Volume 115 — Maryland Reports

<p>Court of Appeals; prayers; legal sufficiency of evidence. Code Public General Laws, Article 5, section 9. Conceded Prayers. Assault and battery; self-defense. Damages; evidence; health and condition before injury; pecuniary condition of defendant; vindictive damages.</p> <p>Under the Code of Public General Laws, Article 5, section 9, the . Court of Appeals is precluded from examining the legal sufficiency of evidence to support a prayer, unless it appears by the record that the question was distinctly made to, and decided by the Court below; and the objection and the Court’s ruling thereon must appear in the record by a special exception properly signed by the trial Court. pp. 4-5</p> <p>In determining whether the jury was properly instructed, the Court of Appeals will consider all the granted prayers as set forth in the record. p. 5</p> <p>Conceded prayers become the law of the case. p. 6</p> <p>In an action for assault, the defendant’s belief that the plaintiff intended to do him bodily harm can not support a plea of self-denfense unless it was a belief such as a reasonable person would entertain under like circumstances; whether there was such a reasonable belief is a question for the jury. p. 6</p> <p>It is not error to reject a prayer when one of practically identical effect has been granted. p. 6</p> <p>In an action of assault and battery if the jury find from the evidence that the defendant struck and' beat the plaintiff as alleged, in estimating damages they may consider the plaintiff’s health and condition before the injury complained of, compared with his condition after the injuries, and whether the effects are permanent in their nature; also the physical and mental suffering of the plaintiff; they may also consider the condition in life and the pecuniary circumstances of the ■defendant, and allow the plaintiff such damages as in their ■opinion will be a fair and just compensation for the injuries •sustained; and if the jury find that the assault was wanton, unprovoked and excessive they may inflict vindictive and punitive damages upon the defendant. p. 4</p> <p>In an action of assault and battery the following prayer on ■ behalf of the defendant was granted:—“If the jury should find from the evidence that the defendant struck the plaintiff and that the defendant had reason to believe and did believe that at the time he struck him, that the plaintiff was about to deal him a blow, then their verdict must be for the defendant, provided the jury find that the injury to the plaintiff was not done by the use of unnecessary force and violence.” Held, that it was not inconsistent with this prayer to grant a prayer of the plaintiff, which in stating what circumstances would have justified a battery in self-defense, states that the ■circumstances must have been such as would have induced a reasonable man of average prudence to make a prior assault .in order to protect himself. pp. 5-6</p>

<p>Criminal Law. Trading Stamps; Code of Public General Laws, Article 27, section 404; Acts of 1910, Chapter 381, section 412 a. Police Power.</p> <p>The Code of Public General Laws, Article 27, section 404 (section 263 a of the Act of 1898), relating to trading stamps and gift enterprises, is valid only so far as it prohibits gift enterprises or gratuities, which entitle the purchaser to something uncertain, undetermined and unknown to the purchaser at the time of his purchase, and having a semblance to gambling or lottery. p. 21</p> <p>The element of chance which is involved in cases of this character, to bring them within the prohibition of the statute, is the element of chance which appeals to the gambling instinct and which partakes of the nature of a lottery. p. 21</p> <p>It cannot be found in tbe mere purchase of merchandise and the receipt of the same accompanied by the gift of a stamp to be redeemed by the defendant or some other party. p. 21</p> <p>If, at the time of the purchase, what the purchaser is to receive for the stamps held by him is uncertain, undetermined and unknown, and its determination is dependent upon such an element of chance as appeals to the gambling instinct, then the transaction is within the statute. p. 21</p> <p>Where articles for which trading stamps may be redeemed are exhibited at stores of the trading stamp company, with tags showing the number of stamps necessary for each article, and collectors of stamps are invited to call and inspect the same, and are furnished with catalogues containing descriptive cuts of such articles, the determination of the uncertain feature of the transaction is not dependent upon the element of chance prohibited by the statute. pp. 21-22</p> <p>Where the trading stamp company announces that it will substitute similar or better articles, should the identical articles, for which the stamps were to be exchanged, be no longer deliverable, this does not introduce into the transaction any objectionable elements of uncertainty or chance. pp. 24-25</p> <p>By a legitimate exercise of its police power, the State, through its Legislature, may pass laws and regulations necessary for the protection of the health, morals and safety of society; but such regulations 'must be. reasonable, and the question of their reasonableness is necessarily a judicial one. p. 26</p> <p>The Legislature may not, under the guise of protecting public interests, arbitrarily interfere with private business or impose unusual and unnecessary restrictions upon lawful occupations. p. 26</p> <p>The Legislature has no power to fix the value at .which trading stamps are to be redeemed, and the requirements and conditions imposed on trading stamp companies by secs. 412, 412 a of Chapter 881 of the Acts of 1910 are void and unconstitutional. pp. 28-29</p>

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

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

). The following are the prayers which were offered in the ease and referred to in the opinion of the Court: Plaintiff’s 1st Prayer—If the jury find that the plaintiff was received and accepted by the defendant company upon one of its trains of cars as a passenger to be carried from Bel Air, one of its stations on its road to Baltimore City, the terminus of its road, for a reward to the defendant, then it became and was the duty of the defendant to exercise for the…

<p>Equity; pleading; Code of Public General Laws, Article 16, section 161; failure to file replication; dismissal of bill; Code of Public General Laws, Article 16, section 177; reinstatement of case on petition; discretion of Court; Code Public General Laws, Article 16, section 148. Decrees; power of Court over; enrollment. Appeals; none from discretionary orders.</p> <p>The failure of the plaintiff to file a replication according to the, provisions of section 161 of Article 16 of the Code of Public General Laws, entitles the defendant to have the bill dismissed, but does not deprive the Court of power, on satisfactory reason shown, to reinstate the case, before enrollment of the decree. • pp. 64-65</p> <p>If a plaintiff is to be held to such strict account, a defendant should be held to the letter of the statute, and not permitted to commence the proceedings, upon which he bases the default, until he is so entitled by the law. p. 65</p> <p>Under this section, where the answer is filed upon the first of the month, the plaintiff has the whole of the 16th day of the same month on which to file the replication. p. 64</p> <p>A decree does not become enrolled until the expiration of thirty days from the day of its date inclusive. p. 65</p> <p>Before a decree is enrolled it is within the province of the Court to rescind it; and until enrollment it may be altered, revised or entirely revoked upon application to- the Court by petition. p. 65</p> <p>Judgments for default (excepting some defaults provided for by the Practice Acts) are for the most part subject to control of the Court during the term after which they are rendered or before they become enrolled. p. 65</p> <p>In the absence of some definite rules to prevent it, Courts of law permit general replications to such pleadings as will not delay the business of the Courts, to be filed at the call of the docket, in order to prevent a non pros. p. 66</p> <p>If the bill is dismissed for the plaintiff’s default in not fifing a replication, the Court has discretion to rescind the decree before enrollment, if satisfied justice requires it. p. 66</p> <p>It is proper to verify an application for the rescission of a decree dismissing a bill because of failure to file a replication in time, and to assign satisfactory reasons for the application; but these are matters within the discretion of the lower Court, and the mere fact that such an application was not sworn to does not justify reversal of the decree. p. 67</p> <p>Nor does the fact that the petition seems to be in the names of the solicitors, instead of the plaintiffs, deprive the trial Court of its jurisdiction to act. p. 67</p> <p>From orders or decrees within the discretion of the trial Court an appeal will not be entertained. p. 68</p>

<p> Prayers; withdrawing case from jury; no evidence. Appeals; street cars; collision with; duty of wagon driver; contributory negligence. </p> <p>Where the trial Court granted an instruction withdrawing the case from the jury on the ground of the plaintiff’s contributory negligence, the primary issue on appeal is whether from the uncontradicted evidence of the plaintiff he was guilty of such negligence. p. 70</p> <p>In an action for damages for injury to the plaintiff’s horse and wagon by one of the defendant’s electric cars, it appeared by the evidence of the plaintiff’s driver that while in a place of safety, and having full control of the horse, without looking for an approaching car or waiting for the passage of a car obstructing the view, he continued on, and when a car was almost on him, still made no effort to stop or change his direction, but kept on his way, in an effort to pass around the car, it was held, that his negligence so contributed to the injury that the case was properly withdrawn from the consideration of the jury. pp. 72, 73</p> <p>Under such facts, the question as to whether or not the car was going at an excessive speed or whether or not its gong was sounded is immaterial. p. 72</p>

<p> Trusts and trustees; powers of sale; by implication; unproductive land; specific performance. Appeals; practice; uncontradicted statement in oral argument. </p> <p>A testator in his will, by its second clause, disposed of his estate as follows: “All the rest, residue and remainder of my estate, real, personal and mixed, and wheresoever situated or being, I give, devise and bequeath as follows:—to my wife, and my brother-in-law, and the survivor of them, in trust and confidence, to invest and reinvest said rest, residue and remainder of my estate, in their judgment and discretion, and pay the net income therefrom arising half-yearly to my ■wife, during the term of her natural life, and after her death to my brother-in-law, in trust and confidence to invest and reinvest said rest and residue, etc., in his judgment and discretion, and to pay the net income therefrom arising to my two children, share and share alike, etc.; at the arrival of my daughter to the age of eighteen the trust as to her share-shall cease, and she shall be entitled absolutely to one-half of said rest, residue and remainder of my estate; and at the* arrival of my son to the age of twenty-one the trust as to him shall cease, and he shall be entitled absolutely to his one-half of said rest and residue and remainder of my estate.” The trustees named in the will had entered into a contract for the sale of certain of the real estate, a bill by them against the purchaser for specific performance having been filed and dismissed, upon .appeal it was held, that - the will conferred upon the trustees the legal title to both the real and personal estate, with power to sell.and convey the same. p. 80</p> <p>In oral argument, before the'Court of Appeals-, the uncontradicted statement was that the land contracted to be-sold was unproductive and unimproved; it was described in the bill as having been sold subject to the terms of a deed, filed with the bill and made part thereof. One of its, restrictions was that no dwelling should be erected thereon costing less than $7,000. The sale of the property, was for $3,000. Held, that it could be assumed that the buildings and improvements required by the deed had not been built and that the land had remained unimproved and unproductive. ‘ p. 83</p> <p>It was the intention of the testator to confer upon the trustee the power to sell, in his judgment and discretion, the property real or personal, including the property of which the testator died seized and possessed, as well as any property thereafter acquired by the trustees, and to invest the proceeds thereof in other investments; and the contract entered into by them, with the appellee, for the land mentioned in the will, should be specifically enforced. p. 84</p>

<p>Administrators; right to letters of administration; residuary legatee; creditors; Code, Article 93, sections 30, 35; lunacy of party entitled. Orphans’ Court; powers and discretion.</p> <p>Section 30 of Article 93 of the Code of Public General Laws, relating to the appointment of administrators, applies only to cases of intestacy and is not applicable merely because the decedent left no relations. ■ p. 88</p> <p>The mere fact that a residuary legatee takes only an estate in remainder does not take him out of the category of those entitled to letters of administration under section 35 of Article 93. p. 88</p> <p>Where letters of administration are to be granted c. t. a., section 35-of Article 93 of the Code of Public General Laws is to he followed in the same manner as directed by the law in respect to executors within the State, before letters shall he granted to any other person. p. 88</p> <p>Where there is only one individual answering to the statutory description of the persons entitled to letters, the law must he strictly obeyed and such person he appointed. p. 88</p> <p>Where a class of persons is equally entitled to letters of administration the Orphans’ Court has the power and discretion to make the selection. p. 88</p> <p>Where there are two residuary legatees named in a will, one of whom appears to he non compos mentis, if the Orphans’ Court has no power to determine the issue of sanity, it may issue a writ de lunático inquirendo to try that issue, and if it in that manner determines that one residuary legatee is non compos mentis, then the other would he entitled to appointment; or the Orphans’ Court in the exercise of its discretion might simply select the latter as one to whom the letters should issue. p. 89</p> <p>It is erroneous for the Orphans’ Court, in the face of an application for letters of administration by a residuary legatee entitled to receive them, to issue the letters to a creditor, p. 89</p>

Wicomico County. (Pattisox, C. J., and Jcotes, J.). The prayers offered in the case were as follows: Plaintiff's 1st Prayer.—The jury are instructed, that, if they shall find from the evidence that the plaintiff made the deposits in the savings department- of the defendant bank, as they are entered in the bank pass books offered in evidence, and withdrew from said savings bank account the ainonnts appearing in the said savings bank pass books, then their verdict must be for…

<p> Corporations; dissolutions; appointment of receivers; insolvency; fraud; internal management; control,of stockholders; managers and office force; discharge of. </p> <p>Apart from statutory power, a Court of equity can not dissolve a corporation, and under the law in force in this State, it is necessary to prove that the corporation is insolvent before it can be dissolved. p. 115</p> <p>A'bill of complaint by a stockholder was filed against the corporation asking for its dissolution, the appointment of a receiver, an account of its liabilities and injunction to prevent disposition of any of its assets and for general relief, on the ground of insolvency, fraud and various grounds relating to the internal management of the company. It was held, on appeal, that there was no proof of insolvency or fraud and the decree dismissing the bill was affirmed. p. 117</p> <p>Insolvency when applied to dealers - and merchants must be taken to mean inability of -the debtor to pay debts as they become due in the ordinary course of business. p. 115</p> <p>The mere making of an overdraft is not sufficient evidence of insolvency. 1 p. 117</p> <p>Mere internal dissensions among stockholders or mere differences of opinion as to corporate management, so long as the officers do no act that is fraudulent, illegal or ultra vires; will not warrant the intervention of a Court of equity, p. 117 In absence of fraud, illegality or conduct that is ultra vires, the will of the majority is entitled to control the policy and business of the body corporate. p. 117</p> <p>Moral delinquency on the part of the president of a corporation in inducing the manager to resign, does not constitute any fraud against the manager as stockholder. p. 118</p> <p>The tenure of a manager is a question of corporate management with which the Courts- will not interfere, unless something illegal or ultra vires is done, or some act which works a fraud upon complaining stockholders. p. 118</p> <p>A stockholder of a corporation complained that he was illegally removed as a director, and applied for an injunction and a dissolution of the corporation. Held, that he was not illegally ousted, but only failed of re-election, and this was a matter of internal corporate management. p. 118</p> <p>The employment and discharge of the office force of a corporation can only be controlled by the directors, whose discretion is absolute. They alone regulate the salaries, and these can only be paid out of the earnings or assets of the company. p. 119</p> <p>Where it was charged that the president of a corporation had shipped to others goods belonging to it, and had not accounted for the same, the president swore that the proceeds of such shipments had all been accounted for. It was held, that such action would be fraudulent, but that it must be established by proof. p. 119</p> <p>It is not'illegal for a corporation to borrow money or to give a mortgage therefor when authority is given by the directors to do so. p. 120</p> <p>Where the president of a corporation had covenanted with it that he would pay off a mortgage of $5,000 due by the corporation, it was held, that he might have been enjoined from executing a mortgage of its assets in order to pay off the mortgage; but where the complainant, as director, had allowed such a mortgage to be executed without taking any steps to prevent it, the placing of the mortgage presents no grounds for an injunction or dissolution of the corporation, although the mortgage authorized by the president and the directors was for a larger sum than was necessary to pay off the original mortgage; the excess having been duly turned into the treasury of the corporation for its general needs, pp. 120-121</p> <p>The power of appointing a receiver is a discretionary one, to be exercised with great circumspection, only in cases where there is fraud or spoliation, or imminent danger of loss. p. 121</p> <p>The assets of the corporation consisted almost entirely of real estate and accounts receivable. It was held, that under the circumstances of the case the appointment of a receiver would not he the exercise of a wise discretion. p. 122</p>

<p>Appeal from Circuit Court for Cecil County, sitting in Equity (Pearce, O. J.-, and Hopper, JJ.).</p>

<p>Appeal from the Orphans’ Court of Washington County.</p>

<p> Appeals; reversal of decree in equity; direction for further proceedings; modification of decree by Court below. Parties in equity. Trust funds; in course of distribution; creditors’ rights; judicial comity. Solicitors’ fees. Certificate of members of the Bar. </p> <p>On a former appeal from a Court of equity the Court of Appeals had held that B. was entitled to have set aside a distribution made by the Orphans’ Court, and to have can-celled certain releases executed by him, and that there should be given over to him absolutely in his own right two-thirds of a trust fund which had been awarded to his children; the cause had been remanded accordingly for such further proceedings; pending such proceedings the bonds of which the estate consisted were attached by creditors of B., who intervened in the equity proceedings and prayed that no order be passed permitting said delivery of the trust funds while the trust estate continued, or permitting' their removal from the Court’s jurisdiction, until the determination of the attachments ; the trial Court added to the terms of the decree of the Court of Appeals a provision to the effect, that, “pending the determination of said attachment cases * * * all of said bonds shall remain as and where they now are until the further order óf this Court; this action to be without prejudice to the rights of said attaching creditors or of the plaintiff in this case.” Held, that there was no error in the order of the Circuit Court directing the bonds to be kept “where” they were pending the settlement of the attachments; but there was error in ordering them kept “as they now are”, without in some manner providing that the registration of the bonds in the infants’ names should be cancelled; since, under the former decree remanding the cause, B. was entitled to a clear and unfettered title to the bonds whenever delivered, and the failure of the decree of the trial Court so to provide required its reversal. p. 151</p> <p>The decree in the further proceeding should have provided for the cancellation of the registration' of the bonds in the infants’ names, in a way not to affect the rights of any of the parties to the attachment suits then pending, or to any other such suits that might have since been filed. p-. 151</p> <p>Where a previous order making a party a defendant to a cause is annulled his rights can not be determined by any decree passed in the case. • ' p. 146</p> <p>Where the order of a Court of equity setting aside a distribution of funds made by the Orphans’ Court directed the funds to be paid over to the complainant, it was held, that such order did not exempt the property from liability for any legally established claim, nor did it aid the complainant in any way to withdraw the property from the reach of creditors. , p. 147</p> <p>Judicial comity should always be carefully observed to avoid conflict of jurisdiction. p. 151</p> <p>He who seeks equity must do equity. p. 153</p> <p>Where in former proceedings a fee would properly have been provided for out of the fund, for counsel representing the interests of the infant defendants, it was held, that although no fee had been then applied for, nor any provision made for the same, in the decree of the Court of Appeals remanding the cause for further proceedings, yet the authority of the Circuit Court to allow a counsel fee was unaffected by a decree of the Court of Appeals, silent on the subject. p 153</p> <p>A solicitor had represented the interest of the infant defendants in a large estate; leading members of the Bar had certified that his fee should be at least $4,000.00; he prayed that only $3,000.00 be allowed; subsequently he petitioned that his fee be allowed according to the original certificate; it appeared that he had agreed his fee should not exceed $3,000.00, provided it be allowed out of the fund and that all exceptions to such allowance be dismissed and no appeal taken; and since his right to a fee from the fund had been resisted and the order of the Court allowing the same appealed from, he prayed that the full fee be allowed. Held, that the action of the Circuit Court in allowing the said fee of $4,000.00 was proper. p. 155</p> <p>The Court of Appeals, in reviewing the compensation allowed to an attorney, must assume that members of the Bar, in certifying what would be a reasonable fee, exercised real and con- • scientious judgment. p. 155</p>

<p>Appealsj transmission of record; delay; Code of Public General Laius, Art. 5, sec. 33; negligence of clerk; no presumption of; cost of record; rights of clerk.</p> <p>Under Article 5, section 10 of the Code, an appeal may be entertained, notwithstanding the limit of time prescribed by the Code, Article 5, section 35, for the transmission of the record is exceeded, if it appears that the delay was occasioned by the negligence, or omission, or inability of the clerk to transmit it in time; but such delinquency on the part of the clerk is not to be presumed and nmst be shown. p. 157</p> <p>The Clerk of the Circuit Court has the right to withhold the transcript until his costs for preparing it are paid. There was undue delay in the transmission of a record to the Court of Appeals; an affidavit of the former Clerk of the Court was offered, showing that it had been the practice for over forty years in the clerk’s office, upon an order for an appeal being1 given, for the clerk to make up and transmit the record within the time prescribed by the law, without requiring the payment of the costs. Held, that it was not necessary to consider- how far such a practice would be material in determining the responsibility for delay, since this affidavit referred to a period nearly a year before the record in this case was prepared. pp. 158-159</p> <p>The mere omission of a clerk to demand the costs within the time for the transmission of a record does not exonerate the appellants from their responsibility to see that the record reaches the Court of Appeals within the statutory period. p. 160</p>

). The following are the prayers in the case: Plaintijj’s 1st Prayer (as modified).-—The plaintiff by his counsel prays the Court to instruct the jury that if they find from the evidence in this case that on or about the 15th day of February, 1906, a certain H. P. Reynolds & Company sold to the defendants and others a certain German coach stallion at and for the sum of $3,000.00, and that said defendants and others gave three joint and several promissory notes for $1,000.00…

<p> Fire insurance policies; provisions against “unoccupied” dwell-, ings. Exception to evidencej when erroneous rulings no ground for reversal. Prayers talcing case from jury. </p> <p>Rulings of the trial Court upon exceptions to evidence present no reversible error if they did not prejudice the exceptant’s ease. p. 177</p> <p>In a stipulation in a fire insurance policy against a dwelling house being vacant and unoccupied, the word “unoccupied” signifies not used as a residence, and consequently a tenement becomes unoccupied when it is no longer used for the accustomed and ordinary purpose of a dwelling and place of abode; it is not a mere casual or occasional sleeping in a house that constitutes an occupancy of it; the element of fixed abode is an esesntial ingredient of any concept of occupancy when applied to a dwelling house. p. 178</p> <p>“A.” vacated and removed from a dwelling house with her family and remained absent longer than the time provided in the policy of insurance during which the house should not remain vacant and unoccupied. During that time the household effects were removed to another house, and the husband alone occasionally visited the house. It was held, that this did not constitute occupancy of the insured house as a dwelling within the meaning of the policy. pp. 119-180</p> <p>A prayer of a defendant asking that the case be taken from the jury in the form, that “it appears by the plaintiff’s own testimony”, without referring to all the testimony in the case, is open to criticism, but such error or informality is not sufficient for reversal where it appears from the whole proof that the plaintiff was not entitled to recover. p. 180</p>

A preliminary injunction, prohibiting The William M. Longley Company from blasting in one of its quarries, was granted on the 21st day of June, 1910; the order was made final on the 11th of June, 1911, and the Court (Niles, J.), besides making its order final, having found that the defendant was guilty of contempt in violating the preliminary injunction, as a penalty, ordered the defendant, The William M. Longley Company, to pay a fine of $100.

<p> Demurrers in equityj to whole billj effect of. Co-tenants; equitable lien; for paying off liens; repairs, etc.; sale to enforce; use and occupancy of property; ouster. Secret liens; third parties. Mortgages; strict foreclosure. Court of Appeals; opinion on points not strictly before it. ■ </p> <p>A hill was filed by one co-tenant for the sale of property on the ground that it could not be divided; a cross-bill was filed by the other co-tenant, alleging that she had expended large sums, and paid off liens on the property, and that the complainant’s interest in the same was much less in value than the sums so expended by her for which he was responsible. Held, that if the interest of the complainant (the appellant) was found to be less than the sum for which he was responsible, his interest should be decreed to be sold unless such sum due by him should be paid off in a reasonable time; but if his interest were worth more than the sum for which he was responsible, then the whole property should be sold, the pro- . ceeds to be applied first to pay off the liens, together with the taxes, expenses and costs of the sale. pp. 204-205</p> <p>If the lien for the sum due by the complainant (appellant) should be paid off, a sale should be decreed' for the purpose of partition, since it was admitted that the property was not susceptible of division. p. 205</p> <p>In the cross-bill, the defendant (appellee) as part of the relief sought by the bill prayed that the amount of her expenditure upon the property, for which the complainant (appellant) was responsible, might be determined and declared a lien upon his interest, and a trustee appointed to convey his interest to her, unless such lien were paid within the time to be provided. Held, that the defendant (appellee) was entitled to have a lien declared for the amount so found to be due, but that she was not entitled to strict foreclosure. p. 200</p> <p>A tenant in' common can not be held liable to his co-tenant for use and occupation of the common property unless there has been an ouster by his co-tenants. p. 200</p> <p>Tenants in common are jointly seized of the entire estate, and each one has an equal right of entry and possession; the possession of one is the possession of all, and an ouster will not be presumed from exclusive possession by one co-tenant. p. 200</p> <p>In order to avoid further litigation, the Court of Appeals will sometimes express its views on points in a case, although the same may not be before it technically. p. 201</p> <p>A co-tenant is entitled to contribution by the others for liens and encumbrances paid by him since the béginning of the tenancy, and for necessary repairs and improvements made with the assent of the other; and equity will create a lien as security for such demand upon the undivided shares of the other proprietors. p. 202</p> <p>Where the co-tenant has paid off a mortgage upon the common property, in the absence of some equity in favor of third persons, he is entitled to be subrogated to the rights of the mortgagee against the other co-tenants. p. 203</p> <p>Equity is careful to protect innocent third persons against secret liens, if they have acquired such rights in the property as would be affected by them. p. 203</p> <p>While a strict foreclosure of a mortgage may still be had in a proper case, such practice has, for the most part, been abandoned. p. 204</p> <p>A demurrer to a whole bill is properly overruled, if it applies to a part of the bill only.</p>

<p> Deeds; construction; intention; conflict between granting and habendum, clauses; life estate with power to dispose of reversion. </p> <p>Where there is a conflict between the granting and the habendum, clauses the former will prevail. But there is no such conflict, unless the habendum, divests the estate. granted and substitutes another. • p. 209</p> <p>Where an estate is given to a person generally or indefinitely, with power of disposition, such gift carries the entire estate. p. 210</p> <p>Where the property is given expressly for life and a power of disposition of the reversion is annexed, the first taker has but an estate for life with the superadded power. p. 210</p> <p>Where there is an inconsistency in a deed between the powers and trusts created, the former or earlier expressions in the deed must control. ^ p. 210</p> <p>In the construction of deeds the intention of the parties, to be ascertained from -the whole contents of the instrument, must prevail, unless it violates some principal of law. p. 210</p> <p>Where T. L. being seized of a fee simple title to land conveyed it to a third party for a nominal consideration, and had it immediately reconveyed to himself, T. L., “for and during his natural life, and after his death to W. E. L. and Gr. S., trustees as thereinafter mentioned * * * to have and to hold * * * unto and to the proper use and benefit of the said T. L. for and during his natural life and no longer, reserving, however, unto the said T. L. the right during his life to sell, grant and convey, etc., any part thereof absolutely” * * * the deed invests T. L. with a life estate and creates a trust as to the remainder subject to bis power, expressly reserved, of disposing of the property in his lifetime; and T. L., by a proper deed, could convey the fee simple to the property, and a proper contract to that effect is one whose performance should be specifically enforced. p. 211</p>

<p>Court of Appeals; rules of lower Court; authentication of. Practice in Baltimore City; Constitution, Art. 4, sec. 39; rules of Supreme Bench; jury docket; election; ' time for; extension of time for; rule day; Code of Public Local Laws, Art. 4, sec. 308.</p> <p>Under tie rules of tie Supreme Bend of Baltimore City, if a defendant desires a jury trial, le must elect at or before tie time le first files a plea, even if tlat plea is filed before tie regular rule day, and le must at all events do so by tie time le is allowed by law to file lis plea; but in applying tlis rule, a demurrer is not considered as a plea. p. 216</p> <p>WIile a demurrer may be a pleading, it is not a plea. p. 217</p> <p>Tie Court may finally dispose of a ease on a demurrer to tie declaration, and until all questions raised by tie demurrer are decided it is useless to require tie case to be placed on tie jury calendar. p. 218</p> <p>A declaration was filed in tie Superior Court of Baltimore City on July 1st, 1909; on July 12tl, 1909, one of tie defendants filed a demurrer, and tie next day, on motion, an order was passed, extending tie time for filing pleas to 15 days after a decision on tie demurrer; on October 27 tie demurrer was overruled witl leave to plead witlin ten days; on October 30 one of tie defendants filed an election for a jury trial, and on November 6 filed pleas. On May 19, 1910, tie plaintiff filed a petition alleging tlat tie suit was brouglt under tie July Rule Day, 1909; tlat tie election for a jury trial slould lave been made not later tlan August 12, 1909; tlat tie election was therefore too late, and le prayed that tie cause be withdrawn from tie jury docket and placed upon the non-jury docket. It was conceded that under section 308/Article 4 of the Code of Public Local Laws, August 12, 1909, was the Rule Day to plead to the declaration, if there had been no extension. Held, that the plaintiff could file his pleas within the extension of 15 days after the decision of the demurrer as allowed by the Court, and that the election for a jury trial was not made too late. pp. 220-221</p> <p>In presenting to the Court of Appeals a rule of a lower Court, the rule should be authenticated either by a bill of exceptions, certificate of the judge, or agreement of counsel. p. 214</p> <p>The practice of simply having the clerk copy the rule in the record is not approved. p. 214</p>

<p>Practice in equity; Code of Public General Laws, Art. 16, sec. 196; decision on points of law before talcing evidence; final order; appeal. Lease of railroad property; Act of 1908, Chapter 126, sec. 265a; not affected by Art. 21, secs. 80 and 89, of the Code of Public General Laws, relating to leases of land. Federal courts.</p> <p>An order of a Court deciding questions of law raised under section 196 of Article 16 of the Code of Public General Laws, is a final order and one from which there is a right of appeal. p. 226</p> <p>A lease of the Northern Central Railway was made to the Pennsylvania Railroad for 999 years; a resolution of the stockholders ratifying the lease provided, in substance, that it should not become effective until the rent reserved therein should he declared by the Court of Appeals of Maryland not to be redeemable, nor within the scope of the State’s existing statutes authorizing the redemption of leases of land; proceedings were instituted under section 196 of Article 16 in the Circuit Court of Baltimore City to determine the question. Held, that such a proceeding is not a fictitious or color-able one. p. 225</p> <p>The leases, to which the Act of 1908, Chapter 126, section 265 a, relates, are not the mere leasing of land, hut of railroads and their franchises and the system constituting railroads in operation. pp. 226-227</p> <p>Where there is nothing in the record to the contrary, it will not be assumed that such a lease extended to any land not used in connection with the railroad or the operation and management of its franchises. p. 230</p> <p>The Act of 1906, Chapter 126, section 265 a, is not subject to Article 21, sections 88-89 of the Code of Public General Laws, relating to leases of land and making such leases redeemable after five years from their date. p. 231</p> <p>There was no reason for suspending such proceeding pending the decision and suits in the Federal courts relating to the matter. p. 231</p>

<p>Deed in defraud, of creditors; bill to set aside; proceedings in county where land liesj subsisting and subsequent creditors. Parties; persons not; may be bound by decree. Charges on land; bills to enforce; Code of Pub. Gen. Laws, Art. 16, sec. 83. Evidence; exceptions; erroneous rulings; when no ground for reversal. Witnesses; examination before examiner; irregularity in Christian name, etc. Fraud; questions of; latitude of evidence.</p> <p>Where a debtor purchases property, aud has the deed made out iu the name of a third, party, for the purpose of avoiding subsequent creditors, the deed may be set aside and the property sold, even though the complainant was not a subsisting creditor. p. 246</p> <p>Where it appeared that a deed in default of creditors was executed on November 29, and recorded on December 5, and an action at law was brought by the complainant on December 4, on numerous notes of the fraudulent debtor, it may be assumed that the complainant was a creditor at the time of the execution of the deed. p. 246</p> <p>In proceedings to set aside a deed made in fraud of creditors, it is .not necessary to make a party to the bill the person to whom, in the furtherance of the scheme, the property was first conveyed, when, before the suit was filed, the property had been conveyed to third parties. p. 246</p> <p>When a person, who might have been a party and had full knowledge of the proceedings, was a witness in the case, it was held, that he was bound by the decree as effectually as if made a party. p. 246</p> <p>Bnder Article 16 of section 83 of the Code of Public General Laws, proceedings to enforce charges or liens on land must be instituted in the county where the land lies. p. 246</p> <p>A “charge” is a lien, encumbrance, or claim which is to be satisfied out of the specific thing, or proceeds thereof, to which it applies. pp. 246-247</p> <p>A bill to set aside a deed, on the ground that it is in fraud of creditors, is a claim to be satisfied out of the land in question or the proceeds, and the proceedings are properly instituted in the county where the land lies. p. 248</p> <p>Where ah exception goes to the whole testimony of a witness, it ■ can not be considered on appeal, if any of the testimony was admissible. p. 248</p> <p>Erroneous rulings of the trial Court on questions of evidence do not present reversible error, when the testimony would not have effected the conclusion of the Court of Appeals, p. 248</p> <p>In transactions involving fraud much latitude is allowed in the admission of evidence. • p. 249</p> <p>The fact that the Christian name of the deponent was misspelled in the notice; that it does not appear that the formal question was propounded to the witness and an answer elicited thereon, and that the deposition is irrelevant and immaterial, does not render it inadmissible where it appears that the right party was examined and that the objecting party was present and participated in the taking of the deposition. pp. 248, 249</p>

<p> Statutory and official bonds; equitable plaintiffs; delivery and acceptance; filing of official bond; mistahe; ' intent; equitable relief. </p> <p>Where a bond is not an official bond, nor one required by law to be given, the State has no interest in it. p. 25-></p> <p>Where a bond is one required by law, but the statute does not specify to whom it shall be made payable, it may, where many persons are interested, be taken in the name of the-State; and suit may be brought on it, by those for whose protection it is required, without obtaining the authority of' the State for that purpose; in such cases the party for whose-use the suit is brought is regarded as the real plaintiff, although, strictly and technically speaking, the State is-the-plaintiff. p. 256</p> <p>But the State may not, without its consent, be made theobligee in a bond in which it has no interest and which is, not required by law to be executed. p. 256</p> <p>A bond in order that it may be a binding obligation must not only be executed by the obligors, but must be delivered to- and accepted by the obligee. p. 258</p> <p>Statutory or official bonds made payable to the State can not become effective until -they are accepted by those duly authorized to accept them. p. 258</p> <p>Where bonds are made payable to the persons for whose protection they are required, the approval and filing takes the-place of delivery, and the assent of the obligee is not required. p. 258</p> <p>But where a bond is made payable to the State, not to subserveany interest of the State, but as trustees for others, it does not become operative until it bas been duly accepted by tbe State, acting through its appropriate and duly accredited agents. p. 260</p> <p>Where a guardian transferred funds belonging to the ward to J. W. G. “as custodian and holder for her,” and the said J. W. G. with H. L. G. and F. W. O. executed their bond, in • double the amount of said funds to be paid to the State or its attorney, which bond recited that if the said bounden J. W. G., as custodian of the funds for the guardian, should faithfully account with the Orphans’ Court, etc., then the obligation should cease, etc.; held, that as the bond was not given for the protection of the State, nor in accordance with any law requiring it, and as no one was authorized to receive and accept it on behalf of the State, and it could not become operative without delivery and acceptance, it was not a bond of the appellees to the State. p. 260</p> <p>Where it was the intention of the obligors and guardian in a bond to have the bond made payable to the guardian, and, through the mistake of the draftsman, the bond was drawn to the State as obligee, and delivered to the guardian or someone for him, and he accepted it, believing that the bond was payable to him, a Court of equity, upon a proper bill filed, can correct the mistake and reform the bond so as to make it conform to the intention of the parties and enforce it against the obligors. p. 260</p>

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

<p> Easements. Injunctions; trespass to real estate; indefinite allegations; proof. </p> <p>An easement is a restriction upon the rights of property of the servient estate, and no alteration can he made hy the owner of the dominant estate which would he an increase of the restriction. p. 279</p> <p>An injunction was prayed to prevent the defendants from tearing up sewer pipe on the land of the petitioners and inserting therein a “T” pipe, with openings to enable the defendants at their pleasure to connect with a sewer over the lands of the complainants; the injunction was denied because it appeared that the defendant company, by the terms of the deed under which the petitioners took, had reserved to itself title to the sewer pipe, with the right and privilege of maintaining and operating it as a sewer, etc., with the right to enlarge the same. p. 280</p> <p>If the allegations of a bill for an injunction are too indefinite and insufficient to meet the requirements of the rules adopted and provided for the regulation of courts of equity, the injunction should not issue. p. 280</p> <p>A trespass of a fugitive and temporary character, where an adequate compensation may be obtained at law, presents no ground for equitable interposition. p. 280</p> <p>In an application for. an injunction, while it is not necessary to aver that the plaintiff has no adequate remedy at law, yet all the material facts, upon which reliance for equitable relief is placed, must be set forth so that the Court may see whether the remedy, if any, is at law or in equity. p. 281</p> <p>The mere allegation in a bill for an injunction that irreparable damage will ensue is not sufficient to justify equitable relief; facts must be stated to satisfy the Court that the apprehension is well founded. p. 281</p>

<p> Leases; default; forfeiture without individual dereliction; relief in equity. Injunction to enjoin ejectment. </p> <p>An action for ejectment was brought by a landlord to eject the tenant because of a default of 15 days in paying the rent; the tenant prayed for an injunction to enjoin the ejectment proceedings; on an appeal from an order granting the injunction it appeared that the default was not attributable to the lessee’s individual dereliction, but happened in spite of his reasonable provision for the punctual performance of his contractual duty. Held, that upon the facts of the case it would be grossly inequitable to deprive the lessee of the benefit of his large expenditures upon improvements, because of a mischance which involved on his part no personal delinquency, and that an injunction should issue to restrain the ejectment proceedings. p. 286</p> <p>Equity will grant relief from a forfeiture which is provided merely to secure the payment of money. p. 286</p> <p>Courts of equity are closed against a tenant in cases of forfeiture only when the same has occurred by his own wilful and culpable neglect or failure to fulfill the terms of his covenant, and not in cases where the omission has been occasioned by unavoidable accident. p. 287</p> <p>Equity has power to relieve from a forfeiture for the nonpayment of rent on the ground that the condition is intended as a mere security. p. 288</p>

<p>Administrators; refusal to defend suits; removal; discretion in pleading limitations; Gode, Art. 93, sec. 97; failure to make full return in inventory; Gode, Art. 93, sec. 243.</p> <p>The refusal of an executor to defend suits against the estate is sufficient to justify the Orphans’ Court in removing him from office. p. 298</p> <p>If an administrator, in the honest exercise of his judgment, supposes a claim to be just, it is discretionary with him whether or not he shall plead the statute of limitations against the claim. p. 298</p> <p>Where there was a question of title in the administrator as to several small items of personal property which he had failed to return in his inventory, and it was not shown that in failing to make the said return, he was actuated by fraud or dishonest motives, it is no ground for his removal; the proper remedy is to proceed under section 243 of Article 93 of the Code of Public General Laws. p. 298</p>

<p> Bankers and brokers; insolvency of; rehypothecation of customers’ securities;.marshalling of assets; rights of the owners of securities; subrogation. Partners; insolvency; individual and joint property; creditors’ rights; claims ex delicto. </p> <p>A bank has the right to apply deposits to'the payment of debts.due it by the depositor. p. 305</p> <p>An insolvent firm of bankers and brokers had deposits with a bank, to which the firm was also a debtor for a balance due upon a loan secured by collateral; among the collateral so deposited were securities of their customers which the firm had rehypothecated. Held, that the owners of- the rehypothe-' cated collateral were entitled to have the insolvent firm’s funds and securities held by the bank marshalled and applied in such a way as to release their property, as far as practicable, without injury to the bank’s interest. p. 306</p> <p>The firm’s deposits in the bank should have been applied to the bank’s debt, and the collateral released, to be returned to the owners who should redeem. p. 305</p> <p>The right of the owners of the re-hypothecated securities against the insolvent firm was not changed by the fact of the receivership. p. 306</p> <p>Where a bank released and paid to the receiver the deposits of the insolvent firm, and, for the repayment of the balance of the loan due it, elected to depend upon securities which had been deposited as collateral therefor and which were subsequently found to have been composed of securities of customers of the insolvent firm which had rehypothecated the same, the owners of the collateral were entitled to be subrogated to the position of the bank. p. 306</p> <p>Where, in settling- the affairs of an insolvent firm, it appears from the record that there is no joint property, but that all the assets belong to one partner, the ordinary rule for the distribution of the joint and separate estates of partners among the firm and individual creditors does not apply. p. 301</p> <p>Where there are no joint assets, and where the individual estate of one partner is the only one to which any creditor can resort, the individual and firm creditors share ratably’ in the fund. . p. 301</p> <p>And the fact that a claim of a creditor arises ex delicto gives it no right of priority. p. 301</p>

<p>Appeal from an order of the Orphans’ Court of Washington County.</p>

<p>Appeal from the Circuit Court of Frederick County (Urner, C. J., Henderson and Hotter, JJ.).</p>

<p>Deeds of trust; power of cestui que trust to dispose of property by will; powers of trustees to sell and convey land; to pai/ certain small debts; Code of Pub. Gen. Laws, Art. 16, secs. 221-222.</p> <p>A deed conveyed to T. E. H. and J. H., trustees, real and personal property in trust, to permit M. W. to occupy a dwelling during her life, with power to her of disposing of the same by will; in default of such disposition by her, the estate was to be conveyed and delivered by the trustees to her’heirs and personal representatives; upon her death the trustees were to repay to certain of her relatives all sums of money which the latter should have expended for her support. The will also gave the trustees full powers and direction to sell or convey the trust property as often as should be necessary either for the purpose of changing the investments, or for a division among the parties entitled after the death of the said M. W. M. W. died, and by her will, specifically exercising the power of appointment, devised all of her estate to be equally divided among certain parties, and made T. E. H. and J. H. her executors. Held, that the power of sale for the purpose of the “division of -the estate among the parties entitled after the death of M. W.,” was as much a part and purpose of the trust as was the power of the trustees to repay sums of money as there provided. p. 335</p> <p>The power given by the deed of trust to M. W. of disposing of the property by will, did not divest the trustees of the power of sale. p. 336</p> <p>Where a deed of trust gave trustees the power to sell the trust property for the purpose of paying off certain small sums of money therein named, and to divide the estate among the parties entitled, it was held, that this was not such a deed of trust for the benefit of creditors, or for the enforcement of a security, as to come under sections 221-222 of Article 16 of the Code of Public General Laws relating to the filing of bonds by trustees. pp. 336-337</p>

<p> Trustees; powers; when personal; when pass to successors. Wills; construction; intention of testator. </p> <p>If it appears that the power lodged with trustees is a special and personal confidence, to be exercised only under their personal judgment and discretion, such power can be exercised by the designated donees only, and will not pass to a substituted trustee; but a power annexed to the office of the trustee for the purposes of the trust and to promote its object will pass with the trusts to the successors of the original trustees and can be exercised by them. p. 344</p> <p>Whether a power is a special confidence reposed in the trustees to be exercised only under their personal judgment and discretion, or whether it is a power annexed to the office of the trustee for the benefit of the trust, is dependent upon the intention of the testator, to be ascertained by considering the will as a whole. pp. 344-345</p> <p>When the intention of a testator is once ascertained it must be carried out unless some imperative rule of the law prevents. p. 345</p> <p>A testator left a large estate upon trusts reasonably sure to outlast the lives of the trustees named in the will; in one item the testator gave certain powers to trustees there named and the survivors or survivor of them, “and to the heirs, executors, administrators and assigns of the survivor of them,” and in another item gave certain large powers to the trustees and the survivors and the survivor of them, but omitted the words “and the heirs, executors, administrators and assigns of the survivor.” It was held, that it was not the intention of the testator to confer the powers therein contained upon the designated trustees only, but upon them and the survivors or survivor of them; and the power was annexed to the office of the trust, to be executed by any substituted trustee for the purpose of making the trust estate productive and available for the beneficiaries. pp. 345-346</p>

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

<p>Appeals from tbe Circuit Court for Worcester County (Jones, J.).</p>

<p> Malicious prosecution; probable cause; possession of recently stolen property. Prayers; talcing case from, jury. </p> <p>In actions for malicious prosecutions the plaintiff must prove that the prosecution was both malicious and without probable cause. p. 374</p> <p>Probable cause is such reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in believing the party accused to be guilty. p. 375</p> <p>Possession of recently stolen property is evidence of probable cause, unless some reasonable explanation of the fact is given. p. 375</p> <p>Proof of malice without proof of the want of probable cause is not sufficient. p. 376</p> <p>The refusal to grant a prayer taking the case from the jury, at • the close of the plaintiff’s case, is not reversible error when the same prayer is granted at the end of the whole case. p. 372</p>

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

<p>Statutes; unconstitutional provisions; when whole Act affected; title; Constitution, Art. 3, sec. 29. Taxation; equality of; Bill of Bights, Art. 15; taxing districts. Constitutionality of Acts; test. Municipal corporations; Acts . incorporating. Acts of 1910, Ch. 382, incorporating the town of Chevy Chase.</p> <p>The Act of 1910, Ch. 382, is entitled “An Act to incorporate the village of Chevy Chase”, and among numerous provisions and sections includes in section K provisions that withhold from the village the power to tax or assess the property east of a designated line; but requires the County Commissioners, under certain conditions, annually to make a special levy, not to exceed a fixed rate on the property of the designated • district. It was held, that this section K was invalid, under section 29 of Art. 3 of the Constitution, because not included in the title of the Act. p. 393</p> <p>Section K of Ch. 382 of the Acts of 1910, incorporating the village of Chevy Chase, denying the village authorities the power to tax property in a certain district, and giving the power to the County Commissioners to levy a tax up to a fixed rate, provided they áre requested to do so by a certain number of the resident taxpayers of the district, is unconstitutional under Article 15 of the Bill of Rights relating to the equality of taxation. p. 394</p> <p>A taxing district implies a district which is legally subjected to some taxes, and which can not either by its own volition or in any other way escape the payment of some legally imposed tax. P- 396</p> <p>The test of the constitutionality of an act is not what is being done under it at the time, but what might be done under it. p. 397</p> <p>Au entire act ought not to be stricken down because some of its provisions are void, unless they are so connected together in subject-matter, meaning or purpose that it can not be presumed the legislature would have passed one without the other. p. 398</p> <p>This section, with the tax exemption, is' so essentially connected with the whole scheme of the act that it can not be presumed the act would have been adopted without it; and since this section is unconstitutional the whole act must fail. pp. 398-399</p> <p>The title of an act need not give an abstract of its contents; if all the sections of the law, however numerous, refer and are germane to the subject-matter described in the title, it will be considered as embracing but a single subject and as satisfying the requirements of section 29 of Article 3 of the Constitution. p. 393</p> <p>When the title of an act declares it to be for the purpose of incorporating a certain town there named, it is ample enough to embrace all the provisions that relate to the organization of the corporate body and to the administration of its affairs according to the ordinary course of conduct of a municipal corporation. p. 393</p>

<p>Appeal from the Orphans’ Court of Charles County.</p>

The following are the prayers in this case: Plaintiff’s 1st Prayer—If the jury find from the evidence in this case that the defendant executed the policy of insurance offered in evidence and delivered the same to Henry T. Robinson in his lifetime and that the said Henry T. Robinson paid the defendant all the premiums payable thereon up to the time of his death and complied with all the undertakings stipulated to be performed on his part in said policy, and that on the 25th…

<p>Justices of the peace; jurisdiction; appealsj writ of certiorari; defective warrant. Motor vehicles; license law; Act of 1910, Chapter 207.</p> <p>Ordinarily where the writ of certiorari will lie at all it should be applied for and issued before the proceedings have culminated in a judgment; for the chief object of the writ is to stay the exercise of authority by an inferior tribunal until its jurisdiction can be determined. p. 426</p> <p>The legislature has the power to confer upon justices of the peace jurisdiction to hear and determine certain classes of cases, such as the violation of the provisions of section 140 b and 140 c of Article 56 of the Code of Public General Laws, title “Licenses”, sub-title “Motor Vehicles”, and of the Acts of 1910, Chapter 207, amending the samé, especially when the right of appeal is given to Courts where jury trials can be had. p. 427</p> <p>The Act of 1910, Chapter 207, relating to motor vehicles, giving to justices of the peace and to the committing magistrates in Baltimore City jurisdiction to hear and determine complaints and imposes fines for the violation of the statute, applies to Baltimore City and to all the counties. p. 429</p> <p>The Act of 1910, Chapter 207, repeals the Act of 1906, Chapter 478, which provided that in Baltimore City and certain counties anyone taken before a justice of the peace or police justice for the violation of the provisions of the act, could at once demand a jury trial, without first having been tried by the justice of the peace. pp. 428-429</p> <p>A party taken into custody for the violation of the provisions of the Act of 1910, Chapter 207, relating to motor vehicles, is not entitled to a writ of certiorari by reason of the justice refusing to grant a jury trial. p. 429</p> <p>The writ of certiorari is not a writ of right. p. 429</p> <p>The writ of certiorari lies within the discretion of the Court, and should not be granted in a case where the party has the right of appeal, except for the purpose of testing the jurisdiction of the lower tribunal. p. 430</p> <p>Under the Act of 1910, Chapter 207, violators of its provisions may be taken into custody without a warrant. p. 431</p> <p>In a case where one charged with violating the provisions relating to motor vehicles, the warrant did not show that the justice of the peace had jurisdiction as “the nearest justice of the peace”, as it was alleged an observance of the provisions of the statute required. Held, that the object of the law was a speedy hearing, and not to unnecessarily inconvenience the accused, but that the jurisdiction of the justice before whom the accused was brought was not ousted by the fact that another justice may have been somewhat nearer. pp. 431-432</p> <p>Statutes must receive a reasonable interpretation. p. 431</p> <p>Where the statute giving to justices of the peace jurisdiction to hear and determine cases of violation of law give to the accused the right of appeal from their decisions, the writ of certiorari should not be granted, merely because of some technical defects or irregularities in the warrants or proceedings. p. 433</p> <p>If the warrants utterly fail to show any violation of law, or place a construction on the law which is not authorized, there may be ground for issuing a writ of certiorari. p. 433</p> <p>In an indictment created by statute it is generally sufficient to describe it in .the language of the statute. p. 433</p> <p>The warrants or charges for violations of Chapter 207, section 140 c of the Aets of 1910, relating to motor vehicles, ought to state with reasonable certainty the nature of the charge. , p. 434</p> <p>Justices of the peace, by our Constitution, are part of the judiciary in whom the judicial power of the State is vested; they are not required to be learned in the law and their jurisdiction is limited, but they are presumed to act fairly and honestly. p. 434</p> <p>A writ of certiorari should not be granted on an ex parte proceeding, based on the alleged personal conduct or misconduct of the justice or other inferior Court, alleging matters which he had not opportunity to explain or act upon; in such a case the lower tribunal should have at least an opportunity to answer the application for the writ and an. order to show cause should first be passed. p. 435</p>

<p>Administrators; assignments of promissory notes; presumption of authority; order of Orphans’ Court. Acquiescence. Sureties; contribution among; liability of principal. Accommodation notes. Code; construction of; Art. 8, sec. 5.</p> <p>After the death of a payee, the note and mortgage securing the same were assigned by the administrator, in his representative capacity, to the widow, and by her subsequently assigned. Upon suit being brought by her assignee, it was objected that there was no evidence of an order of the Orphans’ Court ordering or authorizing the sale; that the assignment was therefore nugatory under the Code, Art. 93, sec. 281. Held, that in the absence of proof it must be assumed that the administrator had obtained the necessary orders. pp. 439-440</p> <p>A fiduciary is entitled to the presumption of fidelity in the performance of his trust. p. 440</p> <p>Long acquiescence in any adverse claim or right is good ground on which a jury may presume that the claim had a legal commencement. pp. 440-441</p> <p>Under the common law, if two or more sureties pay a debt they must sue separately for reimbursement from their principal, unless they have made the payment out of a joint fund. p. 441</p> <p>In equity the surety was subrogated to all the remedies and securities of the creditors. p. 442</p> <p>At law the only remedy of the surety was to sue the principal upon his implied promise of reimbursement. p. 442</p> <p>Art. 8, sec. 5 of the Code of Public General Laws, providing that where a “surety in any * * * obligation for the payment of money, etc., pays or tenders the money due, he shall be entitled to an assignment, etc., and may maintain an action thereon,” enlarges, the right of the surety; and under it he is entitled to have assigned to him the instrument representing the debt he has paid and to maintain an action on it against the principal debtor. ■ pp. 441-442</p> <p>This special remedy is available only against the principal debtor, and can not he utilized against co-sureties. p. 443</p> <p>Although the statute in conferring the right of action uses the word “surety” in the singular, yet under the rules of the Code of Public General Laws for the interpretation of its own provisions, Art. 1, sec. 7, the statute applies to all the sureties in any obligation for the payment of money, p. 443</p> <p>Rone of several sureties can exercise rights under Article 8, section 5 of the Code of Public General Laws, without the payment of the entire debt, and if all combine to discharge the claim of the creditor there is no just reason to deny them the benefit of the statutory remedy. p. 444</p> <p>An accommodation party to a negotiable instrument is in effect a surety of the party accommodated. p. 444</p> <p>The Code of Public General Laws, Art. 8, sec. 5, giving to . sureties the right of assignment and the right of action in their own names, includes the suretyship of an accommodation maker of a promissory note. p. 445</p> <p>Where the only objection to a prayer is that it did not submit to the finding of the jury certain facts as to which there was no controversy, the objection is properly overruled. p. 445</p>

<p>Appeal from the City Court of Baltimore City (Riles, L).</p>

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

<p>County Commissioners and Highways Commissioners; Baltimore county; duties of; Acts of 1910, Ch. 685, 1904, Ch. 465; roads; dangerous embankment; absence of fence or guard. Contributory negligence; question for jury; prayers.</p> <p>The mere failure of County Commissioners to erect guard rails or fences on the county roads does not constitute negligence. ' p. 475</p> <p>It is for the jury to determine from all the circumstances of the case whether it was negligence on the part of the County Commissioners not to erect, on a much-used road, near a city, a fence or guard rail, at the end of a culvert with a steep embankment adjoining, and not to keep the locality free from bushes and vines so as to let the danger be seen. p. 476</p> <p>It is the duty of the .County Commissioners to keep the roads of the county in proper condition and repair and reasonably safe for travel. pi 476</p> <p>Where a steep embankment at the edge of a road adjoining a culvert is hidden by hushes and vines, it is not contributory negligence as a matter of law for a party, in making room for another vehicle to pass, to drive too near the edge of the road, unless she knew the unprotected culvert and embankment was there, or that there was danger of her wagon sliding off over the embankment. p. 478</p> <p>Unless an act relied upon to constitute contributory negligence is distinct, prominent, decisive and one about which ordinary minds would not differ in declaring to he negligent, the question is one for the jury to determine from all the circumstances of the particular case. p. 479</p> <p>The Acts of 1900, Ch. 685, 1904, Ch. 465 and 1910, Ch. 495, relating to the Highways Commission of Baltimore County, construed. p. 471</p>

<p> Sales in- equity; receiver’s sales; exceptions; defective title. </p> <p>At a receiver’s sale of the assets of an insolvent corporation, patent rights were the vital consideration for the purchaser’s hid; the ratification of the sale was excepted to because the patent rights had already been sold and the title was in litigation. Held; that the exceptions should he sustained and the sale set aside. p. 486</p>

<p> Deeds of trust; construction; revocation. Answer. Mistake; relief in equity; mistake of law. </p> <p>A deed of trust for the benefit of the grantor for her life, with remainder to her children, or in default of issue, to such persons as she may appoint by will, etc., contained the following provision: “It is hereby further declared that it shall be lawful for the said” (grantor) “and full power therefor is hereby expressly reserved by her at the period of three years from and after the date hereof by deed under her hand and seal,” etc., “to revoke the trust hereby created and thereupon and thenceforth this deed shall be void,” etc. Held, that the deed did not necessarily mean that the right of revocation must be exercised immediately at the end of the designated term, or be permanently lost. p. 495</p> <p>Since the deed did not clearly and explicitly express the agreement of the parties, that the right to revoke should be unlimited after the prescribed period, it is proper for a Court of equity, upon their petition, to reform the instrument, p, 495</p> <p>Equity has jurisdiction to correct agreements which, by a mutual mistake in the statement of their terms, fail to effect the real intention of the parties. p. 497</p> <p>A mistake in law is not sufficient ground for invoking aid of a Court of equity. p. 496</p> <p>Where the question arises as to the meaning of a particular combination of words, which have no defined legal signification in the connection in which they are used, equity may grant relief. pp. 495-496</p>

<p>Husband’s estate in deceased wife’s personalty j waiverj right of executor to sue. Acts of 1898, Ch. 33.</p> <p>Under the Acts of 1898, Chapter 33, Code of Public General Laws, Article 93, sec. 313, a wife can not, by will or otherwise, deprive her husband of his one-third share of her personal estate, as determined by the statute. p. 502</p> <p>The interest which a surviving husband is entitled to receive from his wife’s estate is in no way dependent upon the wife’s will, but is derived from her estate under the statute. p. 502</p> <p>Unless the husband, during his lifetime, relinquishes his rights, he is entitled to one-third of his deceased wife’s personalty, after the payment of her debts, funeral expenses and the cost of the administration. p. 502</p> <p>Where the husband, during his life, made no claim for his distributive share of his deceased wife’s estate, which he had not relinquished, his executor may sue her executor therefor.</p> <p>p. 502</p> <p>The mere fact of the husband having made no claim for his share is no proof of waiver. p. 501</p> <p>There can be no waiver unless the person against whom tho waiver is claimed had full knowledge of his rights and of the facts which enable him to take effectual action for the enforcement of such rights. p. 505</p> <p>Ho one can acquiesce in a wrong while ignorant that it has been committed and that the effect of his action will be to confirm it. p. 505</p> <p>A waiver or acquiescence implies the abandonment of some right which can be exercised or renouncement of some benefit or advantage which but for such waiver the party relinquishing would have enjoyed. p. 505</p>

<p> Warehouse receipts; forgery. Criminal statutes; repeal of; no ' saving clause; effect on pending prosecutions. </p> <p>When there are two acts on the same subject the rule is to give effect to both, if possible, but if the two are repugnant in any of their provisions, the latter act, in the absence of any repealing clause, operates as a repeal of the first, to the extent . of the repugnancy. p. 511</p> <p>A subsequent statute revising the whole subject-matter of a former one, and evidently intended as a substitute for it, although it contains no express words to that effect, operates to repeal the former. p. 512</p> <p>The Acts of 1910, Chapter 336, section 52, expressly repeals Article 14, section 10 of the Code of Public General Laws,. • relating to bills of lading, and the Acts of 1910, Chapter 406, ■ by implication repeals Article 27, section 194, leaving in force the subject-matter and penalties fixed by the Acts of 1910, for - the violation of those respective statutes-. p. 512</p> <p>After the repeal of a law no penalty can be enforced, nor punishment imposed, for its violation while it was in force, unless there be a saving clause in' the repealing statute. p. 513</p> <p>A demurrer to an indictment charging an offense under Article 14, section 10, and Article 27, section 194, of the Code, after the passage of the Acts of 1910, Chapter 336 and Chapter 406, was properly sustained. p. 513</p>

<p> Deeds conveying land; covenants to stand seized. </p> <p>Eour sisters, the joint owners in fee of a lot of ground, executed and acknowledged an agreement concerning the same, with all the formalities required for the execution and acknowledgment of deeds conveying real estate, and after reciting their joint ownership and describing the property, declared its object to be “that in case that death should take one of the parties, the other three sisters are the owners, and if two are taken by death, then the two remaining sisters are the owners, and if by death one of the two sisters is taken then the last surviving sister is the owner.” Held, that by this deed each one covenanted to stand seized of her interest therein to her use for her life and upon her death to the use 'of such of her sisters as survived her, successively to and including the last survivor, who became seized thereby in fee iof the interest of all the sisters in the lands. pp. 519-520</p> <p>Where the intent of the grantor to these lands is apparent, if for any reason the deed or instrument by which the transfer •of title was intended to be affected can not operate in.the way contemplated, the Court, if possible, will give it effect in some other way. p. 518</p> <p>If an instrument in writing intended to convey land should be inoperative as a common law deed, it may be effective as a covenant to stand seized to uses under the Statute of Uses. p. 518</p> <p>A covenant to stand seized to uses is a covenant by which one seized of lands covenants in consideration of blood and marriage that he will stand seized of the same for the use of his child, wife or kinsman for life in fee. p. 518</p> <p>Ko particular word or form of words is necessary to constitute a covenant to stand, seized; the consideration is the chief requisite to characterize and support it. p. 518</p> <p>But it must, of course, he by deed, in order to constitute a covenant. p. 519</p>

<p> Administrators; overpayments to trustee; right to recover individually; audit and ratification of trustee’s account; effect of. Decretal orders. Trustee’s bond. </p> <p>“G.,” an administrator of an estate, overpaid the trustee; when the trustee’s accounts were audited and finally ratified, the amount of the overpayment was audited to “G.” Upon the trustee’s failure to pay, after due notice and demand, “G.” . brought suit on the trustee’s bond for the sum so overpaid and audited, with interest. Held, that the claim was for “G.” in his individual right, and not as administrator; that the ratification of the audit, directing the trustee to pay the said sum to the plaintiff was a decretal order, and in the suit on the bond it was immaterial whether or' not the Circuit Court allowed the claim to him individually or to him as administrator. p. 523</p> <p>A decretal order is not open to collateral attack. p. 522</p> <p>In a suit on a trustee’s bond the decretal order ratifying the trustee’s accounts and ordering a distribution in compliance therewith, is res adjudicata. p. 522</p>

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

<p> Builder's contracts ; variation; architect’s certificate. Evidence; motion to strike out; non-reversible error. Bondsmen’s liability. </p> <p>The ruling of the' lower Court upon a motion to strike out evidence presents no reversible error when the action of the Court could in no way affeet the conclusion reached by the Court of Appeals. p. 537</p> <p>Where a building contract called for lime-mortar plaster, the contractor’s bond is not liable for damages due to the use of a different kind of plaster used without the surety’s consent. p. 540</p> <p>The liability of a surety is created entirely by his contract, and is strictly confined and limited to its obligation; no material change can be made without his consent. p. 540</p> <p>Where a building contract provides that the decision of the architect shall be final and conclusive of all matters submitted to him, the owner can not recover from the contractor for damages for 'defective work, when the architect had reported that it had been done to his satisfaction. p. 541</p> <p>The word “work” as generally used in building contracts, applies to the product of labor and material combined which terminates in the execution of the contract, and applies to all work done-under the contract. p. 543</p>

<p>Statutes; referendum clause; special election; directions as to wording of ballot; variation; effect of; intention of legislature. Acts of 1910, Gh. 305; streets of Hyattsville.</p> <p>The Acts of 1910, Chapter 305, repealed section 21 of the Acts of 1908, Chapter 19, of the Public Local Laws of Prince George’s county, relating to the roadbed, sidewalks, etc., of Hyattsville, and re-enacted the same as sections 21 A, 21 B and 21 C; the statute declared that the act should not become effective unless ratified by the majority of the votes cast at a certain special election therein provided for, at which election the ballots were to have printed on them “For the Act to Improve the Streets” and “Against the Act to Improve the Streets”. The ballots at the election were marked “For the Road Bill” and “Against the Road Bill”. A majority of the votes cast were those marked “For the Road Bill”, and the complainant, an abutting property owner on a street to be-, improved under the law, filed a bill for an injunction to restrain the Mayor, etc., from proceeding with the work ont the ground that the law had not become effective. There was-no allegation of fraud or of the voters having been misled or-deceived, and no impeachment of the correctness of the election returns. Held, that the provisions in the law relating to-the form of ballot were directory merely, and that the failure-to follow strictly the prescribed form did not affect the validity of the election. p. 550’</p> <p>Whether the failure to follow strictly directions of this nature-would render an election null and void depends on the intention of the legislature, manifested by the expressed declaration or by a condition of the general scope and policy of the-act. • p. 550-</p> <p>Where it appears that it was the intention of the legislature that a strict compliance with the provisions of the act should be a prerequisite or condition precedent to the validity of the election, a failure to observe them will avoid the election. p. 550</p>

). J. T. H., a citizen of the District of Columbia, was arrested in Prince George’s County on a warrant issued by a justice of the peace on the charge of violating section 133 of Chapter 481 of the Acts of 1910, by operating an automobile on the public roads without first having filed an application for the registration of the same; on being brought before a justice of the peace the traverser moved to quash the warrant on the ground that the Acts of 1910, Chapter 481, was…

<p> Stock certificate; “agent”; presumption; burden of proof. Limitations. Equity. Agency; death; revocation. </p> <p>When a stock certificate is issued and entered'upon the hooks of the company to one as “agent”, the agency is revoked by his death and the stock does not pass to his administrator. p. 572</p> <p>The word “agent” added to the name of a party to whom the stock certificate is issued is not merely descriptio personas, but raises the presumption that the stock is held by the party for a principal and not in his own right. p. 573</p> <p>When a stock certificate has been issued to a party as agent, the burden of proof is not upon the corporation to prove ivho was the principal. p. 579</p> <p>Where a stock certificate has been issued to one as agent, the mere lapse of time after the failure of the principal to appear, or to collect or claim the dividend, raises no presumption of personal ownership in the person designated oh the certificate as agent. p. 579</p> <p>Whether a trust is subject to the statute of limitations depends upon the character and terms of the trust. p. 579</p> <p>A stock certificate was issued in 1838, and for 70 years was carried on the books of the Company in the name of “M. R., Agent”. The dividends were never collected nor the stock ■ transferred; M. R. died shortly after the stock was so issued to him. Held, that such entry of the stock on the books of the company served as a continuous assertion that the stock was not the property of M. R. in his own right, and as the administrators of M. R. have failed to show by any evidence that M. R. had repudiated the trust, limitations could not apply; and it was further held that the stock did not form part of the estate of M. R. nor pass to his administrators. p, 581</p>

<p>Sale and partition of land; contingent remaindermen; jurisdiction of equity; after-born children. Code, Art. 16, sec. 213.</p> <p>The will of a testatrix, among other provisions, left an annuity to each of her four sisters, directing that a portion of her estate sufficient to. yield the necessary income be set aside and held for that purpose; the share of any such sister who died to become and pass as part of the testatrix’s residuary estate; another clause of the will left an equal fourth share' of the residuary estate to each of her two daughters and to her son, in trust for life, with certain powers of sale and appointment by will, with remainders over, etc. Upon the death of the testatrix a bill was filed praying that sufficient property be set aside to provide the annuity for the three surviving annuitants and for partition in kind of all the balance of the estate among the parties in question. All persons in being with any interest in the estate were made parties, but the bill contained no prayer for a sale nor any of the jurisdictional allegations of section 213 of Article 16 of the Code of Public General Laws. An interlocutory decree was passed ordering the partition so to be made and appointing a commission to appraise the property and make such partition of it. The commission set aside certain ground rents and other real estate for the purpose of paying the annuities and divided all the rest of the property in accordance with the provisions of the will. The Court in ratifying the commission’s return directed that the trustee holding the property set aside for the annuities should, as the annuitants died, sell a proportionate part of such property and pay +he proceeds over to the trustees and other devisees so as to equalize the shares. Certain great grandchildren of the testatrix were horn after the final decree, and thereafter, one of the annuitants having died, the trustee sold a certain ground rent, one of those set aside for the annuitants; the purchaser excepted to the ratification of the sale on the ground that it was impossible to tell who would be the residuary heirs of the testatrix and that, under the proceedings, after-born great grandchildren would have an interest in the ground rent; the Court helow sustained the exceptions, and on appeal it was held, that the Court had no jurisdiction to decree the sale of the ground rent and that the contingent remaindermen, not parties to the suit, would not be bound by the decree ordering and confirming the sale. p. 593</p>

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

<p> Attachments; property under the control of a Court of equity. Equity; jurisdiction. </p> <p>An order of the Orphans’ Court awarded to certain children property to which the Court had decided they were entitled from the estate of their deceased mother. By proceedings in equity and appeals to the Court of Appeals, it was decreed that the order of the Orphans’ Court should be set aside and the bonds of which the estate consisted awarded to the father, to be paid to him absolutely; pending these proceedings, the bonds, registered in the names of the children, and deposited in a certain trust company, had been attached by certain creditors of the father; upon the decision by the Court of Appeals that the bonds should be paid to the father, the attaching creditors intervened in the equity proceedings and petitioned that the bonds be not paid over to him until the determination of the attachment suits; the Circuit Court modified the decree of the Court of Appeals to that effect, and on a second appeal its action was ratified to the extent of holding that it was proper that the bonds should be kept where they were, pending the attachment suits; the attaching creditors, by petition, then prayed that the registry of the bonds in the children’s names should be declared of no effect and should be cancelled; the Circuit Court refused so to do, and on appeal it was held, that its action was correct. pp. 608-609</p> <p>[f the bonds could not be reached by attachment because of their registration in the names of the children, then in the absence of fraud or some ground of jurisdiction, equity has no power to change or strike out the registration at the instance of attaching creditors, simply for the purpose of making the bonds subject to attachment. p. 609</p> <p>A Court of equity can not create new rights not before existing at law, and then take jurisdiction to pass upon and enforce them, because the law affords no remedy. p. 609</p> <p>Pending an appeal from the judgment quashing the attachment, it was held, that the bonds should not be delivered over to the father. p. 611</p> <p>Not only the attaching creditors, but the garnishees, had rights which the Court of equity had to recognize and respect. p. 611</p>

<p>Appeal from Circuit Court No. 2 of Baltimore City (Sharp, J.).</p> <p>The cause was argued' before Boyd, C. J., Briscoe, Pearce, Pattisow and Urner, JJ.</p>

<p> Real estate brokers; commissions; trustees to sell land; employment of broker. </p> <p>A real estate broker can not recover commissions on a sale he was not employed to make, or where his actions were not ratified. p. 637</p> <p>Where trustees were directed to make sale of certain real estate, and to bring into Court the money arising from the sale to be distributed under the direction of the Court, one trustee has no authority to bind his co-trustee to pay commissions to the broker for finding a purchaser for the property, so as to affect the fund. p. 637</p>

<p>Rules of Court; Stet Docket; abatement of action; right to trial by jury. Declaration of Rights; Articles 19 and 20.</p> <p>Under Article 26, section 1 of the Code of Public General Laws, Courts of law and equity have the power to adopt rules requiring the trial of cases to be prosecuted within a reasonable time, provided the rules adopted are not contrary to any constitutional or statutory provision. p. 642</p> <p>Neither Article 19 of the Declaration of Rights, guaranteeing trials by the law of the land, nor Article 20, relating to jury trials conflict with this power. p. 642</p> <p>If a case is on the trial docket, and the rules, or practice of the Court require trial at a particular time, or as reached on the docket, the Court can enforce its rule and insist upon trial, although it may result in the plaintiff being required to non pros, his ease; and if the rule of the Court so provides, it is the duty of the Court t'o enforce it unless there is sufficient cause shown for continuance or other disposition of the case. p. 643</p> <p>If instead of insisting on trial the defendant agrees that the case may go upon the Stet Docket, and if there is a rule of Court declaring that when a case remains on the Stet Docket a certain length of time it shall abate, the defendant has the right to assume that, unless the case be brought up for trial, it will abate at the expiration of that time. p. 643</p> <p>And the defendant is not required to take steps to have the case brought forward from the Stet Docket. p. 643</p> <p>A rule of the Circuit Court of Howard County requiring the Clerk at the end of each term to enter on a Stet Docket all cases, from the Trial and Appeal Dockets undisposed of for four successive terms, and that after a case should have remained on the Stet Docket for four continuous terms, it should abate, but further providing that the cause might, before it abated, be transferred from the Stet Docket to the Trial Docket for the ensuing term upon certain notice, etc., is a reasonable rule, and it violates neither the Constitution nor any statutory provisions. p. 644</p>

<p> Parole agreements concerning land; the Statute of Frauds; equitable compensation. Partnerships; laches and limitations. Witnesses; similarity of testimony. </p> <p>By parole, A. and B. agreed to purchase a farm; B. to work the farm jointly with A., and with the help of A.’s family and his implements and teams; the profits, after providing for their support, were to belong to them in equal shares, but to be applied to the payment of the purchase money until the whole price was paid; when the deed was to be made out in the name of A. and B., as tenants in common; A. was illiterate, and B. without his knowledge, took title to the farm in his own name. The farm was worked profitably for many years with the help of A.’s labor and that of his family; B. refused to account for the profits and refused to convey to A. a half of the farm. It was held, that specific performance of the agreement could not be decreed because of the Statute of Frauds, but that A. should be compensated to the amount of his share of the profits which had been applied to the payment of the purchase money and to permanent improvements of the property, and that the partnership relation between them should be dissolved and an accounting decreed. p. 657</p> <p>Laches and limitations are not effective defences in matters of existing partnership. p. 657</p> <p>In the case of statements by witness, as to conversions that occurred long years before, the want of great similarity adds to the weight. p. 653</p>

<p> Orders directing bringing of money into Court. Receivers; certificates of; unauthorized issue; duties and liabilities. </p> <p>An order directing money to be brought, into Court and paid out under the Court’s direction, is an order in the nature of a final decree, and should not be passed except under such proof and finding as would be conclusive to establish the party’s liability, and that the money is due and payable by the party directed to bring it into Court. p. 663</p> <p>The receiver of a corporation issued receiver’s certificates without authority; on appeal from the order directing him to bring into Court the amount of money to pay off the certificates so issued by him, it was held, that there was no evidence to justify the decree and that there should have been further proceedings to give the receiver an opportunity to make defence. p. 665</p> <p>The money realized from the certificates was not an asset of the corporation, but was to be asserted by purchasers of the ¡certificates in an action at law. p. 665</p> <p>The order creates a preference over the other creditors who had purchased other such certificates. p. 665</p> <p>Where a receiver in his dealings with the corporation had been charged on the books of the company with checks drawn by him, it is error for the auditor to charge him with them again. p. 666</p> <p>Where a receiver of a corporation issued certain unauthorized certificates signed as Receiver, and endorsed them in his own name personally, it was held, that, the’ purchasers took the certificates with constructive notice of the receiver’s want of •authority and that the corporation was not liable therefor. p. 667</p> <p>When the money raised on the unauthorized certificates was used on the company’s plant and machinery, or placed in its treasury, the receiver should he credited therewith. p. 667</p>

<p> Attachmentj registered honds of foreign corporations. </p> <p>By a decree of a Court of equity, it had been decided that certain bonds of foreign corporations, registered as to principal in the name of certain infants, were the absolute property of the father, and that they should be delivered over to him; certain of his creditors attached the bonds in the hands of the American Bonding Company, where they had been deposited. The father filed a motion that the bonds be released and discharged from ,the operation of the attachment; the Court passed an order so relieving and discharging the bonds on the ground that the Court could not render a judgment of condemnation under which the bonds could be sold on execution. On appeal, it was held, that these bonds should not have been released. p. 671</p> <p>Without deciding that the registered coupon bonds of foreign corporations, while located in the State, were in all cases liable to attachment, it was further held that these bonds were property within the meaning of section 10 of Article 9 of the Code of Public General ,Laws, and under the special facts appearing in the records and the principles announced in the prior appeals cited in the opinion, the bonds were liable to attachment by the creditors of the father. p. 677</p>

<p> Depositions; right of a party to the suit to attend and cross-examine witnesses; deposition admitted subject to exception. Bills of exceptions; unsigned. Sale and delivery of goods; proof; shipping cleric; shipping receipt; damages for breach of contract; time; element of; too speculative. Agency; proof of; letters; mailing of; carbon copies. Prayers, identical;—talcing case from jury; waiver by defendant by offering testimony; segregation of facts. Judges; competency. </p> <p>Bills of exception not signed by the trial Court will not be considered on appeal. p. 680</p> <p>A party to a suit assisting at the taking of depositions and cross-examining witnesses thereby waives his right to object to the admissibility of the deposition as a whole. p. 681</p> <p>Where a deposition, admitted subject to exception, is not followed by a motion for its exclusion, its admission presents no reversible error. p. 682</p> <p>The testimony of a clerk, that he fastened up the box in which were goods destined for the defendant and received from the railroad truckmen a shipping receipt showing that the case was shipped to the defendant is admissible in evidence to prove such shipment. p. 682</p> <p>After the receipt has been identified and offered in evidence, references to it by other witnesses are admissible. p. 682</p> <p>In proving agency, the credibility of the witness is for the jury. p, 683</p> <p>Carbon copies of letters, when their custody is properly proven are regarded as duplicate originals. p. 683</p> <p>Proof that letters were mailed raises the presumption that they were received by the addressees. p.683</p> <p>It is error to present to ■ the consideration of the jury two prayers identical in effect. ' p. 684</p> <p>It is error in instructions to the jury to segregate from a case particular facts without regard to other essential facts of which there has been evidence. p. 684</p> <p>In an action in assumpsit for a balance due for clothing made and shipped to the defendant, at the request of an agent, it was held, that evidence of damage to the defendant by reason of the non-delivery of the goods by a particular date was not admissible, where it had not been shown that time was of the essence, and where the character of the damages sought to be introduced was wholly speculative and conjectural. p. 684</p> <p>Where after the conclusion of the plaintiff’s case, the defendant presents prayers taking the case from the jury, and the same are refused, if the defendant proceeds to offer testimony in support of his contention, he thereby waives his right to insist upon those prayers in the Court of Appeals, and the ruling of the trial Court thereon is not open for review. p. 688</p> <p>Even if the fact that, previous to his elevation to the Bench, a judge had furnished security for costs to the plaintiff, it can present no ground for an exception to the competency of the judge to pass an order in the case, when neither the docket' entry nor the record show that the judge did pass such orders. p. 680</p>

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

<p> Specific performance; certainty; ground rents; contracts to build. Equity; prayer for relief; repugnant to bill. </p> <p>A contract must be certain in all its parts to merit a decree for its specific performance. p. 693</p> <p>A “ground rent” does not ex vi termini mean a rent reserved under a 99-year lease renewable forever. p. 694</p> <p>A contract providing for the creation of a ground rent of a certain amount and rate of captialization, but without specifying the'term for which it is to be made, is too indefinite to warrant a decree for specific performance. p. 694</p> <p>Equity will not decree specific performance of a contract to> convey property which is not in existence. p. 695-</p> <p>A contract requiring the building of a house of a certain width, without specifying its depth, is too indefinite to be specifically enforced. p. 696</p> <p>Generally, equity will not specifically enforce contracts to erect or repair buildings. p. 697</p> <p>Relief in equity which is entirely distinct from and repugnant ■ to the special relief prayed, can not be granted under the prayer for general relief. p. 698</p> <p>Where the relief prayed in a bill in equity was not in the alternative but was first for the specific enforcement of a contract as written, and second for such, further and other, relief as the case might require, a monetary decree to compensate for the breach of the contract, which was not specifically enforceable, is distinct from and repugnant to the relief prayed in the bill. . p. 698</p> <p>Where in a bill for specific performance, the allegation of irreparable loss and injury are mere conclusions of law, they are not admitted by a demurrer, and can not be taken in proof of damages. p. 698</p>