prayer. — If the jury find that at the time the paper writing of June 23rd, 1904, was presented by the defendant’s agent to the agent of the plaintiff, the defendant’s agent told the plaintiff’s agent that he could rely upon certain plans then in his possession, which contained all the necessary data and information to enable the plaintiff to proceed at once to procure the manufacture and the delivery of the articles mentioned, and. that the plaintiff’s…

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

2, of Baltimore City, when the following opinion was delivered by Gorter, J. The Brigham-Hopkins Company, of Baltimore City, at the time of the occurrence of the acts in this suit complained of, viz., in the years 1905 and 1906, was a corporation duly incorporated under the General Laws of Maryland, having become so in the year 1890, when its certificate of incorporation was filed in the clerk’s office of the Superior Court of Baltimore City.

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

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

) Plaintiff's 1st Prayer. — The jury are instructed that if the jury find for the plaintiff, then in assessing damages, they may allow the plaintiff the value of the goods shipped to Atlanta (as described in the testimony), on the twenty-seventh of October, 1905; with interest in the discretion of the jury, from that date to the date of their verdict.

Henderson, J.) Plaintiff's ist Prayer. — That there is no evidence in this case legally sufficient to prove that plaintiff took or purchased the single bill offered in evidence with knowledge of any fraud in its obtention, or of any failure of consideration therein.

) Defendant’s 3rd Prayer. — If the jury believe from the evidence that at the time he received the injuries for which this suit is brought, the plaintiff was upon the car of the defendant for the purpose of selling newspapers to the passengers, then the verdict must be for the defendant, unless the jury further find that the injury to the plaintiff was caused by the conductor of the car either wantonly or with reckless carelessness, pushing and kicking the plaintiff off the…

<p>Constitutional Law— Title of Statute Amending Code — Validity of Statute Relating to Appraisers in Probate Proceedings.</p> <p>A provision in the Code of Public General Laws may be repealed, so far as it relates to a territorial division of the State, by a statute making reference in its title to the Article and section of the Code, and such statute is not in conflict with Constitution, Art. 3, sec. 29, which prescribes that no law shall be amended by reference to its title and section only.</p> <p>The title of the Act of 1908, ch. 118, is as follows: “An Act to repeal section 205 of Article 93 of the Code of Public General Laws (as said section stands in the Code of 1904), title ‘TestamentaryLaw,’sub-title, ‘Inventory and List of Debts,’ so far as said section applies to the city of Baltimore; and a new section to Article 4, of the Code of Public Local Laws, title, ‘City of Baltimore,’ sub-title, ‘Register of Wills,’ to follow section 354 and to be designated as section 354A.” In the body of the Act the provision of the Code relating to the appointment of appraisers of the estates of decedents was repealed, so far as Baltimore City is concerned, and provision was made for the appointment of appraisers of such estates by the Register of Wills of said city and for their salaries and terms of office. Held, that the subject matter of Act is described in the title, and that it is consequently not in conflict with Constitution, Art. 3, sec. 29, which provides that the subject matter of every law shall be described in its title.</p> <p>The Act of 1908, ch. 118, directs that the Register of Wills of Baltimore City shall appoint four general appraisers for that city to appraise the estates of decedents, and that such appraisers shall receive a fixed salary to be paid out of charges made against such estates appraised as now allowed by law. Held, that the Act does not prescribe that all four appraisers shall serve in the appraisement of each estate, but the meaning of the Act is that two of these appraisers shall be designated by the Register to serve in each particular case according to the then existing usage and law.</p>

<p>Stipulation that Restrictive Covenant in Conveyance Shall be Satisfactory to the Vendor— Good Faith in Expression of Dissatisfaction— Time of Giving Possession of Land Sold.</p> <p>When a contract for the sale of a parcel of land provides that a covenant, which shall be satisfactory to the vendor, restricting the sale of liquor on the land, shall be inserted in the deed of conveyance; and the vendor, acting in good faith, in the exercise of his judgment, upon the advice of his counsel and not from mere caprice or with dishonest motive, refuses to execute the deed tendered to him, on the ground that the language of the restrictive covenant therein contained is not satisfactory, his determination is conclusive, and a bill against him for specific performance will be dismissed. •</p> <p>A contract for the sale of a house and lot stipulated that the deed of conveyance should contain a covenant to the effect that no spirituous or malt liquors should be sold on the premises conveyed for a period of five years, and an additional covenant that the grantee should pay to the grantor and his personal representatives the sum of $50 per day for every day on which the sale of such liquor should be permitted on the . premises, and also that such covenants should be satisfactory to the vendor. The deed prepared by the purchaser and tendered to the vendor for execution contained these restrictions as independent covenants at its end, while the vendor’s counsel insisted that they should be recited in the deed as constituting a part of the consideration of the conveyance. Held, that since there might be a doubt whether these covenants would run with the land if not made a part of the consideration, the vendor’s refusal to execute the deed proffered upon the ground that the covenants were not satisfactory to him, was not unreasonable, and the purchaser is bound by the vendor’s action in rejecting the deed for this reason.</p> <p>If the agreement for the sale of land mention no time for the delivery of possession and the land was then in the possession of a tenant under a lease, the purchaser is not entitled to demand possession at the time of the execution of the deed of conveyance.</p>

<p>Appeal — Replevin by one Partner for Firm's Properly — Waiver of Objection of Lack of Parly Plaintiff — Description of Property in Action of Replevin — Instruction as to Sufficiency of Evidence.</p> <p>After the entry of a suit by a plaintiff to the use of third parties, an appeal from a judgment for the defendant was taken by an order signed by W. and W. “attorneys for plaintiff." Held, that the use of the word “plaintiff” in this order instead of the plural “plaintiffs,” is an immaterial clerical misprision, and that the appeal should be treated as having been taken for all the parties plaintiff both legal and equitable.</p> <p>No appeal lies from the action of the trial Court in allowing or disallowing the pleadings in the suit to be amended.</p> <p>The plaintiff in replevin need not have an absolute title to the property but may maintain the action if he has the right of possession at the time of issuing the writ. Consequently, one partner may sue in replevin for property belonging to his firm when he is entitled to its possession.</p> <p>The plaintiff A. purchased certain goods in his own name and afterwards directed the brokers who effected the sale to make the contract for the same and the shipment in the name of his firm, A. & Co. In an action of replevin for said goods instituted by A. alone, the defendant objected to the admission in evidence of the contract, which represented the sale as having been made to A. & Co., because of the variance as to parties between the contract and the declaration, and this objection was sustained. The trial Court refused to allow the declaration to be amended by inserting the name of A’s partner as an additional plaintiff, and instructed the jury that the verdict must be for the defendant since the plaintiff had offered no evidence legally sufficient to entitle him to recover. Held, that the plaintiff, who purchased the goods for his firm, was entitled to possession as against the defendant and could maintain replevin, and that it was error to reject the contract of sale offered in evidence.</p> <p>Held, further, that even if the action should have been brought in the names of all of the partners instead of that of one partner alone, the objection should have been made by a plea in abatement, and was waived by pleading over to the merits.</p> <p>When the evidence offered by a plaintiff was legally sufficient to entitle him to recover but it was ruled to be inadmissible by the trial Court, the jury should not be.instructed to find for the defendant on the ground that the plaintiff had offered no evidence legally sufficient for a recovery, but the instruction should refer to the legal sufficiency of the evidence actually in the case.</p> <p>In an action of,replevin, although the description of the property in the writ and declaration may be indefinite, yet, if the property has been delivered to the plaintiff by the sheriff, the burden is upon the defendant to show that the property actually replevied was not that which the plaintiff designed should be taken.</p>

) The trial Court rejected all of the prayers offered and instructed the.jury as follows: “The jury are instructed that if they find the issue of the policy sued upon in this case by the defendant company, that said policy was upon the life of Rose Rain, for the benefit of her mother, Marie Rain, the plaintiff herein, and that said policy having been so issued, was in force at the date of the death of Rose Rain, in so far as any default having taken place after the issue of…

). Plaintiff’s 3rd Prayer. — The plaintiff prays the Court to instruct the jury that where death results from the taking of a dose or quantity of carbolic acid self destruction is not presumed, but the law presumes the same was the result of accident, and the burden of proof in this case is upon the defendant company to show that the same was taken intentionally an'd for the purpose of causing death, by a preponderance of evidence, and that it was not the result of accident;…

<p>Specific Performance — Laches of Plaintiff Disentitles Him to Relief</p> <p>When a purchaser of land alleges that a release of a supposed interest is necessary to perfect the title, and this is denied by the vendor, the purchaser should elect either to accept the title without the release or to cancel the contract. He cannot delay and afterwards, when the vendor has agreed to sell the land to third parties, waive his objection to the title and file a bill for specific performance.</p> <p>The purchaser under an agreement for the sale of land failed for five months to fulfill his promise to pay the price, alleging, as one of the reasons therefor, that a third party had an easement in a portion of the land which should be released in order to make the title clear. The vendor denied the existence of such easement and refused to procure a release and the purchaser finally waived the requirements. The vendor then notified the purchaser in writing that if the purchase money was not paid within three days, the contract would be treated as cancelled. No answer was made to this notice and the day after the expiration of the time limited the vendor agreed to sell the land to another person. A few days afterwards the purchaser filed the bill in this case for specific performance. Held, that under these circumstances, the plaintiff is not entitled to relief asked for.</p>

<p> Liability of Corporation on Contract Made by Promoter for Its Benefit. </p> <p>When the promoters or projectors of a corporation about to be formed, make a contract on its behalf, the benefits of which are accepted by the corporation after its formation, such contract is enforceable against the corporation.</p> <p>The promoter of a corporation employed the plaintiff to procure a loan on the property of the future corporation, promising to pay him a certain compensation for such services. After its formation the corporation accepted the loan so procured and executed a mortgage to pay the same. Held, that the plaintiff is entitled to recover from the corporation, in an action at law, a reasonable compensation for his services, not exceeding the sum mentioned in his agreement with the promoters.</p>

) ■ The clauses in the will of Sallie Longwell, referred to in the opinion of the Court, are as follows: 12. I give, devise and bequeath unto the ’Bishop of the Protestant Episcopal Diocese of Maryland, and his successors in office, a body corporate of the State of Maryland, all that part of the real estate devised to me in fee after the death of my mother, said Sarah McK.

<p>Mechanics' Lien — Contract by Owner to Pay for Materials Furnished During Illness of Builder and Contractor.</p> <p>Defendant employed a builder to put up a house and stable on his land, under a contract by which it was provided that, if the builder should fail to carry on the work with due diligence, the owner should be at liberty, after notice, to provide labor and materials and deduct'the cost thereof from the contract price. After doing a part of the work, the builder became ill in November, 1905, and did notresume work until January, 1906. During this interval, the defendant took charge of the building himself and ordered certain materials from the plaintiff and paid for the same. After the builder resumed work in January, he also ordered materials from plaintiffs, which were not paid for. Under a bill to enforce a mechanics’ lien claim for the same, held, that the evi. dence shows that the defendant did not agree with the plaintiffs to pay for all materials to be used in completing the house, but that his contract was to pay only for materials supplied on his order, and until the builder resumed charge of the work; that plaintiffs had actual knowledge of his resumption of work and supplied the materials sued for in this case to the builder on his order, and that consequently plaintiffs are not entitled to enforce payment for the same from the defendant.</p>

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

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

<p>Master and Servant — Injury Caused by Breaking of Glass in Window— Unexplained Accident — Duty to Inspect Appliances.</p> <p>One of the duties of the plaintiff, an employee in defendant’s store, was to open in the morning and close in the evening the large windows on one of the floors of the building. There was in each window a single pane of heavy plate glass, and the window was opened and closed by means of fixed pivots at the top and bottom. Plaintiff had been doing this work for some months when on one occasion, immediately upon his closing a window, broken glass fell from it upon him, causing the injuries to recover damages for which this action was brought. There wás no evidence to show how the glass was broken. It was proved that the window had been properly constructed in the first place, and that, at the time of the accident, the strips or beads which held the glass in the frame were in good condition. Afterwards, strips slightly different in character were put in the window. Plaintiff alleged that the defendant had failed in his duty to maintain the window in good condition. Held, that the mere happening of this accident creates no presumption of negligence on the part of the defendant, and the maxim res ipsa loquitur has no application; that there is no evidence that the injury was caused by defective beading around the glass; that the plaintiff had daily opportunity to observe the conditon of the window, and that it was his duty to do so; that defendant was not bound to establish a system of independent inspection, and that consequently the evidence is not legally sufficient to go to the jury to entitle the plaintiff to recover.</p> <p>The ruling of the trial Court in admitting incompetent evidence against .the objection of the appellant is not reversible error when the appellant afterwards himself adduces evidence to the same effect.</p> <p>Whether the duty to inspect the appliance with which work is to be done is imposed upon the master or upon the servant, depends upon the facts of each case, the nature of the employment and the rules or custom of the employer.</p> <p>When a man is employed to open and shut the large plate glass windows in a building, the duty to inspect them and report if they are out of order is imposed upon him.</p>

) Plaintiff’s 2nd Prayer. — If the jury find under all the circumstances testified to in this case, that the defendant in requiring the plaintiff as one of his. duties, under his employment as testified to in this case, if the jury so fin'd, to place the car on the elevated structure, or to otherwise handle said car, as testified to'in this case, if the jury so find, exposed the plaintiff to a probable danger or risk which he had no reason to believe or know from the nature…

<p>Master and Servant — Custom of Operators to Use Machinery in a Dangerous Way — Knowledge Thereof by Employer — Duty to Warn oj Danger — Instructions to fury.</p> <p>A master is not bound to inform an employee, who has had experience in working machinery, that it is dangerous to put his hand under a machine at a point not open to view, when it is not necessary for him to do so in operating the machine, unless the master knows that the employee in the prior operation of machines of a similar kind had been in the habit of so placing his hands.</p> <p>Plaintiff, a young woman nearly twenty-one years of age, had been employed in defendant company’s factory for a year and a half to operate a machine for making bottle stoppers, and in so doing had been in the habit of putting her fingers under a channel plate of the machine, where there was a space of about two inches, and that was also the custom of certain other operators. Some of the machines in the factory were changed, and under the channel plate in the new machines, there were rollers which made it dangerous for an operator to put his hand there. These rollers were not visible unless the operator stooped down to look under the machine. Plaintiff was put to work on one of the new machine, but was told of the difference in construction which made it dangerous to put her hands under the channel plate, and in doing so, she was injured. It was not necessary for her in the operation of the machine to put her hands under the plate. Held, that it was error to instruct the jury that the plaintiff is entitled to recover if they find the facts above mentioned, but that if they also find that had the plaintiff exercised the care that an ordinarily prudent woman with experience should have exercised, she would have discovered the danger of putting her hand under the plate of the remodeled machine, in which case their verdict must be for the defendant. This instruction assumes that the defendant knew that the plaintiff and other operators were accustomed to put their hands under the channel plates, and does not leave to the jury to find that the defendant did have such knowledge, or that the custom to do so was so universal that the defendant would be presumed to have knowledge of it. If the defendant did not know that such had been the custom of the plaintiff and others in operating the old machines, it was under no obligation to warn plaintiff of the danger of so doing in the new machines, since it was not necessary so to place her hands in operating either kind of machine.</p> <p>Held, further, that evidence is admissible to show a custom on the part of operators to use the space under the channel plates, and knowledge thereof by the defendant.</p> <p>Held, further, that the evidence in this case is sufficient to require the submission to the jury of the questions of the defendant’s negligence, and of the plaintiff’s contributory negligence.</p>

2, of Baltimore City (Gorter, J.) By the first item of the will of Robert G. Lumpkin, he gave , to his wife absolutely his dwelling house No. 1416 W. Lexington street and also gave her during her natural life four-tenths of his estate, real and personal, including therein thirty-nine designated ground rents yielding annually, $2,868.

<p>Landlord and Tenant— Covenant in Lease Requiring Lessor to Rebuild in Case Premises are Destroyed by Act of God — Building Injured by Alterations and Natural Decay — Remanding Cause.</p> <p>In the absence of an agreement to that effect in the lease, a landlord is not required to repair the demised premises, or to rebuild the same in the event of their destruction.</p> <p>An occurrence which is directly produced, in whole or in part, by human agencies is not an act of God, as that expression is used in the law.</p> <p>When a building falls to pieces by gradual decay from natural causes, that is not an act of God without a stipulation in a lease, requiring the lessor to rebuild in case the building is destroyed by an act of God.</p> <p>The lease of a building used as a store in á city, provided that in case it should bedestroyed or rendered untenantable by fire, flood, the elements or act of God, at any time during the continuance of the lease, the lessor should, within a reasonable time, rebuild and restore the same at his own expense, the rent to cease until the premises are restored. Chiefly on account of the removal of a floor in the building and the making of openings in a wall and other alterations made in it by the lessee and prior tenants, the building became uusafe, and in pursuance of orders of the Building Inspector of the city it was torn down. Upon a bill by the tenant asking that the lessor be required to rebuild and restore the premises, held, that the destruction of the building was not caused by the elements, or an act of God, within the meaning of the covenant in the lease, and that consequently the lessee is not entitled to the relief asked for.</p> <p>This Court will not remand a cause for further proceedings except for reasons which appear upon the record at the time of hearing.</p> <p>Consequently, when a bill is filed to require a lessor to rebuild a house which had been condemned by the Building Inspector, and the bill is dismissed because the lease did not impose such an obligation on the lessor, the cause will not be remanded to the end that the lessee may obtain a decree to reimburse him for the expenses incurred in removing the condemned building, when the bill does not ask for such relief and there is no evidence in the record that he had expended any money in removing the building.</p>

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

<p>Costs — Equitable Set-off — Payment of Costs by Third Party — Subrogation.</p> <p>The fact that one not .a party to a suit pays the costs incurred by a party to the Clerk of Court, Examiner, etc., does not entitle him tobe subrogated to the rights those persons would have if the costs had not been paid, in order to secure repayment when the costs of the case are finally adjudged in favor of the party for whom he made the payment.</p> <p>If the costs incurred by one of the parties during the progress of a cause are paid by a third person, the right of such third person to reimbursement is primarily against the party for whom the costs were paid, and if such party be the successful one to whom costs are awarded, the right of the third person to any part of these costs is only through and by virtue of the right of the successful party thereto. The right of such, third person can be no higher than that of the successful party, and such right is subject to all the equities which would exist against that party himself.</p> <p>A bill in equity was filed by A against B and C. The lower Court dismissed the bill as against C and granted relief as against B. Upon his appeal, the bill was dismissed against him also, with costs above and below. B ordered the issue of a writ of execution for the costs so awarded, which had been paid, when A filed the bill in this case alleging that B was insolvent and was indebted to him in a sum in excess of said costs, to recover which he had instituted an action at law, and he asked that the issuing of the writ of execution be enjoined, and that his (A’sj claim be set off against B’s claim for costs. A paid the amount of the costs into Court. C then intervened, alleging that he had paid the costs for B, and asked that he be repaid the amount of his advance out of the sum so deposited. Held, that C as a third party who paid the costs for B, is not entitled to be repaid out of the sum due by A to B, and that Ais entitled to enforce his claim as an equitable set-off against the costs so awarded to B.</p>

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

<p>Two appeals from the Circuit Court for Cecil County (Adkins and Hopper, JJ.)</p>

J.), where there was a judgment on verdict for the plaintiff for $2,000. Plaintiff's 1st Prayer. — If the plaintiff was employed by the defendants to work in their building, then it was the duty of the defendants to use all reasonable care to provide and maintain in and about the place where the plaintiff was put to work by them, safe, sound and suitable structures and instrumentalities.

<p>Appeal from the Baltimore City Court (Sharp, J.), where there was a judgment on verdict for the plaintiff for $3,500.</p>

) Plaintiff's 6th Prayer. — If the jury believe from the evidence that the three car loads of tomatoes or 1,500 cases admitted to have been delivered to the defendant by the plaintiffs on the .2nd, 8th and 23rd days of October, 1906, were No. 3 standard tomatoes, and were of the kind and quality of the samples submitted to the defendant on the 8th day of September, 1906,. and approved by him, then in that case, the plaintiffs are entitled in this cause to recover for the…

On eighth issue, the Court find for the plaintiffs, and verdict that Reverdy Dronenburg collected said sum of $5,500 solely in his official capacity as administrator of Ephraim G. Harris, deceased, as pecuniary damages for the benefit of said estate. (Ninth issue abandoned.) On tenth issue, the Court find for the plaintiffs, and verdict is “He did.” . , On eleventh issue, the Court find for the plaintiffs, and verdict is “He did.” (Twelfth issue abandoned.)

<p>Specific Performance — Indefinite Agreement.</p> <p>Upon a bill for the specific performonce of an agreement alleged to have been made by a decedent for the lease of certain premises for a number of years, the evidence examined and held to be too vague and uncertain to authorize the decree asked for.</p>

<p>Mortgages — Resale Upon Purchaser's Defatilt — Right of Mortgagor to Except to Ratification.</p> <p>When, upon the failure of a purchaser at a mortgage sale to comply with its terms by paying the purchase price, the Court orders a resale of the property, the mortgagor has a right to except to the ratification of the second sale.</p>

<p>Executors and Administrators— When Creditor of Decedent May Sue on Administrator's Bond.</p> <p>Code, Art. 93, sec. 100, provides that an administrator shall pay each creditor of the estate his just proportion of the money in his hands within thirteen months from the date of his letters, or within such further time as may be allowed by the Orphans’ Court, and upon failure to do so his administration bond may be put in suit. Section 104 provides that no creditor shall bring a suit upon an administration bond for any debt due from the decedent before a non est on a summons is returned against the administrator, or a fieri facias is returned nulla ■ bona, or there be such other apparent insolvency or insufficiency of the estate of the administrator as shall in the judgment of the Court render the creditor remediless by any other means save that of suing such bond. Held, that,' although an administrator has passed in the Orphans’ Court an account by which a certain sum was stated to be due and payable to the plaintiff, as creditor of the decedent, the plaintiff cannot sue on the administrator’s bond until the conditions specified in section 104 have been complied with, or until the insolvency or in- ■ sufficiency of the estate of the administrator be shown to the Court.</p>

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

) The article referred to in the opinion of the Court is as follows: Our Position Endorsed. Vigorous letter from a close observer of Past and Present Local events. Lonaconing, Md., Dec. 14th, 1907. Editor Star. The thanks of the community are due for the severe but high-toned, well deserved chastisement you administered busy-body D. R. Sloan both in the Board of Tráde meeting and this week’s issue of the Star.

) The' deed mentioned in the opinion of the Court is as follows: This deed made this 18th day of June in the year eighteen hundred and eighty, by Elizabeth S. Bowie, of Charles County, in the State of Maryland: Whereas the said Elizabeth S. Bowie is desirous to make provision for herself and her son, William T. Stoddert, against future contingencies, and for the maintenance and support of the said William T. Stoddert: and.

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

<p>Appeal by Administrator — Counsel Fee Claimed for Services to Administrator Personally.</p> <p>An administrator is entitled to appeal from an order of the Orphans’ Court, directing him to pay a sum of money for legal services rendered to him or to the distributees, of the estate.</p> <p>When a party gives legal advice to a person in his individual capacity, and before he is appointed administrator, and afterwards renders .no services of value to the estate, he is not entitled to demand - compensation from the administrator.</p>

<p> Alleged Resulting Trust in Land Cannot be Established Under Exceptions to Ratification of Sale by the Trustee. </p> <p>When land is sold by a trustee under an assignment for the benefit of creditors, a third party, who alleges that he furnished part of the purchase' money with which the assignor paid for the land and that he is i consequently entitled to a resulting trust therein, is not authorized to except to the ratification of the sale on that gronnd. His rights, if any exist, must be established by an independent proceeding, and are not affected by the trustee’s sale, which passes only the estate of his assignor.</p>

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

<p> Purchase of demised land by tenant at a tax sale. </p> <p>When a tenant purchases the land demised at a tax sale, he will be decreed to hold the tax sale title in trust for his landlord, since Code, Art. 81, sec. 69, requires a tenant to pay the taxes levied on the demised premises; and the landlord may maiutain a bill in equity to enforce his right, although he is not in possession of the premises.</p>

<p>Appeal from the Circuit Court for Prince George’s County (Merrick, J.)</p> <p>The cause was submitted to Boyd, C. J., Briscoe, Pearce, Schmucker, Burke, Thomas, Worthington and Henry, JJ., on briefs by:</p>

<p>Power of Orphans’ Court as to Commissions Allowed an Executor— Appeal.</p> <p>Code, Art. 93, sec. 3, provides that the commissions of executors and administrators shall be, at the discretion of the Orphans’ Court, not under two per cent nor exceeding ten per cent on the first $20,000 of the estate, and on the balance of the estate not more than two per cent. Art. 81, sec. 113, directs the Orphans’s Court to fix the commissions of executors and administrators in all cases, whether they be claimed or not, and the commissions so fixed are subject to the tax imposed by sec. 112. Held, that, although an executor asked only for commissions of two per cent on the first $20,000 of the estate and one-tenth of one per cent on the balance, the Orphans’ Court has the power to fix his commissions at two per cent on the entire amount of the estate.</p> <p>No appeal lies from an order of the Orphans’ Court fixing the commissions of an executor, although the commissions allowed by the order are in excess of those claimed by the executor, and no testimony was taken by the Court as to the value of the services rendered by him.</p>