Volume 110 — Maryland Reports

<p>Assignment of a Fund — Notice to the Holder — -Priorities Between Assignments — Filing Assignment in Equity Cause— Conversion into Personalty of Land D.evised to Be Sold — Recording of Mortgage Thereof Not Notice of Assignment. , •</p> <p>The assignment of a debt or fund is completed by notice thereof given to the debtor or depository of the fund. If, before such notice, the debtor or holder pays the fund to the assignor or to a subsequent assignee, he is discharged. .</p> <p>When the person entitled to a fund makes two or more assignments of it to different parties, the assignee who first gives notice to the debtor or custodian of the fund is entitled to priority of payment over other assignments, although made earlier in time.</p> <p>When a fund is being administered in a Court of Equity the .filing of an assignment of it in the cause is notice thereof to the trustee or custodian. ■</p> <p>When a testator devises land to a trustee with directions to sell and reinvest and pay the income to a tenant for life, the will operates to convert the land into personalty from the death of the testator, although the time, manner and terms of sale are left to the discretion of the trustee.</p> <p>In such case a mortgage of his interest in the land by the life tenant, made before a sale of the land, is inoperative. The recording of such mortgage is not notice to the trustee of the asignment of the income and creates no lien on the fund.</p> <p>An instrument purporting to be a mortgage of his interest in the land by such legatee for life is to be treated as an assignment of the income.</p>

<p>Assault and Battery■ — Liability of Railway Company for 4s-sault by Employee Who Was Also a Peace Officer— Punitive Damages — Pleading■—Evidence.</p> <p>A person who enters the waiting-room of a railway station, intending to take a .train, becomes thereby a passenger, and as such is entitled to maintain an action against the railway company for an assault upon him by an employee of the company acting within the scope of his employment.</p> <p>When an assault is committed by a person who is an employee of a railway company, and also a peace officer of the State or municipality, the question as' to the capacity in which he was acting at the time of committing wrong is generally one for the jury.</p> <p>The mere fact that the plaintiff was assaulted and arrested by an officer or agent of a railway company does uot render the company liable therefor. It must also be shown that the officer was at the time acting within the scope of his employment. Consequently a declaration which alleges that mere fact is bad on demurrer.</p> <p>Plaintiff, in an action of assault, is not entitled to recover punitive damages merely because the unlawful act was 'done deliberately and with unnecessary violence. To entitle one to such - damages there must be an element of fraud, or malice, or evil intent, or oppression, entering into and forming a part of the wrongful act.</p> <p>When the declaration alleges that the plaintiff was wrongfully assaulted and beaten hy defendant’s servant, evidence that he was also falsely imprisoned is not admissible; nor evidence that the jail in which he was put was cold and wet.</p> <p>In an action against a railway company for assault and battery, by its employee who arrested plaintiff, evidence that that employee had made other arrests is not admissible.</p> <p>In such action, evidence is admissible to show that the employee was also a peace officer, since the question in the case was whether at the time of the assault he was acting as a peace officer, or as an employee of the defendant.</p>

<p>Requirements as to Conduct of Business in This State by Foreign Corporation — Effect of Non-Compliance with Statute — Compliance After Institution of Suit — Judgment Against Adjudicated Banlcrupt With Stay of Execution — Worlc Done Not in Conformity With Sealed Contract, but Accepted — Assumpsit — Amendment of Voucher in Attachment.</p> <p>Code, Art. 23, sec. 137, provides that before any foreign corporation shall transact business in this State, it shall file a certain certificate in a designated office, etc.; and sec. 139 provides that any person acting as agent for a foreign corporation before the provisions of sec. 137 have been complied with, shall pay a certain fine for so acting. Section 140 prescribes that no foreign corporation shall be permitted to maintain any action in the Courts of this State until it shall have complied with the directions contained in section 137. Held, that a contract made in this State by a foreign corporation which has not complied with the requirements of section 137 is not illegal or void; but the object of the statute is effected by the imposition of the fine alone.</p> <p>After the institution of a suit on a contract by a foreign corporation which had not complied with the conditions imposed by said section 137, and before the trial, it complied with the provisions of that section. Held, that section 140 does not in terms prohibit the institution of a suit, but only its maintenance, and that the plaintiff, upon complying with those provisions, is entitled to prosecute a suit previously instituted.</p> <p>Plaintiff issued an attachment against the defendant which was dissolved upon giving bond. More than four months thereafter, proceedings in bankruptcy were instituted against the defendant, under which he obtained a discharge. Held, that this discharge in bankruptcy does not prevent the plaintiff from obtaining a judgment in the attachment suit against the defendant, if the judgment be accompanied with a perpetual stay of execution; the object of such judgment being to allow the plaintiff to proceed against the sureties on the bond given to dissolve the attachment.</p> <p>The Courts of this State have the power to enter a judgment with a perpetual stay of execution, under Code, Art. 26, sec. 14, which provides that the Court shall give judgment in all actions according as the very right of the cause and matter in law shall appear to them, without regarding any matters of mere form.</p> <p>When the work provided for by a contract under seal has not been done within the time limited, but has been accepted by the other party to the contract, an action of assumpsit lies to recover its value. Consequently evidence is admissible to show that such work was accepted.</p> <p>And prayers based upon the theory that the rights of the parties are governed by the original contract under seal are erroneous.</p> <p>The voucher in an attachment suit may be amended.</p>

<p> Rulings on Demurrer Brought up for Review by Appeal from Final Judgment. </p> <p>An appeal from the final judgment in a civil action brings up for review the action of the trial Court in its rulings on demurrers to pleas and replications, and no bill of exception or writ of error designating the points of law is necessary.</p>

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

<p>Pleading — Several Demurrer to Different Counts of Declaration — Averment in Declaration of Contract Sued■ on — Duplicity — Documentary Evidence — Action Against Surety on Bond of Building Contractor — Alteration in Specifications After Execution of Bond — Notice of Default of Principal to Surety — Stipulation in Building Contract for Payment of a Sum for each Day’s Delay Held to Be for Liquidated Damages — • Instructions in Action for Breach of Building Contract — Requirements of Building Inspector Made a Part of the Contract.</p> <p>A demurrer, “to the plaintiff’s declaration and to every count thereof,” is a several demurrer to each count, as well as a joint demurrer to the whole declaration.</p> <p>In an action on a bond conditioned for the due performance of a building contract, it is not necessary that the declaration should set out the contract in its exact words, nor is it necessary that the bond should be so set out.</p> <p>"When the first .count of a declaration sufficiently states .the contract sued on, that statement need not be repeated in subsequent counts. It is enough in these counts to declare the contract td be the same as set forth in the first count.</p> <p>A declaration alleging a breach of a contract need not negative • matters of defeasance relied on by defendant’s pleas.</p> <p>In an action for breach of a building contract, the declaration need not allege with particularity the precise time for which damages for delay in doing the work are claimed, nor the exact date when the defendant abandoned the work. • These are matters of evidence.</p> <p>A declaration claiming damages for defendant’s failure to complete a building within the stipulated time and also damages for defective work on the building is not bad for duplicity.</p> <p>These are not two distinct causes of action, hut various kinds of damage resulting from a single act — i. e., the failure to do the work properly within the prescribed time.</p> <p>A document purporting to be the report of an engineer of his inspection of a building is not admissible in evidence because not authenticated, and also because it is merely what the engineer stated, not under oath, and is therefore hearsay.</p> <p>In an action against a builder for breach of his contract to finish a building by a certain time, the plaintiff is entitled either to liquidated damages for the delay, if validly provided for in the contract, or to such damages as the delay is proved to have caused to him. One element of the latter is the rental value of the building, and consequently, if the plaintiff is not entitled to liquidated damages, evidence is admissible as to such rental value. But evidence as to the rental value of another building occupied by plamtiff at the time is not admissible.</p> <p>In an action against a surety on a bond conditioned for the doing of certain concrete work according to specifications, defendant alleged that it had been discharged from liability because a material alteration had been made in the plans and specifications after the execution of the bond. The evidence examined, and held to show that no such alteration had been made.</p> <p>A contractor’s bond provided that the surety should be notified in writing of any act on the part of the contractor which might involve a loss for which the surety would be responsible. The contract provided that a certain stairway should be constructed. This was omitted by the direction of the architect, but the contractor was paid therefor. Held, tha't the failure to notify the surety of this omission does not operate to discharge the bond, under this clause, since it does not involve any loss for which the surety would be liable.</p> <p>A contract for the erection of the re-enforced concrete work in a building provided that the work should be finished within seventy working-days from the time of its commencement, and in case said work is not finished within said seventy days, then the contractor shall pay to the owner the sum of fifty dollars per diem for every day in excess of seventy days occupied by him in completing said work; and in case said work shall be satisfactorily finished before the expiration of seventy days, as aforesaid, then the owner shall pay. the contractor the sum of fifty dollars per diem for each day of seventy days not occupied in so completing said work. The contract price for doing said concrete work was nearly fourteen thousand dollars, and the building was designed for the accommodation of plaintiff’s established and increasing business. It would be difficult to estimate the money loss to him from the delay in obtaining possession of the new building. Held, that this stipulation is for liquidated damages, and not a penalty, since the fifty dollars per diem is not unreasonable, and that the plaintiff is entitled to recover the same for each day’s delay of the contractor beyond the seventy days.</p> <p>When the sum fixed as damages for each day’s delay in the completion of the building beyond the prescribed time is itself reasonable and proper to be recovered as liquidated damages, the fact that the delay by the contractor was continued for^a long time does not render the sum excessive and unconscionable.</p> <p>A prayer asserting that a certain sum is due and unpaid under a contract is erroneous, when the evidence shows that although that sum was unpaid it was not due because of a breach of contract by the contractor.</p> <p>When a contract provides that the floors of the building to be constructed shall carry a certain number of pounds to the square foot, “all to be with safety factor of four,” meaning, according to the evidence, that the floor should not break under less than four times the weight it is required -to carry, a prayer is erroneous which assumes that certain tests of these floors were satisfactory when it ignores the safety factor of four.</p> <p>In an action for a breach of a building contract, a prayer which limits plaintiff’s right of recovery to defective work in eleven beams which actually broke under the tests made, is erroneous, because there was evidence in the case that one of the girders, as distinguished from the beams, was of bad material, and also because there was evidence to show the necessity of general steel re-inforcement, to make the building sufficiently strong, and of the fireproofing of this steel work to make the building fireproof, as required by tbe contract.</p> <p>When a contract provides that tbe requirements of tbe Building Inspector of tbe city shall be a part of tbe contract, tbe contractor is not entitled to charge tbe owner as for extra work for tbe doing of things required to be done by tbe Building Inspector.</p> <p>In an action upon a building contract, a prayer cf tbe defendant asserting that tbe plaintiff is liable for tbe cost of replacing certain work if tbe jury find that it was not condemned on account of defendant’s bad material or workmanship, “but for causes for which tbe plaintiff was responsible,” is erroneous, because it does not refer to any specific act of tbe plaintiff.</p> <p>When a prayer is rejected, it is not necessary to take a special exception on tbe ground that it assumes a fact.</p>

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

<p>Appeal from the Circuit Court for WasMngton County (Keedy, J.).</p> <p>The cause was argued before Boyd, O. J., Briscoe, Pearce, Schmucker, Burke, Thomas, Worthiygtoy and Heyry, JJ.</p>

<p>Dress of Operator Caught in Revolving Shaft — Contributory Negligence — Instruction.</p> <p>Plaintiff, a woman thirty-five years old, who had been employed for fifteen years in factories where shafting and other machinery were used, was the superintendent of the work on sewing machines in defendant’s factory. The machines were operated by steam, and the shafting, which ran under the tables, was boxed in order to prevent the clothing of the employees from being caught in it. Plaintiff was aware of the purpose of this boxing, but she had not been expressly warned of danger from an exposed shaft. On the day of the accident in question, plaintiff observed that the end of a certain shaft, projecting beyond a table, had been uncovered for the purpose of making an extension, and this extension was fastened with a set screw. Later on in the day, for the purpose of instructing an employee, plaintiff stood near this exposed, rapidly revolving shaft, with her back turned towards it, and shortly afterwards her skirt wqs caught by the shafting and the injury was inflicted upon her, to recover damages for which this action was brought. The evidence showed that a shaft like this had a power of suction that would draw around it a light fabric within half of an inch, and if the fabric were frayed the suction would operate at a greater distance. It was not necessary or specially convenient for the plaintiff to take the position she did when injured. Held, that the plaintiff’s injury was caused by her contributory negligence and she is not entitled to recover damages therefor.</p> <p>A prayer was offered at the close of the evidence on both sides instructing the jury that upon plaintiff’s own evidence, her own want of ordinary care directly contributed to the injury which she received, and therefore the verdict should be for the defendant, is not open to the objection that it segregates the testimony of the plaintiff herself and ignores that of other witnesses. The prayer is to- be construed as embracing all of the evidence offered by the plaintiff. It is not necessary that plaintiff’s contributory negligence should be proved by the defendant. That negligence may be disclosed by plaintiff’s evidence.</p>

<p>Appeal from the Circuit Court for Somerset County (HonLASTDj J.).</p>

<p>Devise and Legacy — Donee Answering Description• at Date of Will — Bequest to the Wife of A. — Subsequent Divorce.</p> <p>The object or donee of a bequest is' to be ascertained by consid- ■ ering what person answered the description of the donee at the time the will was executed.</p> <p>"When property is bequeathed to the wife of A., and A. has a wife at the date of the will, she is entitled to the property, although afterwards, she is divorced from A. and is'not his ' wife at the time of distribution.</p> <p>By her will, made in 1889 and probated in 1891, a testatrix gave all of the residue of her estate to a trustee, with directions to pay the income to her son Oliver and, upon his death, ■ the corpus of the estate to become the property of his children. In cáse he should die without issue, the testatrix gave certain legacies and all the rest and residue, after payment of the legacies, “unto the wife of. my said son Oliver, absolutely.” At the time of the execution of the will, Mary A. was the wife of Oliver. She obtained a divorce from him in 1898, and afterwards married another. Oliver died without leaving children. Held, that his former wife, Mary A., is entitled to the residue of the estate under the bequest tq her as the wife of Oliver.</p>

<p>- Landlord and Tenant — Invalid Unrecorded Lease for Ten Years — Rights of Tenant Entered Into Possession and Paying Rent — Plea of Defense on Equitable Grounds.</p> <p>When a lease of land for ten years is made, but not acknowledged and recorded as is required by Code, Art. 21, sec. 1, and the tenant enters into possession, paying yearly rent, which is accepted by the landlord, the tenant and his assigns are to be regarded as tenants by the year. The tenancy is not created by the lease, but is implied by law from the occupation of the land, and the payment and receipt of rent therefor. .</p> <p>In an action of ejectment by a landlord against a tenant, when the lease under which the tenant entered being for ten years was invalid because not recorded as directed by Code, Art. 21, sec. 1, the defendant may rely as matter of law upon the defense that notwithstanding the .invalidity of the lease he holds as tenant by the year because he paid a yearly rent which was accepted.</p> <p>Consequently, that defense should not be pleaded by way of defense on equitable grounds.</p>

<p>Mandamus — Defenses Available on Second Application — Highways and Streets — Road Improvement on Petition of Abutting Owners Under Code, Art. 91 — Estimate of Oost by Economic Commissions Exceeding Twenty-five Per Cent, of Ro'ad Levy.</p> <p>A petition for a mandamus to require the commissioners of a county to request the Economic Survey to make plans and estimates for the repair of a certain road, was resisted by the defendants on the grounds of the unconstitutionality of the ■ law under which the petition was filed, and of a repugnancy between certain sections of it. It was held- that these objections were untenable. A mandamus was issued and complied with, and an estimate of cost received by the County Commissioners. The petitioners then applied in this casé.for a mandamus directing the County Commissioners to- advertise for bids for the construction of the roád. Their answer alleged that the estimate made for the proposed work is' greater than twenty-five per cent, of the- road levy of the county, and that consequently it was discretionary with them to advertise for bids or not. Held, that since the petition for the first mandamus was an application for a different purpose from that contemplated by this petition, the defendants are not precluded from relying upon the said defense by reason of Code, Art. 60, sec. 4, which provides that no defendant shall be allowed on a second application for a mandamus to rely upon any matter by way of defense which he might have relied on in his answer to the previous application.</p> <p>Under the provisions of Code, Art. 91, secs. 34, 38, etc. (Act of 1904, Chap. 225), the owners of two-thirds of the land lying on a public road are authorized to require the County Commissioners to call upon the Chief Engineer of the Economic Survey to make plans and specifications and an estimate of the cost of improving the road. The cost of the construction is to be paid in different designated proportions by the petitioners, the County and the State, the share of the petitioners to be ten per cent. Sec. 38 then provides that after receipt of the plans, specifications and estimate, the County Commissioners, if the ten per cent, of the estimated cost be paid or secured by the petitioners, shall advertise for bids for such road building or improvement, “provided that nothing in this section shall require the County Commissioners, upon the petition of such persons agreeing to pay ten per cent., to advertise for work to be done to an amount greater than twenty-five per cent, of the road levy of said county.” Held, that this proviso refers to .the whole estimated cost of the road, and not merely to such part of the cost as the county has ultimately to pay, the whole cost being paid in the first instance by the county; that in determining whether the amount to be paid will be greater than twenty-five per cent, of the road levy, the commissioners are to be guided by the estimate made by the Economic Commission; that if that estimate exceeds twenty-five per cent., the commissioners are not required to advertise, although they could in their discretion do so if they thought that the estimate was too high; that consequently when the estimate furnished to the commission for the improvement of a road asked for by the petitioners does exceed twenty-five per cent, of the road levy, the petitioners are not entitled to a mandamus directing the County Commissioners to advertise for bids.</p>

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

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

<p>Orphans’ Court Not Authorized to Determine Title to Property — Order. Striking Articles from Inventory Returned by Administrator — Petition of Creditor of Estate — Issues to a Court of Law — Affidavit Not Part of Record on Appeal.</p> <p>The Orphans’ Court has no jurisdiction to determine that arti cles returned in an inventory as belonging to the estate of a decedent do not belong' to him, but were the property of the petitioners, and to order the same to be stricken from the inventory.</p> <p>If an administrator has in his possession property which is claimed by a third party, the latter may maintain an action for the same in a Court having jurisdiction to determine questions of title. If the third party is in possession, the administrator who claims title may sue for it at law.</p> <p>An administrator returned in an inventory a yoke of oxen and a horse as the property of the deceased. Upon the petition of parties claiming to be the owners of the animals, the Orphans’ Court ordered them to be stricken from the inventory because not property of the estate. A creditor of the deceased then filed a petition in the Orphans’ Court alleging that the animals did belong to the estate, and that they should be included in the inventory, and prayed for issues of fact to be sent to a Court of law for a trial. Held, that although the Orphans’ Court had no jurisdiction to determine the question of title by passing the order in question, yet the creditor has no right to ask for issues to a Court of law, because it is only in cases when the Orphans’ Court has jurisdiction to determine a matter that it is required to send issues to a Court of law.</p> <p>Held, further, that although the creditor of the estate has no standing in Court to test the question of title to 'property, yet he may petition the Orphans’ Court to require the administrator to do so, under Code, Art. 93, sec. 259.</p> <p>Affidavits and other papers filed in the Court of Appeals by the appellee will not be considered in disposing of a cáse, since Rule 10 of the Court of'Appeals provides that no paper shall ■ be read or referred to, not a part of the record, without the consent of counsel and leave of the Court.</p>

<p>Negligence — Injury to Child Crossing Street by Electric Car — ■ Avoidance of Injury After Seeing Plaintiff’s Peril — Degree of Care Required of Children — Right of Trial Judge to Modify or Revolee Instructions at Any Time During Trial.</p> <p>In this action against a street electric railway company to recover damages for personal injuries alleged to have been caused by defendant’s negligence, the evidence on the part of the plaintiff showed that the plaintiff, a little girl not quite three years old, strayed away from home one morning, and while attempting to cross a street was struck by defendant’s car; that this car approached an intersecting street rapidly, on a down grade; that when the car was one hundred feet distant from the crossing the child, who had been standing on a corner, started to run across the street; that at that time, the motorman was looking at buildings on one side of the street and did not see her, and also did not see a person who was signaling to him to stop. The evidence on the part of the defendant was that the car was drifting down grade, without power, at a speed of about four miles an hour; that the motorman noticed the little girl standing at the far corner of the street; that when the car had reached the cross street she made a dash to run across and ran into the front of the car, which knocked her down; that the rails were slippery on account of the damp weather; that as soon as the motorman saw the child start to cross he applied the brakes, used sand and tried to stop the car and did stop it within a length and a half, and that the gong was sounded before reaching the corner. Held, that the plaintiff’s evidence, if found to be true by the jury, is legally sufficient to entitle the plaintiff to recover.</p> <p>Held, further, that although the plaintiff and her parents may have been guilty of negligence, yet the plaintiff is entitled to recover if the jury find that the motorman of the car, by the exercise of ordinary care, might have seen the child and stopped the ear- in time to avoid the accident.</p> <p>Held, further, that the. jury was properly instructed that the plaintiff was entitled to recover if the injury could have been avoided by the exercise of ordinary care on the part of the defendant, unless they find that the injury resulted from want of such care on the part of the plaintiff as ought to have been reasonably expected from one of her age, or from the want of ordinary care on the part of her parents, directly contributing to the accident.</p> <p>A child is only bound to exercise such degree of care as may be ■ expected from one of its age, and when it is seen to be about to cross a street, the motorman of a street car is required to exercise a greater degree of care to avoid a collision than is necessary in the case of an adult in a similar position.</p> <p>The trial Judge has the right at any time during the trial to modify bis instructions to the jury or to revoke them.</p> <p>At the close of the evidence, in an action for personal injuries and after prayers had been granted, including one relating to the elements constituting the damages that, the plaintiff might be entitled to recover, the trial Court stated that certain evi- ' dence relating to the possible effect of the injury had been erroneously admitted, and that, upon motion, he would exclude it. The defendant refused to make such motion, although it had objected to the admission of the evidence. Then the Court, on its own motion, modified plaintiff’s granted prayer as to the measure of damages by directing the jury not to consider that effect of the injuries as testified to by a certain witness. After plaintiff’s counsel began his opening address to the jury, the defendant’s special exceptions to the plaintiff’s prayer re- - lating to damages were given to the Court, and the Court modified the granted prayer as to damages by striking out that part relating to the industrial pursuits for which, in the absence of the injury, the plaintiff would be qualified. The Court then read to the jury the prayer as modified. Held, that defendant cannot complain of this modification of the instructions which were made practically at its own instance.</p>

<p>Appointment of Trustee in Equity — Jurisdiction of Equity to Order Sale of Land Held as Investment by Trustee — Parties.</p> <p>When a fund is bequeathed to a trustee with directions to pay the income to a tenant for life and upon his death to his wife and children, and the trustee nominated in the will declines the trust, a Court of equity has jurisdiction, upon the petition of the cestui que trust, to appoint a trustee. The executor of the will and remaindermen after'the life estate are not such necessary parties that their absence from the proceedings ren- . ders the appointment void.</p> <p>A trustee who held a sum of money in trust for a life tenant with remainder to certain parties was authorized by a Court of equity, which had assumed jurisdiction over the trust, to invest a certain part of the trust fund in the purchase of a farm for the use of the cestui que trust. Afterwards, upon petition of the trustee, the life tenant and his wife, the trustee was directed to sell the farm and reinvest the proceeds. The farm was sold and the parchase money paid, hut the sale was not reported to the Court for ratification. Eight years after-wards a substituted trustee reported the sale. Under exceptions to its ratification, it was objected that the order authorizing the sale was invalid because the remaindermen in fee after the life tenant were not parties to the cause. Held, that since the trust property originally consisted of money, some of which was invested in a farm, and since the sale of the farm was made only for the prfrpose of changing the investment, it was not necessary that the persons having contingent interests after the life estate should be made parties to the cause, and that the sale is valid, being made under the general power of chancery, to direct a change in the investment of a trust fund.</p>

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

<p>Fire Insurance — --Fire Caused by Earthquake — Damage by Fire After Damage by Earthquake.</p> <p>When the language of a policy of insurance is not entirely clear, and a doubt exists as to the nature or extent of a clause limiting the liability of the insurance company, that construction should be adopted which is most favorable to the insured, since the policy was prepared by the insurance company and it was bound to make its meaning clear.</p> <p>A policy of-insurance against all direct loss or damage by fire provided that the insurer should not be liable for loss caused directly or indirectly by invasion, riot, etc., or by neglect of the insured to use all reasonable means to save the property at or after the fire, “or (unless fire ensues, and, in that event, for the damage by fire only) by explosion of any kind or from any cause, or the bursting of a boiler, or earthquake, or hurricane, or lightning; but liability for direct damage by lightning may be assumed by specific agreement hereon.” Property insured under this policy was destroyed by a fire originating on the premises and caused by the earthquake in San Francisco in 1906, and other insured property by fire so caused which originated on premises not covered by the policy. Held, that the bracketed clause both grammatically and logically embraces each of the destructive forces thereafter mentioned; i. e., explosion, earthquake, hurricane, lightning, and means that the insurer is not liable for direct loss caused by these forces, but is liable for an indirect loss caused by fire which ensues from them or any one of them.</p> <p>Held, further, that the insurance company is liable for damage from fire caused by an earthquake which fire originated on the property of the party insured, and also when the fire so caused by the earthquake spread from its point of origin until it reached and destroyed property of the insured.</p>

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

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

<p>Appeal from the Circuit Court Mo. 2 of Baltimore City (Gorter, J.).</p>

<p>Bonus Tax on Corporations- — Action For Libel Published Against Corporation Before Payment — Pleading— Estoppel- — Libel on Unincorporated Association.</p> <p>Under Code, Art. 81, Sec. 98, the payment of the bonus tax is a condition precedent to the possession of any corporate powers or to the legal existence of all corporations there enumerated.</p> <p>A corporation cannot maintain an action for libel upon it published after its organization but before it paid the bonus tax imposed by Code, Art. 81, Sec. 98, as a condition precedent to the corporate existence of certain classes of corporations.</p> <p>Ln an action of libel by a corporation, the defense that at the time of the publication of the libel, the corporation had not paid the bonus tax and was therefore not legally constituted is properly pleaded by way of traverse and not in abatement, for tlie plea does not interpose an objection to the further progress of the suit but it denies the existence of the cause of action itself.</p> <p>The Act of 1908, Chap. 240, Sec. 6, relating to formal defects in certificates of incorporation was not intended to cover cases where through neglect there has been no attempt to comply with important requirements of the law which by express terms are made conditions precedent to the possession or use of any corporate franchises.</p> <p>A corporation cannot be created by estoppel. The fact that one writes letters to an organization as a corporation and brings suit against it does not estop that person from alleging that the corporation had no valid corporate existence.</p> <p>Members of an unincorporated association may sue for a libel on it as individuals having a common interest in the business alleged to have been injuriously affected by the libel.</p>

). The agreement mentioned in the opinion of the Court is as-follows: ‘This agreement made this 30th day of April, in the year one thousand nine hundred and seven, witnesseth: That Harry R. Nicholson, of the city of Baltimore, State of Maryland, in his own right and trading as the Baltimore Acid Works, does hereby grant,-assign and convey unto Luke Ellis, of said city and State, his personal representatives and assigns, all- his the said Harry R; Nicholson’s right, title and…

<p>Pledge — Banker Holding Certificate of Stock Endorsed in Blank as Security Not Authorized to Repledge For His Debt — Trover—Measure of Damages.</p> <p>When- a certificate for shares of stock hearing an assignment and power of attorney in blank, executed by the party in whose name the certificate was originally issued, is delivered by the oowner to a banker to be held as security for a loan, the banker has no authority to pledge such certificate for a loan, to himself by a' third party; and, since the endorsement in blank only authorizes a sale and not a pledge, the owner of the shares is not estopped to claim the same from the third party on the. ground that he clothed the banker with apparent authority to pledge, but .he is entitled to maintain an action of trover against the third person, pledgee, by whom the shares were sold.</p> <p>The measure of damages in such ease is the market value of the stock at the time the banker made the unlawful pledge of it.</p> <p>Conversion in the law of trover consists in the appropriation of the property of another or in its destruction, or in exercising dominion over it in defiance of the owner’s rights, or in withholding possession under an adverse claim of title; and all who participate in such unlawful acts are liable.</p> <p>When shares of stock held as security for the general indebtedness of the owner to a banker have been wrongfully pledged by the banker with a third person by whom they were sold, then, in an action of trover by the owner against the third person, the defendant is entitled to an allowance for the amount cf the owner’s indebtedness to the banker.</p>

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

<p>Executors and Administrators — Persons Entitled to Letters of Administration — What Constitutes Disqualification — Proof of Intestacy.</p> <p>Upon death of a person intestate, leaving as his next of kin one brother and three sisters, the brother is entitled to letters of administration on his estate, under Code, Art. 93, sec. 21, which provides that brothers and sisters shall be preferred in the grant of administration if there be neither husband, nor widow, nor child, nor grandchild, nor father of the deceased; and under sec. 23, which provides that in the grant of letters males shall be preferred to females in equal degree of kin. • ...</p> <p>The qualifications of an administrator are 'declared by Code, Art. 93,' sec'. 17, to be the same as those prescribed for an executor. Art. 93,- sec. 5.1; provides that the person named as executor must not be under eighteen years of age, at the time ■ of administration, or of unsound mind, incapable of making a contract, or convicted of any infamous crime, or an alien. Art. 93, sec. 31, also provides that if a person entitled to administer, be.incapable, administration may be granted in the discretion of the 'Orphans’ Court. The application for letters of administration made by the person entitled thereto under the statute was answered by a petition alleging that he was not the proper person for the trust, and that he was incapable and incompetent to ádminister the estate to the advantage of the parties concerned. Held, that the evidence fails to show that the applicant was incapable within the meaning of that term as used in 1he statute, and that the Orphans’ Court has. no power to refuse to grant letters to him.</p> <p>Under Code, Art. 93, sec. 16, the Orphans’ Court is not authorized to grant letters of administration upon the estate of a decedent without proof that he died intestate.</p>

<p>Appeal from the Circuit Court for Harford County (Van Bibber, J.)</p> <p>The cause was argued before Boyd, O. J., Briscoe, Pearce, Schmucker, Burke, Thomas, Worthington and Henry, JJ.</p>

<p>Petition to Modify Decree Alleged, to Have Beer Entered by Mistake — Secondary Evidence of Lost Document.</p> <p>A woman who was entitled under a will to an annuity of $6,000 held as security for its payment a mortgage on certain property. Another mortgage on the property was executed hy the owner to secure certain bonds. Upon defaults in payment under both mortgages there arose a controversy as to whether the mortgage of the annuitant was a first lien or not. By consent of counsel the property was sold under a decree. After the sale an order of Court was passed directing the proceeds to he applied first to the payment of the arrears of the annuity, and that the balance, amounting to about $43,000, be invested and the income thereof paid to the annuitant during her life', and that upon her death the principal should be brought into Court. Seven years after this order the annuitant filed the petition in this case, alleging that the order as to the investment of the proceeds of sale was passed by mistake and that she was entitled to have the same modified so as to direct the payment of the full amount of the annuity as it accrues from the principal. Held, upon an examination of the evidence, that the order was not passed by mistake, but was entered in pursuance of an agreement of compromise between the annuitant and the other mortgagee, who had denied the validity of the mortgage securing the annuity; that this agreement provided that the proceeds of the sale to the extent of $100,000 should be invested and the income paid to the annuitant, and that after her death the principal should be paid to the other mortgagee; that this agreement was signed' by the parties and filed in the cause, and that although it has since been lost, yet its contents have been satisfactorily established by secondary evidence, and that consequently the petitioner is not entitled to the relief asked for.</p> <p>The question whether diligent search has been made for a lost document so as to render secondary evidence of its contents admissible is one that is addressed to the sound discretion of the trial Court, whose determination thereof is not reviewable on appeal unless there has been a plain abuse of the discretion.</p> <p>When there is no evidence • of the existence of a copy of a lost document, its contents may be proved by the testimony of witnesses who had read the paper. It is not necessary that their • evidence should show the exact language of the document, but it is sufficient if it proves the substance thereof, so far as it relates to the matter in controversy.</p>

<p>Municipal Contracts — Lowest Bidder — Bid Not in Conformity With Reasonable Specifications May Be Disregarded— Discretion of Municipal Officials in Awarding Contracts — Mandamus.</p> <p>When the advertisement by municipal officers asking for bids for paving a street with belgian blocks provides that “each bidder must deposit with his proposal a sample granite block, stating at what quarry it was manufactured, and ágree, if the contract is awarded to him, to use only blocks made at said quarry and equal to the sample,” a bid 'unaccompanied by a ' sample block as specified may be disregarded in awarding the contract, since the requirement as to the sample block is reasonable.</p> <p>While slight irregularities in a bid may be disregarded, yet -an irregular bid may be rejected, and the Court will not interfere in such case in the absence of fraud or collusion.</p> <p>When the lowest bid received is not in conformity with the specifications as advertised,.the-contract may be awarded to the next lowest bidder.</p> <p>The provision in a municipal charter that contracts to do work . of a certain character shall be awarded to the lowest responsible bidder is mandatory. But in determining who. is the lowest responsible bidder the municipal officers have a wide ■ discretion; they may consider the general qualifications of a bidder, and need not be guided solely by a consideration of his pecuniary responsibility. '</p> <p>When municipal officers are authorized to-let contracts for works of public improvement to the lowest responsible bidder, their duties are not of a strictly ministerial character, but involve the exercise of official discretion which the Courts will not control by mandamus, in the absence of fraud or collusion. •</p>

<p>Non-Payment of Ground Bent for Twenty Years Vests Fee ' Simple Title in Tenant.</p> <p>The purchaser, under an agreement for the sale of fee simple property, objected to the title offered upon the ground that it was leasehold property, because, about one. hundred years ago, the land had been leased subject to a ground rent of one cent per annum. This rent had not been demanded dr paid for more than twenty years. Code, Art. 53, sec. 26 (Act of 1884, Chap. 502), provides that whenever there has been no demand or payment for more than twenty consecutive years of any specific rent reserved out of a particular lot under any form of lease, such rent shall be conclusively presumed to have been extinguished, and the landlord shall not thereafter set up any claim thereto, or to a reversion in the lot, or have the right to institute any suit, action or proceeding whatsoever to recover said rent or said lot. Held, that this statute is valid and constitutional, since the Legislature has the power to-change the rules of evidence, and to pass laws which may result in vesting title in those holding land by adverse possession, provided the former owners have a reasonable time after the passing of such law in which to assert their rights.</p> <p>Held, further, that under this statute, where there has. been no-demand or payment of rent by the lessee for more than twenty consecutive years, not only is the rent presumed to have been extinguished, but the interest of the landlord is barred, and his fee simple title is vested in the tenant in the same manner as if the land had been held by adverse possession for the statutory period.</p>

<p>Appeal from the Circuit Court No. 2 of Baltimore City Gokter, J.).</p> <p>The cause was argued before Boyd, O. J., Briscoe, Pearce, Sci-imucker, Burke, Thomas, Worthington and Henry, JJ.</p>

<p>Municipal Corporation Not Liable to Suit in Transitory Action Outside of Its Jurisdiction — Statutory Construction.</p> <p>A municipal corporation is not liable to suit on a transitory-cause of action in a Court not within its own territorial limits.</p> <p>This common -law rule is not abrogated by the Act of 1908, Chap 24 (Code, Art. 23, sec. 62), which provides that every corporation of this State may be sued in any county, or in the City of Baltimore, where its principal office is located or where it regularly transacts business or exercises its franchises. This and other statutes relating to suits against corporations were not designed to apply to municipal corporations.</p> <p>The fact that great inconvenience would result from a particular construction of a statute is a potent factor in determining whether the Legislature intended that result to be effected, provided the language of the statute is not so plain as to leave •no room for’construction.</p> <p>A municipal corporation is a public corporation and an agency of the State in government. To allow such a corporation to be sued upon transitory causes of action, as distinguished from local actions, in any county of the State would' result in great cost and public inconvenience by taking away the municipal officers from their post of duty. Therefore a statute providing in general terms that any corporation may be sued in any county where it transacts business will be construed not to apply to municipal corporations.</p>

The declaration in this case is as folloAvs: In the Superior Court of Baltimore City, City of Baltimore, to wit — Joseph T. Smith, M. D., by Thomas Mackenzie, his attorney, sues The Woman’s Medical College of Baltimore City, a corporation duly incorporated under the layvs •of the State of Maryland. Eor money payable by tbe defendant to tbe plaintiff.

<p> Assessments for Benefits Upon Opening Streets in Annex to Baltimore City. </p> <p>The Act of 1904, Ch. 274, provided for the appointment of a commission to condemn, open, grade and pave streets in certain territory annexed to Baltimore City, and conferred upon this “Annex Improvement Commission” designated powers. The Act further provided that the Mayor and City Council might grant to the Commission such additional powers as may be deemed necessary, and also that in lieu of said Commission the Mayor and City Council may by ordinance authorize the Commissioners for Opening Streets to perform the duties of the said Commission. An Ordinance of the City empowered and directed the Commissioners for Opening Streets to perform the duties in said Act provided for the Annex Improvement Commission, and prescribed that in so doing their procedure should be the same as in relation to their ordinary duties of the same nature. Held, that, although the Act does not authorize the Annex Commission to make assessments for benefits in opening streets, it does not prohibit such assessments, and that under the ordinance of the City vesting the functions of the Commission in the Commissioners for Opening Strec4s, the latter are authorized to make assessments for benefits in opening streets in the Annex in the’same manner as is provided in the case of street openings in other'parts of the city.</p>

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

<p>Mandamus■ — Construction 'of Act of 1908, Ch. 77, Relating to Society for the Prevention of Cruelty to Animals: — What Persons Entitled to Vote at the Election- Provided for by the Act — Payment- or Tender of Dues-^PlUce ' . . of Payment — Proxies-z—Revocation of - Proxy —Parties to Mandamus Proceeding— • - Amendment of Prayer of. Writ— Remanding Cause. ..... • .</p> <p>When a mandamus proceeding is tried before- the Court without a jury, formal bills of exceptions are not necessary,, and on an appeal this Court determines from, the whole. record whether the writ should be issued or not. But it is necessary that there be either written objections filed or proper notations made in the record clearly indicating the rulings excepted to on both sidos and the ground of such exception, so-that the rulings may be distinctly presented to this Court.</p> <p>The Act of 1908, Ch. 77, relating to the Maryland Society for the Prevention of Cruelty to Animals, provided that a special election of directors of the society should be held on April 10, 1908, at which twelve directors should be chosen, four to serve for one year, four for two years and four for three years. After the election a petition for a mandamus was filed, alleging that certain ballots were illegally counted for the directors then declared to be elected, and certain other ballots offered for the petitioners were illegally rejected, and that the petitioners were duly elected as directors. The-prayer of the petition was for a mandamus ordering the induction and installation of the petitioners into office as directors. Held, that under the provisions of the Act new members elected after Pebruary 13 and before March 7, 1908,. who paid their dues between March 7 and April 10, were entitled to vote.</p> <p>That members who were such before Eebruary- 13th and who had not resigned and whose dues for 1907 or .1908 were paid prior to the beginning of the election on April 10th, ■ were entitled to vote.</p> <p>That members contributing annually less than $o were entitled to vote at said election.</p> <p>A sum of money was handed by the cashier of a bank to the treasurer of said society as the total amount of dues of a . number of persons whose names were on a list then given to the treasurer, with the understanding that the dues of such of those, persons as might be allowed to vote at ihe approaching election should be taken out of that sum. The treasurer took the money, but immediately handed it back to the cashier and it was not put to the treasurer’s credit in the bank, either individually pr as treasurer of the society. Held,, that this .transaction did not constitute a payment of the dues of those persons, because there had been no. acceptance of any specific sum by the treasurer, and also that it was not. a good . tender of dues, because the offer was not absolute, but was made to depend on a contingency that co.uld not happen until after the election, and that consequently those persons whose dues were so tendered were not entitled to vote at the election.</p> <p>Where the books of a society were kept at its office and .it had been customary for a long time for members to pay their dues to the person in charge of that office, a tender of dues, to that person is valid, although the president of the society, for no apparent reason, had ordered, shortly before tbe tender, that dues should thereafter be paid only to the treasurer of the society at his private place of business.</p> <p>Under the said Act of 1908, a member of the society who had not resigned, but had failed to pay his annual dues and who was still carried on the books of the society as a member, was qualified to vote at the special election, provided his dues ' were paid or lawfully tendered for the year 1907 or the year 1908.</p> <p>When a member of the society gave proxies to cast Ms vote at the election for directors to different persons, the proxy last given is to be deemed the revocation of all former proxies, but where two such proxies with the ballots thereto attached were presented to the judges of election, one for each side, and it could not be determined from an inspection of the proxies themselves which of the two was the last given by such member, neither of the ballots attached to such proxies should be counted.</p> <p>If the revocation of a proxy to vote was duly presented to the judges of election, or was in the hands of a person holding the proxy or known to him, the ballot attached to the proxy should not be counted.</p> <p>A proxy to which no ballot is attached should not be counted as a vote. But when in the same envelope two proxies are found and two ballots, not attached to the proxies, the ballots should be appropriated to .them.</p> <p>Persons who made donations for specific purposes to the said society, but not for the purpose of becoming members, and who were not carried on the books as members, are not entitled to vote.</p> <p>When the membership book of a society bears on it notations made by the bookkeeper that certain persons had resigned or refused to pay, the presumption is that such notations were made by the authority of the board and that such persons are not members.</p> <p>Under said Act of 1908, Oh. 77, honorary members of the society were entitled to vote at the special election thereby directed to be held.</p> <p>Certain questions of fact relating to the right of parties to vote at the election for directors as dependent upon whether their . dues had been paid, or whether their ballots were actually tendered, as decided by the trial Court in the mandamus proceeding, are affirmed on appeal.</p> <p>In a petition for a mandamus by persons claiming to have been elected directors of a society it is not necessary that all the persons so elected should be made parties to the petition.</p> <p>Under the Act of 1908, Oh. 77, twelve directors of the society were to be elected in April, 1908, and they were required to decide before the next annual meeting which of their number should serve for the respective terms of one, two and three years. A petition for a mandamus alleged that the twelve</p> <p>persons returned as elected were not legally elected, and that other twelve persons were duly elected. The petition asked for an order directing induction into office of these twelve persons. More than a year after the election it is established on appeal that the petitioners were duly elected. Held, that although the writ cannot he granted as prayed for so as to place in office all these twelve persons, yet a writ would not he nugatory; and the petition may he amended so as to ask for such a writ as may now he effective, and ihe case is remanded to that end.</p>

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

<p>Duress or Undue Influence — Contract Obtained by Threat to Destroy Property.</p> <p>A contract is voidable, whether under seal or not, when the promisor was induced to execute it by the threat of the other party to destroy valuable property in his possession belonging to 'the promisor.</p>

<p>Bill to Vacate Deed for Fraud and Undue Influence — Evidence — Confidential Relations — Testimony Taken After Abatement of Suit by Death of Plaintiff and Before Revivor Not Admissible.</p> <p>A "bill in equity alleged that the plaintiff, when seventy-five years old, was induced to execute a deed conveying property to his son, the defendant, hy means of the latter’s representations that the property was in danger of being seized by pretended creditors, and the son’s promise to reconvey the property upon demand; that the representation as to creditors was false, and that no consideration was paid for the deed. The hill prayed that the deed be declared null and void and a reconveyance ordered. Held, that'the plaintiff is'not disentitled to relief on the ground that he made the conveyance for the púrpose of defrauding his creditors, and is in pari delicto with the defendant, but that the act of the plaintiff so alleged to have been fraudulent was not his voluntary act, hut was induced hy the fraud and.undue influence of the defendant. ■ •</p> <p>Upon a hill to annul a conveyance because obtained by the defendant’s fraud and undue influence, the evidence examined and held to establish the truth of the allegations of the hill and to entitle the plaintiff to relief.</p> <p>When an aged man makes a voluntary .conveyance of property to his son, in whom he reposed trust and confidence, the burden of showing the fairness of the transaction and that the confidence was not abused is cast upon the grantee when the grantor seeks to annul the transfer.</p> <p>An equity proceeding is abated by the death of the plaintiff, and no testimony can he taken in the cause thereafter until ' another party plaintiff is made.</p>

). This action was brought by the appellee, Anna W. Silver, against the appellant, Maryland and Pennsylvania Railroad Company to recover damages for the depreciation in value of certain lands of the appellee, located in Harford County, at a station on the line of defendant’s road about one mile south of the southern boundary of Pennsylvania, known as Cambrai, and also to recover damages for the loss of certain rents of a warehouse erected thereon close to the right of way of…

<p>Motion to Stay Proceedings Until Costs on Appeal Be Paid— Slander of Chastity of Female — Pleading—Evidence— Juror Not Allowed to Impeach His Verdict:</p> <p>When a new trial of a cause has been ordered by the Court of Appeals, a motion in the lower Court to stay the proceedings until the costs on the appeal have been paid is addressed to the sound discretion of the trial Court.</p> <p>A declaration sets forth an actionable slander when it alleges that the defendant said of the plaintiff, an unmarried female school teacher: “She is a girl of loose character and not fit to</p> <p>• teach school,” and that the defendant thereby meant that the plaintiff was unchaste, and that the words were so understood</p> <p>. by the persons in whose hearing they were spoken.</p> <p>A witness shown to be well acquainted in a certain neighbor-</p> <p>• hood, and who had frequently there heard certain words applied to females, is competent to testify as to the meaning generally attached to such words in that neighborhood.</p> <p>When the plaintiff alleges that she was unable to obtain again a position as teacher in certain schools on account of defendant’s slanderous words concerning her, a witness may be asked why plaintiff failed to get such position at the time in question.</p> <p>If the question asked a witness is proper, but the answer made to it is not responsive or contains irrelevant matter, the correct practice is for the other side to move to strike out the answer and to direct the jury not to consider it.</p> <p>The defendant in an action of slander is not entitled to ask the plaintiff who first informed her that he had used the alleged defamatory words.</p> <p>Upon the trial of a slander suit where the defendant was charged with having spoken defamatory words concerning the female plaintiff’s chastity, the defendant had offered evidence tending to prove that the plaintiff’s general reputation for chastity was bad. A witness produced in rebuttal was asked to state whether or not he had heard plaintiff’s general reputation for chastity questioned or doubted before the institution of the suit. After he had answered in the negative, the defendant objected to the question and the objection was overruled. Held, that this ruling was correct — first, because the objection was made too late; secondly, because the evidence was admissible in rebuttal; and, thirdly, because the defendant was not injured by the testimony.</p> <p>Upon a motion for a new trial, it is not competent to offer the affidavit of a juror to the effect that he was induced to agree to the verdict as rendered in consequence of threats made against him in the jury room, since a juror will not be al-. lowed to impeach his verdict.</p>

<p>Services Rendered by One Member of a Family for Others Presumed to Be Gratuitous — What Constitutes a Family— Instruction Too Indefinite.</p> <p>When services are rendered by one member of a family for another, they are presumed, on account of the relation between the parties, to have been gratuitous. To entitle one to claim compensation for such services, there must have been a design at the time of their rendition to charge for the same, and an expectation on the part of the recipient to pay for them.</p> <p>In order to be a member of a family in this sense, it is not necessary that there be any blood relationship between the parties. Those who live together under the same roof in the way in which families ordinarily live, each taking part in the domestic work, are to be regarded as members of a family.</p> <p>Plaintiff, a woman who had been taken as a child into a household from a charitable institution, lived for many years on the footing of a member of the family, with throe women and their brother; all of them taking part in the domestic work of the household and the brother furnishing part of the supplies. Plaintiff never demanded any compensation for her services, although she received gifts of money from time to time from the other members of the household. After the death of the brother, she brought this action against his executor, to recover compensation for the services so rendered. Held> that since the plaintiff was a member of the family her services are presumed to have been gratuitous, and there is no evidence of any agreement or understanding, express or implied, to pay for them, aud that the defendant’s deceased was not the head of .the family so as to render him liable as such for its maintenance.</p> <p>A prayer instructing the jury, that “on the evidence and pleadings in this case their verdict must be for the defendant,” is. too general and indefinite.</p>

<p>Bills of Exception — Pleading—Writing Obligatory Payable After Death of Maher — Evidence to Show Fraudulent Purpose in Execution of Writing Obligatory.</p> <p>A demurrer to a declaration should not be included in a bill of exceptions, but the mere fact that it is so included does not prevent this Court from reviewing the ruling of the trial Court in regard to it.</p> <p>In an action against an administrator on a writing obligatory executed by his deceased, a declaration is technically defective which alleges that the deceased did not- pay the debt, but fails to allege also that the defendant did not do so.</p> <p>An instrument in the following form: “To my executor or administrator — Pay to the order of Plorence S. six hundred dollars, Emily J. (Seal), it being for work in house and for manual labor on my farm. Emily J. (Seal),” shows an existing indebtedness, the time of x>ayment of which is to be deferred until after the death of the obligor, and such instrument is not in the nature of a testamentary disposition.</p> <p>Pleas of “never indebted” and “never promised as alleged” are not proper when the declaration sets forth -an instrument under seal.</p> <p>Evidence is admissible to show that an instrument under seal was executed for the purpose of defrauding creditors or others.</p> <p>Different, offers of evidence, all of which were rejected by the trial Court, should be set forth in separate bills of exceptions.</p> <p>When the trial Court rejects a document offered in evidence, it should be set forth in the exception taken to the ruling.</p> <p>Pleas of “never indebted” and “never promised as alleged” do not amouñt to a denial of the execution of tbe instrument sued on.</p>

<p>Landlord and Tenant — Title to Land Not Involved in Dispossess . Proceedings by Landlord When Tenant Denies the Renting — Jurisdiction of Baltimore City Court on Appeal from Justice of the Peace in Landlord and Tenant Case — Motion to Quash Proceeding — Certifying Evidence— Appeal.</p> <p>When the. question raised under a proceeding before a Justice of the Peace for the recovery of demised premises in Baltimore City, under the City Charter, secs. 650, etc., is whether or not the defendant rented them from the plaintiff, that does not involve the title to the-land, which matter, under</p> <p>Code, Art. 52, sec. 7, a Justice of the Peace has no jurisdiction to decide. Consequently, the Justice of the Peace, and, on appeal from him, the Baltimore City Court, has jurisdiction to determine the question at issue, and from the judgment of the City Court no appeal lies to this Court.</p> <p>The question as to the jurisdiction of the Baltimore City Court to try a case on appeal from a Justice of the Peace may be raised by a motion to quash the proceedings, and an appeal from the order overruling the motion.</p> <p>The evidence taken before the jury in the City Court on the trial of ap. appeal from a Justice of the Peace may be certified to this Court as being the evidence taken under a motion to quash the proceedings for want of jurisdiction.</p> <p>Under a proceeding by a landlord to recover possession of demised premises in Baltimore City, under sec. 650 of the City Charter, the sufficiency of the complaint made before the Justice of the Peace, and of the notice or summons in ejectment are matters which the City Court has jurisdiction to decide on appeal from the Justice, and from the decision of that Court no appeal lies.</p>

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

<p>Action for Injury from Bite of Dog — Liability of Owner" of Dog Suspected of Hydrophobia — -Care in Custody— Bvidence — Proof of Hydrophobia.</p> <p>Plaintiff was bitten by defendant’s dog which was supposed to. be mad, and brought this action to recover damages there- ' for, alleging negligence on the part of the defendant in that he set the dog at‘liberty after having reason to suspect that it was suffering from rabies. At the trial evidence is admissible showing that in a conversation with the plaintiff the defendant had expressed his regret at the occurrence and said that his servant did not want him to turn the dog out, because he thought it was mad, and that the defendant himself thought so after the injury. This statement was a declaration against interest, since it tended to show knowledge on the defendant’s part of the condition of the dog.</p> <p>In such action, evidence that the plaintiff feared hydrophobia as a result of having been bitten, and suffered mental anguish, is admissible.</p> <p>Evidence is admissible to show that defendant’s servant in charge of the dog noticed its strange behavior, suspected that it was mad, and communicated his fears to the defendant. Under the circumstances of this case, knowledge by the servant, the custodian of the suspected dog, of its diseased condition is to be imputed to the master.</p> <p>The fact that a dog had hydrophobia may be shown by evidence of the results of an examination of the dog’s head at a Pasteur Institute, together with entries in record books, although different parts of the examination were made by different, persons, and the opinion of one of the witnesses, that the dog had hydrophobia, was founded in part on the history of the dog.</p> <p>When the owner of a dog has reason to suspect that it may be mad it is his duty to use every precaution to prevent the animal from inflicting injury upon others. In this case the question whether the defendant did use due care in the custody of his dog, after being informed of its unusual behavior, was properly left to the finding of the jury.</p>

<p>Summary Jurisdiction of Police Magistrates in Baltimore City —Waiver of Jury Trial — Notice to the Accused of His Bights.</p> <p>Section 632 of the Baltimore City Charter (Act of 1898, Oh. 123), which confers summary jurisdiction upon police magistrates in that city to try persons charged with certain offenses not punishable by confinement in the penitentiary, provided the accused, after being informed of his rights, waives a jury trial and elects to be tried by the magistrate, is constitutional.</p> <p>Section 632 of the Baltimore City Charter, authorizing Station House Justices of the Peace to try persons arrested and charged with certain offenses, including assault and battery, provides that “it shall be the duty of the said Justice, before proceeding to hear, try and determine any of the charges aforesaid, to inform the party or parties charged therewith of his or their respective right to a jury trial.” In this case it appears that an ignorant workman, sixty-one years old, was arrested and imprisoned late at night. Early the next morning> he was brought before a Station House Justice, who told him that he was charged with having committed an assault and battery upon a female child, and said to him: “You have a right to a Court or jury trial or to be tried here. Which do ■ you want ?” The prisoner replied: “I might as well be tried here. I have not done anything. I am innocent.” The magistrate said it was not a question of guilt or innocence, but where he wanted his case tried; and the prisoner answered that he wanted it tried before him. The magistrate proceeded at once with the trial, without asking the prisoner whether he wished to have witnesses summoned in his behalf or to procure counsel, and sentenced him to two years’ confinement in the City Jail. Upon a writ of certiorari, held, that the petitioner did not deliberately waive bis rights to a jury trial after an opportunity to ascertain his real situation and rights; that consequently the magistrate did not have jurisdiction to try the ease, and that the petitioner is entitled to be released.</p>

<p>Parol Evidence Admissible to Show That Deed Purporting to Be for Money Consideration Was Intended as a Gift— Bill to enforce Vendor’s Lien — Competency of Evidence.</p> <p>Although a deed conveying land recites a money consideration, parol evidence is admissible to show, when no fraud is charged, that the conveyance was designed by the parties to it to operate as a gift; that no payment was to be made by the grantees, and that consequently the personal representatives of the grantor are not entitled to enforce payment of the stated consideration.</p> <p>A father conveyed land to five of his children by a deed stating that it was made for and in consideration of the sum of $8,000, the receipt of which was acknowledged, and reserving a life estate in the land to the grantor. After his death, his administrators filed the bill in this case alleging that no part of the said consideration had been paid; that the plaintiffs were entitled to a lien on the land for the unpaid purchase money, and asked for a decree directing a sale of the land for the payment thereof. Held, that the evidence shows that when the deed was executed the grantor did not intend to'create an obligation on the part of the grantees, but that all the parties distinctly understood that the conveyance was intended to be a gift from the father to his children, and that consequently the plaintiffs have no right to demand payment of the sum of money mentioned in the deed.</p> <p>When a party to the cause has been called by the other side to testify as to a conversation had with a decedent, he may be cross-examined as to such conversation.</p>

<p>Constitutional Law — Enacting Clause of Statute — Validity of Statute Requiring Telegraph Companies to Show on Every Message Delivered the Time It Was Filed and the Time Received — Waiver of Statute Not Allowed — Interstate Commerce.</p> <p>Tlie provision of Constitution, Art. 3, see. 29, that “the style of all laws of this State shall be, Be it enacted by the General Assembly of Maryland,” is directory and not mandatory. And an Act beginning, “Be it enacted by the people of the State of Maryland, represented in the General Assembly,” contains a sufficient enacting clause.</p> <p>The Act of 1908, Chap. 280, provides that telegraph companies in the State of Maryland shall show conspicuously, on every telegram delivered, the time it was filed for transmission and the time it was received at the office from which it is to be delivered. Failure to comply with the Act is made punishable by a fine for every telegram delivered in violation of it. Held, that the provisions of this statute cannot be waived by the sender so as to relieve the telegraph company from the duty of making the notations.</p> <p>Held, further, that a telegraph company is not entitled to require the sender of the message to pay the cost of giving this information as to time.</p> <p>Held, further, that the statute relates only to messages sent from one point in Maryland to another point in the State, and hence is in no wise a regulation of interstate commerce, but is a legitimate exercise of the police power of the State.</p>

<p>Act of 1906, Chap. 337, Providing for the Redemption Under a Petition in Equity of Ground Rents Held by the Trustee or Life Tenant — Constitutional Law— Title of Statute.</p> <p>The Act of 1906, Chap. 337, provides that whenever a ground rent reserved by any lease becomes redeemable, and the title to the rent is held by a trustee without power of sale, or by a life tenant with remainder over, or by a holder of a defeasible estate, in such ease, a Court of Chancery, upon petition of such owner of the rent, or of the owner of the leasehold who is entitled to redeem it, after notice to such trustee or life tenant, may order the conveyance of the reversion to the owner of the leasehold, upon the payment of the sum of money for which the rent may be redeemable, which conveyance shall vest in the grantee the title of all other persons having interests in the rent, vested or contingent. It is also provided that the persons beneficially interested in the rent, other than the trustee or life tenant, need not be made parties to the proceeding, and that the money paid for the rent shall be invested under the direction of the Court so as to enure in like manner to the benefit of those entitled to the rent. Held, that this statute does not deprive the persons, other than the trustee or life tenant, interested, in the rent of their property without due process of law; that these persons are parties to the proceeding because they are represented by the trustee or life tenant; that the effect of the decree is merely to change the investment, and that therefore the statutue is constitutional and valid.</p> <p>Held, further, that the statute applies to the redemption of the ground rent when the title to only part of it is held by a trustee.</p> <p>Held, further, that the provision in the Act directing the costs of the proceeding to be taken out of the money paid for the redemption of the rent does not impair the obligation of the contract made by the lease creating the rent.</p> <p>The title of the Act of 1906, Chap. 337, is “An Act to add an additional section to Art. 16, of the Code of 1888 of Public General Laws of Maryland, title ‘Chancery,’ sub-title ‘Trustees,’ to come in after sec. 215, and to be known as sec. 215 A.” The Act provided for the redemption, under a chancery proceeding, of ground rents held by trustees or life tenants. Held, that the title of this Act is in compliance with Constitution, Art. 3, sec. 29, which provides that the subject of every law shall be described in its title.</p>

<p>Laches — Conveyance to Wife in Fraud of Creditors — Limitations — Failure to Exercise Diligence to Discover Fraud.</p> <p>When a party neglects to enforce payment of a claim, although within his power to do so, for more than four years after it became due, and until after the death of the debtor, his laches disentitles him to relief in equity.</p> <p>A man borrowed from the plaintiff, his employer, a sum of money with which to purchase a house, promising to take the deed of it in his own name, so that the property would be security for the loan, and he gave a promissory note for the amount borrowed. The house so purchased was conveyed to the man and his wife as tenants by the entireties, and the deed</p> <p>was recorded. He died four years afterwards, without having paid the loan, and his wife died soon thereafter. Plaintiff’s bill in this case alleged that the conveyance was thus made for the purpose of defrauding him and asked that his claim be declared a lien on the property. Code, Art. 45, sec. 1, provides that no acquisition of property passing to a wife from her husband shall be valid if made in prejudice of the rights of his creditors, who, however, must assert their claims within three years after the acquisition of the property by the wife. Held, that the wife acquired this property when the deed creating the tenancy by entireties was made, and that this statute as well as his laches is a bar to the plaintiff’s demand. When a right of action is fraudulently concealed by one party the statute of limitations does not begin to run until the other party either discovers the fraud, or by the exercise of ordinary diligence could have discovered it. The mere fact that he was in ignorance of the fraud does not prevent the run- • ning of the statute if he failed to exercise ordinary care to ascertain his rights.</p>

<p>Ejectment by Owner of Land Subject to Easement of Highway Against Trespasser — Right to Sue Warden of Penitentiary for Land Wrongfully Talcen for Use of the State.</p> <p>The owner in fee of land which is subject to an easement of a public highway is entitled to maintain an action of ejectment against any person who has wrongfully taken and appropriated such land to his own exclusive use.</p> <p>The principle that no action can be brought against the State without its consent does not operate to prevent a person whose land has been taken by a State official for the use of the State, or is in his possesion for State purposes, from suing such official in ejectment, since otherwise the owner would be deprived of his property without due process of law.</p> <p>The Directors of the Maryland Penitentiary, in the course of building an addition thereto as directed by law, took possession of a street, the use of which had been dedicated to the public, but a fee simple title to which was vested in the plaintiffs, and constructed a building across it, without having either condemned the street or acquired the property rights of the plaintiffs by purchase. Held, that since the State is not amenable to suit, the plaintiffs are entitled to bring an action of ejectment against the Warden of the Penitentiary, the official in actual personal occupation of the premises, although not holding under any claim of right in himself.</p>

<p>Joint and Several Promissory Note — Burden of Proof as t Suretyship of One Malcer for the Other — Payment of Note by One Maher Creating Bight to Contribution — Paid Note in Possession of One 'Maher — Limitations — Evidence.</p> <p>When a promissory note is executed by two persons jointly and severally,' the presumption is that the debt was created for their equal benefit, and the burden of proving that one of the makers signed the note as surety for the other is upon the party alleging it.</p> <p>In this.case, that burden has not been met and the presumption prevails.</p> <p>When one joint maker of a note pays the whole amount due on it, he is entitled to contribution from his co-maker under the count for money paid in an action of assumpsit.</p> <p>A joint and several promissory note, payable to a bank, -and signed by A. and.B. was found, after the death of B., among his papers. The evidence showed that he had paid the note to the bank. Held, that this fact establishes prima facie the right of B.’s administrator to demand contribution from A., as a co-maker of the note, in extent of one-half of the amount paid by B.</p> <p>When one joint maker of a note pays it before it is barred by the Statute of Limitations, then, as against his right to demand contribution from a co-maker, limitations begin to run from the date of such payment.</p> <p>When the question is whether a payment was made by a certain person or not, evidence that he was possessed of sufficient money to make it is not admissible to show that he probably did make it.</p> <p>The opinion of a witness as to the financial ability of a person to make a certain payment is not admissible.</p>

<p>Res Judicata — Constitutional Law — Title of Act Held to Be in Violation of Constitution, Art. 3, sec. 29 — Invalidity of One Part of Act Rendering Invalid the Whole.</p> <p>The fact that a party was fined for violating the provisions of a statute, and did not apply for a writ of certiorari on the ground that the statute was unconstitutional, does not preclude him from afterwards contesting the validity of the statute'in a civil proceeding.</p> <p>The title of the Act of 1908, Ch. 672, is: “An Act to add two new sections to Art. 2, of the Code of Public Local Laws, title, Anne Arundel County, sub-title, Roads, so as to require all owners of vehicles using public streets and roads in Anne Arundel County to have a license therefor.” In the body of the Act it was provided that it should not be lawful to run upon any of the streets and roads in that County a vehicle of any description, except ox-carts, horse carts, farm wagons, milk wagons, without having first obtained a license at the rates fixed. The Act also provided that the owners of the vehicles so licensed should be exempted from the payment of any other tax upon them. Held, that the title of the Act is inadequate and misleading, because it indicates that all owners of vehicles shall take out licenses, while the Act itself exempts a large class of vehicles; and also because there is nothing in the title to show that the vehicles licensed are to be exempt from all other taxation, and that consequently the Act is invalid, as it is in conflict with Constitution, Art. 3, see. 29, which provides that the subject-matter of every law shall be described in its title.</p> <p>Held, further, that the tax exemption clause of the Act is so inseparably connected with the other parts that the invalidity of that clause renders invalid the whole statute.</p>

) The prayers and instructions referred to in the opinion of the Court are as follows: Plaintiffs 1st Prayer. — That if the Court sitting as a jury finds from the evidence that the defendant executed the bond on which this suit is brought, and that the Clarion Concrete Construction Company and John Waters entered into the contract offered in evidence, and mentioned in said bond, and that the roof slabs mentioned in said contract, as shown in the specifications and drawings…