Volume 109 — Maryland Reports

<p> Constitutional Law—Title of Statute—Acquiescence in Unconstitutional Law—Invalidity of One Part of a Statute Rendering Invalid Another Part. </p> <p>The title of the Act of 1865, Chap. 14, is “An Act to incorporate the Pocomoke Bridge Company.” The statute empowered the company to build a bridge across the Pocomoke River in Worcester and Somerset Counties. Section 12 of the Act required the County Commissioners of Somerset County to pay annually to the Bridge Company the sum of six hundred dollars, and the County Commissioners of Worcester to pay annually to it the sum of seven hundred dollars. Held, that this section is invalid because in conflict with Constitution, Art. 3, Sec. 29, which prescribes that the subject of every law shall be described in its title. No one could infer from the title of this Act that any such legislation as this was contemplated by it.</p> <p>The fact that payments have been made by County Commissioners for a number of years in pursuance of a statute, does not operate to estop them from questioning its validity.</p> <p>When one section of a statute is void because in conflict with a Constitutional provision, another section, which is so connected with that section that it would not have been enacted as an independent provision, is likewise invalid, but the remaining part of the statute which is not inseparably connected with those two sections will be upheld.</p> <p>The Act of 1865, Chap. 14, incorporating the Pocomoke Bridge Company, between Somerset and Worcester Counties, provided in Section .11, that the residents of those two counties and all non-resident taxpayers of those counties should pass over said bridge free of toll, but that other persons using it should pay certain, rates. Sec. 12 provided that the County Commissioners of those two counties should pay certain sums annually to the Bridge Company. Held, that since it is obvious that the exemption from the payment of tolls was given to the residents of those counties by section 11 in consideration of the payments directed to be made by section 12, the fact that section 12 is invalid, because in conflict with the Constitutional provision requiring the subject-matter of every law to be set forth in its title, also renders invalid section 11, because that section is inseparably connected with section 12; but the remaining part of the Act is valid.</p>

<p> Divisibility of Contract by Corporation Valid in Part and invalid in Part—Contract of Corporation Terminated by Insolvency—Compensation for Services Rendered. </p> <p>A contract by a corporation to issue a certain number of shares of stock to a person in consideration of his transfer of property to it, and to pay that person a certain sum of money for services to be rendered, is divisible, and if the agreement to issue the shares of stock is invalid, because not ratified by the stockholders in the manner prescribed - by statute, the other agreement as to employment is valid.</p> <p>When the insolvency of a corporation renders impossible the further performance of a contract of employment, the person rendering the services is entitled to compensation to the extent of his part performance, according to the contract price.</p> <p>A corporation was organized to make cement, etc., according to a secret formula and process invented by one W., who agreed to transfer the same to the company in consideration of ninety thousand dollars of its capital stock, and of ten thousand dollars as compensation to W. for his services to the company as chemist, of which two thousand dollars was to be paid in cash and two hundred dollars per month thereafter until said sum should be fully paid. This agreement was made with the Board of Directors only. Code, Art. 23, Sec. 69, provides that subscriptions to the capital stock of a corporation in property shall not be received unless previously authorized by the stockholders in general meeting. After W. had served as chemist in pursuance of the agreement for some months, the company became insolvent, and upon a distribution of its assets, W. claimed to be entitled, as a creditor, to the extent of ten thousand dollars, less payments made to him. Held, that although the agreement to issue the shares of stock to W. was invalid because in violation of the statute, yet the agreement to employ him as chemist was valid.</p> <p>Held, further, that W. is entitled to claim as a creditor for the sum of two thousand dollars, which was to he paid him in cash, upon beginning the services, and for the stipulated salary of two hundred dollars per month until the receiver was appointed, less amount paid him on account.</p> <p>Held, further, that of this total claim W. is entitled to the full amount of salary for three months before the appointment of the receiver, and that on the balance of his claim he should be allowed a dividend as a general creditor.</p>

<p>Wagering Contract—Purchase of Shares of StoclS on Margin— When Valid—Burden of Proof—Stop Order to Sell Given to Stoch Broher—Insufficient Evidence of Agreement to Carry Shares of Stoch.</p> <p>If, tinder the semblance of a contract for the purchase of shares of stock at a future time, the intention of the parties is that the shares shall not be delivered and paid for, but that one party shall pay to the other the difference between the contract price and the market price at the date of settlement, then such agreement is a gambling or wagering contract. It is consequently illegal and no action lies upon it.</p> <p>But a speculative contract for the purchase of stocks, when the buyer deposits a margin as security for his performance of the contract, is not necessarily a wagering contract.</p> <p>The relation between broker and customer when goods are purchased on margin set forth.</p> <p>A stop order is a direction given by the purchaser to the broker to the effect that if the stock touches the price named in the order, while it is being held, the broker shall sell it at the best available price'; but it does not impose an obligation upon the broker to hold it until it reaches that price.</p> <p>When a party alleges that the contract by which he purchased shares of stock from a broker on a margin was a gambling transaction, and seeks to avoid the same, the burden of proof is upon him to establish that allegation.</p> <p>Plaintiff ordered a stock broker, the defendant, to purchase certain shares of stock, and deposited a sum of money as a margin on the transaction, and also executed a mortgage to the broker as further security. There was no agreement between the parties that the shares were not to be delivered. The broker purchased the shares for the plaintiff and was ready to deliver the same upon demand. The price declined on the market, and, upon plaintiff’s failure to pay for and receive the shares or to furnish additional margin, after notice, the broker sold the same on the stock exchange. Plaintiff then filed the bill in this case alleging that the purchase of the stock was a wagering contract, and also that the defendant had agreed to carry the stock for the plaintiff until it should decline to forty-five dollars per share, in consideration of which agreement plaintiff had executed the mortgage, but that the defendant, in violation of this agreement, had sold the stock at fifty-six dollars per share. The bill prayed that the mortgage be cancelled and that the defendant be required to repay the plaintiff the money deposited as a margin. Held, that the evidence fails to support the allegations of the bill or to show that the defendant had agreed to carry the stock for the plaintiff as therein alleged.</p>

<p> Gift of Savings Bank Deposit • to Take Effect on Death of Donor—Testamentary Disposition. </p> <p>A woman said to the teller of a bank that she wished to deposit a sum of money in the savings department in her name, and so that in the event of her death, it should be payable to one Jones. In the book of deposit then given' to her, the entry was as follows: “Erederica Crisp, in case of death payable to E. Jones.” Afterwards she gave the deposit book to Jones,</p> <p>■ accompanied by declarations showing her intention that he should have the sum so deposited upon her death. Under the rules of the bank, the money could not be paid without the production of the book. Held, that this transaction did not constitute a valid gift inter vivos, since the donee did not obtain control over the fund in the lifetime of the donor, and that it is not effectual as a gift to take effect upon her death, because not executed -in the manner prescribed by law for a testamentary disposition.</p>

<p> Principal and Surety—Subrogation—Acceptance of Third . Party’s Obligation in Satisfaction of Debt. </p> <p>Seven persons agreed among themselves to buy certain parcels of land from an Improvement Company, and, in accordance with their agreement, the property was conveyed to one of them, A., individuallay, who executed to the Improvement Company, his personal bonds for the deferred payments. He also signed a declaration of trust setting forth the real interest of the parties in the property. Each one of the purchasers paid his one-seventh of the first two instalments of the purchase money to A., who paid it .over to the company. No other payments were made and upon the insolvency of the company, its receiver' filed the bill in this case to enforce payment of the balance of the purchase money from said persons, other than A., alleging that defendants were each bound to pay one-seventh thereof to A. and that the plaintiff, as a creditor of A., is entitled to be subrogated to his claim against the defendants. Held, that A. was not a surety for the defendants, who were not directly indebted to the company, and A. had not paid any money for them, and that the Receiver is not entitled to maintain the bill.</p> <p>Held, further, that if the liability of the defendants to the company was not extinguished by its acceptance of A.’s individual bonds for their debt, it is barred by the Statute of Limitations.</p>

<p>Question of Fact as to Ownership of a Business—Injunction— Conduct by Plaintiff Held Not to Have Been in Fraud of Creditors and Not to Disentitle Him to Relef in Equity.</p> <p>The plaintiff’s bill in this case alleged that defendant had been employed for a number of years as a salaried clerk in a business established by plaintiff, but that the defendant had recently claimed to be the owner. The defendant alleged that he was the solo proprietor of the business, and that the plaintiff had served as his clerk. The bill prayed for an injunction restraining the defendant from interference with the business or property of the concern, and from soliciting its patrons. The evidence examined and held to establish the allegations of the bill and to entitle the plaintiff to the relief prayed.</p> <p>Upon the failure and insolvency of a firm of which the plaintiff was a member, he surrendered to its creditors all his interest in the firm, and all of his individual property. Before these creditors were paid, plaintiff began a new business as the sales agent of manufacturers, in which he employed one S. as his clerk, and in order to prevent the proceeds of the sales to be made by him as agent from being attached by his former creditors, he placed his bank account and insurance in the name of S. Afterwards, when S. claimed to be the owner of this business, plaintiff filed a bill for injunction and other relief against such claim. Held, that the purpose of the plaintiff in thus placing his bank account in the name of S. was not to defraud his creditors, who were afterwards fully satisfied, and that consequently he is not disentitled to the relief sought, by reason of the maxim that he who comes into equity must come with clean hands.</p>

<p> Appeal—Motion in Trial Court to Strike Out Judgment After Appeal Taken. </p> <p>After a judgment rendered in a Court of Baltimore City has become enrolled, by lapse of thirty days, under Local Code, Art. 4, Sec. 317, and an appeal therefrom entered, bond to stay execution filed, and the record'transmitted to the Court of Appeals, the trial Court has no jurisdiction to entertain a motion to strike out the judgment on the ground of surprise and fraud.</p> <p>The affirmance of a judgment by the Court of Appeals precludes the lower Court from vacating it, unless the cause be remanded for further proceedings.</p>

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

<p> Negligence—Fire Caused by Sparlcs from Dinlcey Engine—Evidence—Instructions to Jury—Entries Made in Course of Business by Person Beyond the State. </p> <p>The defendants, in the course of doing of certain railroad construction work, laid a track within a few feet of plaintiff’s ice house and outbuildings, and operated on the track certain dinkey engines and dirt cars. The declaration alleged that these engines were not supplied with spark arrestors or netting ; that they were negligently operated, and that plaintiff’s-house was set on fire and destroyed by sparks thrown out by one of the engines. Upon the trial of the action, held, that evidence is admissible to show that the dinkey engines had thrown out sparks shortly before the fire broke out in plaintiff’s house, and that these sparks had set fire to combustible material near the track.</p> <p>Held, further, that evidence that engines of a railroad company, operated in the county, had been seen to throw out sparks is not admissible, because that fact is in no way connected with the fire in question.</p> <p>Entries in a book relating to the inspection of locomotives, made in the course of his duty by a person now absent from the State, are admissible in evidence upon proof of his handwriting.</p> <p>When the defendant in an action to recover damages for a fire alleged to have been caused by sparks from his engine, offers evidence to show that an engine of a railroad company had thrown out sparks sufficient to have caused the fire, and about the same time, the plaintiff is entitled to offer evidence in rebuttal showing that the fire was not caused by the engine of the railroad company.</p> <p>In an action where the evidence showed that the defendant operated dinkey engines within a few feet of plaintiff’s house; that these engines had no spark arrestors in them, and no netting in the smoke boxes, and that they constantly threw out quantities of sparks near plaintiff’s house, the jury was instructed, at the instance of the plaintiff, that if they find that the plaintiff’s house was destroyed by fire communicated from the defendant’s engines and that the defendant did not exercise reasonable care to avoid, as far as practicable, injury to property along the line of the road upon which his engines were operated, by having said engines properly constructed and in good condition, then their verdict must be for the plaintiff. The jury was also instructed at the instance of the defendant that it was necessary for the plaintiff to prove by a preponderance of testimony, first, that the locomotive of the defendant emitted the sparks that set fire to plaintiff’s house, and second, that the defendant was guilty of negligence in the management of the engine that emitted the sparks that set fire to the house. Held,, that under these prayers, the jury was properly instructed as to the law of the case.</p>

<p> Action by Architect to Recover Compensation for Plans—Cost of Building in Excess of Estimule—Conflict Between Granted, Instructions to the Jury—Prayer Failing to Submit Finding of Fact to the Jury. </p> <p>If an architect is employed to prepare plans and specifications for a building which is to cost not more than a certain sum, lie is not entitled to compensation unless the building can be constructed under his plans at a cost reasonably near that designated in the estimate.</p> <p>Ordinarily, the question whether a building can be constructed under the architect’s plans at a price which reasonably approximates the designated estimate should be submitted to the finding of a jury.</p> <p>But when an architect is employed to make plans for a building whose cost is not to exceed $90,000, and the lowest bid received for its construction under his plans is for $125,000, the Court may rule, as matter of law, that his estimate did not reasonably approximate the cost of construction.</p> <p>In an action by an architect to recover compensation for building plans prepared by him, the defendant alleged that there was either an express agreement between them that the plaintiff was to receive no compensation for his services unless the building could be erected according to his plans for a sum not to exceed $90,000, or that there was an implied agreement or condition to that effect. The lowest offer received by defendant for the erection of the building, under the plans furnished by plaintiff, was for $125,000. The trial Court granted a prayer offered by the plaintiff to the effect that he was entitled to recover unless the jury found that it was distinctly understood and agreed that he should not receive any compensation unless the building to be constructed under his plans, would cost less than a certain sum, and that the same could not be built for that sum. The trial Court also granted defendant’s prayer instructing the jury that if they found that the plaintiff undertook to prepare plans for a building to cost not over $90,000, and that the plaintiff prepared plans for such building, and requested bids thereon, and that the lowest bid received was $125,000, then their verdict must be for the defendant. Held, that the defendant’s prayer is not a mere modification of that of the plaintiff, but there is a direct conflict between the two; that under the plaintiff’s prayer he was declared to be entitled to recover unless the jury found that there was an express agreement as to the cost of the building, while the evidence showed also an implied agreement to that effect, which would be equally a bar to plaintiff’s recovery, and this defense was presented by the defendant’s prayer; and that since the jury may have been misled by this repugnancy between the prayers, the granting of them separately constituted reversible error.</p> <p>In said action another prayer offered by the defendant instructed the jury that if they found that there was an understanding between plaintiff and defendant, that the services for which suit was brought, should not be paid for unless a building could be erected according to the plans prepared by the plaintiff for a sum not exceeding $90,000, then their verdict must be for the defendant. Held, that this prayer is erroneous because it does not submit to the jury the question whether the building could be erected for the sum mentioned. This error is not cured by the fact that the account filed by the plaintiff with his declaration, which was under the Baltimore City Practice Act, admitted that the lowest bid for the erection of the building was for $125,000.</p>

<p> Municipal Corporations—Validity of Ordinance of Baltimore City Imposing a Tax upon Dealers in the Wholesale Produce Market—Time of Payment of Licenses in Baltimore City. </p> <p>An ordinance of Baltimore City established a wholesale produce market and provided as follows in one of its sections :“A11 dealers and. commission men shall pay in advance two hundred dollars per annum for the use and jndvilege of selling in this market. Wholesaling in the public, streets is unlawful.” The City Charter, Sec. 6, confers on the Mayor and City Council full power and authority “to license, tax and regulate all businesses, trades, avocations or professions;” and also to-license and regulate the sale of fresh fruits, meats, vegetables • and all other perishable articles. Held, that under the charter, the City had the right to impose this tax for revenue upon dealers selling in.the produce market.</p> <p>Held, further, that the tax is not unreasonable in amount in view of the privileges granted and of the cost of erecting and maintaining the market.</p> <p>Every fair intendment should be made in favor of the reasonableness of a license tax imposed by a municipal corporation acting within the scope of its authority.</p> <p>The ordinance of Baltimore City providing that persons selling in the wholesale produce market should pay two hundred dollars per annum in advance for the privilege of so doing was approved May 20th, 1907. One section of the ordinance provided that licenses for selling shall begin on May 1st of each year and must be paid by May 10th of each year. The appellant was indicted for selling at wholesale in said market in June, 1907, without a license. Held, that the appellant was not entitled to sell in said market during the year 1907 without paying the tax imposed by the ordinance.</p> <p>The provision in Sec. 59 of the Baltimore City Charter, that “all licenses imposed by ordinance shall be due and collectible in the first week in January in each year,” does not apply to the revenue tax imposed by the Ordinance of 1907 upon persons selling in the wholesale produce market.</p>

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

) Plaintiff s 1st Prayer.—That the proper measure of damages in this case is the actual loss of such rents, if any, from the property described in the evidence that they shall find 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 after GO days from the time proofs of loss were submitted to the…

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

<p> Landlord and Tenant—Notice to Quit and Petition for Restitution Need Not Be Signed by Landlord in Person—Authority of Agent to Give Notice to Tenant—Appeal. </p> <p>Code, Art. 53, Sec. 1, provides that when a landlord shall desire to re-possess the demised premises after the expiration of the lease, and shall give notice in writing one month before the expiration of the term to the tenant to remove from the premises at the end of the term, if the tenant shall refuse to comply therewith, then the lessor may make complaint thereof in writing to a Justice of the Peace, who may order restitution and summons, etc. In this case, the notice to quit served on the tenant was signed by the agent of the landlord, who had leased the premises to the tenant, and the petition to the Justice of the Peace for a summons and order of restitution was signed by a lawyer as attorney for the landlord. Held, that the statute does not require either of these instruments to be signed by the landlord in person; that the notice to quit and the petition for the order of restitution were both sufficient, and that the Justice of the Peace had jurisdiction of the proceedings.</p> <p>A notice to quit given by a landlord to a tenant is sufficient if it be so certain that the tenant cannot reasonably misunderstand it. An obvious mistake in some part does not invalidate the notice.</p> <p>When an agent has authority to rent certain premises for the owner it will be presumed that he is authorized to give the tenant notice to quit.</p> <p>When a Justice of the Peace has jurisdiction of the proceedings instituted by a landlord to recover the demised premises, no appeal lies to the Court of Appeals from the action of the Circuit Court on appeal from the Justice to that Court.</p>

<p>Carriers—Delay in Transportation— Liability of Intermediate Connecting Carrier—Evidence—Appeo l.</p> <p>In an action against an intermediate carrier to recover damages for its delay in the transportation of freight, a memorandum showing the time of the arrival of the cars carrying the freight at certain points, which memorandum is a copy and not the original record, is not admissible in evidence.</p> <p>When freight is to be transported over two or more connecting roads, each road is liable only for failure to carry safely and promptly over its own line, when there is no agreement imposing upon a road extra-terminal liability for delay.</p> <p>Plaintiff shipped fruit to Boston from a place in Maryland. The shipments passed over three connecting roads before being delivered to the defendant company in Philadelphia, by which they were carried thence to Jersey City, and there delivered to another carrier for final transportation. In an action against the defendant, this intermediate connecting carrier, to recover damages for its delay in the transportation of the fruit, which resulted in its being delivered in Boston in a damaged condition and too late for the market on the day for which it was designed, the evidence showed that the fruit was delivered in good condition to the initial carrier at a certain time, but there was no evidence as to the time when the cars in which the fruit was loaded left the starting point, or as to when they were delivered to the next carrier or to the defendant, or as to what was a reasonable time for transportation over the several roads. Held, that since the burden of proof was upon the plaintiff to show that the delay complained of occurred on the defendant’s road, and there is no evidence to show when defendant received the fruit or when it was delivered to the next carrier, the jury was properly instructed that there was no legally sufficient evidence to entitle plaintiff to recover.</p> <p>The error of the-trial Court in excluding competent evidence of a certain fact cannot be complained of on appeal when that fact was subsequently proved in the case by other witnesses, and the appellant does not appear to have been injured by such exclusion of evidence.</p>

<p>Enforcement Against Non-Resident of Covenant of Redemption in Lease—Notice by Publication—Who Is a Non-Resident— Hearing of Case on Petition and Answer Without Evidence—• Deed to Be Made at Cost and Charge of Grantee—-Counsel Fees — Covenant of Redemption in Lease Runs with the Land—Covenant Not in Violation of Rule Against Perpetuities—Averments in Bill by Assignee of Leasehold to Redeem Rent.</p> <p>The State has control over real property within its limits, and may provide by statute that the contractual obligations of a non-resident owner relating to such property may be enforced against him, after reasonable notice by publication, without personal service.</p> <p>Specific performance of a covenant relating to the redemption of a ground rent may be decreed against a non-resident owner of the rent after notice by publication, and a trustee may be appointed to execute the conveyance of the rent, under Code, Art. 16, Sec. 117, which provides that when a defendant in a suit in chancery to enforce a contract, etc., relating to property, is a non-resident, notice of such suit may be given by publication in the manner therein prescribed, and a trustee appointed to execute any deed that may be required.</p> <p>When the order of publication warning a non-resident owner of a suit instituted by the tenant to redeem a ground rent, in pursuance of a covenant in the lease, describes the property as being situated on a certain street, and the ground rent as one of a certain amount, created by lease of a certain date, executed by designated parties, and recorded in designated land records, there is a sufficient notice to the defendant of the subject-matter of the suit under Code, Art. 16, Sec. 177, which directs that published notice shall be given of the substance and object of the proceedings.</p> <p>When a case is heard upon petition (or hill) and answer alone, without evidence, the averments in the answer are taken to be true, but only the petitioner (or the plaintiff) has the right to set the cause for hearing on petition and answer alone.</p> <p>A former resident of this State who has been in Europe for a year and a half, and who is now in New York for certain purposes, may be proceeded against as a non-resident under Code, Art. 16, See. 117, although he has not acquired a fixed residence elsewhere, and intends to return to this State at some indefinite time in the future.</p> <p>The Assignee of an assignee of a leasehold interest is entitled to the benefit of covenants in the lease that run with the land, such as a covenant of redemption.</p> <p>It is not necessary in a bill by the assignee to enforce such covenant of redemption that the mesne assignments from the original lessee to the plaintiff should be set forth.</p> <p>When a lease provides that the lessor shall convey the fee simple to the lessee or his assigns at their request and cost and charge, the lessor cannot claim a counsel fee for the examination of the title of an assignee of the leasehold in order to ascertain if he is entitled to the benefit of the covenant.</p> <p>A covenant in- a lease by the lessor to convey the reversion upon the payment of a certain sum to the lessee, his heirs or assigns, is a covenant running with the land, and may be enforced by the assignee of the leasehold estate against an assignee of the reversion.</p> <p>A covenant in a lease for ninety-nine years, renewable forever, that at anytime during the continuance of the demise, the lessor, his heirs and assigns, will convey the fee simple title in the land to the lessee or his assigns, upon payment of a designated sum, is not in conflict with the Rule against Perpetuities.</p> <p>A lease of land, executed in 18.35, contained a covenant on the part of the lessor, his heirs and assigns, that at any time during the continuance of the demise, at the request and cost and charge of' the lessee, his heirs or assigns, the lessor, etc.,. ■ would convey the property in fee simple upon payment of a designated sum. Plaintiff’s bill to enforce specific performance of this covenant alleged that he became owner of the-leasehold interest by virtue of a certain deed, filed with the bill; that the defendant owned the reversion in the land and was notified by plaintiff of his desire to redeem the rent and that plaintiff had tendered the required sum of money and a deed to be executed conveying the fee. Upon demurrer, held, that it was not necessary to set out in the bill all of the assignments of the leasehold interest from the original lessee down to plaintiff, in order to show his right to enforce the covenant; and that the covenant giving the right to redeem to the lessee, his heirs and assigns, enures to the benefit of the plaintiff as the assignee of an assignee.</p>

<p> Trusts and Trustees—Powers of Substituted Trustee—Renunciation of Trust by Heir of Surviving Trustee—Appointment of Non-Resident as Trustee—Exception to Ratification of Trustee’s Sale—Unborn Remaindermen. </p> <p>When a power of sale is given by will to testamentary trustees, and the survivor of them, and the heirs and assigns of the survivor, the power is annexed to the office of trustee, and may be exercised by a substituted trustee appointed upon the death of all of the testamentary trustees.</p> <p>If various powers are given to a testamentary trustee, most of which are annexed to the office, but some of which give a personal discretion to the trustee, then a substituted trustee is authorized to execute those powers which are not personal in their nature.</p> <p>When a will conveys ah estate to trustees, and the survivor, and the heirs of the survivor, and upon the death of the surviving* trustee, his heir unites in a suit asking for the appointment of a new trustee, that is in effect a. renunciation or disclaimer of the trust by him.</p> <p>A non-resident of the State may, in the discretion of the Court,, be appointed a trustee to carry out the provisions of a will, upon the death of the testamentary trustee.</p> <p>When a trustee’s report of sale alleges that the sale was for the advantage of all the parties in interest, and was made with their consent, it is no ground of objection to the ratification of the sale that the report fails to allege, or that there was no evidence to show, that the sale would be to the advantage of unborn persons who might, if they came into being, have an interest in the proceeds of sale.</p>

). Plaintiffs 1st Prayer as Modified.—If the jury shall find from the evidence that the plaintiff was arrested and imprisoned, as set forth in the police records of Baltimore City, read in evidence, and afterwards was indicted, tried and acquitted in the Criminal Court of Baltimore City on the charge of embezzlement, as set forth in the records of that Court and the docket entries and original papers therein, read in evidence, and shall find that the defendants, Howard C.…

). Plaintiff's 1st Prayer.—If the jury find from the evidence that the defendant Company owned and maintained a certain insulated wire carrying electrical current of high voltage which said wire was fastened to and supported by a cross-arm of a certain pole located in the bed of Guilford Ave., north of Eager Street, in the City of Baltimore and if the jury further find that the said pole was jointly used by the defendant and by the Western Union Telegraph Company; and if the…

) Plaintiffs’ 1st Prayer.—If the jury believe from the evidence that on June 12th, 1906, the plaintiffs wrote to Mr. C. S. Hoskins, Freight Traffic Manager of the defendant, a letter, of which a copy has been offered in evidence, and that on June 25th, 1906, the said O. S. Hoskins, Freight Traffic Manager of the defendant, sent the plaintiffs the letter of June 25th, 1906, which has been offered in evidence; and that subsequently thereto at the times mentioned in the…

<p> Specific Performance—Restrictions as to Use of Land Not Known to Purchaser. </p> <p>When a vendor of land does not inform the purchaser that there are restrictions relating to the character of buildings that may be erected upon it, and their location, which may affect its market value, and the purchaser is not aware of the existence of such restrictions, specific performance of a contract to purchase the land will be refused.</p>

<p> Food—Statute Prohibiting Sale of Condensed Shimmed Milk. </p> <p>Code, Art. 27, Sec.. 235 (Act of 1900, Chap. 532), provides that no condensed or preserved milk shall be manufactured or sold unless it be made from pure milk, from which the cream has not been removed either wholly or in part, nor unless it contain a designated proportion of milk solids. Held, that this statute prohibits the sale of a product labelled as condensed skimmed milk, made from milk from which the greater part of the cream had been taken, although such product, manufactured in this manner, was not known when the Act of 1900 was passed, and although Code, Art. 27, Sec. 233, authorizes the sale of skimmed milk when sold as such. The object of the statute is not to prevent fraud or imposition, but to prohibit the sale of an article deemed by the Legislature to be lacking in some of the qualities of healthy food, and hence it makes no difference that the article is not sold as condensed milk, but as condensed skimmed milk.</p>

<p> Devise and Legacy—Contingent Remainder May Be Devised When Limited to Designated Person—Construction of Residuary Clause. </p> <p>When a contingent remainder after a life estate is limited to a person who is definitely described, it may be devised by him, although he dies before the happening of the contingency which is to vest the estate in him.</p> <p>When a testator disposes by a residuary clause of “all the rest and residue of my estate, real, personal and mixed of which I may die possessed,” and there is no apparent intention on his part to die intestate as to any property wbich he could bequeath, then a contingent remainder limited to him after an existing life estate passes under the residuary clause.</p> <p>A testator devised property to be held in trust for his daughter Aminta during her life, with remainder to her children, and in case she should die without leaving a child or descendants, he gave one-third part thereof to his son Robert, his heirs, personal representatives and assigns, absolutely. Robert died in 1881, leaving a will disposing of all of his estate. The daughter Aminta died in 1908 without issue. Eeld, that the contingent remainder given to Robert in the event of the death of Aminta without leaving issue, passed under his will and that his legatees are entitled to the same to the exclusion of his next of kin.</p>

<p> Real Estate Broker’s Right to Commissions—Sale Not Negotiated by Him—Evidence. </p> <p>Municipal officers agreed to pay plaintiff, a real estate broker,, certain commissions if he negotiated the purchase of land for the municipality. Plaintiff endeavored, without success, to, obtain from the owner of the land desired by the city an offer or agreement to sell at a price acceptable to it. After-wards the municipality announced its purpose to obtain the land by condemnation, and then the landowner agreed directly with the city to submit to arbitration the question of the-price to be paid, and the city acquired the land upon the payment of the award of the arbitrators. In an action by the broker to recover commissions on the sale, held, that since the sale had not been effected as a result of his efforts or negotiations, he is not entitled to recover.</p> <p>When the declaration sets forth the claim of the plaintiff ás a real estate broker to recover commissions for effecting the* purchase of certain land for the defendant, evidence is not, admissible to show that the plaintiff rendered services in the^ purchase by the defendant of other lands.</p>

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

<p>Wills—Caveat—When Executor Not Necessary Party to Proceeding—IJetition Alleging Verdict of Jury Under Caveat to Be Residí of Collusion.</p> <p>Tlie executor named, in a will is not a- necessary party in his individual capacity to the trial of issues under a caveat filed to the will before the probate thereof, but he is a proper party, and has the right to be made a party to the proceedings if he desires to defend the will.</p> <p>An administrator pendente lite, appointed after the filing of a caveat to a will, is not a necessary party to the trial of the issues under the caveat.</p> <p>Under a caveat filed to a will offered for probate, the executor named therein was made one of the caveatees, and answered the petition for the caveat denying its allegations relating to the factum of the will. Subsequently, the caveators filed an order dismissing the caveat as against the executor. Some months afterwards, issues under the caveat were sent to a Court of law for trial, and the verdict of the jury was that the will had been revoked after its execution. The executor then filed a petition alleging that the trial of the issues had been had without any notice to him; that he was a necessary party; that there had been no real contest, but the proceedings were the result of collusion, and ho prayed that the verdict be not acted upon. These allegations were denied by the respondents, but no testimony was taken to support either the petition or the answer. Prom an order of the Orphans’ Court dismissing this petition and refusing' probate of the will in accordance with the verdict of the jury, this appeal was taken. Held, that since the petition does not allege that the verdict was obtained by fraud, and does not set forth the particulars of the collusion alleged, and since the executor made no effort to be reinstated as a party to the proceedings under the caveat after his dismissal therefrom, he is not now entitled to impeach the finding the jury.</p>

<p> Master and Servant—When Performance of Master’s Duty to Furnish Safe Machinery and Keep Jt in Repair a Question for the Jury—Repairs Shoutd Be Made by Competent Mechanic—Injury to Operator on Die Press—Sufficiency of Evidence. </p> <p>It is the duty of an employer to use due care to furnish reasonably safe machinery in the first place, as well as afterwards to keep it in repair.</p> <p>In an action by an employee to recover damages lor an injury 'alleged to have been caused by a defective machine, prayers are erroneous which instruct the jury to find for the defendant if they believe certain facts therein stated, when such prayers assume that the machine which injured the plaintiff was a reasonably safe one, and do not leave the finding of that fact to the jury.</p> <p>It is the duty of an employer who has in use machines likely to cause injury to operators, if out of repair, to have them examined and repaired by a competent machinist or mechanic, when informed that they fail to work properly.</p> <p>Plaintiff informed defendant’s foreman that the die press upon which she was working was out of order. The foreman oiled it and told plaintiff that it was all right. Soon afterwards, she was injured by an alleged defect in the machine. This foreman was not a mechanic, nor was he competent to make . repairs on machines out of order. IJnder these circumstances, the plaintiff is not precluded from recovering damages for the injury on the ground of a lack of evidence to show that the foreman was incompetent or that the defendant had failed to exercise due care in his selection.</p> <p>Plaintiff, a young woman, was put to work on a die press in defendant’s factory, which was used to cut out labels. A carriage or platen was raised in a perpendicular frame by a lever on the press, and when held up, the operator withdrew the die and paper and put in a new supply. Plaintiff’s evidence was that on the occasion of the injury, although she had shut off the power in the usual way, the platen fell without warning, while she was removing the die, and cut off two of her fingers; that shortly before the accident, she had told the foreman that the machine was out of order, and he had oiled it and told her it was all right; that on another occasion, she had complained of the machine to one of the defendants who had promised to have it fixed; also that the clutch which held up the platen was worn and sometimes allowed it to slip down unexpectedly. Held, that this evidence, if believed by a jury, was legally sufficient to entitle the plaintiff to recover.</p> <p>Held, further, that the evidence of contributory negligence on the part of the plaintiff is not such as to bar her right to recover.</p>

), where there was a judgment on verdict for the plaintiff for $3,000. Plaintiff’s 2nd Prayer.—The jury are instructed that it is the duty of the employer to use due and reasonable diligence, having respect to the nature of the service of the employed, to provide suitable appliances and instrumentalities, for doing the work.

<p>Carriers—Injury from Runaway Car to Passenger Standing on Rear Platform of Another Car on the Same Track— Contributory Negligence—Instructions to Jury—Evidence.</p> <p>In an action by a passenger against a earrier to recover damages for a personal injury, it is not necessary that the defense that the passenger was guilty of contributory negligence should appear from the evidence adduced by the defendant. If the plaintiff’s own evidence shows that he was negligent that is a bar to the action.</p> <p>Consequently, in a ease where the inference of plaintiff’s contributory negligence could be legally drawn from his testimony, it is error to instruct the jury that from the fact of the injury to the passenger, a presumption arises that it resulted from the carrier’s negligence, and that the passenger is entitled to recover unless the defendant shows that the injury could have been avoided by the exercise of ordinary care on the part of the plaintiff.</p> <p>Plaintiff got upon the rear platform of defendant’s electric railway street ear, which was standing still, and just afterwards, while he was about to enter the car, in which there was room, and as the car started, an unmanned runaway car on the same track crashed into the platform on which the plaintiff was standing, facing towards the front and not aware of the danger, and injured him so severely that it was necessary to cut off one of his legs. Held, that since the jury could have found from the plaintiff’s evidence that he was negligent in remaining on the platform when he had had time to go inside the car, it was error to instruct the jury that if they found that the plaintiff was a passenger on one of defendant’s cars and was injured by a collision between that and another of defendant’s cars moving on the same track, then the presumption is that the injury resulted from the negligence of the defendant, and plaintiff is entitled to recover unless the defendant shows that said injury did not result from its negligence, or that the accident could have been avoided by the exercise of ordinary care on the part of the plaintiff.</p> <p>The fact that a passenger stood on the rear platform of a street electric railway car when there was room for him inside the car, and was injured in consequence of being in that position, does not constitute contributory negligence as matter of law which bars a recovery of damages for the injury, unless that position on the platform exposed him to an obvious danger. Generally in such cases, the question whether the passenger was guilty of contributory negligence is one of fact for the jury.</p> <p>When the iffaintiff testifies that he was standing on the platform of a car only for a moment and was about to go inside, but before he could do so the injury to him happened, the defendant has no right to have the jury instructed that plaintiff cannot recover if he took an exposed and dangerous position on' the car, and was injured by reason of his taking such position.</p> <p>Evidence that before receiving the injury for which the action was brought, the plaintiff had made arrangements to go into a certain business is not admissible.</p> <p>In such .action, evidence that the plaintiff had married after the accident is not competent, but the admission of such evidence is not a material error in a case when the jury was properly instructed as to the measure of damages.</p>

<p> Blacklisting of Employee—Interference with Another’s Business—False Statement Concerning Discharged Workman—Actionable Wrong—Evidence—Letter Written by Unauthorized Employee of Firm. </p> <p>One who requests other persons not to give employment to plaintiff, a workman he had discharged, and in doing so makes untrue statements concerning the plaintiff and expresses a desire to make an example of him, is liable in an action for the injury shown to have been thereby caused to plaintiff.</p> <p>When defendant wrote a letter notifying the members of an association, consisting of persons in the same trade, that he had discharged the plaintiff from his service and requested them not to give him employment, and the plaintiff is subsequently refused employment by the members of the association, that is evidence that this refusal resulted from the writing of the letter.</p> <p>In an action against three persons, individually and as a firm, alleging that they had injured the plaintiff by sending a letter containing false statements concerning him and requesting the members of a trade association to which defendants belonged not to employ plaintiff, the evidence showed that the letter was written by M., one of the defendants, without the knowledge of the others; that 1£. was an employee not authorized to write such letters; that the writing of this letter was not previously authorized or subsequently ratified by the other defendants, and that the firm was not formed until after the injury complained of. Held,' that the plaintiff’s right of action is against M. only.</p> <p>When all of the facts in regard to the sending out of a letter „ have been proved, a witness cannot be asked for his opinion as to circumstances attending the issue of the letter.</p> <p>In an action to recover damages for having been unjustifiably blacklisted, which prevented him from obtaining employment, the plaintiff cannot be asked: “What reason, if any, was given by the various people to whom you applied, for their refusal to employ you.”</p> <p>When one, after talking over the telephone with a person at a distance, repeats what that person said to the witness, then present with him during the conversation, the witness cannot testify as to what was so repeated to him, since it is hearsay.</p>

). Plaintiff’s 1st Prayer.—If the jury find that the squabs, ducks and chickens mentioned in the evidence were in good and marketable condition and properly prepared and packed for cold storage when they were deposited by the plaintiff and accepted by the defendant for cold storage during the months of July and August, 1901 (if the jury find such deposit and acceptance), and that the same squabs, ducks and chickens were in a damaged condition when they were delivered by the…

<p>Highways and, Streets—Hoad, Improvement Under Act of 1904, Gh. 225, Distinct from Building of Hoads Under Other Statutes—Injunction by Taxpayer to Restrain Construction of Road When Statute Is Not Complied With—Right of County Commissioners Under Act of 1908, Ch. 654, to Require Change in Location of Electric Railway Trades—Implied Repeal of Private Act, by Subsequent General Act—Character of Road to Be Built by State Geological Survey.</p> <p>The Act of 1904, Ch. 225, established a system for the improvement of highways at the joint expense of the State and of the counties, under the supervision of the State Geological and Economic Survey. It provided that in the improvement of a road under the Act, the County Commissioners should give written notices to the chief engineer of the survey of their intention to improve the road, which must be approved by the survey; that the advertisement for bids for doing the paving must be published for two consecutive weeks; that no contract for the same should be awarded if all bids exceed the amount specified. Held, that these requirements are not merely intended to safeguard the interests of the State, and are not merely directory, but they are for the benefit of the public generally and especially for the benefit of State and County taxpayers; that proceedings under this Act cannot be aided by provisions of the general law relating to the powers of County Commissioners in the repair of roads, and that a taxpayer is entitled to maintain a bill for an injunction restraining the execution of a contract for a road improvement made in violation of these statutory requirements.</p> <p>The Act of 1904, Oh. 225, creates a method for the improvement of highways at the joint expense of the State and the counties distinct from, and independent of, the provisions of existing public general and local laws conferring upon County Commissioners power to construct and repair roads at the expense of the several counties. The two systems cannot be combined in the improvement of any one road.</p> <p>The title of the Act of 1908, Ch. 654, is, an Act to repeal certain designated sections of the Code of Local Laws, title Anne Arundel County, sub-title, Roads, and all other local or general laws inconsistent with the provisions of the Act, and- to re-enact the same with amendments. In the body of the Act, the Commissioners of that county were authorized to compel any railway company having tracks on the roads of the county, to change the rails and the location of the tracks and to pave and keep in repair the roads covered by the tracks with the same kind of paving material as might be used on the remaining portion of the road. At the time of the passage of this Act, the legislative charter of the Curtis Bay R. Co. (Act of 1890, Chap. 505) required that company to place its tracks on the margin of the roads along which it ran, and authorized the use of a certain rail. At the same session of the' Legislature in 1908, a bill was introduced to compel mat railroad company to change the location an l character of its tracks, which bill failed to pass. Held, that the provision in the Act of 1908 relating to street railway tracks is not invalid as being in conflict with Constitution, Art. 3, Sec. 29, which requires the subject-matter of every law to be described in its title.</p> <p>Held, further, that this Act does not repeal by implication, and was not intended to 'repeal, the provision in the charter of the Curtis Bay R. Co. relating to the location of its tracks, and that the County Commissioners are not authorized to require that company to change the location.</p> <p>A prior special or private Act of the Legislature is not repealed by a subsequent general Act, unless there be an express refer ence to that previous Act or a necessary inconsistency between the two.</p> <p>"When the charter of an electric railway company authorizes the location of its tracks in a certain way, the Legislature can require a change in the location only upon fair principles of indemnity in respect to expenditures made by the company in reliance upon its charter.</p> <p>The Act of 3904, Chap. 225, Sec. 4, provides that a road to be constructed under the system established by that Act, shall be a macadamized, or a telford, or other stone road, or a road constructed of gravel or of other good material. Held, that under this section, the choice of the kind of road to be constructed in any particular locality is confided to the judgment of the Geological Survey, and they may select a roadway of vitrified brick.</p>

) The trial Court gave the following additional instruction of its own motion: If the jury find from all the evidence in the case that the premises Nos. 5, 7 and 9 E. German St. were leased by one Catherine T. O’Brien to defendant and sub-leased by the defendant to one Wm. G. Bolgiano, and if they shall further find that said O’Brien procured the distraint warrant mentioned in the evidence to be issued and the goods mentioned in the declaration to be sold thereunder, then: 1.

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

), where there was a judgment on verdict for the plaintiff for $2,000.

<p> Right of Municipality to Rent Property Not Needed for Public Use—Use of Rented Municipal Property in Competition With Business of Taxpayer. </p> <p>When a municipality owns real property not needed for public use, it is not obliged to keep the same unoccupied, but may rent it temporarily to private persons, The fact that a lessee uses such property’in competition with the business of a taxpayer, does not entitle the latter to an injunction, when the renting is not ultra vires.</p> <p>The Mayor and City Council of Baltimore rented an unused building owned by it to the Field Officers of a regiment of State Militia for use as an armory for a definite term. These officers, with the consent of the municipality, sublet the building from time to time to private persons for concerts and other meetings. The proceeds from these lettings were divided between the municipality and the regiment. The charter of the city authorizes it to hold and dispose of property, and to rent for limited terms, any of its property not needed for public purposes. Plaintiffs’ bill in this case alleged that they are the owners of halls, used for concerts and public meetings; that the renting of the armory by the Field Officers for such purposes deprived plaintiffs of the opportunity to rent their buildings for those purposes, and that such use of the municipal property was unlawful, and the bill prayed for an injunction. Held, that the city has the power under its charter to rent the building to the Field Officers, since it was not needed for municipal purposes; that the letting of it for entertanments was a renting for a definite term within the meaning of the charter, and that the Field Officers as lessees had the right to sublet the building for these purposes.</p> <p>Held, further, that such use of the armory in competition with the business of plaintiff does not deprive them of their property without due process of law.</p>

J.), where there was a judgment on verdict for the plaintiff for $5,000.

<p> Building Contracts—Obligation of Sub-Contractor to Do Work According to Specifications of Original Contract—Claim Against Third Party Surrendered Upon Promise to Save Harmless Hot a Guaranty—Set-off—Instructions as to Interest—Harmless Error. </p> <p>When a sub-contractor agrees to do certain work on a building in accordance with the specifications of the original contract, he is bound by such specifications, and in an action by him against the contractor to recover for work done, the jury was properly instructed that if plaintiff’s work was not done according to the specifications, and by reason thereof the defendant suffered loss, then he is entitled to an allowance against the plaintiff for the same.</p> <p>The defendant was the contractor for the erection of a building according to certain specifications, and sub-let a part of the contract to the C. Company, which in turn sub-let its contract to the plaintiff company. The work as done by the plaintiff was not satisfactory and was condemned, whereupon defendant refused to pay the C. Company, which accordingly refused to pay the plaintiff. Then the plaintiff promised the defendant that if it would pay the O. Company, so that the company would pay it, the plaintiff would hold the defendant harmless against any loss it would sustain and be responsible for any damage. Upon the faith of this promise, the defendant paid the C. Company. In an action to recover for work done for the defendant company under another contract, defendant’s plea of set-off alleged that in consequence of the manner in which the work had been done under the sub-contract with the O. Company, the defendant had been subjected to a loss greatly in excess of plaintiff’s claim. Held, that this plea is a valid set-off, and plaintiff’s promise to be responsible for any loss if defendant would pay the C. Company was not a contract of guaranty, but was an original undertaking, upon the faith of which defendant surrendered its claim against the O. Company.</p> <p>When the defendant files the general issue pleas to the declaration, an additional plea of set-off is not an admission of the correctness of plaintiff’s account.</p> <p>A prayer instructing the jury that they are at liberty to allow interest on a claim should fix the date from which interest should be calculated, but when it appears from the amount of the verdict that the appellant was not injured by the failure of a prayer to fix such date, the defect is not a reversible error.</p>

<p>Merger—Conveyance of Equity of Redemption to Mortgagee— Mortgage Sale Is Res Adjudicata—Agreement that Mortgagor Shall Have Surplus of Proceeds of Sale of Property— Bill for Accounting—Evidence—Interest.</p> <p>The conveyance of the equity of redemption to a mortgagee does not necessarily operate to merge and extinguish the mortgage. "Whether it has that effect or not depends upon the intention of the mortgagee.</p> <p>A conveyance of the equity of redemption to a mortgagee, after his assignment of the mortgage for the purpose of foreclosure, does not create a merger.</p> <p>A sale under the power contained in a mortgage passes the title which the mortgagor had at the time the mortgage was recorded and not merely the title he had at the time of the sale.</p> <p>The principle of res adjudicata applies to a mortgage foreclosure sale, and its validity cannot be attacked collaterally.</p> <p>tf the mortgagee was not authorized for some extrinsic reason to make the sale, it should he set aside by a bill of review or other proceeding.</p> <p>The evidence in this case is held to establish the following facts: That the plaintiff and her husband executed a mortgage upon a tract of land to the defendant to secure the payment of a certain sum of money, and also assigned the proceeds of a life insurance policy in part payment, under an agreement that the property should be sold at private sale or otherwise, that meanwhile the mortgagee should be entitled to the rents, and that any surplus over and above the amount of the mortgage debt arising from the proceeds of sale, the rents and the policy of insurance, should be paid over to the plaintiff. Afterwards, in order to avoid a foreclosure, plaintiff executed a deed to the defendant conveying the equity of redemption, which deed defendant did not place on record, but of this fact plaintiff was ignorant. The property was, however, sold^ under a power in the mortgage and conveyed to the defendant, the mortgagee, his object in making the sale being to acquire an unquestionable title, but the plaintiff had no actual knowledge of this mortgage sale. After that, plaintiff occupied the property for a time and endeavored to sell the same. Held, that the title acquired by the defendant under the foreclosure sale was not intended to, and did not, destroy the rights of the plaintiff under the agreement relating to the surplus of the proceeds of sale.</p> <p>Held, further, that the ratification of the mortgage sale does not preclude the plaintiff from asserting under these circumstances her rights to the surplus arising from a private sale of the property afterwards made by the defendant over and above the amount of the mortgage.</p> <p>The defendant, after the above-mentioned mortgage sale, sold the property at private sale to different parties for a sum in excess of the mortgage debt, and plaintiff’s bill in this case asked for a decree for the excess of the receipts of the defendant from the property in pursuance of said agreement. Held, that the plaintiff is not to be charged with the costs of the foreclosure proceedings, since the same were not necessary to vest the fee simple title in the defendant, and because those proceedings were had without notice to the plaintiff.</p> <p>Held, further, that certain rents received from the property had not been paid to the defendant on account of the mortgage debt and should not be deducted from the amount of the same.</p> <p>Held, further, that since the defendant only demanded four per cent, interest on the deferred payments of the purchase money of the property sold by him, the plaintiff should not be charged with six per cent.</p> <p>Held, further, that the plaintiff is not to be charged with interest on the notes given for interest on the mortgage debt after their maturity, the intention of the parties being to the contrary.</p> <p>Held, further, that the defendant is entitled to a certain allowance for taxes, insurance, advertisement and other expenses, as set forth in the opinion in this case and should be charged with interest on the life insurance policy which he failed to collect for some months, although it was collectible.</p> <p>Held, further, that' interest on the balance found to be due to the plaintiff should be allowed from the time defendant made a statement of the account after the private sale of the property by him.</p>

) Plaintiff's 1st Prayer.—The jury are instructed that if they find from the evidence that the plaintiff delivered to the Western Maryland Railroad Company at Cave Town, Maryland, on the 30th day of September, 1905, a carload of peaches belonging to the plaintiff, in good condition, packed in a refrigerator car, and consigned to J. A. Davis & Sons, in Washington, D. 0.; and shall further find that said carload of peaches was carried over the line of the said Western Maryland…

<p> Fall of Electric Wire in Street Prima Facie Evidence of Negligence. </p> <p>The fact that a wire of an electric lighting company, strung over a public street of a city, falls upon, and injures, a person passing along the street, is itself sufficient prima facie evidence of negligence on the part of the company and easts upon it the burden of overcoming that presumption.</p>

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

<p>Appeal from the Circuit Court of Baltimore City (Elliott, J.).</p> <p>The cause was argued at. the January Term, 1908, and was re-argued at the October Term, 1908, before Boyd, C. J"., Briscoe, Pearce, Sciimucker, Burke, Worthington, Thomas and ITekry, JJ.</p>

J.). Plaintiffs’ 1st Prayer.—The plaintiffs pray the Court to instruct the jury that since it appears from the uncontradicted evidence in this cause that the Maryland Storage Company of Baltimore City, on June 10, 1907, and for nearly a year previous thereto, was engaged, to the knowledge of the defendant, in carrying on an active warehouse business, and had incurred.and was incurring liabilities; and that the said company’s capital stock, to the knowledge, of the defendant,…

), where there was a judgment on verdict for the plaintiff for $500. Defendant’s % Prayer.—That there is no evidence in this case legally sufficient to entitle the plaintiff to recover and the verdict must be for the defendant.

<p>Appeal from the Criminal Court of Baltimore (Weight and Stockbridge, JJ.).</p>

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

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

<p> Tax Sales—Title of Purchaser Prima Facie Valid—Preliminary Notice of Salé—Place of Mdlcing Sale Under Former Statute—Act Validating Deeds by Tax Collectors for Property Sold by Their Predecessors. </p> <p>The purchaser at a tax sale, which was made in compliance with the statute, has a new and complete title to the land and all prior encumbrances and titles of private persons are extinguished by the sale. .</p> <p>Since the enactment of Code, Art. 81, sec. 53 (Act of 1872, ch. 384), it is not necessary for the purchaser at a tax sale to show affirmatively that all the proceedings under which the sale was made were regular. Under that statute, when the Court ratifies and confirms a tax sale reported to it by the Collector of Taxes, the purchaser acquires a good prima facie title, and the burden of proof to show that the proceedings were irregular is thrown upon the person attacking the sale.</p> <p>The local law of Baltimore (City Code, 1879), Art. 47, sec. 44, provided that no sale should be made by the Collector for non-payment of taxes until he has first given notice to the person in arrear, or left at his residence, a statement of the indebtedness and not less than thirty days’ notice of his intention, if the bill be not paid, to enforce payment thereof. In</p> <p>, this case the Collector’s report of the tax sale stated that he had given notice to the delinquent owner that if the bill rendered be not paid within thirty days it would be subject to distraint or execution. Hut the tax bills filed as exhibits with the report of sale showed that they contained a notice in red ink to the effect that if not paid within the time limited, payment thereof will he enforced hy distraint or execution, and these were copies of the bills as rendered. Held, that this preliminary notice of the sale actually given was in compliance with the statute.</p> <p>In 1879, when the tax sale in this case was made, the general law (Code of 1860, Art. 81, sec. 50; Bev. Code of 1878, Art. 11, sec. 49) provided that tax sales should be made on the premises or at the Courthouse door. The Act of 1878, ch. 227, relating to such sales in Baltimore City, contained no direction as to the place where the sale should be made. Held, that the general law, being in conflict with the local, did not control in this respect in said city; that under the local law the place of the sale was left to the discretion of the City Collector, and that a sale made by him at the Exchange Sales Booms, where it was customary to make such sales, after due notice by advertisement, was valid.</p> <p>A collector of taxes executed a deed to the purchaser for the property sold for taxes by his predecessor in office, whereas such deed should have been executed by the collector who made the sale. Afterwards the Act of 1904, ch. 281, provided that whenever any property in Baltimore City has been sold for taxes by one City Collector, but the deed therefor executed by his successor in office, such conveyance shall be as valid as it would have been if made by the collector who made and reported the sale. Held, that this Act is a proper exercise of the legislative power and does not violate any right of the owner of the property so sold.</p>

<p>Religious Societies—Separation Into Different Organizations— Title to Property.</p> <p>At a time when a religious society had under its charge two churches and affiliated with it two corporations, one for the relief of the poor, and the other the A. Sunday-School Society, a will was probated by which sums of money were bequeathed to these two corporations, subject to a life estate. Before the legacies became payable, the two churches were separated and made independent by competent ecclesiastical authority, and a resolution of the members directed that the property of the parent society, and legacies to be received, shotdd be divided between the separated churches. Subsequently the said legacies were paid to the corporations named in the will, both of which were connected with one of said churches, and the bill in this case, filed by the other church and its societies, asked for a division of the legacies. Held, that the resolution adopted by the members of the religious society at the time of its separation is of no effect as to this property, because it was not the action of the directors of the corporations, legatees.</p> <p>Held, further, that the Society for the Relief of the Poor was not an integral part of the organization of the church and that the corporation named in the will is entitled to the whole of the legacy paid to it.</p> <p>Held, further, that since the A. Sunday-School Society was an integral part of the church organization which was divided, one-half of the legacy paid to it should now be transferred to the Sunday-School Society of the other church, as the legacy was intended to be for the benefit of the Sunday-schools of both churches.</p>

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

<p> Effect of Divorce Upon Tenancy by Entireties—Gifts to Husband During Coverture—Evidence Showing Plaintiff Entitled to Relief Not Aslced for in Bill—Remanding Cause. </p> <p>When a wife purchases property with her money and causes it to be conveyed to herself and husband as tenants by the entireties, the effect of a subsequent decree of divorce is to convert the tenancy into a tenancy in common, and it does not entitle the wife to claim the entire ownership.</p> <p>If a wife, during coverture, voluntarily and without any fraud or undue influence on the part of her husband, conveys her property to him, a subsequent divorce does- not operate to vest in her an equitable title or claim to such property.</p> <p>The provision of Code, Art. 16, -sec. 37, which gives to the Court granting a divorce power to award to the wife such property or estate as she had when married, does not authorize that Court or a Chancery Court to annul gifts made by the wife during coverture to her husband.</p> <p>Plaintiff’s bill alleged that she had purchased certain land with her own money and had caused it to be conveyed to herself and her husband as tenants by the entireties; that she had since obtained an absolute divorce from him, and the bill prayed that a decree be made declaring her to be the sole owner of the land. The evidence of the plaintiff showed that she had been induced by the demands of her husband, against her will, to cause that conveyance to be made. Held, that although the plaintiff is not entitled to the relief asked for under the averments of the bill, yet the cause should be remanded, with leave to amend the bill by alleging that the conveyance was procured by the fraud or undue influence of the defendant, and opportunity given to both parties to produce evidence relating to that allegation.</p>

<p>Appeal from Circuit Court Ho. 2 of Baltimore City (Gob-tee, J.)</p>