Volume 111 — Maryland Reports

<p>Appeal from the Circuit Court for Frederick County (Worthington, C. L, and Hotter, J.).</p> <p>The testimony of the appellant was given under a promise of the State’s Attorney, implied in law, of immunity from further prosecution and sentence for the offence, and that he is, therefore, entitled to párdon and to a suspension of judgment and sentence to the end that such pardon may be procured.</p> <p>: An accomplice is in all instances a competent witness for the prosecution, but whether in all cases he shall be permitted to become a witness and thus earn an exemption from punishment, which is the implied condition of his 'turning informer and declaring the whole truth, is in the discretion of the Court and the prosecuting officer. Lindsay v. People, 63 N. Y. 143, 153.</p> <p>If the Court admits him as a witness and he testifies fully and candidly, there is an implied promise of immunity on the part of the Government. Nickelson v. Wilson, 60 N. Y. 362.</p> <p>If an accomplice be admitted to testify and appears to have acted in good faith in giving testimony, the Government is bound in honor to discharge him. Public policy' requires that good faith be observed with persons charged with crime who are induced to testify under such circumstances. The prisoner is privileged against criminating himself and the waiver of this privilege constitutes a consideration. Nickelson v. Wilson, supra.</p> <p>The testimony of an accomplice incriminating himself is a condition upon the performance of which to the satisfaction of the Court he acquires an equitable title to a pardon; the admission of the party as a witness amounts to a promise by the Court of a recommendation to mercy upon his making a full and fair disclosure of all circumstances of the crime. The discretion of the Court goes to the admission of the party as a witness, but once admitted and testifying the party is exempt from punishment. People v. Whipple, 9 Cowen, N. Y. 705.</p> <p>In Commonwealth v. Knapp, 10 Pick. (Mass.) 477, Webster, of counsel for.the State, declared: “In our practice the moment an accomplice is permitted by the Attorney-General to make a disclosure he is safe — he is beyond hope or fear — his security is as complete as if he had received the pardon. The only thing that can bring him into jeopardy is a departure from the truth; these disclosures are not like a simple confession, because they are not gratutious.”</p> <p>In State v. Graham, 12 Vroom (N. J.), the Court says, in quoting with approval from U. S. Lee, 4 McLean, 103: “The Government is bound in honor under the circumstances to carry out the understanding or arrangement (to discharge the accomplice admitted as a witness for the State) by which the witness testified and admitted, in so doing, his own turpitude. Public policy and the ends of justice require this of the Court.- If the District Attorney should fail to enter a nolle pros, the case would be continued (without trial) until a pardon could be applied for, but to discontinue the prosecution is the shorter and better mode.” Bishop in speaking of the accomplice being used as a witness says: “In most- instances the prosecuting officer declines to institute criminal proceedings against him; or if proceedings have been begun lie simply discontinues them by nolle pros. or other proper means.” (See 1 Greenleaf Ev., secs. 363-379.)</p> <p>In the different States this immunity varies as to form according to the wording of the statute or modifying facts in the individual cases; always guaranteeing, however, to the traverser in cases like the present exemption either from. sentence or its execution. If in the last analysis immunity from punishment is to be realized, why wrap the traverser in a coil of red tape? Why not, as the authorities suggest, grant the traverser what he has earned as of right? The question of 'punishment vel non in such a case, or its extent, is not, as we submit, a matter for the discretion of the trial Court, since that discretion goes merely to the question as to whether the traverser shall be permitted to testify. If such permission is given the immunity at once attaches. Having-by-a plea of guilty and his truthful testimony (admitted by the Bill of Exceptions) qualified himself in good faith as a. witness for the State whose testimony was indispensable for the conviction of theprincipal offender, it becomes obligatory-on the State to observe towards the traverser the most immaculate good faith in the performance of its promise of immunity, whether expressed or implied. Practically the object of the State in criminal prosecution is to convict the-guilty, and public policy admits the testimony of an accomplice, in order that the more dangerous should not escape, upon the implied promise of immunity to the party so testifying, as otherwise few criminals could be punished where they operate jointly.</p> <p>The Supreme Court, in Counselman v. Hitchcock, 142 U. S. 110, has said: “The constitutional provisions for the-security of persons and property should be liberally construed ; a close and literal construction deprives them of half their efficiency and leads to gradual depreciation of the right as if it consisted more in sound than substance; it is the-duty of the Court to be watchful for the constitutional rights of the citizen and against any stealthy encroachments thereon. Their motto should be ‘obsta, principiis.' We are clearly of the opinion that no statute which leaves the party or witness subject to the prosecution after he answers the criminating questions put to him can have the effect of supplanting the privilege conferred by the Constitution of the United States. In view of the constitutional provision a statutory enactment to be valid must afford ' absolute immunity against future prosecution for the offence to which the question relates.”</p> <p>Every man is presumed to know the law, not only as affecting him adversely, but necessarily also as granting him benefit or immunity either by implication or by express provision.</p> <p>It is submitted that the implied promise of immunity upon which the traverser in this case had a right to rely should be held to be as binding upon the State and as effective for the traverser’s protection as if an express agreement had been made between the prosecution and the prisoner for that specific purpose.</p> <p>The present case is not one in which the question arises as to whether a conceded discretion of the Court has been abused. The sole question presented' is whether or not the Court below had any discretion whatsoever in the premises to withhold from the appellant the immunity from punishment to which it is submitted he was clearly entitled under the terms of the implied promise, upon the faith of which he furnished for the benefit of the State in another prosecution his seH-ihcriminating testimony.</p> <p>I. The motion of the appellee that this appeal be dismissed should be granted-</p> <p>1st. Because the judgment appealed from was entered upon a plea of guilty and is, therefore, in the nature of a judgment by confession from which no appeal lies; and</p> <p>2nd. Because the record plainly shows that the sole and only “error” alleged by the appellant to be the basis and ground of his appeal is the refusal of the Court below to suspend judgment — which was' entirely discretionary with the Court below and not a subject of appeal and review.</p> <p>“A plea of guilty is a confession of guilt and is equivalent to a conviction. The Court must pronounce judgment and sentence as upon a verdict of guilty.” 12 Cyc., 353. See also 2 Hawkins, P. C., C. 31, sec. 1; 2 Hale, P. C. 225; 1 Chitty, Cr. Law, 429; 4 Blackstone Commentaries, 329; Elliott on Appellate Procedure, 249.</p> <p>In State v. Burthe, 39 La. Ann. 328, this precise point was decided that a plea of guilty is an express waiver of the right to appeal from the judgment entered on such plea. So also in 1 Archbold Or., Pr. & Pl. (8th Ed.) 334; 2 Cyc., 617, 651; State v. Griffis, 117 N. C. 709; City of Edina v. Beck, 47 Mo. App. 234; Grey v. State, 107 Ind. 177; Binggold’s Case, 1 Bland. 5.</p> <p>2. The appellant’s motion to suspend sentence was addressed to the discretion of the Court below and was overruled by the Court in the exercise of the discretion vested in it by the common law and the statutes of this State. This Court will not review and control that discretion upon appeal. Article 27, section 461 provides: “The Courts' may suspend sentence generally or for a definite time and may make such orders and impose such terms as to costs, recognizance for appearance or matters relating to the residence or conduct of the convicts as may be deemed proper,- etc.” ,</p> <p>This section is practically declaratory of the 'common-law powers of Courts of criminal jurisdiction, and clearly vests a discretion in the Courts over the matter of suspending sentence. The whole tenor of the section shows unmistakably that the subject was deemed by the- wisdom of the law and by that of the Legislature of the State to be' one which it was proper to commit to the judicial discretion of the trial Court which imposes- sentence. A discretion of this sort, when exercised without abuse, is not reviewable upon appeal or writ of error. - .</p> <p>In 2 Hawkins P. C., Ch. 51, sec. 8, it is said: “It seems agreed, that every Court which has power to award an execution, has also of common right a discretionary power of granting a reprieve.”</p> <p>Again, in 1 Chitty Cr. L., 758: “But the more usual course is, for a discretionary reprieve to proceed from the judge, himself, who from his acquaintance with all the circumstances of the trial, is most capable of judging when it is proper. The power of granting this respite belongs, of common right, to every tribunal which is invested with authority to award execution. And' this power exists even in case of high treason though the judge should he very prudent in its exercise. * * * The judge sometimes also allows it before judgment, or at least intimates his intention to do so, as when he is not satisfied with the verdict, and entertains doubt as to the prisoner’s guilt; or when a doubt arises, if the crime he not within clergy; or when, from some favorable circumstances he intends to recommend the prisoner to mercy.” See also —1 Bishop’s Cr. Pro. sec. 880.</p> <p>In 4 Bl. Com. 394, where the term reprieve in accordance with the old usage, is employed in the sense of the stay of judgment either before or after judgment; it is said: “A reprieve, from reprendre, to take hack, is the withdrawing of a sentence for an interval of time; whereby the execution is suspended. This may he, first, ex arbitrio judicis (at the will of the judge) ; either before or after judgment; as where the judge is not satisfied with the verdict, or the evidence is suspicious, or the indictment is insufficient, or he is doubtful whether the ofíense he within clergy, or sometimes if it he a small felony, or any favorable circumstances appear in the criminal’s character, in order to give room to apply to the. crown for either an absolute or conditional pardon. These arbitrary reprieves,” etc., etc.</p> <p>The discretionary power to suspend sentence is described in this language by Lord Hale: “Reprieves, or stays of judgment or execution are of three kinds, viz. * * * II. Ex arbitro judicis. Sometimes the judge reprieves before judgment, as where he is not satisfied with the verdict, or the evidence is uncertain, or the indictment insufficient, or doubtful whether within clergy. Also when favorable or extenuating circumstances appear and when youths are convicted of their first offense. And these arbitrary reprieves may be granted or taken-off by the justices of gaol delivery, although their sessions be adjourned or finished, and this by reason of common usage.” 2 Hale P. C., Ch. 58, page 412, quoted in People v. Court of Sessions, 141 N. Y. 288, 293.</p> <p>So also in 19 Ency. of Pl. & Pr. 446, it is said: “The authorities are agreed that the Oourt may, in the exercise of its discretion, suspend sentence for a reasonable time, or temporarily for stated periods from time to time.” Hochheimer Cr. L., (2nd Ed.), 212: “Courts may suspend or reprieve sentence at their discretion.” In 12 Cyc., page 773, “Criminal Law Suspension of Sentence” — in a note entitled “Cannot be Assigned as Error,” it is said: “And where the suspension is asked by defendant and granted on satisfactory reasons appearing to the Court, he cannot, where he is subsequently sentenced, assign this as error” (citing People v. Patrick, 118 Cal. 331; Fultz v. State, 2 Sneed (Tenn.) 232).</p> <p>II. The Judgment mid Sentence Should he Affirmed—The claim of the appellant herein is conclusively controverted by the English and American authorities. His contention is wholly and effectually disposed of by the decision of the Supreme Court of the United States in United States v. Ford (the “Whisky Cases”), 99 U. S. 594.</p> <p>In that case, upon a most learned and elaborate review of the authorities, it was decided that:</p> <p>1. Accomplices, though admitted as witnesses for the prosecution, are not of right entitled to a pardon, but have only an equitable right to a recommendation to executive clemency.</p> <p>2. Prisoners, under such circumstances, cannot plead such right in bar to an indictment against them, nor avail themselves of it as a defense on their tidal.</p> <p>3. The district attorney has no authority to make an agreement that if a person charged with an offense would testify against his accomplices, h£ should be exempt from prosecution and from certain assessments made against him.</p> <p>In Ex parte Wells, 18 Howard, 307, it was declared by the Supreme Court that “Accomplices, though admitted, according to the usual phrase, to be ‘King’s evidence,’ have no absolute claim or legal right to a pardon;” and that “he cannot plead it in bar to an indictment for such offense.”</p> <p>Loed Mansfield, in the leading case of Rex v. Rudd, 1 Cowper, 332; S. C., 1 Leach C. C. 115, laid down the same ; doctrime.</p> <p>Great inconvenience was occasioned by the old practice of approvement (which is thoroughly explained by Chief Justice Beasley in State v. Graham, 41 N. J. L. 15; and see also 2 Hale P. C., 226; 4 Blackst. Comm., 330; Rex v. Rudd, Cowp. 332; 2 Starkie, Ev. 15), and therefore a similar but less inconvenient mode of proceeding was adopted by which an accomplice may be entitled to a recommendation to mercy, but not to a pardon as of legal right, nor can he plead it in bar or avail himself of it in his trial., 2 Hawkins P. C., n. 3, page 532; 2 Russell Crimes, 9th Am. Ed. 596; 1 Chitty Crim. Law, 82; 1 Phillip's Evidence, 86; U. S. v. Ford, 99 U. S. 594.</p> <p>And in 1 Roscoe Crim. Evidence, star page 135, that eminent author says: “The practice now adopted is for the magistrate before whom the accomplice is examined or for the Court before which the trial is had to direct that he shall be examined, upon an understanding that if he give his evidence in an unexceptionable manner, he shall be recommended for a pardon. But this understanding cannot be pleaded by him in bar of an indictment, nor can he avail himself of it at his trial, for it is merely an equitable claim to the mercy of the Crown.”</p> <p>In 1 Am. and Eng. Ency. of Law, title “Accomplices,” page 407, it is said: “He cannot plead the fact in bar of an indictment, nor avail himself of them by motion to dismiss the prosecution.”</p> <p>In Rex v. Garside, 2 A. and E. 266, where two prisoners under sentence for murder, on being brought before the King’s Bench by habeas corpus, were asked what they had to say why execution should not be awarded against them, and one of them pleaded, ore terms, that the King by proclamation had promised pardon to any person, except the actual murderer, who should give information whereby such murderer should be convicted; and that he, not being the actual murderer, had given such information, and thereby entitled himself to the pardon; such plea, on demurrer, was held not • sufficient. . •</p> <p>. In Cummings v. The State, 4 Kas. 225, it was held that an accomplice used as a State’s witness is not entitled to his discharge as a matter of right, blit must abide by the discretion of the Court and prosecuting attorney. “We are clearly of opinion that the appellant was not entitled to his discharge as a matter of right. He must abide by the discretion of the Court and prosecuting attorney in the case.” To -the same effect is Long v. The State, 86 Ala. 36, 44.</p> <p>And where the pardoning power cannot act until after conviction of the prisoner, the most that the Court can do is, after conviction, to recommend him to executive clemency. State v. Graham, 41 N. J. L. 15; 32 Am. Rep. 174; State v. Lyon, 81 N. C. 600; 31 Am. Rep. 518.</p> <p>. The case of Lay v. State, 86 Ala. 36, is on all fours with the case here presented. It was there held that the mere fact that one defendant has been examined as a witness against another defendant on trial for the same crime, and that he has disclosed his own and his associate’s guilt, no promise or inducement being held out to him, does not give him even an equitable right to clemency. See also—Com. v. Brown, 103 Mass. 422; Com. v. Demby, 103 Mass. 424, note; Com. v. Woodside, 105 Mass. 594; Com. v. Plummer, 147 Mass. 601.</p> <p>In Virginia, an accomplice testifying for the Commonwealth, though fully and fairly disclosing his own guilt and that of his associates, is not equitably entitled to a pardon. Com. v. Dabney, 1 Rob. (Va.) 754.</p> <p>In this State, under the Constitution, the most that any Court could do in the ease of an accomplice testifying against his associates under indictment would he to commend him to the Governor for pardon.</p> <p>The power of pardoning being thus distinctly made by the Constitution an executive and not a judicial function, no appeal lies from a refusal of a Court to exercise a power which the Constitution thus withholds from it and vests in the Governor. It is undeniable that in this State the Courts do not grant pardons.</p> <p>What is claimed by the Appellant in this casé is literally a pardon from the Court. An application for pardon is essentially different and distinct from a motion for a suspension of judgment.</p> <p>Blackstone distinguishes clearly between suspension' of sentence-and pardon: “If neither pregnancy, insanity, non-identity, nor other plea, will avail to avoid the judgment and stay the execution consequent thereupon, the last and surest resort is in the king’s most gracious pardon; the granting of which is the most amiable prerogative of the crown.”</p> <p>In Wharton's Cr. Pl. and Pr. (9th Ed.), see. 536, it is said: “That an accomplice was called as a witness by the prosecution is not a ground for a plea in bar. The practice in such cases is to grant a pardon; but this is solely for the discretion of the executive.”</p> <p>And the same writer, in his work on Criminal Evidence (9th Ed.), says (at sec. 443) : “Though an accomplice, when called as a witness by the State, makes a clean breast, and exhibits all the facts in the case, however criminatory, he is not in law entitled to pardon; * * * His claim to pardon depends exclusively on executive discretion.”</p> <p>In People ex rel. Forsyth v. Court of Sessions, 141 N. Y. 288, this distinction was' thoroughly considered and elaborately discussed in passing upon an order of the General and Special Terms granting a writ of mandamus requiring a Court of Sessions to proceed to sentence and judgment. See also—State v. Graham, 41 N. J. L. 15; State v. Lyon, 81 N. C. 600; Long v. State, 86 Mo. 36; 1 Bishop’s New Cr. Proc., section 1164.</p> <p>The over whelming weight of authority in this country is to the effect that an attempt by the Courts to susjDend indefinitely the passing or execution of a sentence is a usurpation of the pardoning power, which belongs solely to the executive. People v. Court of Sessions, 141 N. Y. 288; Neal v. State, 104 Georgia, 509; Gray v. State, 107 Indiania, 177; State v. Voss, 80 Iowa, 467; People v. Felker, 61 Michigan, 110; U. S. v. Folsom, 8 New Mexico, 851; People v. Morissette, 20 How. Pr. 118; In re Markeesan, 5 North Dakota, 180; In re Webb, 89 Wisc. 354; U. S. v. Wilson, 46 Fed. 748.</p>

). Plaintiffs 1st Prayer, after setting forth the contract, instructed the jury that if they shall further believe from the evidence that the defendants, upon their part, failed, neglected and refused to deliver and ship to the plaintiff the said tomatoes in the manner and at the time or times stipulated in said written contract of sale, and shall also believe that the plaintiff was ready and willing to comply with the terms and conditions of the said contract of sale, upon…

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

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

). 1. It is the duty of a police officer in arresting’ a citizen to tape him before a magistrate for an immediate hearing, and the police officer has no other powers over the person of the citizen arrested, and that the police board has no greater powers than the individual police officer. Brisk v. Carter. 98 Md. 451; Twilley v. Perkins, 77 Md. 252; Edger v. Burke, 96 Md. 722; Kirk & Son v. Garrett, 83 Md. 400. 2.

<p>Executors and Administrators — Letters Testamentary Not Revocable Because Caveat to Will Is Filed — Presumption as to regularity of Proceedings of Orphans’ Court.</p> <p>When letters testamentary have been granted to an executor named in a will after probate thereof, the mere fact that a caveat is afterwards filed to the will does not authorize the Orphans’ Court to revoke such letters and grant administration pendente lite.</p> <p>It is the duty of an executor to defend the will against a caveat filed thereto, and his letters testamentary cannot be'revoked during the controversy except for some sufficient cause.</p> <p>The provisions of Code, Art. 93, sec. 67, relating to the granting of letters of administration when the validity of a will is contested,' apply only to cases when the caveat is filed before the grant of letters testamentary.</p> <p>In the absence of proof to the contrary, it will be presumed that the Orphans’ Court in admitting a will to probate properly decided all matters required to be decided, as, for instance, that reasonable notice had been given to the relatives of the . deceased as directed by Code, Art. 93, sec. 336.</p>

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

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

<p>Appeal from tie Superior Court of Baltimore City (Hablan, C. J.)</p>

<p>Benefit Societies — Non-Payment of Dues Owing to Fault of Officer of Society — Irregularity in Expulsion of Member Held Not to Have Been Waived — Provision as to Appeal Within the Order When Claim Rejected.</p> <p>The Constitution of a benefit society provided that the dues of members should be paid monthly in advance to the financier, and that any member failing so to pay should become ipso facto expelled and his benefit certificate void. Plaintiff sent his dues for January to the financier of his’ lodge by registered letter, which was taken to that officer’s home on Decernher 29th. He was absent and there was no office at which dues could be paid. The letter containing the remittance was not delivered to the financier until J amiary 15th. It had been customary for members who were .absent from the town to pay their dues by mail. The lodge refused to receive subsequent dues from the plaintiff, alleging that his membership had -been forfeited by his failure to pay the January dues. Held, that since the non-payment of these dues in time was owing to the fault of the lodge in not having some officer accessible to whom they could be paid, the plaintiff’s membership was not thereby forfeited.</p> <p>A man’s membership in a benefit society was irregularly terminated by his lodge. Afterwards he wrote letters to the society, apparently acquiescing in his expulsion, and applied for reinstatement, and asked for the return of certain dues paid by him. Held, that since it is clear that he did not know what his rights were or that his expulsion was invalid, his conduct did not amount to a waiver of the irregularity in the proceedings of the lodge.</p> <p>The question whether a party has waived his legal rights or not is for the jury, under instructions from the Court, when it depends upon the existence or not of certain facts concerning which parol evidence has been given.</p> <p>The Constitution of a benefit society provided that every claim for total disability should be referred to the beneficiary board of the order, and, if rejected, that the claimant should appeal to the Grand Lodge at its next session, and that no suit should be brought until after appeal taken and the claim. rejected, and then within six months after the disability occurs. Held, that the society is estopped to rely upon this provision when it wholly disallowed a party’s claim upon the ground that he was not a member at the time the injury was suffered, and refused to entertain his appeal to the beneficiary board.</p>

<p>Specific Performance — Contract Alleged Not to Contain All the Terms Agreed Upon — When Payment and Conveyance to Be Made if No Time Is Fixed by Contract.</p> <p>The owner of certain lots of ground signed a contract by which she agreed to sell them for a designated price, but afterwards refused to execute a conveyance because the contract did not contain a provision requiring the purchaser to use a sewer built by the vendor and to pay a certain additional sum for the privilege. Upon a bill for specific performance, the evidence examined, and held to show that no such stipulation was made by the vendor during the negotiations for tbe sale; that it was not fraudulently omitted from the written contract by the purchaser, who had drafted it, and that consequently he is entitled to a decree for specific performance.</p> <p>When a contract of sale of land mentions no time for the pay- ^ ment of the purchase money and the execution of the deed, the law implies that it should be-done within a reasonable time.</p> <p>In such case, the time fixed for the payment of the purchase money by the vendor must be after reasonable notice.</p> <p>The tender of performance made by the purchaser in this case, held, to have been within a reasonable time.</p>

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

<p>Appeal from the Court of Common Pleas of Baltimore City (Elliott, J.).</p> <p>Plaintiff’s 2nd Prayer. — If the jury find! from the evidence that the plaintiff was walking on the tracks of the defendant, a body corporate, on or about March 1st, 1908, as testified to," and if they further find that William J. MeCarron was in the employ of the said defendant as detective or special officer and while the said MeCarron was acting within the scope of his authority and in the course of his employment arrested the plaintiff and in doing so and while the plaintiff was under arrest used an excessive and unnecessai-v amount of force and inflicted unnecessary indignities upon the plaintiff, then the verdict of the jury must be for the plaintiff, even though the defendant’s agent was justified' in arresting the plaintiff. (Granted.)</p> <p>Plaintiff’s 3rd, Prayer. — If the jury believe from the evidence in the cause that the plaintiff was injured by the agent and servant of the defendant as alleged by the plaintiff, and that the assault and battery was wanton, unprovoked and excessive 'in its nature, then they can inflict vindictive and punitive damages upon the defendant. (Granted.)</p> <p>Defendant’s 6th Prayer. — If the jury find that the assault occurred either while MeCarron was solely engaged in the performance of his duties as a police officer and' not as-an employee of the defendant, if they so find, or that the assault occurred as the result of a personal argument or altercation between the plaintiff and said MeCarron, then the plaintiff is not entitled to recover, and their verdict must be for the defendant. (Refused.)</p> <p>Defendant’s 7th Prayer. — If the jury find from the evidence that after the plaintiff had been arrested, he resisted arrest and struck at MeCarron twice, and that MeCarron thereupon struck the plaintiff once, as testified to, if they so find, and' if. they further find that MeCarron either struck the plaintiff in self-defense, or because it was necessary to make him go to the station house, then the plaintiff is not entitled to recover and their verdict must be for the defendant. (Granted.)</p> <p>Defendant’s 8th Prayer. — That the defendant is not liable for every act done by MeCarron as he acted both in the capacity of its private employee and in the capacity of police officer of the State of Maryland; that the defendant would be liable for all acts done by McCarron as its employee which would include the performance of his duties as such employee among which duties are, as testified to by himself, the duty to protect the defendant property, to drive trespassers therefrom, to examine seal records on cars and to see that the doors of cars containing merchandise are closed; but that the defendant would not be liable for acts done by McCarron in his capacity of police officer for the State of Maryland, among the duties of which office are, to make arrests on the defendant’s property for violations of the law which he sees thereon committed. (Refused.)</p> <p>Defendant’s 9th Prayer. — If the jury find from the evidence that the arrest was actually completed before any blow was struck, then the plaintiff is not entitled to recover, and their verdict must be for the defendant, even though they find that McCarron did, in the manner testified to, strike the plaintiff. (Refused.)</p>

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

), where there was a judgment on verdict for the plaintiff for $200.

The following are the prayers referred to in the opinion of the Court: Plaintiff’s 1st Prayer.- — That if the Court sitting as a jury find that the defendant was during the month of October, 1905, in the employ of the plaintiff as the general manager of its Baltimore branch, and was a director of the plaintiff corporation, and that the plaintiff corporation occupied the premises known as Ros. 220-222 Rorth Charles street under the terms of a lease which expired on the 31st…

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

). Plaintiff’s 1st Prayer. — If the jury shall find that the location of the public highway in Howard County as it approaches the County bridge in evidence was altered by the defendant in making the improvements to its road and mentioned in the evidence, and that such change in the location of said highway rendered the approach to said bridge unsafe and dangerous for travel, and shall further find that a certain Alexander Scott Hill, while approaching said bridge in 1906,…

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

). Plaintiff’s 1st Prayer» — The jury is instructed that if they find from the evidence that at the time of his injury, if they so find, James W. Manuel was in the employ of the defendant, and engaged in making an excavation for a sewer on Maryland avenue, one of the streets of Cumberland, Md., under tbe order and direction of tbe Superintendent of tbe defendant; and that while engaged in such work on or about tbe 8th day of April, 1907, be was injured by tbe crumbling or…

). The prayers referred to in the opinion of the Court are as follows, — the parts struck out by the trial Court being in italics and in parenthesis. Plaintiff’s 1st Prayer. — If the jury believe from the evidence that the defendant is a corporation engaged in operating a coal mine known as “Ocean Mine Ho.

). Defendant's J¡ih Prayer. — If the jury find from the evidence that the parcel of land, laid down on the plat, made under the warrant of survey .in this case, as the “Trespass and lying between the Tull Road and the road leading’ from the Fairfield House to the 27th line of Mt. Vernon, near the sawdust heap, had been in the undisputed' and peaceable possession of the defendants, Ellen A. Robins and William L. Robins, and those under whom they claim title for more than…

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

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

<p>Gamers — Failure of Connecting Carrier to Make Connection in Time.</p> <p>A person who buys from one carrier a round-trip ticket, good for one day, providing for transportation to a certain point and return, and then buys another ticket from another carrier for transportation from that point and return thereto, has no right of action against the first carrier on account of the negligence of the second in failing to make due connection with the first, so that the purchaser was prevented from returning on the day for which his ticket was issued. The mere fact that the second ticket was purchased from a man in uniform on the boat of the first carrier — the defendant — does not show that he was the agent of the defendant, or that the defendant contracted for transportation over the line of the second carrier.</p>

<p>Appeal from the Baltimore City Oourt (Nudes, J.).</p>

<p>Appeal from the Circuit Court for Cecil Gounty (Pearce, C. J., Adkins and Hopper, JJ.).</p>

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

). Plaintiff’s 1st Prayer,. — The plaintiff‘by his counsel prays the Court to instruct the jury that if they shall find from the evidence that on the 11th day of December, 1906, the plaintiff Avas employed as a brakeman by the George’s Creek and Cumberland Railroad Company and that said Railroad Company had certain traffic arrangements Avith the defendant company under which the former had certain running rights to and into the State line yards of the defendant near…

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

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

). Plaintiffs 1st Prayer, as Amended. — If the jury believe from the evidence that the plaintiff is a corporation and that the plaintiff and the defendant, the Southern Construction Co., entered into the contract dated the 26th day of May, 1906., offered in evidence, relating to concrete work at the Friedenwald Building, and that said' company commenced the said work comprehended under said contract and continued to prosecute the same until the 23rd day of August, 1906, and…

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

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

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

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

<p>Appeal from the Criminal Court of Baltimore City (Harlan, Stockbridge and Niles, JJ.).</p> <p>Whether by design, or otherwise, the State law does not make the mere possession of the drug’ by a person not belonging to the specified classes a crime. The ordinance in question attempted to do this, and also changed the State law in the following particulars: (1) It abolished the distinction between first, second and third offenses. (2) It doubled for the first offense the maximum penalties prescribed by the State law for third and subsequent offenses. (3) It abolished the functions of the State Board of Pharmacy, (d) It provided that one-half of the fines should go to the informer, notwithstanding the provision of the City Code (section d of Article X, page 730). (5) It omitted the word “knowingly” contained in the State law. (6) It omitted the direction of the State law requiring the judges of the Courts having criminal jurisdiction in this State to charge the grand juries at each regular term. Among other consequences of the ordinance the possession of the drug by a chemist for use in his laboratory would be a crime, and a retail druggist is compelled to know at his peril whether a patent or proprietary medicine sold by him contains the authorized percentage of the drug.</p> <p>Assuming for the moment that the terms and provisions of the ordinance would be valid if embodied in an Act of Assembly, and remembering that we are dealing with an ordinance and not with a local law (which is as much an Act of Assembly as is a general law), it is submitted that the real question in the case is this: Whether by force of the Charter of 1898 the Mayor and City Council can supersede, within the limits of Baltimore City, an Act of the General Assembly which on its face purports to regulate the whole subject-matter and to include the City of Baltimore. That the ordinance was intended to and' does in fact supersede the Act is apparent, because: (1) Section 5 of the ordinance distinctly contemplates that it shall govern all cases arising after its passage. (2) It would be an anomaly if an Act and an ordinance (they being inconsistent) could be in force over the same territory at the same time. If this were so, no such question could ever arise as that decided in State v. Fallcenham,, 73 Md. 463. If the ordinance had been passed as a local law at the same session when the Act of 1906 was passed, no one would contend that both laws were applicable in Baltimore City. The City Charter expressly declares that such an ordinance as this must conform with the laws of the State.</p> <p>Row the power of the Mayor and City Council to pass the ordinance in question could only have been exercised either under the above “General Welfare” clause, or under the “Police Power” clause of the charter. If it was exercised under the former, the ordinance, being inconsistent with a State law, is void' on its face; if it was exercised under the “Police Power,” it is likewise void. The “General Welfare” clause is but a grant of the same powers embraced under the “Police Power;” therefore, an ordinance passed under the latter is subject to'the same limitation as to the consistency, with the State law. Bostock v. Sams, 95 Md. 15; Cochran v. Frostburg, 81 Md. 54; Comrs. of Easton v. Covey, 74 Md. 262.</p> <p>There is seemingly a conflict in the authorities generally as to whether or not an ordinance is valid which provides for the punishment of an offense which is punishable under the State law. Those cases which hold that such an ordinance is valid rest their conclusion upon the hypothesis that the same offense may be a crime against both the State and the municipal authorities, and may be punished by either or both without violating the constitutional provision that a person may be put in jeopardy but once. (Mobile v. Allaire, 14 Ala. 400, 403.) The case of Shafer v. Mumma, 17 Md. 331, is sometimes cited as an authority for the proposition, but it is difficult to see how that decision can in any way be said to have any bearing on or analogy to the present case. Judge Cooley is also quoted as an authority for this view. But let us see what Judge Cooley actually says. In his work On “Constitutional Limitations” he says (page 278) : “Municipal by-laws-must also be in harmony with the general laws of the State and with the provisions of the municipal charter. Whenever they are in conflict with either the by-law must give way.” This would certainly seem to cover the case at hand. But he goes on to say: “Indeed, an act may be a penal offense under the laws of the State and further penalties, under proper legislative authority, be imposed for its commission by municipal by-laws, and the enforcement of the one would not preclude the enforcement of the other.” It appears that inattention to the limiting phrase, “under proper legislative authority,” in the above extract is responsible for many of the confused rulings on this subject; for where the power is distinctly given to the municipal authorities to legislate on a certain subject already covered by the general law there is strength in the contention that an ordinance passed under this power is valid. But it is difficult to perceive how the right to pass such an ordinance can be exercised under a grant of g’eneral powers, such as the police power, etc., when the State has already legislated upon that particular question, and especially when it is plainly stated in the grant, as in the present case, that the exercise of power thereunder must not he inconsistent with the laws of the State. This distinction is made clear by McQuillin in his work on “Municipal Ordinances” (sec. 499, page 783). It seems to have been overlooked in many of the adjudications holding conflicting ordinances valid.</p> <p>But conceding that the authorities are in conflict on this subject, it is submitted that the weight of authority is with those cases which hold void ordinances conflicting with general laws of the State, and it is to be noted that almost without exception the text-book writers have adopted this as the better view. Judge Dillon's opinion has been largely quoted. He says: “In view of the somewhat strict construction of grants of corporate powers, elsewhere explained and illustrated, and of the subordinate nature and purposes of by-laws the following rules, although seeming to rest on sound principles, are, in view of the decisions, stated with distrust of their entire correctness: (1) A general grant of power, such as mere authority to make by-laws or authority to make by-laws for the good government of the place, and the like, should not be held to confer authority upon the corporation to make an ordinance punishing an act — for example, an assault and battery — which is made punishable as a criminal offense by the laws of the State.” The writer then makes the distinction referred to in the preceding paragraph. (Dillon, Mun. Corp., section 368.)</p> <p>Other writers who have adopted this view as the better one are: McQuillin, “Mun. Ord.” (sec. 16, page 22; also sec. 499, page 783); J. W. Smith, “Mun. Corp.,” (Vol 1, secs. 523-524, pages 495-499); Abbott, “Mun. Corp.” (Vol. 2, sec. 536, page 1341); Ingersoll, “Pub. Corp.,” (page 238); 21 Am. & Eng. Encyc., title “Ordinances” (page 980).</p> <p>Some of the cases hold that the mere fact that the State Act and the ordinance cover the same offense, produces a conflict, which renders the ordinance void. (In re Sic., 73 Cal., 143; State v. Keith, 94 N. C. 933.)</p> <p>But the Act of 1906. provides one penalty for a violation of it, and the ordinance provides a different one for the same offense. A case very much in point is that of State v. Langston, 88 N. Car. 692, where an act of the General Assembly provided that any person convicted of selling liquor on Sunday should he deemed guilty of a misdemeanor and fined or imprisoned, or both, while the ordinance provided for a fine of twenty dollars ($20) for the one committing the same offense. The Court, in holding the ordinance void, said (page 693) : “The power conferred upon the municipal body is presumed to he subordinate to a public law regulating the same matter for the entire State, unless a clear intent to the contrary is manifest.” The Court also quotes with approval the language of Judge Dillon, supra, page 8. And in a later case in the same State, State v. Keith, 94 N. C. 933, it is said: “It is indictable under the general law of the State to so assault such officer, and it is settled that a town ordinance that undertakes to make that which constitutes a criminal offense under the general law of the State an offense against the town, punishable by fine or otherwise, is inoperative and void.” See also Town of Washington v. Hammond, 76 N. C. 33-35; State v. Brattain, 89 N. C. 575.</p> <p>In an early case in South Carolina, Schroder v. City Council of Charleston, 3 Brev. 533 (1815), the Court said (page 539): “By the Act of 1784 (Grimke, 341), it is enacted that if any person, or persons, within this State, not duly licensed in manner above directed, shall presume to retail any wine, brandy, rum, etc., or any spirituous liquor, or strong drink whatever, he, she or they shall forfeit the sum of fifty pounds sterling, to he recovered in any Court of record in this State, one-half to he paid to the informer, etc. The City Council have passed a by-law imposing a penalty of one hundred dollars ($100) for the same offense. This by-law must either virtually repeal the act of the Legislature, or it must impose an. accumulative fine of one hundred dollars ($100) on the penalty provided by the Act of 1784. The first is too absurd to obtain any advocate, and the last too extravagant to admit of argument, and has been abandoned by the Council.”</p> <p>In Georgia, beginning with the early case of State v. Savannah (1809), 17 T. U. P. Charl. 235, there is a long line of decisions holding such ordinances void. In the particidarly well-considered case of Savannah v. Hussey, 21 Ga. 80, often quoted by the authorities, the Court, in holding that the “general welfare” clause in a city charter does not authorize the passage of an ordinance prescribing a different mode of trial and punishment than that provided by the State law for the same offense, says (page 86) : “Can a municipal corporation legislate criminaliter upon a case fully covered by a State law ? I am aware that decisions may be found to support the affirmative of the foregoing proposition. Without stopping to investigate the applicability of these precedents to the point under enquiry, I ask, what limit will you set to this power? If it may legislate by ordinance for any one offense, may it not for every crime embraced within the penal code ? Arson within a town or city is provided for by the public law; why not pass a by-law prescribing another mode of trial, and a different punishment for the same offense if committed within their limits? So of the crimes of forgery, counterfeiting, perjury, etc. Such, I am sure, has not been the understanding of the country.”</p> <p>In a later case in the same State, Jenkins v. Thomasville, 35 Ga. 145, the Court says (page 147) : “The State having-passed a law upon the same subject to allow the authorities of Thomasville to punish it as an offense against their ordinances would be either to oust the jurisdiction of the State in the premises, or to punish the offense twice — once by the State and again by the town.” And again, in a recent case: “This Act, therefore, confers no express legislative authority authorizing the passage of such an ordinance, and it follows that if the facts relied upon for a conviction of the defendant in this case constitute an offense against the penal law of the State, the municipal Court had no jurisdiction of the case, and the decision now under consideration is unauthorized.” (Kassel v. Savannah, 109 Ga. 491, page 493, affirmed in Kassel v. Savannah, 110 Ga. 289.) To the same effect are Moran v. Atlanta, 102 Ga. 840; Kahn v. Macon, 95 Ga. 421; Reich v. State, 53 Ga. 75; Adams v. Albany, 29 Ga. 57.</p> <p>In Louisana there was a State law to prevent gambling. The General Council of New Orleans passed an ordinance making it unlawful to keep certain games, among them keno. In City of New Orleans v. Miller, 7 La. Ann. 651, it was held that the offense of keeping the game of keno was punishable under the State Act on Gambling, and the decision of a magistrate that the ordinance was null and void was accordingly affirmed. See also State v. McNally, 48 La. Ann. 1450; Taylor v. City of Owensboro, 98 Ky. 271; Bailey v. Com., 23 Ky. Law Rep. 1223; Ex parte Wickson, 47 S. W. Rep. 643; Jefferson City v. Courbmire, 9 Mo. 692; Ex parte Solomon, 91 Cal. 440; Town of Petersburg v. Metzker, 21 Ill. 205; In re Lee Tong, 18 Fed. Rep. 253.</p> <p>It is submitted that most of the cases cited by the State’s Attorney are suits brought in the name of the municipal corporation, either for the collection of fines or in the exercise of a duly authorized independent jurisdiction. Ho such independent jurisdiction exists in this State. Our Criminal Courts are State Courts, and all indictments must conclude against the peace and dignity of the State (Constitution, Article IV, section 13). In Shafer v. Mumma, 17 Md. 331, there was no State law involved, and the language of the Court in the concluding part of the opinion simply means that the Mayor of Hagerstown could, under its charter, impose and collect a fine for disorderly conduct, notwithstanding the offense might be one against a State law. The real point decided was that in so doing the Mayor did not act as the Court, and consequently the proceeding was not, in the sense now under discussion, a criminal proceeding. In Deems’ Case, 80 Md. 164, the city had express legislative authority for the ordinance, and this authority (Code, Article 27, section 234) was subject to the express limitation that the ordinance should not be inconsistent with the Act. In the Maryland Telephone Company’s Case, 99 Md. 175-6, it was held that the ordinance in question was a contract and not legislation, and was not, therefore, an attempt on the part of the city to. usurp legislative functions by fixing rates already covered by an Act of the Legislature.</p> <p>The forfeiture clause confiscating, not an offending thing capable of no legitimate use, like a lottery book (Ford’s Case, 85 Md. 465), or unsound milk (Deems’ Case, 80 Md. 164), but a man’s means of livelihood, constitutes cruel and unusual punishment. (8 Am. & Eng. Ency. Law, 440; Robinson v. Minor, 68 Mich. 549; and compare Maguire’s Case, 47 Md. 495, and Ex parte Garland, 71 U. S. 333.)</p> <p>Moreover, except where the res is capable of none but a criminal use it is doubtful whether the State can make mere possession a crime, as distinguished from prima facie evidence of an intent to violate a law. And even if it be assumed that the State can change the rules of evidence in this respect, it is submitted that no such power has been vested in the Mayor and City Council of Baltimore.</p> <p>Assuming, however, for the purpose of the argument, that the ordinance would be valid if it were a local law of the General Assembly, the question remains, whether by force of the charter,' the Mayor and City Council of Baltimore can supersede, for the period of two years which intervenes between the sessions of the Legislature, an Act comprehensive in its scope and purporting to cover the entire State and to regulate the entire subject-matter. Whether the Legislature could by ■express authority vest this power in the Mayor and City Council may be debatable, on account of the provisions of section 9 of Article XI of the Constitution. Assuming, however, that by express terms a clause might have been put in the •Charter of 1898 giving the right to the city to repeal, abridge ■or supersede by subsequent ordinance a prior general criminal statute of the State, it is respectfully submitted that no such power is contained in the charter.</p> <p>. The right to exercise the police power conferred by the charter (sub-division 18 of section 6) was not a new thing (Harrison v. Mayor and City Council, 1 Gill, 202; Lake Roland Elevated Railway Company v. Mayor and City Council, 77 Md. 361-380). “Police power” is not an apt term to describe criminal jurisdiction, and the only part of the charter bearing upon the question under discussion is sub-division 31 of Article VI, dealing with “welfare and other powers.” Obviously, the power to promote the general welfare includes everything that could be covered under the police power (Bostock v. Sams, 95 Md. 415; Am. & Eng. Ency. Law, Vol. 22, page 927). “The real object of the police power and that which includes nearly every exercise is the securing of the general welfare.” It is this “welfare clause” that deals with the right of the Oity of Baltimore to enforce its ordinances, and it is expressly provided that the ordinances which may be enforced by a fine not exceeding five hundred dollars and .imprisonment not exceeding twelve months are ordinances “not inconsistent with the provisions of this Article or the laws of this State.”</p> <p>Any doubt upon this subject must be resolved in favor of the citizen and against the municipality (Heiskel's Case, 65 Md. 148; Bostock v. Sams, 95 Md. 412).</p> <p>If selling cocaine in Baltimore Oity is a more serious offense than its sale, say, in Plighlandtown, surely the same thing could be said of arson. There is no reason why the Mayor and City Council should not abolish for Baltimore Oity the death penalty or change a general election law. Such results were certainly not contemplated by the Charter Commission, because in their report to the General Assembly,, which accompanies the charter, they do not include an independent criminal jurisdiction in the enumeration of their “improvements on the present law relating to the City of Baltimore.”</p> <p>No such power as that contended for by the State’s attorney is desirable or necessary. The existing State law, if properly enforced by the police, is easily sufficient to remedy the evil. The ordinance in question, by eliminating the State Board of Pharmacy and its duties and by imposing such Draconian penalties, has done more harm than good. For illustration, it is certainly clear that the city cannot, under its right to fine and imprison, forfeit the license of the druggist, which is not merely a permit, such as is a liquor license, granted from year to year, but which, after having once been granted by the city, vests a property right to be held during good behavior, such as is the right to practice law. The result is this: Since the forfeiture clause of the ordinance is ultra vires, and since an offender cannot be prosecuted and punished under both laws, the wise forfeiture provision of the State law, visited upon an habitual offender, is thwarted so far as Baltimore City is concerned. To the same effect are Flood v. State, 19 Tex. Crim. App. 584, and ex parte Fagg, 38 Tex. Crim. App. 573. See also Ex parte Bourgeois, 60 Miss. 663.</p> <p>When the necessities of Baltimore City, with its large and varied population, densely settled upon a limited territory, are considered, the import and policy of the provisions of the City Charter cannot be mistaken, and the plain language and purpose of those provisions, it is respectfully submitted, suffice of themselves to show the correctness of the rulings of the Court below and to dispose of this appeal.</p> <p>If, after reading these sections of the charter, there could remain any douht as to the perfect validity of the ordinance, such a doubt must be effectually set at rest by the decisions of this Court in Shafer v. Mumma, 17 Md. 336-7; Deems v. Mayor, etc., 80 Md. 173-176; Simons Sons Co. v. Md. Tel. Co., 99 Md. 141; Meushaw v. State, 109 Md. 84. See also Freund's Police Power, sec. 157.</p> <p>It is too obvious to require discussion that the danger and evil of an insufficiently restricted! traffic in and use of cocaine in a thickly populated city are far more grave and threatening than in the more sparsely settled counties of the State, and therefore the subject when dealt with in a city like Baltimore is ah entirely different matter from what it is when dealt with in the country. And, further, there is nothing inconsistent in making the penalty heavier in the city under the ordinance than it is under the State law. The State law is not abrogated. The City has simply, in the exercise of the plenary police and welfare powers bestowed upon it, dealt with a serious emergency within its limits threatening its health, morals and order, as the Legislature manifestly, by its full unabridged grants of power, intended it should do. 22 American and English Encyclopædia of Law, title “Public Power,” sub-title “Delegation to Municipalties,” pages 919-20; 28 Cyc. 693.</p> <p>The General Assembly of Maryland has in plain and unmistakable language conferred all of its police power upon the City of Baltimore, to be exercised by it within its boundaries. If it has not done this by the language of section 18 of the charter, it is impossible for language to have that effect. See 28 Cyc. 696-698, 701; 36 Century Digest, title Mun. Corp., sec. 1311; McQuillan on Mun. Ord., 785, 786; 3 Abbott, Mun. Corp., 1343.</p> <p>In Cooley’s “Constitutional Limitations” (7th Ed.), page 279, it is said: “An act may be a penal offense under the laws o'f the State and further penalties, under proper legislative authority, be imposed for its commission by municipal bylaws, and .the enforcement of the one would not preclude the enforcement of the other.”</p> <p>The cases sustaining the State and controverting the contention of the appellant in this appeal are too numerous for citation. The Court will find a full and orderly discussion o'f them in an elaborate note to the case of Seattle v. McDonald, 17 L. R. A., N. S., 49, etc., and in the learned and able opinion of the Judges who heard and decided this case below.</p> <p>The position, of the State is illustrated and sustained by the following decisions, arranged chronologically: 1828—Rogers ats. Jones, 1 Wendell, 237 (N. Y.); 1840—State v. Plunkett, 18 N. J. L. 5; 1845—Mayor of Mobile v. Rouse, 8 Ala. 515; 1847—St. Louis v. Bentz, 11 Mo. Repts. 61; 1848—Meyer v. Alloire, 14 Ala. 400; 1851—Marsh v. Commonwealth, 12 B. Monroe, 25 (Ky.); 1854—New York v. Hyatt, 3 E. D. Smith, 156 (N. Y.); 1856—City of St. Louis v. Cofferata, 24 Mo. 94; 1857—Brooklyn v. Toynbee, 31 Barbour Repts. 282 (N. Y.); 1858—Gardner v. People, 20 Ill. 430; 1859—City of Pekin v. Smelzel, 21 Ill. 464; 1860—State v. Cowan, 29 Mo. 330; 1865—Rice v. Kansas, 3 Kansas, 141; 1871—State v. Charles, 16 Minn. 474; 1871—State v. Crummey, 17 Minn. 72; 1872—State v. Sly, 4 Oregon, 277; 1873—Greenwood v. State, 65 Tenn. 567; 1873—Ex parte Douglass, 1 Utah, 108; 1875—Com. v. Gardner, 117 Mass. 114; 1875—City of Elk Pt. v. Baughn, 1 Dak. 113, 46 N. W. 577; 1875—Broomville v. Cook, 4 Neb. 101; 1875—State v. Ludwig, 21 Minn. 202; 1876—Baldwin v. Murphy, 82 Ill. 486; 1877—Seibold v. People, 86 Ill. 33; 1877—State v. Bergman, 6 Oregon, 341; 1878—State v. Williams, 11 S. C. R. 288; 1879—Wrogg v. Penn Township, 94 Ill. 11; 1879—State v. Mason, 3 Lea, 649; 1880—State v. Gleason, 26 Minn. 507; 1880—Bloomfield v. Trimble, 54 Iowa, 399; 1881—Louisiana v. Chase, 33 La. Ann. 287; 1882—Johnson v. State, 59 Miss. 543; 1882—State v. Lee, 29 Minn. 445; 1882—Ex parte Bourgeois, 60 Miss. 663; 1883—Hawkins V. People, 106 Ill. 628; 1885—McPherson v. Cheborne. 114 Ill. 46; 1885—City v. Disney, 19 Mo. App. 20; 1885—Hughes v. People, 8 Col. 836; 1886—State v. Shelby Co., 16 Lea, 240 (Tenn.); 1886-Wong v. Astoria, 13 Oregon, 538; 1888—St. Louis v. Schoenbusch, 95 Mo. 618; 1888—Tom Connie v. Calbourn, 30 S. C. R. 93; 1889—People v. Hanrahan, 75 Mich. 611; 1889—Foster v. Brown, 55 Iowa, 686; 1890—Van Buren v. Wells, 53 Ark. 368; 1890—People v. Del. Lead Works, 82 Mich. 471; 1890—City of De Soto v. Brown, 44 Mo. App. 148; 1891—City of Plattsburg v. Trimble, 46 Mo. App. 408; 1892—McInerney v. Denver, 17 Colo. 307; 1892—Kansas City v. Neal, 49 Mo. App. R. 72; 1893—State v. Founcode, 45 La. Ann. 719; 1893—State v. Clifford, 45 La. Ann. 980; 1893—Ex parte Hong Sheu, 89 Cal. 685; 1894—Theisen v. McDavid, 34 Fla. 440; 1894—Monroe v. Hardy, 46 La. Ann. 1232; 1894-In re George, 53 Kansas, 659; 1894—Town of Opelonson v. Gerni, 46 La. Ann. 1364; 1894—City of St. Joseph v. Verber, 59 Mo. App. 459; 1894—Kansas City v. Hallet, 59 Mo. App. 160; 1894—State v. Preston, 38 Pac. Rep. 594 (Idaho); 1895—In re John J. John, 55 Kansas, 694; 1895—Taylor v. Owensboro, 98 Ky. 271; 1896—Yankton v. Douglass, 8 S. Dakota, 440; 1896—Kansas City v. Grubel, 57 Kan. 436; 1896—Ex parte Caldwell, 138 Mo. 233; 1897—State v. Newman, 96 Mo. 248 (Wis.); 1897—Spring Valley Case, 71 Ill. App. 432; 1898—Seattle v. Chin Let, 19 Wash. 38; 1902—Glasgow v. Bozan, 96 Mo. App. 412.</p> <p>The attention of the Court is furthermore, respectfully called to the many unchallenged instances where the city in the exercise of its police laws has passed penal ordinances on important subjects embraced within the public General Laws of the State. Malicious Destruction of Property—Ord., City Code, Art. 25, sec. 59; Code P. G. L., Art. 27, secs. 71-80. False Weights and Measures—City Code, Art. 23, sec. 31; Code P. G. L., Art. 97, sec. 11. Gaming—City Code, Art. 12; Code P. G. L., Art. 27, secs. 199-215. Registry of Physicians—City Code, Art. 14, sec. 189; Code P. G. L., Art. 43, secs. 93-102. Contagious and Infectious Diseases—City Code, Art. 14, secs. 15, 194, 26, 17, 19, 12, 18, 31, 14, 11, 21, 25, 32, 16, 22, 27, 29; Code P. G. L., Art. 43, secs. 26-39; secs. 56-73. Sabbath Breaking—City Code, Art. 31, secs. 2 and 3; Code P. G. L., Art. 27, secs. 384, 385, 386. Act 1895, Ch. 53—Ord. 1895, No. 87, May 16, 1894, as amended by No. 130, July 9, 1894.</p> <p>The learned Judges who decided the case below reached the conclusion that the forfeiture feature of the punishment was so unusual and oppressive as to be unreasonable, and to be condemned for that reason, leaving the other provisions of the ordinance intact. It is submitted that this feature of the ordinance is not so unreasonable and unusual as to deserve the condemnation expressed by the Court below. 6 Words and Phrases, 5272—“Penalty;” Black's Law Dictionary, 883; 2 Bouvier, Law Dictionary, 645.</p>

), where there was a judgment on verdict for the plaintiff for $500.

2 of Baltimore City (Sharp, J.). This suit was brought by appellant to recover through equitable relief property of a value upwards of $215,000, which trustees induced him to relinquish without… Held: as well in England as in the United States, that the testamentary capacity as to personal property, including not only the general capacity to make a will, but also the disposable power over the estate, is governed by the law of the domicile of the testator. 3 Eng. and Amer.

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

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

). The Dredging Company filed a libel in the District Court of the Pnited States for the Eastern District of Virginia against the tug Britannia in which they sought to hold her liable for the value of the scows, which it was alleged had been lost by the negligence of the tug.

<p>Appeal from the Circuit Court for Howard County (Bra-shears and Eorsythe, JJ.).</p>

<p>Demurrer to Bill in Equity Overruled by Plea — Express Trust Not Barred- by Limitations — Plea of Former Recovery.</p> <p>When a defendant demurs to the whole of a bill in equity and also files a plea setting up a defense to the relief asked, the plea operates to overrule the demurrer, which is then out of the case.</p> <p>The Statute of Limitations is' not apjdicable to an express trust, as between trustee and cestui que trrust; and whether laches is a defense to a bill seeking to enforce such a trust depends upon the facts of the particular ease.</p> <p>A plea of a former recovery or judgment is not a bar to a sub-' sequent suit unless it alleges that the proceedings in the former suit were taken for the same purpose as the proceedings in the subsequent suit.</p> <p>The judgment in an action at law brought to recover a specified sum as the purchase price of certain property is not a bar to a bill in equity alleging that the same defendant had received the property upon certain express trusts.</p>

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

), where there was a judgment- for the plaintiff for $1,819.62%. Plaintiffs 1st Prayer. — That under the pleadings and evidence in this cause, the verdict of the jury must he for the plaintiffs for' such damages as they shall find from the eviclence (if. any they do find, resulting from said injunction), resulted directly to the equitable plaintiffs, American Coat Pad Company and Louis Bouchat, from the injunction mentioned in the bond offered in evidence.

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

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

J.). The prayers referred to in the opinion of the Court are as follows: Appellants’ 1st Prayer. — The appellants pray the Court to rule as a matter of law: That the block of ground hounded on the northeast by Pennsylvania avenue, on the east by Butchers’ lane, on the south by North avenue, on the west by Eulton avenue and on the northwest by Clifton street, is not a “block of ground not exceeding 200,000 superficial square feet, formed and bounded on all sides by…

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

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

), where there was a verdict for the plaintiff for $5,000 reduced under a remittitur to $3,000, on which judgment was entered.

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

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

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

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

<p>Intoxicating Liquor — Servant of Seller Liable to Indictment for Violation of License Law — Place of Delivery of Liquor to Purchaser is the Place of Sale.</p> <p>A clerk or servant who sells liquor for his employer is liable to indictment for a violation of the liquor license law if the employer was not licensed to sell.</p> <p>When the seller of intoxicating liquors delivers them in person or by his agent to the purchaser, without the intervention of a common carrier, the place of delivery is the place of sale, and it makes no difference that the agreement to sell was made elsewhere.</p> <p>Defendant, a licensed liquor seller in Baltimore City, accepted an order there for half a dozen bottles of beer to he delivered to the purchaser in Baltimore County; separated the same from his stock in the city and delivered them in Baltimore County. Defendant was not licensed to sell liquor in the county. Held,, that the possession and control of the beer remained in the defendant until actual delivery; that the sale was made in the county, and was in violation of the liquor license law of the county.</p>

<p>Claims of Creditors of Insolvent Corporation — Subscription to - Stock Held Not to Have Been Payable in Money-Insufficiency of Record on Appeal.</p> <p>Upon the distribution of the assets of an insolvent corporation, ‘ the appellants excepted to the allowance of the claim of a certain creditor upon the ground that he had made a subscription, payable in money, to the capital stock of the corporation ; that this subscription had not been paid and should now be set off against his claim. Upon an examination of the evidence, held, that this creditor had not agreed to pay for the shares of stock in money, but that the same were to be issued to him in exchange for certain property, and it was determined on a former appeal that this agreement was void because not ratified by the stockholders.</p> <p>On appeal from an order overruling exceptions to an auditor’s account which allowed a dividend on the claim of a creditor of an insolvent corporation, when the appellant alleges that the creditor had not fully paid his subscription to the stock of the corporation and that the balance due should be set off against the claim, this Court cannot determine that question, since the alleged agreement of subscription to the stock is not contained in the record.</p>

At common law there could be no restitution of stolen goods, nor could their value be recovered out of the property of the thief, because larceny being a public wrong and felony, the remedy was at the suit of the King only and the private injury was merged in the crime.

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

<p>Appeal from the Circuit Court for Baltimore County sitting in Equity.</p>

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

<p>Appeal from the Circuit Court for Kent County, sitting in Equity.</p>