Volume 113 — Maryland Reports

<p>Easement of Right of Way Appurtenant to Land Granted— Recovery in Ejectment.</p> <p>While an action of ejectment cannot he maintained for an easement alone, the easement can he recovered in an action of ejectment for the land to which it is appurtenant, and the delivery by the sheriff of the possession of the land carries with it the possession of the easement.</p> <p>When a deed conveys a lot of ground for a sewerage plant, and also a right of way in adjacent land for the sewer pipes, the easement of the right of way is essential to the proper enjoyment of the land granted, and is appurtenant thereto.</p> <p>A deed conveyed a lot of ground containing about one acre, and also a right of way in adjacent land subject to an agreement by which the right of way had been conveyed to a former owner for the purposes of a proposed sewerage system. The habendum clause was, to have and to hold the right of way and lot of ground to the use of the grantee, his heirs and assigns, in fee simple. Held, that under this deed the grantee acquired an easement in the land described in the right of way, and nott the fee simple estate.</p> <p>Held, further, that the right of way is an easement appurtenant to the land, and not an easement in gross.</p> <p>Held, further, that in an action of ejectment, the grantee is entitled to a judgment for the right of way as appurtenant to the lot of ground also conveyed by the deed.</p>

<p>Aj>peal from the Circuit Court for Harford County (Vast Bibbeb, J.).</p> <p>The decree of the Circuit Court stated that this Court hereby assumes jurisdiction over the trust created by the last will and testament of James Smith, deceased, in favor of the defendant Harriet E. Smith for life with remainder over in equal shares to the complainant and to the defendant William A. Smith, a copy of which said will is filed in those proceedings ; and it is further</p> <p>Adjudg’ed, ordered and decreed that the defendants, Har riet E. Smith and William A. Smith, be and they are hereby appointed trustees to hold the fund distributed to themselves as executors by their second account passed in the Orphans’ Court of Harford County on the 9th day of September, in the year 1908, and that before they proceed to act as such trustees they shall file in this Court a bond with sureties to be approved by this Court or the clerk thereof for the faithful discharge of their trust in the penalty of thirty-three thousand dollars; and it is further</p> <p>Adjudged', ordered and decreed that the said defendants as executors of James Smith within sixty days from the date hereof, file in this Court a detailed statement of the funds in their hands as aforesaid, and where and how the same are invested, with such description of the investments and their sufficiency for the security of the sums so invested as will enable an examination thereof and a determination of the sufficiency of said investments, and that said executors forthwith account with and turn over to themselves as trustees under this decree all funds belonging to said estate.</p> <p>The cause was- argued before Boyd, O. J., Briscoe, Pearce, Sohmucicer, Burke, Tijomas, Pattisoh and Urker, J.J.</p>

<p> ■Appeal—Presumption Against Appellant When Record is Not Transmitted Within the Time Prescribed. </p> <p>When the transcript o£ a record on an appeal has not been transmitted to this Court within the time prescribed by law, the effect of Code, Art. 5, sec. 40, is to create a presumption that the appellant was responsible for the delay, and to impose upon him the burden of showing that the failure to forward the record in due time was not the result of his own neglect, but was due to the fault of the Clerk of the lower Court or of the appellee.</p> <p>In this case, the affidavit of the appellant and that of the Clerk of the lower Court contradicted one another as to the responsibility for the delay in sending up the record, and it is ruled that, under the circumstances, the appellant has failed to rebut the presumption that this delay was caused by him.</p> <p>If appellant’s counsel promised the Clerk of the lower Court to designate the papers which should be included in the record on appeal, and failed to do so until it was too late to make and forward the record in the time allowed, he will not be relieved from the consequence of this omission merely because he had incorporated a formal order for the transmission of the record in the prayer for appeal.</p>

<p> Market Stalls—Injunction to Restrain Execution—Bill to Vacate Assignment of Market Stall—Evidence. </p> <p>A right to use and occupy a market stall is an easement which may he transferred hy hill of sale. hTo injunction will be granted to restrain the execution of» a judgment which has already been executed.</p> <p>Plaintiff’s bill alleged that she was the owner of a market stall; that the defendant claimed to be the owner of the stall under a bill of sale alleged to have been executed by her and providing that she should occupy the same as tenant at a weekly rental; that she had never executed the alleged bill of sale, and that the defendant had obtained by fraud a judgment against her for the restiution of the stall and for rent claimed to be due. The bill prayed that the bill of sale for the stall and the judgment be declared null and void; that the defendant be enjoined from executing the judgment and from interfering with plaintiff’s possession of the stall. Held, upon an examination of the evidence, that the allegations of the bill are not sustained, but that the plaintiff had duly executed the bill of sale of the stall and that the judgment had not been obtained hy fraud.</p>

<p>Appeal from the Circuit Court for Charles County (Camalier and Clagett, JJ.).</p>

<p> Libel—Publication of Merchant's Name With Rating Understood to Show Lack of Credit—Words Used in Special Sense-—Demurrer. </p> <p>When the words alleged to be a libel upon the plaintiff are not actionable ‘per se, but are made actionable because a special damage was suffered by the plaintiff from the publication, that special damage must be explicitly stated in the declaration and proved at the trial.</p> <p>To publish of a merchant anything that imputes insolvency, .or . the want of integrity, or incapacity, is libelous per se, .if without justification, and general damages may be 'recovered.</p> <p>Words are to be taken in their natural and ordinary meaning, unless it be alleged and proved that they were used by the defendant and understood by others in a different sense.</p> <p>•V declaration alleged that the defendants, maliciously intending to injure plaintiff in his business because he had ceased to subscribe to a book or list of commercial rating issued by the defendants, caused the plaintiff’s name to be printed in air edition of the book without any letter or figure standing alongside of it, the same'being what is designated as a blank rating; that such blank rating, according to the key published in the book, was purported to be published as meaning a person whose business and investments render it difficult to rate satisfactorily, but that the common acceptation in the trade and among the subscribers to the book was that the person so rated blank is worthless as to his financial condition, untrustworthy as to his character and unworthy of credit in commercial transactions, and that the publication of the said libel utterly destroyed the credit which the plaintiff had theretofore enjoyed and caused many persons from whom plaintiff had bought goods to demand immediate payment and to refuse to sell plaintiff goods on credit as theretofore, so that the plaintiff was seriously injured, etc. Held, on demurrer, that this declaration sets forth a good cause of action, since if the publication of the plaintiff’s name with the-blank rating was understood by the public in the sense alleged, and the defendants knew that it would be so understood, such publication, if not justified, was libelous per se.</p>

<p>Appeal from the Circuit Court for Cecil County (Pearce, O. J., Auxins and Hopper, JJ.).</p>

). Defendant’s 7th Prayer.—That there is no evidence that Twenty-Second street, as testified to, both in front and in I’ear of the plaintiff’s property is a public street, or that it was opened, graded, paved or curbed by the defendant, and that there is no evidence legally sufficient to show that the course in which surface water flowed prior to the opening, grading, paving and curbing of Twenty-Second street at the time the damages are alleged to have happened was…

<p>Constitutional Law—Impairing Obligation of Contract— Change in Remedy Given to Creditors of Corporation Against Stockholders—Who May Question the Constitutionality of a Statute.</p> <p>When the means and remedies provided by law for the enforcement of a contract are so changed by a subsequent law as to lessen the value of the contract or to affect a substantial right secured by it, the subsequent law is void because in conflict with the provision of the Federal Constitution, which declares that no State shall pass any law impairing the obligation of contracts. But a subsequent law modifying or changing the remedy for the enforcement of an existing contract is valid when it provides another remedy as efficacious as the previous one, and by which no substantial right is impaired.</p> <p>Prior to the enactment of the Act of 1908, Chap. 305, the creditor of a corporation was entitled to bring an action at law against any stockholder therein who had not fully paid his subscriptions for the stock and who was such at the time the debt to the creditor was contracted, and the creditor could recover from him to the extent of the balance due on his stock subscription. But the institution of such shit did not give to the creditor any exclusive right to the sum due by the stockholder to the corporation for his sotck. Other creditors could afterwards bring suits against the same stockholder, and if they obtained judgment earlier they would be entitled to the balance due, or the stockholder could voluntarily pay any other creditor of the corporation and thus extinguish his liability. While this law was in force, plaintiff brought an action as creditor of a corporation against the defendant to enforce his liability as a stockholder who had not fully paid for his shares. Before a judgment was entered the Act of 1908, Ohap. 305, was passed, providing that pending actions at law to enforce stockholders’ liability to creditors of a corporation should be abated, and that their liability should be enforced by a bill in equity on behalf of all of the creditors of the corporation against all the stockholders resident in the State, the amount recovered to be divided among the creditors pro rata. Held, that this change in the remedy afforded to the creditor to enforce the liability of stockholders did not impair the obligation of the contract within the meaning of the provision of the Federal Constitution, since the new remedy provided by the Act of 1908 is more adequate and efficacious than that which existed under the previous law, and that the Act of 1908 is valid.</p> <p>A party whose rights are not affected by the provision in the statute relating to the time within which suit should be instituted will not be heard to question the constitutionality of such provision.</p> <p>The General Incorporation Law, Act of 1908, Chap. 240, which took effect June 1st, 1908, provided that it should not affect the rights and remedies of creditors of corporations existing on that day. Held, that, although this Act is a substitute for the law relating to corporations then in force, it expressly saves the rights given to creditors by the Act of 1908, Chap. 305.</p>

<p>Elections and Voters—Appeal from, Order Relating to Nomination of Candidates After Holding of Election—</p> <p> Moot Question. </p> <p>Plaintiffs filed a bill asking a Court of Equity to enjoin the Supervisors of Elections of a county from placing on the official ballot, to be used at an approaching election, the names of certain persons nominated for office by certificate, upon the ground that the persons signing the certificate were not entitled to do so under the statute relating to nominations. . From the decree of the lower Court dismissing the hill, the plaintiffs entered an appeal more than a month after the election had been held and seven weeks after the decree was passed. Held, that, even if it he assumed that a Court of Equity has jurisdiction in the premises, still no relief can now he granted or result achieved hy any order of this Court, and no further proceedings could he had upon a remand of the cause, and that, since a mere moot question as to the construction of the statute is involved, the appeal will he dismissed.</p>

<p>Adverse Possession—Mistake in Deed as to Boundary of Land— Evidence—Payment of Costs of Record on Appeal.</p> <p>In 1813, plaintiff agreed to purchase one acre out of a larger tract of land. When the acre was first measured by a sxirveyor in the presence of the vendor and of the plaintiff, the former objected to the shape of the lot, and the surveyor then made a different location of two of the lines, and at the same time told the vendor that the tract so located would contain more than an acre, but the vendor agreed to the second location. The deed as executed, by mistake of the venT dor, described the land according to the first location, but the purchaser took possession of it as marked in the second location and enclosed and cultivated that land. More than twenty years/afterwards, and after the death of the vendor, his land was sold to the defendant, who, upon having a survey made, discovered that a part of the land so occu^/ied by the plaintiff was within the lines of his deed. He then removed plaintiff’s fences and entered upon the part of the land not described in the deed to the plaintiff. In an action of trespass q. c. f. held, that the plaintiff did not take possession of any part of his land as a gift, and that since he had been in actual and exclusive possession of the land for more than twenty years, he had acquired a valid title thereto by adverse possession, although some of it was not included within the lines of his deed, and that he is consequently entitled to maintain the action.</p> <p>When the purchaser of land did not know at the time of the purchase that a certain boundary fence had been erected under a mistake as to location, evidence that he then accepted the line as it stood is inadmissible.</p> <p>Evidence that the vendor of land measured a certain boundary line as the one finally agreed upon is admissible to show what land was sold, and also to show that the vendor had knowledge of the extent of the subsequent possession by the purchaser.</p> <p>When the question is whether a party had been in possession of certain, land, a witness cannot be allowed to state that that party took possession of the land, as far as he knew, without disclosing what knowledge he had or by what acts possession was taken.</p> <p>In order to prove adverse possession, evidence that a witness never heard of anybody else besides the plaintiff being in possession is not competent.</p> <p>An appeal will not be dismissed merely because the appellant did not comply with Rule 34 of this Court, which requires the appellant to pay the costs of printing the record on appeal within ten days after receipt of a notice of the amount of the costs. The rule does not prescribe that penalty.</p>

<p>Appeal from the Circuit Court for Wicomico County (Holland and Jones, JJ.), where there was a judgment on verdict for the plaintiff for $8,500.</p>

<p> Accord and Satisfaction—Use of Check offered, in Full Settlement of Disputed, Claim—Certification of Check—Harmless Error. </p> <p>When there is a controversy between a debtor and creditor as to the amount due by the former, or if the debtor asserts that he is entitled to a recoupment against the sum claimed, then if he sends to the creditor a check for a smaller sum than that demanded, stating that it is in full settlement of the claim, and that if the offer is not accepted, the check is not to be used, the use of such cheek by the creditor constitutes . an accord and satisfaction, by which his entire claim is extinguished, although at the time of receiving it he declares that he does not accept it in full satisfaction, but only in part payment.</p> <p>If in such case the creditor causes the check to be certified by the bank on which it is drawn, that is such a use of the check as amounts to an acceptance of the debtor’s offer, although the creditor, had not obtained the money on it up to the time of the trial of his action to recover the full amount of his claim.</p> <p>The certification of a check by a bank operates to appropriate the funds of the drawer to the amount of the check, which is thereby converted into a certificate of deposit upon which the bank becomes the debtor of the holder.</p> <p>The defense of accord and satisfaction is available under the general issue plea in assumpsit.</p> <p>If a demurrer to a plea setting up a special defence to the action is improperly overruled, but the defendant makes the-same defense at the trial under his general issue plea, the overruling of the demurrer is a non-reversible error.</p>

<p> Taxation—Increase of Assessment on Land Decreed to be Sold in Equity—Notice of Proposed Increase of Assessment—Remedy by Appeal. </p> <p>The Appeal Tax Oourt of Baltimore City has the power to increase the assessment on land after a Court of Equity has passed a decree directing the sale of the land and appointing a trustee to make the same, but before a sale has been actually made. In such case, no sale of any part of the land for taxes could be made without the permission of the Equity Court, but.that permission is not necessary for the making of an increase in the assessment.</p> <p>A tract of land was owned by a tenant for life with remainder to bis issue. Under a decree of a Court of Equity be was appointed trustee to sell tbe land. Before a sale was made, a notice was served on him individually, stating tbat tbe Appeal Tax Court would increase tbe assessment of the land at a certain time in tbe future. He then filed tbe bill in tbis case asking tbat tbe Tax Court be enjoined from increasing tbe assessment. Tbe Act of 1908, Cbap. 167. provides tbat any person aggrieved because of any assessment of bis property may appeal to the Baltimore City Court to review the same; tbat tbat Court shall ascertain tbe proper assessment, and tbat the proceedings of tbe Tax* Court shall not be declared void, provided due notice thereof shall have been given. Held, tbat although tbe notice in tbis case was addressed to tbe plaintiff personally and not as trustee, yet be was thereby informed of tbe increase proposed to be made in tbe assessment, and tbat since be bad a complete remedy by appeal to tbe City Court, be is not entitled to apply to a Court of Equity.</p>

<p> Tesied and Contingent Remainders—Death of Remainderman During Existence of Particular Estate—Devise of Residue Subject to Conditions Annexed to Specific Bequest. </p> <p>When a testator ci’eates a life estate in certain property and, upon its termination, gives two alternative remainders therein, first, to the children of X. if he has any, and, secondly, if he has no issue to the testator’s heirs at law, these remainders, during the life of X., are contingent, that to his children being dependent upon their living at the time of his death, and that to the testator’s heirs being dependent on X.’s dying without issue.</p> <p>But upon the death of X., leaving a child surviving, the remainder to the child becomes vested, although the preceding life estate had not expired. The other alternative remainder is then destroyed, and the testator’s heirs at law cannot take, although X.’s child dies before the end of the life estate; since the remainder to the heirs was limited to take effect only in the event of the death of X. without issue.</p> <p>A remainder limited to take effect after a life estate is not made a contingent remainder by the fact that it may never take effect in possession on account of the possibility of the remainderman’s dying before the life tenant. If the remainderman is in esse and ascertained, and he would be entitled to possession at once, upon the termination of the life estate, then the remainder is vested in him.</p> <p>When a remainder is vested and the remainderman dies before the termination of the preceding estate, his right is not thereby divested, but his interest passes to his heirs at law or next of kin, if he dies intestate.</p> <p>A testator devised and bequeathed property to be held in trust for the benefit of his nephew Joseph during his life; after his death for Joseph’s daughter Sarah, during her life, and to her children in fee if she should leave issue. If she died without issue, the property was given to the testator’s heirs at law. Sarah died during the lifetime of Joseph, leaving an infant son surviving her, who afterwards died, also in the lifetime of Joseph. Held, that upon the death of Sarah the remainder became vested in her son, and on the death of Joseph, the heirs at law and next of kin of Sarah’s son are entitled to the property to the exclusion of the heirs at law of the testator.</p> <p>Certain property was given by a will to a trustee for the benefit of X. for life; after his death for his daughter for life, then to her issue if she die leaving issue, but if she die without issue, then to the heirs at law of the testator. By a codicil, the testator directed that the rest and residue of his estate should be divided into three parts, and he gave one of these parts to X., “subject to the same trusteeship and conditions as stated in my will.” Held., that the daughter of X. and her issue are entitled to one-third of the residue of the estate in the same manner in which they took interests in the property devised to them by the will.</p>

<p>Appeal from the Circuit Court of Baltimore City (Heuisler, J.).</p> <p>The cause was submitted to the Court on briefs by:</p>

<p>Appeal from the Circuit Court for St. Mary’s County.</p>

<p>Appeal from the Circuit Court of Baltimore City (Heuisler, I.).</p> <p>The cause was submitted to the Court on briefs by:</p>

). The prayers mentioned in the opinion of the Court are as follows: Plaintiffs Prayers. (1) The plaintiff prays the Court to instruct the jury that the undisputed evidence in this case is that the policy of insurance declared in this case is the policy of the defendant company and that the same has been properly executed by said company and delivered to the plaintiff.

<p>Appeal from the Circuit Court for Prince George’s County (Briscoe, C. J.).</p>

<p> Abandonment of Purpose for Which Land Had. Been Oonveyed in Trust—Reverter—Marketable Title. </p> <p>"When the grantee, to whom land had been conveyed by a deed absolute in terms, subsequently declares in a deed of the land to a corporation that the conveyance had been made to him in trust for the uses of the corporation, then, upon the abandonment of the property by the corporation, the title reverts to the original grantor, who has the right to re-enter and take possession.</p> <p>In 1832, M. conveyed land to certain persons as joint tenants. In 1837, these grantees conveyed the land to an Academy, stating that the deed to them was designed and intended, though not expressed, to be for the benefit of the Academy, which was to be thereafter incorporated. In 1870, the land had been wholly abandoned by the Academy. In that year, M. re-entered and took possession, and lie and Ms heirs have since been in exclusive possession. Held, that they now have a valid title to the land which a purchaser may be required to accept.</p>

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

<p>Election to Affirm or Rescind Contract Obtained by Fraud— Waiver of Right to Rescind by Inducing Third Parties to Act upon Promise to Affirm—Answer in Equity Ashing for Cross-Relief—Corporations—Payment of Capital Stoch as Condition of Legal Existence—Legislative Recognition of Validity of Corporation.</p> <p>When a party who has the right to rescind a contract because he had been induced to make it by fraudulent representations as to a material fact, and who has knowledge of the fraud, says to persons interested in the performance of the contract, although not parties to the contract itself, that he will not rescind, provided certain things be done, and these persons, relying upon this statement, do those things, then the party defrauded has made his election, and the right to rescind the contract is lost.</p> <p>The Munich Co. agreed with the U. Surety Co. to take 333 shares of its capital stock and to enter into a participation contract with it by which the Munich Co. was to receive one-third of the profits of the business of the Surety Co. and to pay one-third of its losses, provided the whole capital stock of the Surety Co., amounting to 5,000 shares, and a certain surplus on each share, should first be subscribed for and paid in. The then President of the Surety Co. falsely represented to the Munich Co. that the whole capital and surplus had been so subscribed for except 237 shares, and that these and all of the capital and surplus would be paid in within two weeks. The Munich Co. then paid for its shares and executed the participation contract. The bill in this case filed by the Munich Co. alleged the fraud and that it had rescinded the contract and asked for a decree cancelling the same. The Surety Co.’s answer alleged that the Munich Co. had ratified the contract after having knowledge of the fraud, and prayed for an accounting of the indebtedness of that company to it under the terms of the contract. The Munich Go. contended that it had only ratified its subscription to the shares of stock and had not ratified the participation contract. An examination of the evidence in the case shows that after the agents of the Munich Co. had notice that over 2,000 shares of the Surety Co. had not been paid for, together with the surplus, a meeting of the directors of the Surety Co. and other persons interested was held to consider its affairs; that at the meeting a representative of the Munich Co., who had knowledge of the stock subscription and of the participation contract, announced that the Munich Co. would rescind its subscription and the participation contract on account of the false representations; that thereupon the persons present agreed to subscribe for the balance of the capital stock of the Surety Co. and pay for the same and the surplus within two days if the Munich Co. would withdraw its rescission and carry out the contract; that the representative of the Munich Co. agreed to ratify both its stock subscription and its participation contract if that were done; that the remaining shares of stock were immediately subscribed and paid for according to this understanding, and that this action of its representative was authorized and ratified by the Munich Co. Held, that under these circumstances, the Munich Co. has waived its right to rescind its agreement with the Surety Co. and the same is binding, and that the Surety Co. is entitled to an accounting under its answer of the indebtedness of the Munich Co. to it under the participation contract.</p> <p>The defendant in an equity suit may ask for relief against the plaintiff by his answer instead of by cross-bill, but, as a general rule, the plaintiff in his reply to the answer cannot set up new grounds for the relief inconsistent with those in the original bill.</p> <p>The charter of the U. Surety Co. (Act of 1902, Chap. 479,) contemplated that the whole of its capital stock should be subscribed for before the organization of the company. It did not require that 50% on each share should be actually paid in before organization, but only that 50% of the aggregate capital should he paid. Therefore, when more than that amount 'had been paid in, and it does not appear that all of the stock had not been subscribed for, a contract made by the Surety Co. is valid, since the company had come into legal existence.</p> <p>After a Surety Co. had paid its bonus and franchise taxes, and had received a license to do business from the Insurance Commissioner of the ■ State, and had made to the Commissioner a report of business actually done, but when all of its capital stock may not have been subscribed for as required by its charter, an Act of the Legislature was passed to amend the charter and extend its powers in which the company was spoken of as a corporation. Held, that this Act is a legislative recognition of the validity of the existing corporation and not merely of the validity of its charter, since the Legislature had the power to relieve it of the necessity of having all its stock subscribed for if such necessity existed under the original charter.</p> <p>When the answer of a defendant in an equity suit, denying the right of the plaintiff to maintain the bill, asks for relief against the plaintiff, and the facts of the case support the averments of the answer, a decree dismissing the original bill and granting relief to the defendant is proper.</p>

<p> Taxation of Beal Estate in Territory Annexed to Baltimore City. </p> <p>Under the Acts of 1888, Ch. 98, and 1902, Ch. 130, relating to the taxation of real estate in the territory'annexed to Baltimore City under the former Act, an area of ground partly improved and bounded by streets graded and paved, the area containing 200,660 superficial square feet, was not subject to taxation at the full city rate for the year 1908, but was taxable at the suburban rate prescribed by those Acts for a block of ground containing more than 200,000 square feet.</p>

<p> Mortgage Sale Vacated for Inadequacy of Price and Insufficient Advertisement. </p> <p>The advertisement of a mortgage sale of leasehold, property which was subject to a ground rent of $120 a year with the right to collect a sub-rent of $49 a year, ánd which was improved by a three-story brick dwelling house and á one-story office building and a stable, after describing the property by metes and bounds, added: “Ground rent $120, improved by a three-story brick dwelling.” After the first publication of the advertisement, it was amended so as to read: “Subject to an annual ground rent $120,.with a right to collect a sub-rent of $49.” cTbe nptice of the sale was put in the window of the office building,, but not on the dwelling house. The property was sold for $1,725. Upon exceptions to the ratification of the sale, the evidence was uncontradicted to the effect that the fair market value of the property was $3,500. Held, that on account of the inadequate price obtained, considered in connection with the failure to advertise the property so as to show the extent of the improvements, and the omission of any reference to the sub-rent in the first notice, the sale should be set aside, and a re-sale ordered.</p>

<p> Consolidation of Corporations—Power to Issue Bonds Under Mortgage Executed by a Constituent Corporation—Bona Fide Holder of Bonds Improperly Issued—Subrogation—Ex Parte Order Directing Trustee to Certify Bonds. </p> <p>When two corporations have been consolidated and, under the statute regulating the consolidation, the new company acquires the property, powers and liabilities of the constituent companies, the new consolidated company is not authorized to issue an obligation in the name of one of the former companies so as to carry with it the security of a specific mortgage executed by that company, which contained no provision authorizing future obligations to be issued by the consolidated company.</p> <p>If a consolidated company issues bonds purporting to be entitled to the lien of a mortgage previously executed by one of its constituent corporations, but wbicb are in law not so entitled, and applies the proceeds to the purchase of property, having represented that the property will be conveyed to a trustee to secure payment of bonds, the consolidated company cannot be heard to deny the validity of the bonds in the hands of bona fide holders for value, and these holders are entitled by way of subrogation to the benefit of the lien of the deed of trust of the property made by the consolidated company, to the extent to which the proceeds of the bonds were used in payment for the property.</p> <p>When the trustee under a mortgage executed to secure bonds applies to a Court of Equity for its direction in the administration of the trust, and that Court passes ex parte orders merely on a petition authorizing the trustee to certify certain bonds as being entitled to the lien of the mortgage, those orders are not an adjudication that the bonds were properly issued or that they are entitled to the lien of the mortgage.</p> <p>A gas company executed a mortgage to a trustee of all of its property to secure an issue of bonds, a part of which were to be delivered forthwith to the company, a part were to be used to take up underlying mortgages and liens on the property, and a third part were to be thereafter issued to pay for property that might be subsequently acquired for the uses of the company. The mortgage prescribed the precise conditions under which this third class of bonds should be issued, but did not authorize their issue in the event of the consolidation of the gas company with another corporation which would put an end to the legal existence of the gas company. Afterwards the gas company was consolidated with an electric light company, and a new consolidated corporation formed. It was held on a former appeal that the consolidated company had no power to issue bonds for property acquired by it which would be entitled to the lien of the gas company’s mortgage. Before that decision was made, the consolidated company had issued, and the trustee under the gas company’s mortgage had certified, certain bonds, the proceeds of which were uesd to acquire additional property by the new company, as well as certain other bonds which were issued to take up underlying liens. Held, that the trustee under the gas company’s mortgage should he directed to certify those bonds as being entitled to the lien of that mortgage which were issued by the consolidated company as the successor of the gas company to take up prior lien bonds, since to do so would be to complete the performance of covenants in that mortgage, and since, when the gas company’s property was transferred to the consolidated company, the transfer was expressly made subject to existing liens, and that included the bonds to be issued thereafter which would be beneficial to all parties interested, by discharging prior liens.</p> <p>Held, further, that the bonds issued by the consolidated company and certified by the trustee under the gas company’s mortgage, the proceeds of which were applied to the acquisition of additional property to be used in its gas business, are not entitled to security of that mortgage, since the conditions prescribed for the issue of such bonds could not be complied with by the consolidated company after the gas company had ceased to exist, and that the bona fide holders of these bonds are not entitled to the lien of that mortgage.</p> <p>Held, further, that the consolidated company is liable to the holders of such bonds in the same manner as if they were its own obligations.</p>

<p> Appeal—Final Order—Discretion of Trial Court—Action Against Receiver of Partnership for Negligence of Firm Before Appointment. </p> <p>In an equity cause in which a receiver had been appointed to wind up the affairs of a partnership, an order was passed ex parte on July 23, 1909, granting leave to a party to bring an action at law against the receiver to recover damages for an injury caused by the negligence of the partners before the appointment. On October 15th, the Court passed an order refusing to rescind the previous one. On November 23rd, the Court passed another order directing the receiver to retain a certain sum to abide the result of the action at law, and providing that if the plaintiff therein should recover a judgment, he should be treated by the receiver as a general creditor of the partnership. Appeals were taken from all of these orders after the passage of the last one, but not within the time prescribed for taking appeals so far as the first order was concerned. Held, that the last order is final in its nature, and that an appeal lies from it upon which the previous orders are open for review.</p> <p>Although no appeal lies from an order or decree determining a matter committed to the discretion of the lower Court, yet the questions whether a matter was within the discretion of the lower Court, and. whether that discretion was so exercised as not to impair the established rights of a party, are open to review on appeal from the order.</p> <p>The granting by a Court of Equity of leave to a party to sue at law a receiver appointed by it is not a matter wholly within ■the discretion of the trial Court.</p> <p>No action of law can be maintained against the receiver of a partnership to recover damages for an injury caused by the negligence of the partners before the aj>pointment of the receiver. The remedy of the injured party is against the partners individually.</p>

<p> Specific Performance of Contract for Sale of Shares of Stock Refused. </p> <p>Plaintiff’s bill in this case asked for the specific performance of a written contract by which the two defendants gave to the plaintiff an option to buy within a certain time eighty shares of the stock in a corporation which had been created by the defendants and was controlled by them. The evidence of the defendants was to the effect that they had verbally agreed to give plaintiff, who was their employee, an option to buy a much smaller number of shares by way of acquiring an interest in the business, and that they had signed the contract sued on without reading it, and supposing that it embodied the oral agreement. It appears from the evidence that the object of the plaintiff, and of another stockholder who had represented him in procuring the option, was to ob - tain a majority of the stock and to deprive the defendants of the control of the corporation. Held, that under all the circumstances of the case, it seems to be inequitable to grant specific performance of the contract.</p>

<p> Undue Influence—Confidential Relations—Burden of Proof as to Fairness of Transaction—Conveyance of All of Her Property Executed by an Old Woman Vacated. </p> <p>If one person reposes trust and confidence in another, and the latter obtains from the former a conveyance of property, then if the grantor seeks to have the conveyance annulled on the ground that it was not his voluntary act, the burden of proof is thrown upon the grantee to show that he made a reasonable use of the confidence reposed in him; that the transaction was fair, and was the voluntary act of the other party. Unless that burden of proof be met, the conveyance will be annulled, although there be no positive evidence that it was procured by fraud or overweening influence.</p> <p>An old woman owning several pieces of real and leasehold property, part of which was subject to mortgages, executed a deed of trust conveying all of her estate to one of her sons and a son-in-law, with directions to pay a small sum annually to the grantor’s husband during his life and the balance of the net income to the grantor, but to an amuont not exceeding $900 per annum, and upon her death to convey the property to the persons she should designate by will, and in default of such will to her heirs. The evidence shows that her purpose in executing the deed was to put someone in charge of her property to collect the rents, discharge current expenses and to pay over the whole balance of the income to her; that she reposed entire confidence in the grantees at whose instance the deed was prepared; that at the time of executing it no explanation of its legal effect was made to her, and that when she was afterwards informed of its real meaning she expressed her surprise and dissatisfaction. Held, that there was a confidential relation existing between the grantor and the grantees, and since the latter have failed to show that the transaction was perfectly fair and the voluntary act of the grantor, and since the deed operates to deprive her of all control over her property and gives her an annuity considerably less than the amount of the income after deducting all charges, the grantees have failed to show that the transaction was a righteous one, and the deed should be annulled.</p>

<p> Opinion upon motion for re-argument, June 23rd, 1910. </p> <p>Appeal from the Circuit Court of Baltimore City (Stock-bridge, J.).</p>

<p> Constitutional Law—Title of Statute—Mandamus Requiring County Commissioners to Levy Tax Imposed by Law to Pay Salaries of Public School Teachers. </p> <p>When the general subject-matter of a statute is described in its title, but there is an additional description in the title which is applicable to only a part of the subject-matter, the statute is not in conflict with Constitution, Art. 3, sec. 29, which prescribes that every law enacted by the General Assembly shall embrace but one subject and that shall be described in its title.</p> <p>The title of the Act of 1908, Chap. 635, is “An Act to repeal and re-enact with amendments, Section 67 of Article 77 of Code of Public General Laws of Maryland of 1904, title, Public Education, and to add six new sections thereto to come under section 122 of said Article and to be numbered, respectively, Section 122 A, etc., designed to provide a commercial course in certain approved high schools.” Most of the sections of the Act relate to the course of instruction and. the qualification of teachers in certain schools, and one section directs that increased salaries shall be paid to teachers according to designated periods of service. Held, that this latter section is not foreign or repugnant to the subject of public education mentioned in the title, and that the title of the Act does not violate the provisions of Constitution, Art. 3, sec. 29.</p> <p>A writ of mandamus is the proper remedy to compel municipal .or county authorities to levy a tax imposed by law.</p> <p>The Act of 1908, Chap. 635, designates the exact sums that should be paid to certain public school teachers and directs the County Commissioners of the -several counties to levy a sufficient amount to meet the increase of salaries provided for in that Act. Held, that- the County Commissioners may be required by mandamus to perform the duty thus imposed, since the ascertainment of the precise sum to be raised in any year does uot depend upon the exercise of their judgment or discretion.</p> <p>Held, further, that the Board of County School Commissioners, to which the proceeds of school taxes are payable, is the - proper party to require the County Commissioners to levy the tax under this Act. '</p> <p>The fact that Code, Art. 5, sec. 84, provides that parties to proceedings before County Commissioners may appeal from . their action to the Circuit Court does not operate to prevent a party fz*om applying for a mandamus directing the County-Commissioners to levy a tax imposed by law for the benefit of such party.</p> <p>When some of the allegations of fact contained in a petition for a mandamus are denied by the answer, the writ should not be issued until the material -facts are established by evidence.</p>

<p> Executors and Administrators—Validity of Sale Mads hy Executor After Filing of Caveat to Will. </p> <p>When a will has been admitted to probate, in common form without contest, a sale of real estate' made by the executor in pursuance of a testamentary power is valid, although a caveat to the will was filed before the ratification of the sale, since Code, Art. 93, sec. 26, provides that all acts done by any executor or administrator according to law before any actual or implied revocation of his letters shall be valid and effectual.</p>

). Plaintiff’s 2nd Prayer.—If the jury find from the evidence that within three years before the bringing of this suit by the plaintiff the defendant entered upon and with pieles and shovels and force and arms made deep and damaging excavations upon, and removed soil and earth from, the land and premises described in the lease in evidence, and the declaration or upon and from any part of said land, or premises, of which the jury shall find the plaintiff was in possession…

<p> Appeal—Exception Failing to Show Result of Ruling of Trial Court—Evidence to Discredit Witness. </p> <p>A. and B. wore jointly indicted for a crime. A severance in the trial was granted, and A. was found guilty. When B. was put on trial, the same jurors were called who had found A. guilty, whereupon B. objected to their competency, but the trial Court overruled the objection and put the jurors upon their voir dire, to which ruling B. excepted. The record does not show that any of these jurors were on the panel that afterwards tried and convicted B. Held, that, if it be assumed that these jurors should not be called, yet, since it does not appear that any of them were accepted and served as jurors on the trial of B., he has not shown that he was injured by the ruling of the trial Court.</p> <p>When the prosecuting witness testifies that A. knocked him down and held him while B. robbed him of money, a letter previously written by the witness stating that he could not say positively which of the two men knocked him down, is admissible in evidence for the purpose of discrediting his testimony.</p>

<p>Appeal from the Circuit Court for Dorchester County ( J ONES, J.).</p> <p>The cause was submitted to the Court on briefs by :</p>

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

<p>Construction of Wills—Gift to Children of Testator’s Wife— Alternative Contingent Remainders After Life Estate—• Tim,e of Vesting—Conveyance of Contingent Remainder Made Before Vesting.</p> <p>In the construction of a will, the Court seeks to ascertain and carry out the intention of the testator, hut that intention is the one expressed in the will, and the question is not what the testator meant, but simply what is the meaning of the words he used. Therefore, extrinsic evidence is not admissible to shorv that he meant something different from what his language imports, nor can the Court reconstruct his will to effect what it may suppose to have been his intention.</p> <p>AYlien a testator devises property, after a life estate therein given to his wife, to her children, this includes children she may have by a subsequent marriage, as well as her children by him.</p> <p>AYhen remainders after a life estate are given to the children of the life tenant, and if she (the life tenant) die without issue living, then to the heirs at law of the testator, the limitations create alternative contingent remainders, or remainders with a double aspect.</p> <p>In such ease, upon the death of the life tenant without issue, the remainders vest in those persons who at that time are the heirs at law of the testator, and not in those who answered that description at the time of his death.</p> <p>A testator gave the residue of his estate to his wife, to be held by her during her life, she to have sole control of said estate, “and in the event of my said wife having any child or children at the time of her death, I will and devise the whole of said estate to said child, or children equally if more than one. But in the event of my said wife dying without issue living then and in that case I devise and bequeath all said estate to my heirs at law.” The testator’s widow remarried and died without leaving issue by either marriage. The estate in remainder was claimed by those who were the heirs . of the testator at the time of his death, and by those who were such heirs at the time of the death of the life tenant. Held, that the gift in remainder to the children of the testator’s wife was not restricted to her children by him, but, according to the plain language of the will, was given to any children she might Pave.</p> <p>Held, further, that consequently the remainder to the heirs of the testator, being contingent upon the failure of issue by the life tenant, did not vest in those heirs at the testator’s death, but, at the death of the life tenant, vested in the persons who were then the heirs of the testator.</p> <p>When a contingent remainder is limited by will not to a-designated individual, but to a class of persons, and one person of that class executes a voluntary deed of trust conveying all his property, the remainder will not pass under the conveyance when it subsequently becomes vested upon the happening of the contingency.</p> <p>But if a grantor, for a substantial and valuable consideration, conveys property that he may thereafter acquire under a contingent remainder, equity may, in a proper case, enforce the conveyance when the remainder becomes vested.</p>

). Trial Gourt’s Instruction.—If the jury shall believe from the evidence offered in this case that the transfer from John E. Coppersmith to Margaret E. Coppersmith, dated July 2, 1908, was bona fide, and shall further find that the money paid by James F. Farley to him the said John E. Copper-smith was paid in extinguishment of an indebtedness owing by said Farley to the said Margaret E. Coppersmith, then their verdict must be for the garnishee, James F. Farley, but if they…

<p> Injunction Against Action of Ejectment—Enforcement in Equity of Parol Gift of Land Followed by Possession and Improvements—Equitable Defenses in Action at Law. </p> <p>A suit in equity to restrain the prosecution of an action of ejectment for certain land, and to enforce specific performance of an agreement by which a former owner of the land had given it by parol to the plaintiff, his son, who had made valuable improvements on the faith of the gift without receiving a conveyance, is not a suit to try the question of the title to the land, but the object of the proceeding is to determine whether a contract exists which should be specifically enforced.</p> <p>In such case, the circumstance that the plaintiff could set up this defense in the action of ejectment by way of plea on equitable grounds does not prevent him from asking for relief by way of bill in equity, since, in the equity suit, his main purpose is to obtain a decree directing specific performance of the agreement to give him the land, and the injunction against the action of ejectment is merely ancillary.</p>

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

J., and Forsythe, J.). Defendant's Bth Prayer.—That if the jury shall find that the west or upper wing wall to public bridg’e mentioned in the evidence at the time of the injury to Dr. Hill stood as high above the ground and roadbed in the approach to said bridge, and at the point over which Dr. Hill and his buggy were precipitated, if the jury so find, as it did in 1900 or before the Baltimore & Ohio Railroad Company began its improvement at Ilehester, then their verdict…

<p>Appeal from the Orphans’ Court of Baltimore County.</p> <p>The cause was submitted to the Court on briefs by':</p>

). Plaintiff’s 1st Prayer.—-If the jury find from the evidence in this case ihat the defendant made the policy of insurance offered in evidence, and delivered the same to the plaintiff, and if they further find that the property described in said policy, to wit: That part of Main Conowingo Bridge across Susquehanna River located in Cecil County, was totally destroyed by fire on or about the 5th day of June, 1907; and that the plaintiff did give and the defendant did receive…

<p> Jurisdiction of Justice of the Peace to Try Misdemeanor—Demand for Trial in Court—Trial by Justice Not Issuing the Warrant—Amendment of Warrant—Appeal from Circuit Court Exercising Special Jurisdiction. </p> <p>The Act of 1906, Chap. 475, gives the Justices of the Peace in certain counties, jurisdiction to try certain misdemeanors, provided that the accused, when brought before the Justice, on being informed by him of his right to trial by jury, freely elects to be tried before such Justice, and that a jury trial be not prayed on the part of the State. The Act also directs that either party may appeal from the Justice to the Circuit Court for the county, and that in all cases, when the accused elects to be tried by a jury or appeals, the Justice shall return the papers to the Circuit Court, where the case shall be tried on the information or warrant. The defendant was arrested upon warrant charging him with criminal libel, and was brought before a Justice of the Peace, when his counsel said that they would h'ave no investigation before the Justice, but would try the case in Court. Thereupon, the Justice held the defendant for Court and took his recognizance with sureties. Upon appeal from the judgment of the Circuit Court sentencing him, held, that since the defendant when brought before the Justice of the Peace declared his election to be tried in Court and not before the Justice, it was not necessary that he should have been previously and expressly informed that he had a right to a jury trial; that under these circumstances, the charge was not to be investigated by the Grand Jury, but was to be tried in the Circuit Court upon the information or warrant, and that, consequently, the Court had jurisdiction to try the case, and no appeal lies from its judgment since none is provided for by statute.</p> <p>When a warrant for the arrest of a person charged on information with a misdemeanor, is issued by one Justice of the Peace, under the Act of 1906, Chap. 475, and the warrant directs the accused to be brought before the Justice of the. Peace issuing the same, or before some other Justice of the county, the accused may be tried by any Justice before whom he is ^brought, although that Justice did not issue the warrant.</p> <p>The warrant upon which a party was arrested and brought before a Justice of the Peace, under the Act of 1906, Chap. 475, may be amended in the Circuit Court by making the same conform to the sworn information on which it was issued. When the Circuit Court has jurisdiction to decide an appeal from a Justice of the Peace, its decision is final, and no appeal lies to this Court unless authorized by statute.</p>

), where there was a judgment on verdict for the plaintiff for $5,500.

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

<p> Erroneous Recital in Will as to Ownership of Property—Implication of Gift—Election Under Will—Charge Against Legatee for Support. </p> <p>When a testator erroneously states in his will that A. is or will be entitled to certain property under another instrument or deed, there can be no implication of a bequest, and the other devisees under the will are not put to an election, although it appears that on account of his mistake as to its ownership, the testator did not bequeath that property to A.</p> <p>But if a testator erroneously states that ho has by the will given certain property, when he has not effectually done so, such recital will be taken as sufficient evidence and expression of his intention to give by will and the bequest will be implied.</p> <p>A testator stated in his will that his two children by his first marriage would receive under and by virtue of a designated policy of insurance on his life a certain sum of money, and then he directed that a like sum should be set apart out of his estate and invested for the benefit of his second wife and his child by her. After that, he divided the residue of his estate among all his children. The policy of life insurance was in fact payable to the estate of the testator, and not to the two children. Held, that this recital is not a bequest of the proceeds of the policy.</p> <p>Held, further, that the doctrine of election, according to which a party is not allowed to take a benefit under one provision of a will and at the same time defeat another provision, has no application in this case, because the other legatees do not defeat any provision of the will, there being in it no bequest of the proceeds of the policy of insurance.</p> <p>In a codicil to his will, a testator stated that since its execution he had annually expended money for the maintenance of his daughter Eliza Ann, and therefore lie had determined to charge her with a certain sum annually, which should be deducted from the share of the estate bequeathed to her. Held, that this charge should be computed from the date of the codicil and not from the date of the execution of the will.</p>

<p> Devise and Legacy—Estimate of Value of Bequest—When Legatee or Devisee Entitled to Income—Distribution in Kind of Trust Estate Disposed of Under Power of Appointment—Implied Power of Sale by Trustee—Demonstrative Legacy—Interest on Legacy. </p> <p>When to an absolute devise of definite real property the testator adds, “this property 7 estimate to be equivalent to about $12,500,” that expression in nowise limits the interest of the devisee in the property to the amount of the estimate.</p> <p>The devisee of land is entitled to the income from it from the time of the testator’s death, less expenses properly chargeable against it.</p> <p>Certain property was given by will to trustees to hold for the</p> <p>■ benefit of testator’s daughter Louisa during her life, and in the event of her death without issue to be held in further trust for such of the testator’s children or their descendants, in such proportions, and for- such estates therein, as Louisa should by last will limit and appoint. Out of the trust property, Louisa was also authorized to dispose absolutely by will of the sum of $10,000. By her will, made in due execution of the power, she- gave certain real property to one niece and pecuniary legacies to others, and also provided that trustees should set apart the sum of $10,000. out of the trust property, ‘ and this sum she gave to Bishop R. Held, that the trust did not terminate upon the death of the life tenant, but the trustees had the further duty to perform of turning the estate over to the legatees in accordance with her will.</p> <p>Held, further, that the trustees are not entitled to ask for a sale of the property for the purpose of partition, but it was the intention of the testatrix that the trustees should settle the pecuniary legacies by turning over property of the estate to the legatees, and if the legacies could not be satisfied in this manner, the trustees have implied authority to sell so much of the estate as may be necessary to pay the legacies or to equalize them.</p> <p>Held, further, that the legacy of $10,000. to Bishop R should be satisfied by setting apart property valued at that sum, or if that precise amount cannot be so ascertained, sufficient property may be sold to adjust the difference.</p> <p>Held, further, that after the satisfaction in this manner of the special legacies, it is the duty of the trustees to transfer the balance of the estate in their hands to the residuáry legatees and devisees by appropriate instruments according to the nature of the property.-</p> <p>An equitable life tenant, with power of appointment by will, gave a sum of money to a niece, her heirs, executors, etc., absolutely, “being part of the proceeds” of a designated lot of ground “burned in the great fire of February, 1904.” A lease of part of the lot was made after the fire. Held, that this lease, by a capitalization of the rent and the investment made of the money received from the fire insurance on the property, should be paid to the legatee, together with such additional sum as may be necessary to make up the amount of the legacy.</p> <p>A gift by will of a designated sum of money, followed by a statement that it is in the place of certain property destroyed by fire, or the proceeds of such property, is a demonstrative legacy, and should be paid from the investments in hand of the proceeds of that property, if they can be traced, not exceeding the amount of the legacy, and if these investments do not equal that amount, the balance should be paid out of the general estate.</p> <p>And, under the circumstances of this case, the legatee is entitled to the income from those, investments from the death of the testatrix.</p> <p>The general rule that legacies are payable after the expiration of one year from the testator’s 'death, unless otherwise provided, and that interest begins from that time, is not applicable when the will is made in the execution of a power of appointment, and the legatees under it are entitled to a distribution in kind of tbe property concerned.</p>

<p>Appeal from the Circuit Court for Prince George’s County (Clagkett, J.).</p>

<p>Street Opening in Baltimore City—Map Showing Building to ' he Talcen Need Not Include Portable Structure—Notice as to Time of Meeting of Commissioners—■ Title of Statute.</p> <p>Local Code, Art. 4, sec. 828, provides that before the passage of any ordinance hy the Mayor and City Council of Baltimore, relating to the opening of any street, ete., notice shall be published, and there shall he filed in the office of the Commissioners, before the publication, a map which shall show the course of the projected street, and also the lots and build-' ings thereon which shall be taken or destroyed. The map filed in this case failed to show that on the line of the proposed street there was a portable schóolhouse erected hy the municipality. Held, that since this structure was'placed there temporarily, and was intended to he taken down and moved elsewhere in sections, it was not a building which would he taken or destroyed in the course of street opening, and it is no objection to the validity of the proceedings that this schoolhouse was not shown on the map.</p> <p>The Act of 1908, Chap. 143, entitled “An Act to authorize the Mayor and City Council of Baltimore to publish notices in German newspapers,” provided in its body that whenever the Mayor and City Council, or any official or agency thereof, shall he required by statute or ordinance to publish a notice in more than one newspaper, the municipality or official shall have the discretion .to publish one of such notices in a newspaper printed in the German language. Held that the title of this Act does not create the impression that it applies only to notices to he published hy the municipality itself and not to those published hy officials of the city, such as Commissioners for Opening Streets, and- does not mislead hy suggesting that the Act was intended to authorize the publication in' German newspapers in addition to those already required by the statute, and that consequently the title of the Act is sufficient under Constitution, Art. 3, sec. 29.</p> <p>When a notice published by the Commissioners for Opening Streets stated that the Erst meeting in connection with the opening of a certain street would be at 10 o’clock A. M. on a designated day, it is no objection to the validity of their proceedings that they certify that they met at 11 o’clock A. M. on that day.</p>

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

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

<p>Tresspass q. c. f.—Plaintiffs Title Equitable and Not Legal— Deed Not Recorded in County Where Land is Situated.</p> <p>In an action of trespass q. c. f., when the plaintiff was not in possession of the land nor the defendant a wrongdoer without color of title, the plaintiff must establish a legal title to the land as a condition of recovery.</p> <p>Certain land situated partly in Worcester County and partly in Somerset County was mortgaged, and the mortgage was recorded in Somerset County only. Upon foreclosure, the trustee conveyed the land to the purchaser by deed, also recorded only in Somerset County. Afterwards this grantee conveyed the land to the plaintiff by deed recorded in Worcester County. In an action of trespass q. c. f., relating to that part of the land in Worcester County, against a defendant who was in possession under a claim of ownership, held, that the plaintiff is not invested with the legal title, huí has only an equitable interest, and is therefore not entitled to recover in this action, since Code, Art. 21, secs. 14, 15 and 29, provide that no deed of real property shall pass title unless recorded as therein directed; that mortgages shall he recorded in like manner as deeds, and that when land lies in more than one county a deed conveying it shall be recorded in' all the counties where it is situated.</p>

<p> Contracts of Married Woman Before the Act of 1898—Promise to Pay Unenforceable Claim After Bemoval of Disability—Moral Obligation as Consideration. </p> <p>Before the passage of the Act of 1898, Chap. 457, all the contracts of a married woman, except in a few specified instances, were void. At that time goods were sold to the defendant, a married woman, for which she paid in part, and afterwards acknowledged the existence of an indebtedness for the balance. In an action to recover the same, held, that the defendant is not liable on the original contract of purchase, because she was then without power to bind herself by such contract.</p> <p>Held, further, that since that contract was void, there was no consideration for her promise to pay, made after the removal of her disability by the Act of 1898, and that consequently the plaintiff is not entitled to recover.</p> <p>A merely moral obligation, unenforceful at law or in equity, is not such a consideration as will support a subsequent express promise.</p>

<p> Injury at Railway Crossing—Question of Plaintiff’s Contribu- . tory Negligence for the Jury. </p> <p>Plaintiff, a man in full possession of his senses, driving on a dark night in an open wagon, going northwardly on a suburban street, approached a railway crossing. The tracks crossed the street at right angles. On the east side of the street were some small houses, the nearest of which was thirty-five feet from the track. Some cars were standing on a siding between that house and the tracks; the distance between the siding and the track being about ten feet. To a person coming to the crossing from the south, as the plaintiff did, the view of the tracks to the east was shut out for one hundred feet by these obstructions. A cluster of electric lights on a trolley pole near by and an oil lamp in a shop window across the street shed a dim light at the place. When plaintiff reached the house on his right nearest to the track, he stopped and looked in both directions, and did so again when he got in front of the cars standing on the side track. Not hearing or seeing anything, he started across the track, when his wagon was struck by the tender of a locomotive running backwards. There were no lights on the engine or tender, and no whistle was blown or bell sounded at the time of .crossing. In an action to recover damages for the injury so occasioned, held, that since this evidence on the part of the plaintiff shows that he did stop, look and listen, as he was bound to do under the dangerous condition then existing at the crossing, he was not guilty of contributory negligence in that respect, nor can such negligence be imputed to him as matter of law because he did not see or hear the approaching engine, since the darkness of the night, the absence of lights on the engine, the failure to ring the bell and the obstructions near the track rendered it possible that, although plaintiff stopped ami looked, he did not see or hear, and that consequently the question of plaintiff’s contributory negligence should have been submitted to the jury.</p> <p>In. an action to recover damages for an injury caused by the defendant’s negligence, the case should not be withdrawn from the jury on the ground that the plaintiff was himself guilty of negligence directly contributing to the injury, unless there be clear and uncontradicted evidence that the plaintiff was guilty of some distinct act or omission which was obviously negligent.</p>

<p> ■Conveyance of Property on Parol Trust—Enforcement of Trust Against Volunteer—Multifariousness. </p> <p>When an absolute transfer of property is made to a person upon tbe faith of his promise to do certain things, or to hold the property for the benefit of the grantor, a valid trust is thereby created. This trust is also enforceable against a third party who takes the property by way of gift, although ignorant of the trust.</p> <p>A bill in equity alleging that to one of the defendants land was granted upon a parol trust for the benefit of the plaintiff, and that the property was assigned to the other defendant, who instituted an action of ejectment against the plaintiff, and asking that the trust be declared and the action of ejectment enjoined, is not multifarious, since the purpose of the bill does not relate to distinct matters, and both defendants are connected with the transaction in question.</p> <p>A husband conveyed certain real estate to a third party, who conveyed the same to the grantor’s wife. Both conveyances, although absolute in terms, were made upon the parol understanding and agreement that the wife should hold the property for the benefit of her husband. Afterwards she left her husband and conveyed the land by voluntary deed to a person who insttiuted ejectment: proceedings against the husband, who had always remained in possession of the land. Meld, that under these circumstances, the wife held the title to the land in trust for her husband, and that this trust is enforceable against her and her assignee.</p> <p>Meld, further, that under a bill in equity to establish the trust and enjoin the prosecution of the action of ejectment, the original grantee of the husband is a proper party.</p>

<p> Amendment of Declaration and Voucher in Attachment Not Making New Cause of Action Not a Release of Surety on Bond Dissolving Attachment—Judgment on Appeal. </p> <p>The amendment of the declaration or of the voucher in an attachment suit does not operate to discharge the surety on a bond given to dissolve the attachment unless the amendment brings in a new cause of action or imposes on the surety a greater liability than that assumed when he signed the bond. An amendment which corrects a misdescription or a formal defect in the statement of plaintiff’s claim, without altering its nature or character, does not affect the liability of the surety.</p> <p>Plaintiff company agreed by contracts under seal to do certain work on a warehouse building being erected by K. as contractor, and in- addition thereto did other work on the building under written orders. The work under the sealed contracts was not done within the time specified, but it was after-wards accepted by K. and the warehouse owner, and thus the sealed contracts were abandoned and the plaintiff became entitled to recover on an implied contract. Plaintiff issued an attachment against K. (a non-resident) to recover the balance due for the work done under the original contracts and under the special order. This attachment was dissolved when the defendant in this action gave its bond as surety and stipulated to discharge any judgment that might be recovered against K. in the attachment suit. The declaration or short note in that suit was in assumpsit on the common counts, and also stated that the purpose of the suit was to recover $7,157. owing from the defendant to the plaintiff for work dono and materials furnished on a certain building under an order and accounts thereto annexed and on contracts and accounts also annexed. The voucher consisted of a statement containing the items of the accounts, the two contracts under '¡eal for part of the work done, and the order for the extra work. The voucher allowed a credit for a payment on account, and also a credit for thirty per cent., which was to be retained until thirty days after final completion of the building. At the trial of the attachment suit against K., the plaintiff amended the declaration by striking out the special count, leaving only the common counts, and by claiming damages to the extent of $10,000. instead of the original claim of $7,157., and also amended the voucher by striking out the credit of thirty per cent, retained under the contract. Plaintiff recovered a judgment in that suit for $4,309., and then brought this action on the bond given by the defendant, who' alleged that these amendments of the declaration and voucher so changed the nature of the plaintiff’s claim as to release the surety. Held, that since the attachment suit was in assumpsit, the sealed contracts being merely filed as evidence of the indebtedness, and the declaration being sufSeient to support the plaintiff’s claim without regard to the contracts, the amendment of the declaration which struck out the special count on the contracts was not a material alteration of the plaintiff’s cliam.</p> <p>Held, further, that the increase in the amount of the plaintiff’s claim by eliminating from the vouchers the thirty per cent, credit and claiming in the declaration $10,000. damages in the plane of the specific statement of an indebtedness of $7,157., did not discharge the surety, because no new or different cause of action was thereby introduced, and no additional liability was imposed on the surety, but the judgment rendered in the attachment suit was upon the identical cause of action set forth in the declaration and voucher as they stood at the time of the delivery of the bond.</p> <p>WheD an appeal from a judgment, where the issue was determined by the Court, the judgment is reversed, this Court may enter such judgment as should have been entered below.</p>

). The prayers referred to in the opinion of the Court are as follows: Plaintiffs’ 2nd Prayer.—If the jury find the plaintiffs prepared certain designs for a six-story building with the understanding that they should be employed by the defendant if the designs so prejiared by them were accepted; and the jury further find that the designs so prepared were acceptable and accepted by the defendant; and the jury further find that the designs made were for a building which could…

<p>Wills—-Testamentary Capacity—Competency of Evidence—• Hypothetical Question to Expert—Evidence as to Delusions—Instructions to the Jury—</p> <p> Knowledge of Contents of Will. </p> <p>Upon the trial of issues under a caveat to a will, relating to the testamentary capacity of the testatrix and her knowledge of the contents of the will, when it has been shown that the money disposed of by the will had been surreptitiously taken by her from her husband during a long period of time, evidence is admissible to show that some years before the execution of the will, the testatrix had confessed to her husband that she had taken and saved some of his money, and that her purpose in so doing was to provide for their daughter. And evidence is also admissible of her* declarations, made to other • persons, that she had accumulated the money for her daughter.</p> <p>'When a Avitness, Avho had transacted business for the testatrix, has testified that she generally acted upon his advice, and then proceeds to say that in regard to a certain matter she acted against his advice and as to that he “could not control her,” there is no error in refusing to strike out the latter statement, since it added nothing to the effect of his other testimony, which had been given without objection.</p> <p>A Avitness, who had given evidence as to the anger of the testatrix when she was informed as to the nature of her dower interest in the real estate OAvned by her deceased husband, said, in describing her conduct at the time, “she got wild.” Held, that this phrase was not an opinion as to the sanity of the testatrix, and there was no error in refusing to strike it out.</p> <p>A witness who had known the testatrix for many years, and had had business relations with her, testified that after the death of her husband, she got steadily weaker; that there was a failure in her memory; that she would make inconsistent statements, apparently forgetting what she had previously said; that two days before the execution of her Avill she insisted upon making a gift to a person who, she had repeatedly been informed, was dead. Held, that upon these facts, the witness is competent to give his opinion as to the mental capacity of the testatrix.</p> <p>Upon the trial of such question as to the testamentary capacity, evidence is admissible to show that after the testatrix had executed the will, she did not remember that she had done so; and evidence is also admissible that in the month succeeding the signing of the will, the testatrix thought that someone vranted to kill her.</p> <p>A sister of the testatrix, a frequent visitor at her house, may give her opinion as to the mental capacity of the testatrix at the time of the execution of the Avill, when the witness shows that then and subsequently the testatrix had an unfounded fear of assassination; that her inind was not clear; hat she was forgetful, and was afraid of being alone, and that from having been a neat person, she became filthy in her habits, and that she expected a visit of a brother who had been dead for eighteen years.</p> <p>The physician who attended the testatrix during the last three or four years of her life testified that she suffered from Bright’s disease, accompanied with severe attacks of heart trouble, asthma and dropsy, that she failed gradually both physicálly and mentally and her mind was at times very feeble. On cross-examination, he said that she might have been "apable of making a will at times when he was not present;. Held, that this evidence is sufficient to support the opinion of the witness that the executrix was not competent to make a will at the time of its execution.</p> <p>Witnesses who had known the testatrix for many years and were intimately associated with her during: the latter part of her life, and who testify as to facts concerning her mental condition, such as her failure of memory and hallucinations and other infirmities, may give their opinions as to her testamentary capacity at the time of the execution of the will.</p> <p>Tho statement of a witness that one talked to the testatrix as one would to a child is not incompetent when taken in connection with facts showing her enfeebled cerebral condition.</p> <p>An expert called upon to give his opinion as to a party’s testamentary capacity, not upon the evidence in the case but upon an hypothetical statement, may testify before all the evidence of the caveator has been produced.</p> <p>If a hypothetical question is proper upon the evidence in the case at the time it is propounded, an objection to it is properly overruled. If evidence subsequently adduced renders the question insufficient, a motion should be made to strike out the answer.</p> <p>In this ease, the evidence produced after a hypothetical question to a medicál expert was asked and answered did not modify the facts stated therein, and the question as asked was a fair summary of the evidence.</p> <p>A hypothetical question stating that the testatrix thought someone had a design on her life need not expressly state that this impression was false when it appears from the rest of the question that this was one of several delusions.</p> <p>The fact that the testatrix was the victim of delusions may properly form a part of a hypothetical question as to her testamentary capacity in connection with other evidence, although it'be not shown that the will was made in consequence of the delusions.</p> <p>A hypothetical question as to testamentary capacity need not get forth the contents of the will. .</p> <p>When the testimony of a witness does not embrace an expression of opinion as to the mental capacity of the testatrix, but relates to certain facts tending to show infirmities of mind, a motion to exclude all the testimony is properly refused.</p> <p>A person who had two interviews with the testatrix about ten months before the execution of her will is not competent to give his opinion as to her testamentary capacity.</p> <p>A witness who has testified that the testatrix was mentally capable may have his testimony impeached by showing that at a certain time he had expressed the opinion that she was in her dotage.</p> <p>When one of the issues under a caveat is whether the testatrix knew the contents of the will, it is not error to instruct the ' jury that it was essential that she should “know and understand” such contents.</p> <p>When it is not contended that the will was the product of a delusion, hut the evidence that the testatrix suffered from delusions was offered to show her general mental condition under the issue of testamentary capacity, a prayer offered by the caveatee is erroneous which instructs the jury that if the delusions were temporary and occasional, then the presumption of law is that when the will was made the mind of the testa; trix was free from that influence.</p> <p>Held, further, that in such case, a "prayer is erroneous which instructs the jury that if they should find the existence of a delusion in the mind of the testatrix as to a person or thing this would not in itself invalidate the will, unless it was the product of such delusion, and the burden of proof is on the caveator to satisfy the jury that the will was so produced.</p> <p>Evidence as 10 the mental capacity of the testator should be limited to his condition at the time of the execution of the will, but in this case, where a witness was allowed to give his opinion that the testatrix was incapable two days before she executed the will, such technical error is immaterial, since she had then given instructions for the drafting of the will, and there was ample evidence as to her capacity at the time of its execution', and the instructions to the jury required them to find that she was mentally incompetent when the will was made.</p>

<p>Appeal from the Baltimore Oity Court (Niles, J.), where there was a judgment on verdict for the plaintiff for $4,000.</p> <p>Plaintiff’s 1st Prayer as Modified.—If the jury find from the evidence that on or about the 20th day of April, 190S, about 12.30 'o’clock P. M., the plaintiff while seated in a wagon drawn by one horse, and driven by the said plaintiff along and over Walbrook ave. at or about its intersection with the liberty road in' Baltimore City was injured by a car of the defendant while operated by its agents on its road and that said injury resulted directly from the want of ordinary care and prudence on the part of the defendant and not from the want of ordinary care and prudence on the part of the plaintiff directly contributing to the injury then the plaintiff is entitled to recover.</p> <p>Provided the jury shall further find that Walbrook avenue at the point where the accident occurred (if they shall so find) was at the time of said accident used by the public, without objection, in all respects as one of the streets of Baltimore City and had been so used for several year's previous to the date of said accident. (Granted.)</p> <p>' Plaintiff’s 2nd Prayer as Modified.'—If the jury find that at the time of the accident the car in question was being driven at a greater rate of speed thán six miles an hour at the crossing of liberty road and Walbrook avenue (if the jury find that the accident occurred at said crossing) and shall find' the ordinance of the Mayor and City Council, offered- in evidence and shall further find the facts stated in the proviso of the plaintiff's first prayer modified and shall further find that if the said car had not been running at a greater rate of speed than six miles an hour the accident could have been avoided, then there was a want of ordinary care on the part of the defendant, as mentioned in the plaintiff’s first prayer. (Qi'anted.)</p> <p>Plaintiff’s 3rd Prayer.—If the jury find for the plaintiff, then'in estimating damages'they are to consider the health and condition of the plaintiff before the injuries complained of as compared with his present condition, and whether the same are in their nature permanent and how far they are calculated to disable the plaintiff from engaging in those business pursuits for which in the absence of such injuries he would have been qualified; and also the physical and mental suffering to which he has been subjected by reason of said injuries, and the jury are to allow such damages as in their opinion will be fair and just compensation for the injuries suffered. {Granted.)</p> <p>Plaintiff’s Ji-th Prayer.—The Court instructs the jury that if they find that the accident happened as testified to by the plaintiff James Ward then their verdict must be for the plaintiff. {Granted.)</p> <p>Defendant’s 1st Prayer.—That there is no evidence legally sufficient to entitle the plaintiff to recover in the above entitled cause and therefore the verdict of the jury must be for the defendant. {Refused.)</p> <p>Defendant’s 2nd Prayer.—That there is no evidence legally sufficient to show in this case that the collision mentioned in the plaintiff’s testimony was caused by any act of negligence on the part of the defendant’s agents and servants in the management, operation or control of the car mentioned in the testimony, and therefore the verdict of the jury must be for the defendant. {Refused.)</p> <p>Defendant’s 3rd Prayer.—That the uncontradicted testimony shows that the plaintiff was guilty of negligence directly contributing to the happening of the accident - mentioned in the testimony, and therefore the verdict of the jury must be for the defendant. {Refused.)</p> <p>Defendant’s l/.th Prayer.—The jury are instructed, that there is no evidence legally sufficient in this case to show that after the plaintiff reached a position of danger upon the defendant’s track in front of the approaching car, that the motorman could, by the exercise of ordinary care and caution, have prevented the happening of the collision mentioned in the testimony, and therefore the verdict of the jury must be for the defendant. {Refused.)</p> <p>Defendant's 5th Prayer.—That the plaintiff’s own testimony shows that when the plaintiff reached a position of danger upon the defendant company’s tracks, it was impossible for the motorman of this car, by the use of ordinary care and caution on his part, to have prevented the happening of the accident mentioned in the testimony and therefore the verdict of the jury must be for the defendant. {Refused.)</p> <p>Defendant’s 6th Prayer.—The Court instructs the jury under the pleadings that the burden of proof is upon the plaintiff to show that the injury complained of was caused by the want of ordinary care on the part of the motorman of the car, and unless the jury shall be satisfied by the preponderance of testimony that the injury complained of was caused solely by the want of ordinary care on the part of the motorman, the plaintiff is not entitled to recover, and the verdict must be for the defendant. {Granted.)</p> <p>Defendant's 7th Prayer.—That if the motorman of the car saw the wagon approaching the track, if the jury so find, he had the right to assume that the driver of the wagon would stop his horse in a place of safety, and would not attempt to drive across the track in close proximity to the car. {Refused; misleading under circwnstances of this case.)</p> <p>Defendant's 8th Prayer.—That even if the jury should believe that the motorman was guilty of negligence, yet if they shall further' believe from the evidence that the plaintiff was also guilty of negligence, and that the injury was directly caused partly by the negligence of the motorman and partly by the negligence of the plaintiff, then the verdict of the jury must be for the defendant without regard to whose negligence was the greater. {Granted.)</p> <p>Defendant’s 9th Prayer.—If the "jury shall find from the evidence that as the car mentioned in the testimony was at or near the south side of Walbrook avenue, the plaintiff saw the approaching car, and pulled up his horse and then applied the whip to his horse, and attempted to cross in front of the approaching car, then the verdict must he for the defendant. (Granted.)</p> <p>Defendant’s 10th Prayer.—If the jury shall find from the evidence that the accident in question could have been avoided by the exercise of ordinary care and caution on the part of the plaintiff, the verdict must be for the defendant. (Granted.)</p> <p>Defendant’s llih Prayer.—The Court instructs the jury that, if they shall find from the evidence that when the car mentioned in the testimony was at or near the south side of Walbrook avenue, the plaintiff pulled up his horse and after-wards applied the whip to his horse, and attempted to cross in front of the approaching car, then their verdict must he for the defendant.</p> <p>Defendant’s lltli Prayer as Modified.—If the jury shall find from the evidence that when the car mentioned in the testimony was at or near the south side of Walbrook avenue, the plaintiff and his horse were west of the track on which the car was running (if the jury so find) and that the plaintiff pulled up his horse and afterwards applied the whip to his horse, and attempted to cross in front of the approaching car, then their verdict must be for the defendant. (Granted.)</p> <p>Defendamos 12th Prayer.—The Court instructs the jury that, if they find that the accident happened as testified to by the witness Sullivan then their verdict must he for the defendant. (Granted.)</p>

<p> Co-Tenancy—One Tenant in Common Not Authorized to Construct on Land Telephone or Electric Transmission Line Without Compensation. </p> <p>One tenant in common of land has no right to change the purpose for which the land had been used, or to commit waste thereon, or to appropriate a part thereof to his exclusive use.</p> <p>Plaintiff company and the defendant were tenants in common of land which had been used for farming purposes. Plaintiff designed to construct through it an overhead line for the transmission of electricity, consisting of cables supported on steel towers, and in connection therewith plaintiff began the erection of a telephone line through, the land. The plaintiff’s bill alleged that the defendant, objecting to such use of the land, had threatened to cut down the poles, etc., and asked for an injunction against his interference with either the telephone va’ the transmission line. Held, that since the erection of the towers for the transmission line and of poles of the telephone line would interfere with defendant’s use of the land, and dispossess him of it, and would divert the common property from its former use, the plaintiff is not entitled to either of the injunctions asked for.</p> <p>Held, further, that the circumstance that the plaintiff company is a public service corporation does not enlarge its right as a co-owner, and that the plaintiff can only acquire the interest of the defendant in the land by a condemnation under the power of eminent domain or by becoming the purchaser of the land under a bill for partition or sale.</p>

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

<p> Health Insurance—Untrue Statement in Application—Questions as to Good Faith of the Insured and as to the Materiality of the Statement to the Risls and as to the Time of Contracting the Disease for the Jury. </p> <p>Under Code, Art. 23, sec. 196, an untrue statement made in an application for life, accident, etc., insurance, although declared to be a warranty, does not avoid the policy, unless such statement was not made in good faith by the applicant, or it related to some matter material to the risk.</p> <p>When the bad faith of the applicant, or the falsity and materiality of misrepresentation, is shown by clear and uncontradieted evidence, the Court may so rule as a matter of law, but when the evidence upon these questions is conflicting they should be submitted to the jury.</p> <p>Defendant company’s policy, by which it agreed to pay to the plaintiff a certain weekly sum during a disability caused by illness, provided that the statements made by the plaintiff in his application were warranted to be true, and also that the insurance should not cover a disability resulting from any disaese contracted within fifteen days after the date of the policy. In an action thereon, plaintiff alleged that on July 2nd, 1908, he was operated on for a disease called mastoiditis, and was in consequence disabled for thirteen weeks. The defendant alleged that in his application the plaintiff had warranted that he had not received medical attention for two years preceding; that this statement was false and material to the risk and that the policy was thereby avoided. The evidence showed that before signing the application the plaintiff told the defendant’s agent that he had consulted a physician about an earache which he supposed resulted from a cold, but had received no treatment or medicine from the physician; that the agent told plaintiff that the answer “no” to the question whether he had received medical attention within the past two years, was correct, because that question did not refer to such a consultation, and that he had relied upon that assurance in making such answer. The evidence also showed that the plaintiff had consulted his family physician several times in the month preceding the application concerning án earache; that such trouble was deceptive and plaintiff apparently got well; that at the instance of his physician plaintiff consulted a specialist in ear diseases, who found an inflammation in the drum of the plaintiff’s right ear and advised an incision, to which plaintiff refused to submit; that on May 25th the drum ruptured, the j>us discharged and the pain disappeared, so that the plaintiff believed himself to be cured. The policy sued on was issued on June 15th, and within a little more than two weeks thereafter the plaintiff began to have a pain in his ear, and on July 2nd he was operated on for mastoiditis. The medical evidence was also to the effect that this disease was probably the result of the previous ear trouble of plaintiff, which had remained latent, but might have been caused by a' new ■infection. Plaintiff had not been informed in May that he had mastoiditis and he did not then regard his trouble as a serious one. Held, that upon this evidence it was properly left to the jury to find whether the plaintiff acted in good ■ faith in stating in the application that he had not been attended by a physician, and whether that statement was false, and was material to the risk, and whether the plaintiff’s mastoiditis was contracted within fifteen days from the date of the policy.</p> <p>Held, further, that a prayer offered by the defendant was properly rejected which ignored the question of plaintiff’s good faith in making said statement, or whether the ailment in May was temporary or permanent, or whether he had entirely • recovered from it before the piolicy was issued.</p> <p>When the question is whether an answer by an applicant for insurance was made in good faith, he may testify that, although a physician had told him that what appeared to be a slight ailment might get serious, yet, when he was relieved of the pain, he believed that the physician was mistaken.</p>