Volume 112 — Maryland Reports

<p> Attachment Against Person Adjudicated Bankrupt Within Four Months Thereafter—Discharge of Bond Given to Dissolve Attachment. </p> <p>The Federal Bankrupt Act (sec. 67F) provides that all judgments, attachments or other liens, obtained against a person who is insolvent, at any time within four months prior to the filing of a petition in bankruptcy against him, shall be deemed null and void in case he is adjudicated a bankrupt and the property affected by the attachment or other lien shall be deemed wholly discharged and released from the' same. An attachment was issued against the defendant on December 19th, 1905, which was dissolved upon the filing of a bond by a surety on December 28th. On February 26th, 1906, the defendant was adjudicated a bankrupt and finally discharged in January, 1909. Held, that the plaintiff in the attachment is not entitled to ask for a judgment against-the defendant with a perpetual stay of execution in order to be enabled to proceed against the surety on the bond given to dissolve the attachment, but that, under the terms of the Bankrupt Act, the attachment became void, since it was issued within less than four months before the institution of the proceedings in bankruptcy; that if tangible property had been attached it would have been released from the lien, and there is no reason why the bond, which stands in the place of property, should not also be released.</p>

<p>Irregularity in Proceeding Before a Justice of the Peace— Redemption of Mortgage by Purchaser of Equity of Mortgagor—Tender—Exception to Mortgage Sale.</p> <p>When the defendant in a suit instituted before a Justice of the Peace has been -duly summoned, the Justice acquires jurisdiction which is not affected by a subsequent irregular proceeding, the remedy for that being by appeal.</p> <p>The purchaser at an execution sale of the equity of redemption of a mortgagor is entitled to redeem the mortgage, although the sheriff’s deed conveying the equity to him may not have been recorded.</p> <p>An offer to redeem a mortgage with a tender of the amount due, although coupled with the request that the mortgage be assigned and not released, is an absolute and not a conditional tender.</p> <p>When a tender made in the form of a check on a bank is refused, not because so made but on other grounds, the creditor waives his right to have the tender made in lawful money.</p> <p>When a person who has an interest in- the equity of redemption, or who is a lien creditor of the mortgagor, makes an unconditional tender to the mortgagee of the amount then due on the mortgage and costs, with a request for an assign^ ment of the mortgage, it is the duty of the mortgagee to accept the money without insisting on a release of the mortgage, if there is any reason why it cannot be assigned.</p> <p>When a tender of the amount due on the mortgage has been made by a person authorized to redeem it, which tender is refused and the mortgage is foreclosed, such person is entitled to except to the ratification of the mortgage sale.</p>

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

<p>Appeal from the Circuit Court Xo. 2 of Baltimore City (Sharp, J.-).</p>

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

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

<p>Consolidation of Corporations—Extinguishment of Constituent Companies—Mortgage Securing Bonds to Be Issued for Property Afterwards Acquired by Corporation—Effect of Consolidation on Right to Issue Bonds— Rights of Bondholders Under Mortgage— Liability of Trustee Under Mortgage to Secure Bonds.</p> <p>When a trustee applies to a Court of Equity to construe the instrument creating the trust and to give directions as to its execution, persons in esse whose rights may he affected by the Court’s action, must be made parties to the suit in person or ! by representation in order to bind them by the decree made therein.</p> <p>The owner of property may by a deed of trust in the nature of a mortgage subject it to a lien for the payment of future debts.</p> <p>Corporations have the power to mortgage property to be acquired in the future, and in such case, as soon as the property is acquired by the mortgagor, the lien of the mortgage will be regarded in equity as fastening upon it.</p> <p>Code, Art. 23, sec. 16, which provides a mode by which two or more corporations may be consolidated, directs that the property, rights and liabilities of the former separate corporations shall devolve upon the new consolidated corporation, which shall be regarded as substituted in the room and stead of the former separate corporations. Held, that when two corporations are consolidated, their distinct corporate existence and powers perish in the process of consolidation, and that the resultant consolidated company is a new and separate corporation, whose rights are acquired by special grant from the State, and not by way of transfer from the constituent corporations. The consolidated company is not a mere association of co-existing corporations.</p> <p>If a mortgage executed by a corporation to a trustee provides for the issue of bonds to be secured by the mortgage for the purchase of property thereafter by the corporation, then if that corporation be consolidated with another by which a new corporation is created, and the former one ceases to exist, there is no power in the consolidated company to issue bonds for the property acquired by it which shall be entitled to the lien of that mortgage.</p> <p>In 1904, a gas company .executed a mortgage to a trustee by which it conveyed all the property it then owned and all that it might thereafter acquire to secure the payment of 15,000 bonds of $1,000 each. Of these, 1,015 were to be forthwith certified by the trustee and delivered to the gas company—a certain number were to be used to take up underlying mortgages on the property, and 5,500 bonds were to be issued from time to time to pay a part of the cost of the pjroperty to be thereafter acquired by '’the company. The mortgage provided that these last-mentioned bonds could only be issued and certified by the trustee upon the certificate of an engineer as to the cost and value of the property bought, and a resolution of the directors of the company requesting the trustee to deliver the bonds. In .1906, the gas company was consolidated with an electric light and power company, which had executed a mortgage of its property to the Continental Trust Company. In pursuance of the terms of the consolidation, a mortgage of all its property was made by the consolidated company to the last-mentioned trustee, subject to existing liens. The agreement of consolidation reserved to the consolidated company the right to issue bonds for future acquired property as the successor of the gas company. The consolidated company filed a petition, in an ex parte proceeding in a Court of equity in which the trustee of the gas company mortgage had asked the Court to assume jurisdiction of the trust, setting forth that it had bought certain property and asked that the ti’ustee be directed to certify and deliver certain bonds as being entitled to the lien created by that mortgage. This petition was opposed by the appellant on this appeal, who was the holder of bonds issued by the gas company before the consolidation. At the time of the consolidation the bonds which remained unissued by the gas company were those authorized for the payment of underlying mortgages and for the future acquisition of additional property. Held, that the effect of the consolidation was to extinguish the corporate existence of the gas company and to transfer its property to the consolidated company.</p> <p>Held, further, that the right to discharge underlying mortgages by the issue of bonds under the gas company’s mortgage may be exercised by the consolidated company as an incident to the title to the property it had acquired subject to the mortgage, and that the Court would have jurisdiction to direct the execution of bonds for that purpose.</p> <p>Held, further, that the consolidated company is not authorized . to issue bonds under the mortgage of the gas company in payment for property which was not acquired by that company but by the consolidated company, since the latter company cannot comply with the conditions fixed by the mortgage for the issue of such bonds, and the after-acquired property, for account of which bonds were authorized to be issued by the terms of the gas company’s mortgage, means only property subsequently acquired by that company.</p> <p>Held, further, that the holders of bonds issued by the gas company before the merger have a right to insist that none of the reserved bonds be issued except in conformity with the conditions fixed by the mortgage, which in effect constituted a contract between the gas company and them.</p> <p>Held, further, that the trustee under the gas company mortgage, which did certify some bonds issued by the consolidated company for property acquired by it, is protected from liability therefor under the terms of the mortgage, which declared that the trustee should not be answerable except for its -own wilful default.</p>

<p> Conspiracy to Obstruct Administration of Justice—Sufficiency of Indictment—Evidence. </p> <p>The common law offense of conspiracy consists of an unlawful combination and agreement. The agreement may be to commit a crime or to do a lawful act by criminal or unlawful means, but in neither case is- an overt act necessary to the completion of the offense. When the object of the combination is to commit a crime or do an unlawful act, the means by which it is to be accomplished are immaterial, the offense being the unlawful agreement to do an unlawful thing.</p> <p>In an indictment charging the common law offense, the means by which the object is to be accomplished need not be stated, and in stating the object of the conspiracy, it is not necessary to set out the offense with the accuracy or detail which would be required in an indictment-for that offense.</p> <p>This rule does not apply to conspiracies to do a lawful act by unlawful means, but in such case it must appear by the indictment that the means to be employed are unlawful.</p> <p>To obstruct the due administration of justice is an indictable offense at common law, and Code, Art. 27, sec. 28, provides for the punishment of every person who shall corruptly obstruct or impede, or endeavor to obstruct or impede, the due administration of justice in any Court- of this State.</p> <p>An indictment charging a conspiracy unlawfully and corruptly to'obstruct due administration of justice in a certain named case, in a certain named Court, is sufficient, since it states the object of the conspiracy and informs the accused of the crime with which he is charged.</p> <p>An indictment may contain several counts charging the same offense in different language, so that they apparently charge different offenses.</p> <p>It is within the discretion of the trial Court to refuse to allow a question to a witness, which he has once clearly answered, to be repeated over and over again.</p> <p>The defendant was indicted for a conspiracy to obstruct the due administration of justice in a certain Court, and the evidence showed that he agreed to endeavor to induce a Grand Jury to dismiss a charge against a certain person for the unlawful sale of liquor. A witness who testified that he paid the defendant a sum of money may also testify that he paid it because he presumed that the case had been dismissed by the Grand Jury through the exercise of defendant’s influence.</p> <p>The evidence in this case examined and held to be admissible to prove a conspiracy between the defendant and others to obstruct the administration of justice, and that this evidence was corroborated by proof of the admissions and statements of the defendant.</p> <p>In a criminal case, the Court cannot be required to instruct the jury as to the legal effect or sufficiency of the evidence, since in such a case the jury are judges of the law.</p>

<p> When Guardian Entitle to Possession of Legacy Giren as Eemainder to Infant. </p> <p>A testatrix bequeathed one-half of her estate to be held by a trustee, the income therefrom to be paid to her son for life, and after his death to bis widow, and - after her death the property to be divided equally between the children of the son, “each child to receive its share upon its arrival at the age of twenty-one years.” The testator’s son died, and then his widow, leaving an infant child. Held, that the guardian of the infant is now entitled to receive the property from the trustee under the will.</p>

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

<p> Construction of Statute Relating to Sheriff of Allegany County —Indictment for Perjury in Making Report of Expenditures—Evidence—Different Penalties for Violation of Different Parts of Statute. </p> <p>The Act of 1904, Chap. 213, relating to Allegany County, provides that the County Commissioners shall allow to the sheriff the actual sum of money expended by him in purchasing food and essential clothing for the prisoners in jail, but that no allowance for expenditures should be paid or credited to the sheriff unless the same be reported under oath by him, which oath shall show that the expenditures were lawfully incurred, and that the sheriff himseE has not derived any profit therefrom, or consumed or appropriated to himseE any part of such purchases. The Act provided that all false swearing in such report and affidavit shaE be deemed perjury and be punishable as such. Upon an indictment for perjury against a sheriff under this statute, the evidence showed that the sheriff reported that he had expended certain money in purchasing designated kinds of food for the prisoners in jail, and made affidavit that the report was correct, and that he had not himseE derived any profit from the purchases or consumed or appropriated to himseE any part thereof; also evidence that some of the articles so purchased were not for the use of the prisoners in jail. Held, that although the accounts of the-persons supplying these articles were made out against the County Commissioners and payment was made therefor by them, and not by the sheriff himself, yet such payment was made upon the report and affidavit of the sheriff, and was in effect the same as if the allowance had been made to him for an expenditure, and evidence of his report- and affidavit, and of the falsity thereof is admissible under the indictment.</p> <p>The Act of 1904, Chap. 213, provides, among other things, that all false swearing in the report of the Sheriff of Allegany County as to expenditures made by him shall be deemed perjury and punishable as such. The Act also provides that any violation of its requirements shall constitute a misdemeanor and be punishable upon conviction by forfeiture of office, or fine, or imprisonment, or by all three, in the discretion of the Court. Held, that these provisions as to punishment for violation of the Act are not repugnant, and that the sheriff, found guilty of making a false report as to expenditures, is liable to the punishment prescribed for perjury.</p>

<p> Decree for Sale of Property Reserving Right of Claimants to Proceeds—Dismissal by Orphans’ Court of Creditors’ Claim Against Estate—Limitations—Acknowledgment of Debt—Waiver of Statute by Executor—Interest on Unpaid Legacy. </p> <p>When a decree directing the sale of property is passed under an agreement which reserves to the parties the right to offer proof as to their claims against the property, the fact that the decree directs the sale to he made for the purpose of partition does not preclude a party from asserting an independent claim against the proceeds as a creditor of the deceased owner.</p> <p>The fact that the Orphans’ Court dismissed the petition of a party asking that a distrihuiton account he set aside in order that the petitioner’s claim as a creditor of the estate might be paid does not prevent such party from afterwards filing a bill in equity to enforce his claim. The determination of the- Orphans’ Court concerning claims against the estate of a decedent is not final.</p> <p>When one of the parties entitled to an interest in an estate states to another that the latter will receive every cent of the legacy bequeathed to him for which the deceased owner of the estate was liable, that is a sufficient acknowledgment of the claim to remove the bar of the Statute of Limitations, as to the party making it.</p> <p>An executor has the right to waive the defense of the Statute of Limitations against a claim so far as the personal property of the decedent is concerned, but he does not have that right as against the heirs or devisees of the real estate.</p> <p>A testator bequeathed the proceeds of an insurance policy to his son H. in trust for the benefit of the latter’s son C., to be paid to C. upon his arrival at the age of twenty-one. The trustee H. collected the policy, mingled the proceeds with his own estate, and died leaving a will by which he gave- all his property to his wife until O. reached the age of thirty, when he gave one-third of his estate to O. and the remaining two-thirds to his wife and another son. The executrix of the will, who was the wife of H, settled an account in the Orphans’ Court by which she was allowed the whole balance of the estate. Some years afterwards, when C. reached the age of thirty, he filed a petition in the Orphans’ Court, stating that he had never received the legacy given by the will of his grandfather, and asking that the account stated by the executrix of his father’s will be set aside. The Orphans’ Court dismissed this petition, and then C. filed a bill in equity asking that the property passing under the will of his father be sold for partition among the three legatees, and also that his claim as legatee under the will of his grandfather might be paid. Held, that C. is entitled, from the proceeds of sale, to the amount collected by H. on the policy, with interest thereon from the time of collection until he became twenty-one years of age.</p> <p>Held, further, that no part of this interest 'from th'e time the estate of H. was distributed to his wife, should be charged against the share of the other son, but that the same should be deducted from the wife’s share.</p> <p>Held, further, that the executrix of H. is entitled to receive from the proceeds of sale the amount of certain payments made by her on account of the estate and not allowed in the distribution account.</p>

<p> Competency of Witness When Other Party to Transaction is Dead—Exception to Testimony in Equity Too General—Claim Against Estate of Decedent—Insufficient Evidence. </p> <p>Under Code, Art. 35, sec. 3, in an action by or against executors or distributees o£ a decedent, no party to the cause is competent to testify as to any transaction had with the decedent unless called by the other party.- In an equity suit against an executor and devisees, where much evidence was taken, the plaintiff excepted to so much of the testimony of four named witnesses “as purports to give 'transactions alleged to have been had with and statements made by” the deceased. Held, that this exception is too general, since these witnesses were competent to testify as to some matters, and the fexception does not designate the particular questions and answers alleged to he inadmissible. The Court cannot be required by such an exception to examine the whole testimony and pick out suck questions and answers as are objectionable, because tke witness was incompetent to testify as to tkat particular matter.</p> <p>When a party to a cause is incompetent to testify as a witness to transactions had witk a decedent, tkat part of his testimony which leads up to, or is in explanation óf, his testimony as to suck transaction, is likewise inadmissible.</p> <p>Tke bill in this case filed by tke daughter and son-in-law of a testatrix against her executor and devisees alleged tkat tke decedent was indebted to tke plaintiffs on account of services rendered and farm products furnished during a period of more than thirty years before her death. Tke account consisted of entries made in lead pencil, partly ou tke fly leaves of an old book, all in tke handwriting of tke daughter, and all apparently witk tke same pencil or precisely tke same kind of pencil, during tke whole thirty years. There was nothing to show tkat the claimants had made any effort to collect tke debt until after tke death of tke testatrix and after tke death of her surviving husband. After most of tke alleged indebtedness had been incurred many transactions took place between tke parties; tke testatrix had conveyed a farm to her daughter and had given money to her daughter’s children, and by her will had devised property to them. Held, that tke evidence fails to establish the validity of this claim, and tkat tke bill seeking its enforcement, against tke real estate of tke decedent should be dismissed.</p>

<p>Writ of Summons in Action Against Corporation—Jurisdiction of Justice of the Peace—-Waiver of Summons— Appeal from Judgment of Circuit Court on Appeal from Justice.</p> <p>In an action against a corporation, the writ of summons must he directed to it, and not to an officer or agent, although service must be made upon an officer or agent. Under a summons against “J. L., agent,” without more, no jurisdiction is acquired under which a valid judgment can be rendered against the corporation of which he is an agent.</p> <p>A suit was brought before a Justice of the Peace against a corporation, and the writ of summons was directed to “J. L., agent,” and served on him. The Justice gave a judgment against the corporation, which did not appear before him. On appeal to the Circuit Court, the corporation filed a motion stating that it “objects to the trial of this case, and asks that the appeal be dismissed upon the ground that the 'Justice of the Peace below was without jurisdiction to try the case.” Held, that although a motion to quash the proceedings would have been more regular, yet this motion raised the question as to the validity of the summons, and was not a waiver by the corporation of its right to be summoned directly.</p> <p>When a Justice of the Peace renders a judgment against a party not summoned and over whom, therefore, he had no jurisdiction, the fact that that party appeals from the judgment is not a waiver of a summons or a consent to the jurisdiction.</p> <p>An appeal lies to this Court from a judgment of the Circuit Court on appeal from a Justice of the Peace, when the Justice had no jurisdiction of the case, because the defendant had not been summoned.</p>

<p> Borrowed, Money Used in Purchase of Land—Resulting Trust—Mistake of Law. </p> <p>A resulting trust is not created by the circumstance that the borrower of a sum of money used it in part payment for a parcel of land purchased in his own name, although the lender was of the opinion that he would have an equitable lien on the land for the repayment of the loan, when there was no representation or promise by the borrower to that effect.</p> <p>A mistake by a party as to the legal effect of a contract he makes affords no ground for relief in equity when there are no circumstances of fraud or undue influence.</p>

<p> Estoppel of Mortgagee to Claim Interest on Mortgage from Purchaser of Equity of Redemption—Right of Assignee to Benefit of Estoppel. </p> <p>When a person makes a statement to another which induces the latter to refrain from demanding indemnity from a third party, who was bound to furnish the same, the person making such statement is estopped from afterwards enforcing a claim against the person relying upon the statement who would have been protected against it by the indemnity.</p> <p>Property was conveyed by tbe mortgagor to A. upon the understanding that it would only be liable for interest on the mortgage from the date of the conveyance. The mortgagor gave to the mortgagee his promissory note for the amount of interest unpaid’ at the time of this transfer. After the transfer A. paid interest on the mortgage, and subsequently also the balance due on the purchase money to the mortgagor. The mortgagee had informed A. that a sum was due for unpaid interest, but afterwards and before A. paid all of the purchase money, the mortgagee told him that the matter had been adjusted. Meld, that although the acceptance by the mortgagee of the promissory note for the interest was not a payment thereof, and he did not intend to relinquish the lien of the mortgage as to the interest, yet since his conduct induced A. to pay for the property, supposing that the overdue interest was not a lien on it, the mortgagee is now estopped to enforce payment of the same as a lien under the mortgage.</p> <p>When the purchaser of property subject to a mortgage is entitled to the benefit of an estoppel against the mortgagee, that estoppel operates also in favor of the person to whom he conveys the property.</p>

<p>Merger of Leasehold in After-Acquired Fee Simple Estate— Executory Devise—Rule Against Perpetuities—Void Limitation Over in Conditional Devise to Church— Religious Societies—Power to Sell Property.</p> <p>When the reversion in fee of a parcel of land is devised to, or vests in, the tenant for years of the land, holding in the same right, and there is no intervening estate, the term of years is merged in the inheritance, and the lease, with its covenants, ceases to exist.</p> <p>A limitation after a fee cannot take effect as a remainder, hut may he good as an executory devise.</p> <p>An executory devise to he valid must take effect upon a contingency or event that must happen within the life or lives of those in being at the death of the testator and twenty-one years thereafter, and if the contingency or event may not happen within that time, the limitation is had, although the event does in fact occur within that time.</p> <p>A devise of property to a corporation to he held by it until a certain event occurs, when there is a limitation over, is in violation of the Rule against Perpetuities, if that event may not happen within the existence of a life or lives in being and twenty-one years thereafter, and in such case the devisee takes an absolute fee in the property.</p> <p>S. leased a lot of ground to a church corporation upon the condition that it and the church building erected thereon should he used for the purposes of a congregation under the control of a certain conference; that no musical instruments should ever he used in worship; that the sexes should he separated in seating, etc. The lease provided for a re-entry and its termination by the lessor or assigns upon a breach ' of any of the conditions therein. The charter of the church corporation provided that it should hold the property about to be demised to it upon these same conditions, and that the trustees should have no power to mortgage it. Afterwards S. died leaving a will, by which he devised to the church the yearly rent reserved by the lease, to be held during all such time as may elapse before the church authorities shall admit any musical instrument in the church services, or shall hold any fair or festival, etc., “when and upon the happening of any one of these contingencies,” the said ground rent should fall in the residuum of the testator’s estate. The church corporation filed the bill in tbis case asking for a decree directing a sale of the land, since the locality had ceased to be a residential district, and that the proceeds be used in the erection of a church elsewhere to be held on the terms specified in the lease and the will. Reid, that under the. lease the church took the property in its own right, and not as trustees; that this leasehold estate -was conditional and liable to be defeated by the re-entry of the lessor or his heirs upon the failure to comply with the conditions.</p> <p>Reid, further, that by the devise to the church of the reversion in the lot, the leasehold interest was merged and extinguished, and thereafter the church held the property in fee under the will until the church authorities did any of the things specified in the will as affecting the duration of the estate.</p> <p>Reid, further, that since the limitation over of the property to the residuary devisees by way of executory devise was to take effect when the church authorities did any one of these specified things, and since these things might not be done within the period covered by a life in being at the death of the testator and twenty-one years thereafter, this limitation is void because in conflict with the- Rule against Perpetuities.</p> <p>Reid, further, that since the limitation over is void because repugnant to law, the church took an absolute fee simple estate discharged therefrom.</p> <p>The provision in the charter of a church corporation that it should hold certain leasehold property about to be demised to it on certain conditions is not applicable when the church afterwards acquires the fee in the property.</p> <p>A provision in the charter of a church corporation that it shall not have power to mortgage its property does not operate to prevent a sale of the property in case it should become necessary to sell in the interest of the church.</p> <p>The rule that words in a grant or devise indicating the use to which the property conveyed is to be applied do not of themselves create a condition, is applicable in the construction of the charter of a church, in relation to a statement of the purposes for which property given to it shall be used.</p>

<p> Covenant by Railway Company to Maintain Siding on Covenaniee’s .Land Not Perpetual—Substantial Compliance. </p> <p>A contract providing that a railway company shall maintain a station for passengers at a certain place is substantially complied with by the construction and maintenance of a station there for a number of years. Such a contract does not bind the company to keep a station forever at that place.</p> <p>A railroad company covenanted with a landowner and his assigns to construct and maintain a turnout and siding at a certain point on the land and there take up and set down passengers and freight. The company maintained the siding for nearly sixty years, when the exigencies of its business required a different location of its tracks to be made and the siding was abandoned. In an action for breach of the covenant, held, that in view of the fact that the covenant does not provide for the maintenance in perpetuity of the services in question, and of the fact that they were maintained for many years, and in view of the circumstances which caused their abandonment, there has been no breach of the covenant and the plaintiff is not entitled to wovp.r.</p>

<p>Admissions in Equity Cause—Allegations of Bill for Partition or Sale of Beal Estate of Decedent Admitted—Validity of Decree for Sale upon Admissions Without Testimony—, Marketability of Title—Purchaser of Beal Estate of Decedent Protected from Liability for His Debts.</p> <p>As a general rule, admissions of parties make it unnecessary to prove the facts admitted; and when all of the parties to a cause are competent to bind themselves, their admissions are sufficient to establish the jurisdictional averments of the bill.</p> <p>Code, Art. 16, sec. 129, authorizes Courts of Equity to decree a partition of land owned in common upon the bill of any concurrent owner, or, if it appear that the lands cannot be divided without loss or injury to the parties interested, the Court may decree a sale for the purpose of dividing the proceeds among them. The bill in this case alleged that certain lands owned by a deceased intestate descended to the plaintiffs and defendants, his only heirs at law, and that a sale of them was necessary for the purpose of partition. The de-</p> <p>' fendants, who, as well as the plaintiffs, were of full age, answered, admitting the allegations of the bill, and a decree was passed directing a sale. , Eo testimony was taken in support of the averments of the bill. Upon exception to the ratification of the sale by the purchaser of part of the land, held, that the allegations in the bill were sufficient to give the Court jurisdiction, and that the absence of evidence to support these allegations, which were admitted, does not affect the validity of the decree, and that consequently the circumstance that no testimony was taken to prove such admitted facts is no ground for vacating the sale.</p> <p>Held, further, that such absence of testimony does not affect the marketability of the title to the land acquired by the purchaser, since, in a case like this, the Court sells only the title of the parties to the suit, and even if there had been testimony to show that the parties to the cause were the exclusive owners of the property, the decree would not have been binding upon persons not represented, who did in fact have interests in the property, and there is no allegation that any such interests in the property existed.</p> <p>Upon exceptions to the ratification of the sale of the real estate of a decedent, it was objected that certain claims against his estate had been filed in the Orphans’ Court and would constitute a lien on the real estate in case the personal property was insufficient to pay his debts. Held, that this exception is not a ground for vacating the sale, since the order of ratification provided that the entire proceeds should be held by the trustees subject to the future order of the Court, and until after distribution of the personal property of the deceased under the order of the Orphans’ Court, and it is conceded in this Court that the time has now expired for creditors to file their claims; that due notice had been published, and that after the payment of all debts exhibited there remained in the hands of the administrator a large balance for distribution to the next of kin.</p> <p>The point of time after which the heir or devisee may sell the land to a bona fide purchaser without incurring the risk of having the latter afterwards made liable for the payment of the ancestor’s debts, is when the records of the Orphans’ Court show a final settlement of the personal estate, indicating that all proved debts have been paid in full, and that there is still a balance in the hands of the executor or administrator.</p>

<p> Police Power of Baltimore City—Ordinance Regulating Removal of Garbage. </p> <p>The Charter of Baltimore .City empowers the Mayor and City Council to have and exercise within the limits of the city all power commonly known as the police power, to the same extent as the State could exercise the same within said limits, and also to pass such ordinances as it may deem expedient in maintaining the health and welfare of the city. An ordinance provided that no person except an employee of the city should carry any garbage or other refuse through any streets without first obtaining a permit so to do from the Commissioner of Health, and the Commissioner was vested with discretion to grant and revoke such permits. Held, that this ordinance is a valid exercise of the police power vested in the city, since regulations concerning the removal of garbage and offal have a direct relation to the public health.</p> <p>The fact that a person indicted for a violation of this ordinance removed from hotels only scraps of animal and vegeta- - ble matter rejected as food, commonly called,garb.age, which he fed to hogs, and had invested money in the business of so raising bogs, does not exempt him from the operation of the ordinance, since much of this kind of matter is dangerous to the public health, and its removal may properly be made subject to public regulation, and all private business is sub' ject to regulations designed to promote public health.</p>

<p> Sufficiency of Evidence to Show Failure to Invest Money as Agreed. </p> <p>The plaintiff gave to defendant a sum of money to be invested, and defendant gave her a receipt, stating that that sum had been received “for investment.” After several demands for payment,- the defendant, more than two years after getting the money, gave the plaintiff a promissory note, bearing date as of the time he received the money, for the amount, payable with interest four years after date, and signed by a certain firm “per” the defendant. At the time defendant gave plaintiff this promissory note, the firm had been put in the hands of a receiver. Interest on the money had always been paid by the defendant. In an action to recover the sum, the Court instructed the jury that if they believed that the plaintiff intrusted to the care of the defendant the designated sum for investment, and that the defendant failed to invest said money, and has not repaid the same to the plaintiff, then their verdict must be for the plaintiff. Held, that this instruction is proper, since the evidence is legally sufficient to authorize the jury to find that the defendant did not invest the money he received from the plaintiff.</p>

<p>lies Judicata—Decree Dismissing Bill Absolutely and Npt Without Prejudice—Appeal—Hearing on Bill and Answer—Buie of Court as to Testimony and Hearing—■ Erroneous Construction of Buie—Executor Not Authorized to Bind Estate by Promise to Pay Claim Adjudicated in Favor ■ ■ of Decedent.</p> <p>A decree passed on bill, answer and pleadings may constitute as effective a bar to another suit for the same cause of action a,s a decree made after testimony taken.</p> <p>But a decree' dismissing a bill for want of prosecution, without prejudice, is not a bar to a new bill for the same cause.</p> <p>When a decree dismisses a bill absolutely when it should have been dismissed without prejudice, the plaintiff has a right to appeal if he does not mean to acquiesce therein.</p> <p>'A rulé of the Equity Courts of Baltimore City provides that after the general replication has been entered to an answer of the defendant, or issue joined on a plea, either party may apply to have the cause set for hearing, and unless within five days after service of notice of such application leave to take testimony be asked by either party, the case shall be placed upon the trial calendar and'be heard upon the pleadings. Held, that if a case is set for hearing and leave to take testimony is asked by either party, and neither party takes anyj the Court may proceed to hear the case on the pleadings without further delay.</p> <p>Jf an erroneous construction be placed upon a Buie of Court, in consequence of which a certain order is passed, the remedy of the party aggrieved is by appeal, but the order is valid unless reversed on appeal.</p> <p>When a .decree, after stating that the cause standing ready for ■ hearing was considered on bill and answer, dismisses the bill, that is an adjudication that the answer denying the averments of the bill was taken to be true at the hearing.</p> <p>A. filed a bill in equity against B. to set aside a transfer of property and for an accounting concerning the alleged' indebtedness of B. to him. B. answered the bill, and after a replication was filed, B. asked for leave to take testimony in open Court, which was granted by an order directing that testimony be taken and final hearing had on November 12th. This order was served on A.’s solicitor. Then, on November 12th, the Court made the following decree: “The above cause standing ready for hearing and being considered on bill and answer, and the plaintiff not appearing in Court, and no evidence being offered to sustain the allegations of the bill, and the answer of the defendant denying the equities of the bill,” it is adjudged and decreed that the bill be dismissed. A rule of the trial Court provided that after a general replication to an answer either party might have the case set for hearing, and unless leave to take testimony be ásked by either party, the ease should be placed on the trial calendar and heard upon the pleadings. Held, that since neither party took any testimony on November 12, the Court was authorized to hear the case then on the pleadings.</p> <p>Held, further, that the decree in effect declared that the cause was ready for hearing; that it was considered on bill and answer; that since the answer denied the equities of the bill the bill Was dismissed, and that this was a final decree passing upon the merits of the cause as they appeared from the bill and answer.</p> <p>Held, further, that if the decree was erroneous in dismissing the bill absolutely and not without prejudice, or for want of prosecution, the plaintiff should have appealed, and not having done so, the decree is final and a bar to another suit for the same cause of action.</p> <p>A party in whose favor a decree or judgment has been rendered may waive that fact as a defense against another suit for the same cause of action by not relying on it. But the question whether he would be liable on a subsequent promise to pay a debt so adjudicated in his favor does not arise in this case. Qiuere de hoc.</p> <p>An executor or administrator has no authority to bind the estate of the decedent by a promise to pay a claim which had been adjudicated in favor of the decedent in his lifetime.</p> <p>If an executor or administrator, after admitting that a claim against the estate of the decedent was one proper to be paid, discovers that the claim is such as ought not in justice to be charged on the estate, his previous admission of it does not preclude him from making the defense.</p>

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

<p>Inconsistent Instructions to Jury—Measure of Damages for Breach of Contract to Supply Certain Kinds of Lumber— Evidence of Statements of Third Party.</p> <p>When the question is whether a quantity of lumber, which was sold as being in conformity with certain specifications, was rejected by the inspectors because not in conformity with those specifications, or because not in accordance with the inspectors’ view of its fitness apart .from the specifications, a prayer instructing the jury that there is no evidence of fraud or bad faith on the part of the inspectors is not in conflict, so as to mislead the jury, with another prayer, instructing them that the inspection should have been made, not in accordance with, the inspectors’ view of the fitness of the lumber for the purpose in hand, but in accordance with the specifications.</p> <p>A judgment will not be reversed on account of inconsistency between granted instructions unless it be such as may reasonably be supposed to have misled or confused the jury.</p> <p>In an action to recover damages for breach of defendant’s contract to deliver lumber of a designated kind, at a certain time and place, to be used by the defendant in building a coal tipple, etc., for a railway company, the plaintiff is entitled to recover the expenses caused by the delay in getting other lumber in place of that furnished by the defendant and rejected for cause; the increased cost of construction by reason of the necessity of doing the work in the winter instead of in the summer; the freight paid by the plaintiff on the rejected lumber, and the cost of unloading the same. These elements of damage may reasonably be supposed to have been within the contemplation of the parties at the time of making the contract.</p> <p>Plaintiff bought a quantity of lumber from defendant under a contract which required it to be inspected according to certain specifications by the agent of a third party, for whose structure plaintiff was to use the lumber. Held] that evidence of this agent’s declarations is not admissible in an action for breach of the contract since .he was not the plaintiff’s agent.</p>

<p> Life Insurance—Non-Payment of Premium When Due Causing Policy to Become Paid Up—Authority of Agent to Waive 0 Payment When Due—Insufficient Evidence of Waiver—Tender and Payment Into Court of Amount Admitted to Be Due—Interest. </p> <p>When the only issues made by the pleading in an action on a policy of -life insurance are whether non-payment of a premium when due had been waived by the defendant or not, . and whether such non-payment caused the policy to lapse,, then evidence as to the physical condition of the insured when the policy was issued, or as to the difference between the policy sued on and other policies and as to similar matters, is' irrelevant.</p> <p>A policy of endowment life insurance provided that if any premium after the first two insurance years is not duly paid, “this policy will automatically become a paid-up insurance” for the amount ascertainable in a specified manner, and also that “a grace of one month during which the policy remains in force will be allowed in payment of all premiums except the first.” Held, that under these provisions the failure to pay a premium within one month after it became due reduced the policy in the manner designated unless the insurer waived such non-payment.</p> <p>The cashier of the local agency of a life insurance company, whose home office is in another State, has no authority to bind the company by waiving the non-payment of premium when due, if the policy provides that a waiver can be made only by certain designated officers.</p> <p>The acceptance by a local agent of payment of an overdue premium does not operate to waive a forfeiture of the policy on account of non-payment when due, unless the company knew or could have known what he had done, and adopted or ratified his act, or by its conduct estopped itself to insist upon a forfeiture.</p> <p>A life insurance policy provided that only the president, vice-president, actuary or secretary of the company had the power to modify the contract or to extend the time for paying any premium; that premiums might be paid to an agent producing receipts signed by one of these officers and countersigned by the agent; that if any premium be not paid within one . month after it became due, the policy should become a paid-up policy for a reduced amount, according to a certain table. It also provided that the insured may secure reinstatement of the policy at any time within five years after non-payment of a premium upon written application to the home office with evidence of insurability satisfactory to the company, and payment of premiums to date of reinstatement. A premium due under this policy on October 5th was not paid, and more than a month afterwards, i. e., on Kovember 7th, the local agent of the company notified the wife of the insured over the telephone that the policy had expired. The insured di- • rected her to say that he would attend to it. To this the agent replied “all right,” or “very well.” On the same day the insured sent his check for the October premium. The agent sent in reply a receipt, stating that the amount would be held’pending the consideration by the home office of an application for reinstatement of the policy, which by non-payment of the premium was not in force except as provided, and also asked for a medical health certificate, with a view to reinstatement of the policy. The insured did not furnish a health certificate, being at the time ill, and the premium so paid was returned to him by direction of the home office. On December 5th the insured died, and afterwards this action was brought to recover the full amount of the policy. Reid, that under these circumstances there had been no waiver by the company of non-payment of premium when due, and the fact that the illness of the insured made it impossible for him to furnish the health certificate required for reinstatement did not relieve him from that condition.</p> <p>In an action on a life insurance policy after it had become a ; reduced paid-up policy on account of non-payment of k premium, the defendant company filed a plea of tender and paid into Court the cash surrender value of the policy. Before forfeiture, the insured had obtained a loan from the company on the policy and paid interest thereon in advance. Reid, that when this loan was extinguished, the proportion of interest thereafter unearned was a debt due by the company, and in this action the plaintiff is entitled, under the common counts, to recover that sum in addition to the surrender value of the policy.</p> <p>Reid, further, that the plaintiff is entitled to interest on the sum due not from the death of the insured, but from the time the proofs of death were filed, since under the policy the duty to pay did not arise until receipt of such proofs.</p>

<p>Indictment for Sending Threatening Letter to Extort Money— Statement of Name of Person Threatened—Variation Between Counts of Indictment—Evidence—Confession Held to Be Voluntary—Remarles to Jury of Prosecuting Officer—Instruction to Jury—Cruel and Unusual Punishment.</p> <p>By Code, Art. 27, sec. 395, it is provided that any person who shall send or deliver, with or without signature, any letter threatening to accuse any person of an offense, or do injury to the person or property of anyone, with intent to extort money, etc., shall be guilty of a felony, etc. Held, that in an indictment under this statute, it is not necessary, that the name of the person to whom the threatening letter was sent should be set forth in it.</p> <p>When it appears that the several different counts of an indictment relate to the same transaction, and that the form in which the offense is charged was varied in order to meet the possible evidence, the indictment is not obnoxious to the objection that each count charges a distinct offense.</p> <p>Upon the trial of an indictment, a witness for the State cannot be asked whether anybody other than the defendant was under suspicion, since that is wholly irrelevant to the question of the guilt or innocence of the accused. -</p> <p>When a threatening letter sent to extort money is set out in the indictment and the letter as offered in evidence shows a variation as to the spelling of a word, that is not a variance, when the meaning of the word is not thereby changed.</p> <p>The deputy sheriff who arrested the accused did not inform him of the charge, but took him to the office of the State’s Attorney before taking him to jail or to a committing magistrate. The State’s Attorney said to the accused that he was not obliged to answer questions, and anything he might say would probably not be to his advantage, but might be used against him. Held, that a confession then made by the accused in reply to questions was voluntary and admissible in evidence, since it was not extorted by threats or inducements.</p> <p>Upon the trial of an indictment, charging the accused with having sent a letter threatening to burn the buildings of a certain person unless money be paid to him, the State’s Attorney, in addressing the jury, said: “Fires have occurred in this county, buildings have been burned, and it was my duty to act in this matter.” Held, that the refusal of the trial Court to require the State’s Attorney to retract that statement is not a reversible error.</p> <p>After the jury in a criminal case had returned to their room to consider of their verdict, the foreman sent a note to the trial judge asking if they should consider the prisoner’s confession. The judge replied that the testimony concerning the confession was a part of the evidence which the jury was at liberty to consider. Held, that this instruction was correct, and did not suggest to the jury that they should consider the evidence of the State to the exclusion of the testimony of the defense, or that it was entitled to more weight.</p> <p>The sentence of ten years in the Penitentiary imposed upon a prisoner convicted of threatening to burn a man’s buildings unless money be paid to him is not a cruel and unusual pun•ishment, the statute authorizing that offence to be punished by confinement in the Penitentiary for not less than two nor more than ten years.</p>

<p>Carriers—Liability for Exposing Cattle to Infectious Disease■—Pleading—Legal Sufficiency of Evidence of Carrier’s Negligence in Not Protecting Cattle from Texas Fever— Evidence—Hypothetical Question—When Testimony in Chief Under Deposition Not Admissible, Cross-Examination Also Not Admissible.</p> <p>A declaration charging that the defendant carrier, a railroad company, negligently permitted the cars in which it transported cattle for the plaintiff, and the pens and yards in .which the cattle were fed, to become dirty and infected with germs of disease by which the cattle became infected, is sufficiently definite, and a demurrer thereto was properly overruled.</p> <p>A plea to such declaration averring that thé claim of the iffaintiff was based on regulations promulgated under an Act of Congress concerning the shipment of cattle, and that said Act is unconstitutional, is bad on demurrer, since the declaration is based not on the Act of Congress, but on the common law rights and liabilities of the parties.</p> <p>The carrier of live animals is not liable as an insurer for death ■ or injury to cattle caused by a disease to which they were exposed during the shipment, but is only liable for negligence in exposing them to such disease.</p> <p>Certain cattle carried by the defendant for the plaintiff in two shipments from Missouri to Maryland were found, soon after delivery, to be infected, with a disease, called Texas fever. In an action to recover damages therefor, under a declaration charging that the infection was caused by the defendant’s negligence during the transportation, the evidence on the part of the plaintiff showed that the cattle in both shipments were certified by Government inspectors to have been in good health when first shipped; that they were unloaded at the B. yards to he fed and rested, and reloaded in the same cars for further transportation to the place of delivery; that at these yards the cattle were placed in pens used only for animals not coming from an infected territory, which pens were separated from the quarantine pens hy an alley twenty feet wide, and also hy a dead alley, ten feet wide; that there was a hoard fence between the two alleys, with an inch space between the planks, and a wire fence between the pens where these cattle were placed, and the dead alley. There was also evidence that Texas fever is caused by fertilized female ticks which, upon dropping off from infected cattle, deposit their eggs on the ground; that after these are hatched into larvae, they crawl on other cattle and produce the infection by their bite; that these ticks cannot crawl far, but may be carried a long distance by the wind, by other animals, or on the clothing of men; that the proper precaution against infected cattle should be a stone wall or an absolutely tight board fence, six feet high, and that there should be no communication by animals between the quarantine pens and others, as the tick can pass through a small crevice; that the disease was developed in plaintiff’s cattle within about the period required for development after leaving the B. yards, and the expert evidence was to the effect that plaintiff’s cattle had been infected at these yards. Held, that the evidence is legally sufficient to be submitted to the jury to show that the defendant had been negligent at these yards in not taking proper precaution to guard the cattle of plaintiff while there from the danger of infection from the quarantine pens.</p> <p>When the testimony taken in chief under a deposition is rejected, then the cross-examination on that subject is not admissible at the instance of either party.</p> <p>When the evidence produced by the plaintiff to show that the defendant negligently exposed plaintiff’s cattle to infection by disease at a certain place is not clear and conclusive, the admission of incompetent evidence to show that other cattle subsequently became infected at that place is reversible error.</p> <p>A hypothetical question put to a veterinary surgeon is erroneous when it assumes that healthy cattle were placed in pens separated from quarantine pens by one alley and a fence not absolutely tight, while the evidence shows that between the two pens there was another alley; and when the question also assumes that the cattle were reloaded from the yards upon cars other than those in which they were carried to it, while in fact they were reloaded in the same cars.</p> <p>Evidence that Government inspectors were mistaken in certifying that certain cattle were free from disease is not admissible when the question is whether they had given an erroneous certificate in regard to other cattle a year previous.</p>

<p>Master and Servant—Finger of Operator Out Off by Machine— Sufficiency of Evidence of Negligence.</p> <p>Plaintiff, a boy fourteen years old, was employed in defendant’s machine shop to work on a machine called a reamer, which was used to cut small pieces out of pipes by means of blades attached to a revolving shaft. The plaintiff had been instructed in the use of the machine and warned not to put his fingers in the vise holding the pipe while the reamer was in motion. I't was not dangerous when properly operated.' On the day of the accident, on account of which this action was brought, plaintiff was standing on some boards placed in front of the machine. These gave away and threw his weight</p> <p>D on the treadle, and thus brought up the vise in which plaintiff’s hand was caught and one of his fingers cut off. The defendant did not furnish the platform for the operation of the machine. It was not necessary for that purpose and the use of boards around the machine had been prohibited. Held, that the case was properly withdrawn from the jury, since there was no evidence of any negligence on the part of the defendant eitheg in not furnishing proper appliances or a safe place for the work, or in not instructing the plaintiff as to the use of the machine and the danger attendant thereon, and also because the act of the plaintiff in standing upon the boards was an assumption of risk on his part.</p>

), where there was a judgment on verdict for the plaintiff for $2,000. The plaintiff offered the following prayers which were modified by the Court by the insertion of the words italicized and the omission of the words in brackets: Plaintiff's 1st Prayer.—If the jury find from the evidence that on May 21, 1901, the plaintiff was employed by the defendant, the Baltimore Electric Company, as a lineman.

<p> What Constitutes Delivery of Deed—Alteration in Deed After Delivery—Cloud on Title Created by Unauthorized Alteration of Deed. </p> <p>When the grantor has executed and acknowledged a deed and delivered it unconditionally to a third person for the grantee, the conveyance is complete, and the title has passed, although the grantee may be ignorant of the fact of the delivery of the deed to another for his benefit.</p> <p>After the grantor has executed, acknowledged and delivered a deed no subsequent alteration made in it by him can affect the estate of the grantee.</p> <p>A mother-purchased certain real estate for her daughter Eveline to hold during her life, and at her decease to become the property of her heirs and assigns. The deed was executed, acknowledged and delivered by the grantor to the mother. Afterwards, and before the deed was recorded, the husband of Eveline asked her mother to insert his name in the deed, and the grantor at'her request interlined the husband’s name in the granting clause, and made the property pass to the heirs at “their decease.” The deed was not re-executed or re-acknowledged, and these changes were not made with the consent of of the first grantee. Held, that since the original grantee, Eveline, had acquired a complete estate in the land by the deed as first executed and delivered, that could not be affected by these alterations, and that she is entitled to maintain a bill in equity to have the same declared void as constituting a cloud on her title.</p>

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

<p> Liability of County Commissioners for Failure to Repair Bridge—Bill of Particulars. </p> <p>Plaintiff was required by contract to do work at a place to which the only means of access was a certain public highway, over which it was necessary for him to haul material.for the work. It was the statutory duty of the defendants, the County Commissioners, to keep the highway in repaii. On account of their failure to repair a bridge, which was part of the highway, the same became impassable; plaintiff was unable to convey in due time the material to the place where his con7 tract required it to be used, which made him liable to a pen7 alty for each day’s delay in the work, and he was compelled, at an increased cost, to transport the material in hand cars on a railway. ■ Held, that since the wrongful act of the defendants in failing-to keep the bridge in repair had caused to the plaintiff an injury different in degree and kind from that suffered by the public at large, he is entitled to recover damages therefor from the County Commissioners. ' :</p> <p>Where a bill of particulars was not filed by the plaintiff in a cause until after the defendant had demurred to the declaration, the bill of particulars is not to be considered in passing on the demurrer.</p>

). The prayers referred to in the opinion of the Court are as follows: Plantiffs’ 1st Prayer.—At the request of the plaintiffs the Court instructs the jury that if they find that the plain tiffs and defendants entered into the written contracts dated April 20, 1905, and supplemental contract dated May 9, 1905, admitted in evidence, for the erection of a factory building at Bush and Wicomico streets, in Baltimore City, and thereafter the defendants elected to have a concrete…

<p> Bond Executed by Surety , and Delivered to Obligee Without Execution by Principal—Mistake—Reformation in Equity—Hearing on Bill and Answer. </p> <p>If a surety executes a bond and gives it to the principal to be executed by him, and then to deliver it to the obligee, and the principal does so deliver it, having simply overlooked-the fact that he had not executed it, and the obligee accepts it, believing it was properly executed, not observing the failure of the principal to sign it, all three parties believing that it had been regularly executed and intending that it should be, equity has jurisdiction to correct the mistake by compelling the principal to execute the bond.</p> <p>When a Court of equity reforms a written instrument it can enforce it as reformed, administering full relief.</p> <p>The O. Company agreed to do certain construction work for a railway company, under a contract which provided that the C. Company should give a bond conditioned for its due performance of the contract. Thereupon, the C. Company gave to the railway company a bond executed only by the Aetna Company as surety, but designed to be executed by the O. Company as principal. The omission of the O. Company to sign the bond was not then noticed by the railway company, and the work was begun. Afterwards the railway company, alleging that the O. Company had failed to comply with its contract, rescinded the same and employed a third party to finish it at a cost in excess of the original contract price. The O. Company having been placed in the hands of a receiver, the railway company brought an action on the bond against that company, the receiver and the Aetna Company as surety. When it was discovered that the bond had not been signed by the officers of the C. Company, the bill in equity in this case was filed, asking the Court to direct these officers to execute the bond, alleging that the omission so to do was the result of an oversight. The C. Company admitted the allegations . of the bill, but the Aetna Company, which had been made a party defendant, filed an answer alleging that the execution of the bond by the O. Company was a condition precedent to liability on its part, and a condition upon which it was delivered to that company; also that the bond was void as to it and that the plaintiff had been guilty of laches. The answer also denied some of the allegations of the bill, and alleged that the Aetna Company had never consented to be bound until after execution by the C. Company, nor to a delivery of said bond prior to such execution, and since said bond was never executed by the C. Company it was a nullity. Held, that since the case was heard on bill and answer, when the averments of the answer must be taken as true, the trial Court erred in decreeing the relief asked for, as it does not clearly appear that the railway company is entitled to relief against the defendants.</p> <p>Held, further, that the cause should be remanded, to the end that the bill maj be amended and testimony taken, and if it be established that the railway company is entitled to have the bond corrected, the Court may 'dispose of the whole matter in the equity cause.</p>

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

<p>Receivers—When Not to he Appointed Without Notice— Appeal.</p> <p>A bill filed by a creditor of a corporation alleged tbat it was insolvent; that its property was in danger of distraint for non-payment of rent; that suits at law and attachments were threatened against it, and asked for the appointment of a receiver. Ro proof was offered in support of the averments of the bill and no evidences of debt were filed to show that the plaintiff was a creditor of the company. Held, that upon this bill a receiver should not be appointed without notice to the corporation and without a hearing, since it is not made to appear that there is imminent danger of loss and injury unless immediate possession of the property be taken by the Court.</p> <p>Upon appeal from an order appointing a receiver upon a bill alone, orders subsequently passed in the cause are not before this Court for review.</p>

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

Plaintiffs 3rd Prayer.—That under the evidence in this case the plaintiff was entitled to demand ice from the defendant in amounts up to 600 tons in any or each and every of the weeks within the said contract during the first year thereof, until 12,000 tons had been delivered, and that if it finds from the evidence that at a time when the plaintiff was entitled to the ice under the contract in evidence in this ease, if it shall so find, the defendant advised the plaintiff…

PlaAntijf’s 1st Prayer.—If the jury find from the evidence that on or about the eighth day of August, 1907, defendant owned, maintained, operated and controlled a system of wires in Annapolis and in Eastport in Anne Arundel County and upon the bridge spanning Spa Creek and connecting Annap'©lis and Eastport and that said bridge was a public highway •at said time, and that said wires were hung and suspended along the side of said bridge on cross bars attached to the ■bridge…

<p> Liability of Directors of Corporation for Mismanagement. </p> <p>The directors of a corporation are not personally liable for the _ consequences of their unwise management of its business, but are liable only for gross negligence or fraud.</p> <p>A bill by the receivers of an insolvent savings institution against the directors alleged that its funds were wasted and lost on account of the negligence and extravagance of the • defendants, and charged that they were personally liable for the loss. Held, that the evidence shows that the defendants acted in good faith, and had loaned the institution more money ■ than they had received from it in salaries; that all the money paid to the institution was fully accounted for; that the losses were caused by honest mistakes of judgment, and that consequently the defendants are not liable therefor.</p>

).. Plaintiff’s 3rd Prayer.—That there is no evidence in this case legally sufficient to show that the Southern Trust and Deposit Company had actual knowledge of any infirmity or defect in the check sued upon, or any knowledge of such facts that its action in taking said check amounted to bad faith. {Granted.) Plaintiff’s• 5th Prayer.-—If the jury shall find from the-evidence in this case that the defendant drew the cheek on the Eirst National Bank for eight hundred and…

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

). The prayers referred to in the opinion of the Court are as follows: Plaintiff’s 1st Prayer.—If the jury find from the evidence in this case that the two horses mentioned in the declaration, were the property of the plaintiff, and that at the time of the happening of the accident complained of said horses had escaped from the control of the plaintiff’s servants or agents and had strayed on the defendant’s railroad tracks, and that while on said tracks said horses attempted…

<p>False. Arrest omd Imprisonment—Liability of Railway Oom- • . pany for Assault and Arrest of Passenger at Station by Agent—Measure of Damages—Whether Agent Was Acting Within the Scope of His Employment— Instructions—Evidence.</p> <p>A person who comes on the grounds or approaches of a railway station for the purpose of taking passage on a train is a passenger, and the railway company is liable in damages for an assault there made on him without just cause by one of its employees, acting within the scope of his employment, and for the subsequent imprisonment of such person.</p> <p>When the arrest and imprisonment of a pássenger is made by an officer or agent of a railway company in charge of its station and grounds, it is for the jury to decide whether the arrest was made by the officer acting within the scope of his employment.</p> <p>In an action for false arrest and imprisonment, the jury was properly instructed that if they found for the plaintiff, under other prayers, then, in assessing damages, they are at liberty to take into consideration the nature of the force applied to the plaintiff, his sense of indignity and humiliation, and, award him such sum as, under all the circumstances .of the case, they may deem a fair and reasonable compensation therefor.</p> <p>When the evidence in the case is legally sufficient to show that the plaintiff was assaulted without just cause on the premises of the defendant, railway company, and that the person who made the assault was the agent of the company, acting within the scope of his employment, prayers offered by the defendant withdrawing the case from the jury for lack of evidence were properly refused.</p> <p>A prayer offered by the defendant railway company instructed the jury that if a third party asked.the defendant’s employee to arrest the plaintiff when he was not on the grounds óf the defendant, and the employee pursued the plaintiff and arrested him after he had gotten on the defendant’s premises, then the defendant is not liable. Held, that this prayer was properly rejected, and that the Court correctly told the jury, in place of it, that if they found that at the time the defendant’s employee first undertook to arrest the plaintiff, he was in the public highway, and that the actual arrest was made on the grounds of the defendant, in the course of the pursuit of the . plaintiff begun upon the highway, not in the course of the performance of his duties by the employee, then their verdict should be for the defendant.</p> <p>When the question is whether an arrest made by an agent of the defendant was made when he was acting within the scope of his employment or not, a witness cannot be asked to state whether that agent had ever previously, made an arrest of any person while acting as an officer of the defendant, within the scope of his employment as such. The error in the admission of such evidence is not cured by the circumstance that the Court admitted it only to show that the defendant had knowledge of the fact that such an arrest was within the scope of the agent’s duty. The opinion of a witness that other arrests were made by an agent within the scope of his employment is not admissible. The question of fact for the jury to decide was whether or not this arrest was made by the agent while so acting.</p>

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

<p>Entries in Account Boohs Made by Party to the Cause—Sale of Goods by Sample—Inferior Goods Delivered— . Evidence—Instructions.</p> <p>In an action by a firm to recover the price of goods sold entries in an account book made by one of the partners are not admissible in evidence.</p> <p>"When defendant ordered soapstone of a certain quality to be shipped to a third party by the plaintiff, in an action to recover the price, evidence is admissible to show that the goods as delivered were inferior to those ordered; that the plaintiff agreed that defendant might make an arrangement with the third party by which he would keep the goods after making a reduction in the price, and that soapstone of a higher quality might be mixed with the inferior at a reduction in the price thereof made for that purpose.</p> <p>When money has been loaned to a member of a firm, evidence is admissible to show whether it was the understanding of the parties that the money was loaned to the firm or to the individual partner who obtained it.</p> <p>In an action to recover the- price of goods which were sold by sample a prayer is erroneous which declares that the plaintiff is entitled to recover the price without requiring the jury to find that the goods delivered were equal to the sample.</p> <p>The buyer, in an action against him for the price of goods sold, is not entitled to have the jury instructed that an allowance should be made to him for the return of empty bags which had contained the goods, when there is no evidence in the case that any bags had been returned to the. seller.</p> <p>When the only evidence in the case is to the effect that the difference between the price of goods of the quality ordered and the price of goods of an inferior quality which were delivered was a certain sum, a prayer allowing the jury to deduct a larger sum from the seller’s claim is erroneous.</p>

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

<p> Conditional Contract—Performance of Condition Prevented by Promissor—Condition Dispensed With—Promise to Pay Debt When Promissor Collects a Claim—Failure to Collect—Assignment of Claim—Payment of Sub-Contractor Dependent Upon Receipt of Price by Contractor—Instructions—Evidence. </p> <p>If a party who has promised to pay a sum of money upon the happening of a certain event, prevents that event from taking place, the condition is dispensed with and the promise to pay becomes absolute.</p> <p>When a debt exists independently, but as to the time of payment the promise of the debtor is to pay if and when he collects a claim against a third party, he is bound to use due diligence to collect the claim, and if it be not collected by reason of his negligence or fault, the condition is discharged and his promise to pay is enforceable.</p> <p>If a party agrees to pay a debt due by him when he collects a certain judgment which he holds, his assignment of the judgment to a third party will' be treated as dispensing with the condition.</p> <p>Defendant had a contract to put up an electric light plant for a third party, and employed the plaintiff to do a certain part of the construction work, under a contract by which it was provided that defendant should make payments to the plaintiff when he was paid by the third party, and that if defendant did not receive the contract price, the plaintiff should stand his ratio of loss to the amount of the contract. The third party in question gave to the defendant judgment notes for the whole amount of the contract price upon which judgments were entered. The plaintiff did his part of the work, and the defendant completed his contract with the third party, upon which the whole contract price became due. Only a part of the price was paid, but the defendant refused the plaintiff’s request to enforce the judgments and afterwards he assigned them to other persons. In an action to recover the balance due to the plaintiff, held, that since the defendant had promised to pay his debt to the plaintiff upon receipt of a fund to which he was entitled and for the payment of which he had obtained enforceable judgments, the defendant was under an implied obligation to utilize the means at his command to enforce the payment by the third party upon which his liability to pay the plaintiff was conditioned.</p> <p>Held, further, that the plaintiff is entitled to recover in this action if the evidence shows that the judgments could have been enforced by due diligence, but remained uncollected through the negligence of the defendant, or if without the consent of the plaintiff, the defendant elected to refrain from issuing execution, or if he assigned to third persons these judgments in which the plaintiff was interested under his contract, and which, he was entitled to require the defendant to retain and enforce.</p> <p>Held, further, that the circumstance that the defendant thought that under an execution sale he might himself become the purchaser of the electrical plant, is immaterial.</p> <p>In the above-mentioned action, prayers, granted at the instance of the plaintiff, instructed the jury that it was the duty of the defendant to enforce payment of the judgments by execution within a reasonable time, and if the defendant did not do so and the amount of the judgments could have been collected, then the plaintiff is entitled to recover his proportionate part of whatever the defendant could have recovered from the third party. Also that if the defendant without the consent of the plaintiff elected not to issue execution but to indulge the third party as to the payment of the judgments, then the defendant is liable to the plaintiff for the amount due under the contract between them. Held,, that special exceptions to these prayers for lack of evidence to support them, were properly overruled, because there was sufficient evidence in the case to show that the judgments could have been collected in full, and there was also evidence that the defendant did not refrain from issuing execution by inadvertence, but as the result of deliberate decision taken in spite of plaintiff’s requests.</p> <p>Another prayer granted at the instance of the plaintiff instructed the jury that if the defendant assigned to other persons the judgments without the consent of the plaintiff, that constituted a wrongful conversion of the judgments to the extent of the interest of the plaintiff therein, and the plaintiff is entitled to recover his pro rata part. Held, that this prayer does not submit a question of law to the jury, since it was uncontradicted that the plaintiff had a substantial interest in the judgments; also that the reference therein to' the plaintiff’s pro rata part of the judgments, instead of to the value of his interest at the time of the conversion, is-immaterial, since the plaintiff’s pro rata part of the judgment was exactly equal to the amount due him under his contract.</p> <p>The relation between the plaintiff and the defendant in this case was not that of partners sharing profits and losses, but . that of debtor and creditor.</p> <p>The plaintiff in an action to recover for his work in constructing an electrical plant, who had testified that he had been an electrical contractor for many years; that he had installed nearly one hundred plants of the character of that referred to in this case, and that he had had occasion to value plants of that description, may be asked what in his judgment, founded upon that experience, was the fair value of the plant in question when he saw it in operation.</p> <p>In an action to recover a sum of money alleged to be due, evidence that the defendant would have been able or disposed to pay it if a certain event had happened is irrelevant.</p>

<p>Appeal from the Circuit Court for Harford County where there was a judgment on verdict for the plaintiff for $9,000.</p>

<p> Appeal—Summons and Severance—Liability of Railroad Company for Assault Made by Its Special Policeman—Officer Not Acting Within Scope of His Employment. </p> <p>AYhen one of the two defendants in a joint judgment has not appealed, and the other defendant, who does appeal, applies for a writ of summons and severance, which is returned non est as to the other defendant, the better practice is for the appellant to support then his application for a severance by affidavits showing what efforts have been made to find the other defendant, or to have him,unite in the appeal. If he can be found outside of the State, the Court may authorize notice of the application for severance to be served on him where found, and if his whereabouts cannot be ascertained, the Court can grant a severance.</p> <p>The record in this case showed that A. and B., the two defendants against whom a joint judgment was rendered, filed an order for an appeal. Afterwards A. applied for a writ of summons and severance on the theory that he alone had taken the appeal. Two returns of non est as to B. were made to the writ. At the argument of the appeal B. did not appear, and no brief was filed by him. Held, that no injury can be done to B. by granting a severance, since, if he did enter an appeal he was in default, and if he did not, the time to do so has expired.</p> <p>AYhen a special police officer employed by a railway company makes an assault upon a person or arrests him on the premises of the company, it is generally a question for the jury whether the officer was at the time acting within the scope of his employment so as to render the company liable for an unjustifiable assault or arrest. But when an assault or arrest is made by an employee not on the premises of the company, and not for an offense of which the company had a right to complain, the Court will determine as matter of law, that the employee was not acting within the scope of his employment.'</p> <p>One H. was appointed hy the Governor a special policeman for the protection of the property of a railway company and for the preservation of peace on its premises, and he had made arrests of men for stealing rides on freight trains and of persons who were disorderly on the premises of the railway company. The plaintiff, who had been employed by the company, was discharged by a track foreman. A few days after-wards, H. was informed that the plaintiff had made threats against the foreman and was lying in wait to do him harm. Thereupon H. assaulted the plaintiff on a public highway, heat him severely and arrested him on the charge of carrying concealed weapons. Plaintiff had done nothing that would justify his arrest by the company or its agents, and was not on the premises of the company at the time of the arrest. In an action to recover damages therefor, held, that under these circumstances it was necessary, in order to recover against the railway company, for the plaintiff to' show that the a-s-s'ault and arrest were made by its authority or were within the scope of the employment of H., and since there was no evidence to that effect, the plaintiff was not entitled to recover against the railway company. 1</p>

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

<p> Bill to Restrain Execution on Judgments—Magistrate’s Judgments Improperly Entered—Laches in Prosecution of Suit. </p> <p>Plaintiff alleged that certain judgments rendered against him by Justices of the Peace had been rendered without his knowledge or consent, although purporting to have been made by confession; that certain other judgments entered against him by Justices and assigned to the defendant had been paid, and that the total amount of his real indebtedness to the judgment creditor was much less than the amount of the outstanding judgments. Held, that the evidence establishes most of the averments of the bill, and that the defendant should be enjoined from enforcing the judgments by execution upon payment by the plaintiff of a certain sum ascertained from the testimony to be the real amount of his indebtedness.</p> <p>The entry of a judgment against a party, whether made in consequence of a mistake or of a misrepresentation as to his identity, is void if he was not served with process or did not confess the judgment.</p> <p>When the person to whose use certain magistrates’ judgments were entered sought to enforce them, the judgment debtor, in November, 1904, filed a bill to restrain the execution. The defendant’s amended answer was filed in March, 1908, and the cause was tried in August, 1909. Held, that there was not such laches in the prosecution of the suit as requires the dismissal of the bill.</p>

). The prayers referred to in the opinion of the Court are as follows: Plaintiff’s 1st Prayer,.—The jury are instructed that it was the duty' of the defendant to keep its railroad tracks and right of way clear of-combustible materials; and if the jury find that the defendant negligently permitted sedge grass and weeds and hushes likely to be ignited from sparks issuing from its engine to be and remain upon its right of way between the Wysong Trestle and the old Preston Mill…

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

<p> Benefit Societies—Change in By-Law Invalidating Previous Designation of Beneficiary. </p> <p>An unmarried man on becoming a member of a benefit society designated his mother as his beneficiary in case of his death,, in accordance with the rules of the society then in force. He agreed to conform to the existing by-laws or those which might thereafter be adopted. He afterwards married and died, leaving his widow surviving, without having changed the designation of his beneficiary. Both his mother and his widow claimed the fund which became payable under the certificate on his death. After he became a member and before his marriage, the society adopted a new by-law, which provided that when an unmarried man or widower designated as his beneficiary a person other than his own children, and subsequently marries, the subsequent marriage of such member will have the effect of rendering such designation void. . But it shall be lawful for such member to redesignate the same beneficiary. Should such member die without making a new designation, then the benefit shall be paid in accordance with a certain classification under which the benefit is payable first to the member’s wife, second, to his children, etc. Held, that this by-law is retroactive in its operation, and has the effect of invalidating or terminating the designation of this member’s mother as his beneficiary and of substituting his wife.</p> <p>The mere designation of a person as beneficiary by a member of a mutual benefit society does not confer upon the person so designated any vested right in the fund on the death of the member.</p>

<p> Time of Vesting of Remainders After a Life Estate—Stare Decisis—Construction of a Will—Contingent Remainders. </p> <p>When an estate is given by will or deed to become the property of the donee after the termination of a preceding particular interest therein in another person, and the question arises as to when the estate vests in interest in the donee, and as to whether it passes to his heirs in case of his death before the cessation of the preceding estate, two of the established principles of construction are, first, that the law favors the early vesting of estates, and the Court will, as a general rule, adopt the earlier period of vesting, when there is more than one ■mentioned, if not in conflict with the apparent intention of the testator; and, second, that notwithstanding the preference of the law for early vesting, the testator has the right to fix the period of vesting at his pleasure, and to make it depend ■upon a contingency, and when he has done this with reasonable certainty, his wishes will prevail, and the estate will not vest until the happening of the contingency.</p> <p>When the particular expressions or words by which an estate in remainder was created by a will have been construed by a decision of this Court, and a definite meaning attached to them, then in a subsequent ease, where the language used in another will is in effect the same, the doctrine of stare decisis demands that the same construction be made.</p> <p>A testator gave all of his property to a trustee to hold the same and to pay the net proceeds to his wife during her life, and from and after her death, “this trust shall cease, and the property shall then become the property of all my children, in equal shares or portions, and their respective heirs, executors, administrators and assigns, the child or children of any deceased child in all cases to take the share of the parent.” Some of the testator’s children died before the termination of the life estate. Held, that the remainders to the children did not vest during the life of the testator’s widow, but that they all took contingent remainders dependent upon their surviving her; that in the event of the death of any child during her life leaving issue, such issue would he entitled to the share of its parent; that since those of the testator’s children who died in the lifetime of the widow left no issue, the whole estate upon her death passes equally to the surviving children.</p>

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

es, J.). Plaintiffs 7th Prayer.—That the letter of July 10th, 1908, written by the defendant to the plaintiff, offered in evidence, taken together with the failure of the defendant to make any demand upon the plaintiff for the payment of the monthly instalments of $30 mentioned in the paper writing bearing date July 3rd, 1908, and the failure of the defendant to tender to the plaintiff, a good and sufficient deed conveying the three lots mentioned in said paper writing to…

<p> Construction of an Agreement for Dissolution of Partnership. </p> <p>C. and S., partners, who were the lessees of a warehouse, filed a hill against the landlord claiming to he reimbursed for the expenses paid by them in taking down and rebuilding a part of the premises which had been condemned by the Inspector of Buildings. At the time of the rebuilding the partners erected certain fire shutters. Pending the decision of this case, the partnership was dissolved under an agreement by which C. paid to S. a sum of money for all his interest in the property of the firm, and S. assigned to O. his interest in the leased premises. It was agreed that all liability of the firm to the landlord under the pending case should be equally shared, and that all claims that might be recovered by the firm from him should be equally divided. It was finally decided in that case that the landlord was liable for all the expenses paid by the firm in rebuilding the warehouse except the cost of the fire shutters, which had been supplied with a view to the insurance on the property. Held, that S. had transferred all his interest in the fire shutters to C. under the agreement for dissolution, and now has no- right to demand that O. should pay one-half of the cost thereof.</p>

<p>Appeal from the Gircuit Court for Cecil County (Hopper, JO.</p>

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