Volume 116 — Maryland Reports

<p>Appeal from the Circuit Co-urt of Baltimore City (Heuis-Eer, J.).</p>

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

<p>Bills of sale; recording; unnecessary where chattels are delivr red. Corporations; creditors’ rights; hill of sale hy corporation to president, individually; without delivery; presumption. Foreign judgments; jurisdiction of Court; presumption; proof of papers and records. Evidence.</p> <p>If a hona -fide sale is to be made by a corporation to its president, individually, of its property, the situs of which is not changed, there should he recorded an instrument of writing which would inform the public of the change of title, and the president should make oath as to the hona ftdes of the sale. p. 13</p> <p>Otherwise the instrument is wholly void, and it can not be assumed that such a delivery was made, as under section 41 of Article 21 of the Code of Public General Laws would render a recorded hill of sale unnecessary. p. 13</p> <p>As against creditors a transfer of property must be hona fide as well as for value. - p. 16</p> <p>Even if hona fide, the law will not permit the president of the corporation to take over all its property to the prejudice of creditors, especially when he paid the consideration to the stockholders and not to the corporation. p. 17</p> <p>The Courts of this State may inquire into the jurisdiction of a Court of another State which has rendered a judgment sought to he enforced here; hut the presumption is in favor of their jurisdiction and of the officer’s return to process, p. 20</p> <p>While it may not always be necessary to have a complete record of á foreign judgment to make it admissible in evidence when it is sought to obtain a decree based on the judgment of another State, yet, if the answer in effect pleads nul tiel record and specially denies the jurisdiction of a foreign Court ' over the debtor, it is necessary and proper to require a complete record. p. 23</p> <p>Papers in a case relating to a foreign judgment which is sought to be enforced, which are certified to only by the clerk of the foreign Court, alone are not such an exemplification of the record as authorized by section 40 of Article 35 of the Code of Public General Laws. p. 23</p> <p>Certain papers, purporting to be certified copies of the records of a corporation, ratifying sales of its property, releases, receipts, etc., were shown to and left with an attorney. They were subsequently lost. It was not shown that the attorney knew the signatures of the parties, or that he knew more about the papers than what he was told by the party leaving them. Held, that the testimony of the attorney as to what the papers were was only hearsay and inadmissible, pp. 15-16</p>

<p>Appeal from the Circuit Court of Caroline County (Hopper, J'.).</p>

). The following are the defendant’s prayers referred to in the opinion, except the third and fifth-prayers which are there set out in full: ' Defendant's. 1st Prayer. — Uf .the Court finds from the evidence that the defendant contracted with the plaintiff for a heating plant to be installed in his house at 1814 N. Charles street, “The job as a whole is to be put .up in a first-class manner free from leaks or defects of any kind, tested with fire in same and left in…

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

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

<p>Master and servant; hoisting enginej contributory negligence of servant; of fellow-servant; duty of servant. Prayers: inconsistent.</p> <p>In actions of damages for losses sustained by the plaintiff because of tbe negligence of the defendant, the foundation of the right of recovery lies in some act of negligence, both of commission or omission, on the part of the defendant or his omission of some duty owed by him to the plaintiff. p. 60 When an employee while engaged' in his duties receives injuries from dangers which are open and obvious, he is presumed to have assumed the risk, and no claim for damages will lie by him against his employer. ' p. 62</p> <p>Where an employee brings suit for damages for injuries claimed by him to have been received from a defect in the machinery, it is not sufficient to show that the injury was received because of such defect, but he must also show that it happened because the employer did not exercise care in the premises. p. 63</p> <p>It is not negligence per se for a hoisting engine to be used in the open, without shelter' or cover, when they are frequently so used and are built especially for that purpose. p. 63</p> <p>Neither is it negligence for the employer not to keep in repair the foot brake upon a hoisting engine when it is shown that the foot brake was not an integral part of the engine, but was always an extra, and the engine was equipped with a friction brake. P- 64</p> <p>The failure of the engineer to apply the brake was the fault of a fellow-servant of the plaintiff, for which there could be no recovery as against the employer. p. 64</p> <p>In an action for damages for injury received by the plaintiff while working about the hoisting engine there was some evidence that the injury was caused by the condition of the machinery and some that it was caused by the contributory negligence of the engineer, a fellow-servant, in not heeding tlio signals of a signalman, placed by the company to direct the movements of the engine; a prayer instructing the jury that there was no negligence proved on the part of the defendant is proper. p. 66</p> <p>The granting of a prayer on behalf of the plaintiff that in the use of certain machinery the defendant must exercise “a higher degree of care where life and limb is in danger than in other cases,” together with a prayer of the defendant, that the defendant was only liable for ordinary or reasonable care to furnish its employees with reasonably safe and reliable machinery, were liable to confuse the jury, and present prejudicial error. p. 68</p> <p>It is the duty of an employee to avoid injury to himself. He must provide for his own safety from such dangers as are known to him or are discernible by ordinary care on his part. p. 66</p> <p>A man was employed to unload into a scow an iron bucket full of cement, weighing some 6,000 pounds, let down by a hoisting engine; he was injured while standing under the bucket; some of his witnesses testified that he was not watching for it, but was looking out over the water; it was held, that he was guilty of contributory negligence. p. 67</p>

Two appeals in one record from the Baltimore City Court (Elliott, J.).

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

<p> Buie security for costs; does not extend time of pleading; rule for hill of particulars. Scire facias; treated as declaration. Return day; default in pleading; extension of time; motion to strike out plea; exceptions; when necessary. Judgment creditors; fiat against some only. Presumption in favor of Courts. </p> <p>A rule security for costs is not connected with the pleadings, and a defendant can plead as well before as after the rule has been complied with. p. 101</p> <p>Neither a motion for rule security for costs, nor the rule itself, has the effect of extending the time for pleading. p. 101</p> <p>A defendant by pleading before a rule for a bill of particulars is complied with, waives his right to require compliance with it. p. 102</p> <p>For the purposes of pleading, a writ of scire facias is treated as a declaration.' p. 103</p> <p>Where a rule of Court requiring the defendant to plead by a certain return day or date, requires also the entry of the-rule to be made upon the docket, such an entry must be made before the defendant can be put in default. p. 103</p> <p>Where the trial Court extended the time for pleading because the rule security for costs had not been complied with, it was held, that the defendant should not be made to lose his right to file pleas, although the trial Court was in error as to the effect of the rule security for costs. p. 104</p> <p>Ordinarily no bill of exceptions is required to bring up such motions as motions to strike out pleas, etc., when the record shows the motion and ruling of the Court thereon; but when the motion consists for the most part of facts which are not in the record, such facts should he brought up before the Court of Appeals by a bill of exceptions or some such means. p. 107</p> <p>Section 8, Article 75, of the Code of Public General Laws, does not include motions, and if a plaintiff moves to strike out a plea, and when overruled replies to the plea, he loses his right to have the motion reviewed by the Court- of Appeals unless he notes at the time an exception to the Court’s ruling. • p. 107</p> <p>A plaintiff with an absolute right to a judgment under the Practice Act, when pleas have not been filed as required, waives his right thereto by filing a replication to the pleas. p. 109</p> <p>Assuming that the return “summoned” is a sufficient return to a scire facias, if the return is against a number of judgment creditors, the fiat should be asked for against them all, unless there is some reason shown for omitting any; hut when on .appeal, in such a case, it nowhere appears in the record why certain of the judgment debtors were omitted, it should he presumed that the trial Court acted rightly in the matter. p. 110</p>

<p>Decrees; before enrollment; modification and correction; by petition; not by original bill. Mechanics’ lien; priority; notice; decree to enforce — ; effect of — ; not open to collateral attach.</p> <p>Until enrolled, decrees are under the control of the Court and may be revised, modified and revoked upon proper grounds shown. p. .114</p> <p>Before enrollment the proper method for correcting errors in a decree is by a petition in the same proceeding for a rehearing, and not by original bill; after enrollment an original bill must generally be resorted to. p. 114</p> <p>A mechanics’ lien claim, filed and recorded under the mechanics’ Lien Laws, Article 63, Code Public General Laws, may be enforced by a decree in equity in the same manner that equity enforces other liens, by the Court decreeing a sale and appointing a trustee to make the sale and apportion the proceeds among the parties entitled according to their respective rights. p. 114</p> <p>Where a mechanics’ lien attaches prior to a judgment debt- or’s claim, the former is the superior claim and one who purchases under a scire facias to enforce the judgment has notice of the lien and purchases subject to it. p. 114</p> <p>A proceeding in equity to enforce a mechanics’ lien claim is in the nature of a proceeding in rem, and when the property is sold under a decree passed in the case, it is sold free and discharged of all mechanics’ lien claims, the proceeds of sale being apportioned among the persons entitled thereto, p. 115</p> <p>The validity of the mechanics’ lien claim is established for the purposes of the decree, and it can not be disturbed or the decree attacked in a collateral proceeding. p. 115</p>

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

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

<p>Witnesses: staetments in giving testimony not actionable. Conspiracy. False witnesses: action on the case for production of — ; will not lie.</p> <p>A plaintiff who had been employed as attorney to recover property for his client brought suit against the defendant and the latter’s counsel for loss caused to him, alleging that by means of- false and perjured testimony they had conspired to defeat the action and caused him to fail in recovering the property in which he had an interest by an assignment from his client. Held, that such an action would not lie. p. 135</p> <p>An action will not lie against a witness for what he says or writes in giving testimony before a court of justice. p. 138</p> <p>An act which, if done by one alone, constitutes no ground of action on the case, can not be made the ground of such an action by alleging it to have been done by and through a conspiracy of several. p. 139</p>

<p> Attachment; service of summons on garnishees; must he personal; against partnership. Void judgments: injunction to restrain. </p> <p>Before a valid judgment in personam can be rendered, jurisdiction of tbe. person of tbe defendant must be acquired by personal service of process upon him, or by bis voluntary appearance. p. 143</p> <p>Service of an attachment and scire facias upon an individual who is not a member of tbe firm intended to be made garnishee is not sufficient to give tbe Court jurisdiction to render a judgment of condemnation against tbe firm. p. 144</p> <p>Tbe service of tbe summons must be a personal one, and tbe officer charged with tbe duty of serving it is not authorized to leave a copy of it at tbe office, bouse or place of business of tbe defendant and return bim summoned, nor upon bis wife, agent or partner. p. 144</p> <p>A judgment in personam where no jurisdiction of tbe person is obtained is wholly void, and tbe enforcement of such a judgment may be restrained in equity. p. 145</p> <p>Tbe right to such equitable relief rests upon tbe ground that the judgment is a nullity, and does not depend upon tbe ability of tbe party against whom it was rendered to show that be bad not independent information as to tbe pendency of tbe suit. p. 145</p> <p>Under section 33 of Article 9 of the Code, wages or hire, not actually due, are not attachable, and $100.00 of such wages or hire are always exempted. p. 146</p> <p>Garnishees against whom a suit of condemnation has been entered in an invalid proceeding are entitled to an injunction to restrain the same without being required first to submit to the annoyance of a levy on their property before seeking the protection of a court of equity. p. 147</p>

<p> Evidence; boohs and memoranda. Immaterial evidence; when no ground for reversal. Assumpsit; goods sold and delivered; general issue. Recoupment. Prayers. Contracts; interpretation; for the Court. Foreign depositions; leading questions; objections; how to be made. </p> <p>Evidence from books or memoranda is not admissible unless shown to have been books, etc., of original entry, or to have been made under the supervision of the witness testifying; and is not admissible when made by clerks who were not called, and who were not shown to be dead or unobtainable. p. 150</p> <p>In taking testimony under a foreign deposition, objections to questions to be propounded, on the ground that they are leading, must be made at the time of taking the depositions, with the reason therefor, so as to; give to the opposite party opportunity for reforming the questions; such objections may not be raised, for the first time, at the hearing. p. 151</p> <p>The admission of immaterial evidence, while the practice is unfortunate, does not present reversible error, if it does not appear that any injury resulted therefrom to the party objecting. p. 152</p> <p>In an action of assumpsit for the failure of the defendant to pay for goods shipped to him, on his order, by the plaintiff, the defendant, under the general issue, may introduce evidence tending to show injury suffered by him, upon which to found a claim for recoupment. p. 152</p> <p>There can be no claim for recoupment unless there has been a breach of contract. p. 152</p> <p>A case should never be withdrawn from the consideration of the</p> <p>jury, on the ground of “no evidence,” if there is any evidence, however slight, proper for them to consider. x3-153</p> <p>The interpretation of contracts is for the Court. x3-151</p> <p>Prayers are erroneous which submit to the jury matter proper for the Court to decide. p. 154</p> <p>Prayers are erroneous which submit to the finding of the jury facts which are admitted. . p. 154</p>

<p> Fire insurance; “iron safe” clause; “building actually open for business.” </p> <p>The “iron safe” clause in fire insurance policies requires the keeping of hooks giving a complete record of business transactions, including all purchases, sales and shipments, for cash or credit, from the date of the inventory, during the continuance of the policy, and the keeping of such books, locked in a fireproof safe at night, and at all'times when the building is not actually open for business, or in some place not exposed to a fire which would destroy the building. Held, such a clause should receive a fair and reasonable interpretation, and in interpreting it courts are largely governed by the circumstances of each particular ease. p. 160</p> <p>Where there is no question of the loss having been caused by the fault or negligence of the owner, courts shrink from placing an interpretation on clauses of this kind which would deprive the owner of the right to recover. p. 160</p> <p>But when the terms of the contract are clear and unambiguous courts have no right to make new contracts for the parties or ignore those already made, simply to avoid seeming hardship. p. 160</p> <p>Where a store was left vacant and locked up for half-an hour while the shopkeeper and attendants went to lunch, the store was not “actually open for business” within the meaning of this clause, and, the books not having been kept in a fireproof safe or other place of safety while the store was so left, during which time the store, books and goods were burned, it was held, that there could be no recovery under the policy. p. 161</p> <p>if an assured, acting in good faith, places the books in a safe1 which he wrongly believed to be fireproof, or in some place which he mistakenly believes not exposed to a fire that wouiu destroy the building, his mere failure to produce the books would not necessarily bar his recovery under a policy with this clause. p. 162</p> <p>An insurance policy, insuring a stock of goods and fixtures, contained a stipulation, providing for a forfeiture, in these words: “This policy shall become null and void, and such failure shall constitute a perpetual bar to any recovery thereon.” Held, that the contract was an entirety and the forfeiture applied as well to the fixtures as to the goods. p. 165</p>

). where there was a judgment and verdict in favor of the plaintiff for $4,000, with interest and costs.

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

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

<p> Practice; return day; failure to plead in timej extension of time; motion to strike out. Judgment by default; appeals; name of party. Presumption in favor of lower Court. </p> <p>Where under a Practice Act a defendant is required to plead within a certain time, and no plea is filed in that time, but the declaration is demurred to after the time required for the pleas, the demurrer may be treated as a nullity and judgment entered by default. p. 191</p> <p>Under a Practice Act the Court, upon good cause shown, could extend the time of filing pleas; upon appeal from a judgment by default for want of pleas filed in time, the record did not show for what cause the defendant asked leave to file pleas after the expiration of the time allowed by statute. Held. that the Court of Appeals could not pass upon the correctness of the Court’s ruling in reference to the extension of time. p. 191</p> <p>A judgment by default establishes, first, the jurisdiction of the Court to'pass it; second, the liability of the defendant to the plaintiff for something. Por those purposes such a judgment is as binding as any other. p. 195</p> <p>In such a case it is incumbent on the plaintiff to prove the amount for which the defendant is liable, but it is not necessary to offer proof of his liability. p. 195</p> <p>Where a plaintiff served with a summons demurs to the declaration, but suffers a judgment by default to be entered against him, he can not, at the proceedings for the assessment of damages, give evidence to show that his right name is not the one by which he is sued. p. 196</p>

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

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

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

<p>Appeal from the Circuit Court for Allegany County (Hea-DERSOA, J'.).</p>

<p>Interstate commerce; unconstitutional restriction; taxation of oysters transported; Acts of 1910, Oh. 735.</p> <p>Chapter 735 of the Acts of 1910, among other things, imposes a tax of two cents a bushel on all oysters that are sold by commission men and others selling less than by cargo, and requires all transportation companies carrying oysters to furnish a copy of the manifest showing the number of oysters on board. Held, the law is void and unconstitutional, as being a restriction upon interstate commerce. p. 239</p> <p>The act contemplates the transportation (and taxation) of oysters as freight, whether it be from this State to' another State, or from another State into this State, for sale, and either transaction constitutes interstate commerce. p. 239</p> <p>Since the act segregates one-half the tax for the re-shelling of the oyster bottoms of the State, the law is not within the ■ exception of section 10 of Article 1 of the Constitution of the United States, authorizing the States to impose import or export duties, sufficient for their inspection laws. p. 241</p> <p>As the law is unconstitutional as to the oysters transported from without the State, it is not to be presumed that it was the intention of the legislature to apply the law to Maryland oysters alone, and so discriminate against the citizens of the State, in favor of those beyond its limits; and the whole law is void. p. 241</p> <p>The bringing of goods from the seller to the buyer is commerce. p. 237</p>

<p>Appealed, from the Circuit Court of Baltimore City (Heutsder, J-).</p>

<p> Equity; injunction; to stay a judgment. </p> <p>The same facts upon which a party bases a motion, before a court of law, to strike out a judgment, can not serve as the basis of an application for an injunction to stay the.prosecution of the judgment, when the court of law had the right to hear and decide on the motion. pp. 255, 256</p> <p>It is of interest to the State that there should be an end of litigation. ' p. 256</p>

<p> Contracts; too indefinite; special railroad rates. </p> <p>An electric railroad sold to J. and G. a farm, with the promise to give them a special rate between Baltimore City and the farm, called afterward Woodlawn Heights, for the benefit of all purchasers of lots at said Woodlawn Heights. In a suit against the railroad by the assignees of I. and Gr. for damages for the breach of said promise it was held, that there was no stipulated time for which the special rate was to be maintained, nor was the amount of the special rate specified, and the agreement was too general and indefinite in its character to form the basis of a suit. p. 261</p> <p>The rate for transportation of passengers is subject to frequent changes, and a reasonable time for which such rates, when established, should be maintained under a contract of this character (when no time is specified) would naturally be shorter than in the case of a contract for the maintenance of a railroad station. p. 263</p> <p>To arrive at the real purpose and meaning of a contract courts consider the language employed and the subject-matter and circumstances under which it was made. p. 261</p>

<p>Deeds: Construction. A lleys: Obstruction of — . Injunctions: Title of complainant. Equitable Estoppel.</p> <p>A grantor conveyed land by deed describing it as binding along an alley (laid out on the grantor’s land), with the use thereof, in common with others, and with the use of another alley, to be laid out, by the grantor (the second alley being necessary to the use of the first) ; the assignees of the grantor commenced the construction of houses on the space left for the second alley; grantees under mesne conveyances of the lot so conveyed, filed a bill for an injunction to prevent the completion of the houses and compel their removal; it was held, that the failure of the original grantor to make the alley serviceable as a thoroughfare did not impair the efficiency of the formal grant. p. 273</p> <p>It was competent for those entitled to the use of the alloy to waive the covenant for its improvement and use it in its primitive condition. p. 274</p> <p>An alley is simply a narrow passageway; it may exist without any work of construction being done upon it. p. 272</p> <p>To “lay out,” as ordinarily employed in such a connection, means the adoption of outlines and location and not the work of construction or improvement. p. 273</p> <p>The building of a house on ground through which the complainants are entitled to an alley way, necessary to make available to them the right to use another alley apurtenant to their estate, presents a case where there is no remedy by ejectment or trespass and is proper for redress in equity by an injunction. • pp. 275-276</p> <p>Where relief by injunction is sought as a determinative and not as an ancillary remedy, it is essential that the right of the plaintiff to the invaded estate should be free from every reasonable doubt or dispute. p. 274</p> <p>When the title relied on is controverted and it appears that there is some ground for objection, a court of equity will not interfere, except for temporary protective purposes, until the question of legal right can be determined by a court of law. p. 274</p> <p>When the legal title sought to he protected is not doubtful, there is no reason to require the parties to resort to a court of law for its adjudication. • p. 274</p> <p>When a trespass works a destruction of the estate in the character in which the complainant was entitled to enjoy it, a proper pase is made for relief by injunction. p. 275</p> <p>Mere silence' as to rights of record does not create an equitable estoppel. 1 ■ p. 276</p> <p>The doctrine, that where one stands by and sees another lay out money oh property to which he himself has claim or title, and gives no notice of it, he can not afterwards in equity and good conscience set up such claim or title, does not apply to an act of encroachment on land the title to which is equally well known or equally open to the notice of both parties. p. 277</p> <p>The principle applies only against one who claims under some trust, lien or other right, not equally open and apparent to the parties and in favor of one who would be misled or deceived by such want of notice. p. 277</p>

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

<p>Two appeals in one i*ecord from the Criminal Court of Baltimore City (Dobles, J.).</p> <p>The canses were argued together before Boyd, O. J., Pearce, Burke, Uryer and Stockbeidci?, JJ.</p>

<p>Executors: administrators; erroneous accounts; restatement; counsel fees.</p> <p>In stating a first administration account the executors made various errors and omissions, and upon the objection of certain of the legatees they were compelled to restate another first administration account; held, that.under the facts of the case the Orphans’ Court should not have authorized the executors to employ and pay counsel out of the estate for the purpose of aiding them in stating the account. p. 805</p>

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

<p>Liquor License Laws: Chapter 380 of the. Acts of 1908; applies to private clubs.</p> <p>Chapter 380 of the Acts of 1908, the High License Law of Washington county, in its application, includes private clubs where the liquor sold is to members only, even though the same is not sold at a profit. p. 327</p>

<p>Appeal from the Circuit Court of Frederick County, sitting in equity (Peteb and Hotter,</p>

<p>Administrators-, concealment of assets; proceedings under secs. 243 and 244 of Art. 93 of Code; refusal of Orphans’ Court to send issues to court of law; no appeal to the Court of Appeals.</p> <p>Where, under sections 243 and 244 of Article 93 of the Code of Public General Laws, a distributee charges an administrator with concealment of assets, no appeal by the latter will lie to the Court of Appeals from the refusal of the Orphans’ Court to receive his answer and grant his application for issues to be sent to a court of law. > p. 336</p> <p>The appeal thus specially prescribed for this kind of cases excludes the general right of appeal to the Court of Appeals from order of the Orphans’ Court under section 60 of Article 5 of the Code. • p. 335</p> <p>In such a case, where there was a dispute as to the right of the administrator to have issues framed after the trial was in progress, it was held, that a question was raised which it was the duty of the Orphans’ Court to determine. p. 337</p> <p>In such a case the Orphans’ Court has a judicial function to perform. p. 337</p>

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

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

<p>Court of Appeals-, decisionsj binding effect of — .</p> <p>A decision by the Court of Appeals once pronounced in any case is binding upon the Court below and upon the Court of Appeals in subsequent proceedings of tbe same case, and can not be disregarded or called in question. pp. 354-355</p> <p>Debet esse finis litium. p. 355</p>

<p>Appeal from the Circuit Court of Howard County (Forsythe, Jr., J.).</p>

<p>Taxation: laws liberally construed. State taxes. Corporations; capital stoclc taxj authorized issue; reduction of — . Tax Commissioner and Comptroller; duties — ; “levying” taxes. Statutes: construction; time; when directory merely.</p> <p>Laws for the assessment and collection of general taxes are. construed witb tbe utmost liberality; tbe construction is not to be a critical one, witb a view to defeat tbe enactment, but a liberal interpretation to uphold it, if possible. p. 372</p> <p>The acts of a public officer in the discharge of his duty are entitled to the presumption of having been correctly performed. p. 372</p> <p>It is within the province of the legislature itself to levy a tax directly, and the fact that it may delegate the power, either in.whole or in part, does not destroy the validity of the act. p. 374</p> <p>The word “levy” as applied to taxes may mean to raise and exact by authority of government, or to determine by a vote the amount of tax to be raised. p. 373</p> <p>Chapter 404 of the Acts of 1906 fixes the amount per hundred to he imposed by way of taxation and itself constitutes a legislative levy of the tax, hut that levy needs to he completed by its entry upon the hooks of the State Comptroller; the act vests no power in the Comptroller to determine the rate of taxes, nor does it give him any function to perform in the way of valuing stock for the purpose of taxation. p. 373</p> <p>The functions of the Comptroller under the act are purely ministerial, and are fully performed when he enters upon his books the number of shares of stock liable to taxation, the corporation the stock of which was taxed, the rate of taxation, and the amount of the tax. p. 373</p> <p>The similar or identical duties imposed upon the State Tax Commissioner by section 150 of Article 81 of tbe Code of Public General Laws, while superfluous, do not invalidate the tax; and to a suit by the State against a corporation for taxes due under the provisions of the Act of 1906, it is no defence that such levy was so made by the Tax Commissioner and not by the Comptroller. pp. 372, 374</p> <p>The tax on the capital stock of a corporation is not a tax upon the corporation, hut upon the owners of the stock; the corporation under the law is made merely the medium through which the tax is collected p. 375</p> <p>In the construction of statutes they are, in respect to time, to he legarded as directory merely, unless from the nature of the act to he performed, or the language employed it plainly appears that the designation of time was intended as a limitation of power. p. 376</p> <p>Article 81, section 150 of the Code, providing that the Tax Commissioner shall annually by the 15th of May assess for taxation purposes the shares of corporations, as therein provided, as of the 1st day of January preceding and certify the same to the Comptroller, does not require that the certification shall he in all respects completed by the date named; and where the State Tax Commissioner certified to the Comptroller such a valuation on the 17th day of May, it was held that the delay did not invalidate his act. pp. 375-376</p> <p>For the purpose of the taxation of the capital stock of a corporation, the 1st of January of each calendar year is the fixed time with regard to which all elements are to he reported, considered and established, conclusive alike upon the State and the corporation. p. 377</p> <p>This applies as well to the quantum of the stock; and where a corporation reduced its capital stock in February, it was held to be liable for taxation upon the amount of its capital stock as of the 1st of January preceding. p. 377</p> <p>Where the corporation in such a ease did not withhold from the stockholders the tax due on the shares of their stock that were to be retired, it was held that the corporation was itself liable for the taxes due the State upon such shares. p. 378</p> <p>Where a corporation has never issued but part of its authorized capital stock only the stock actually issued is liable to taxation. p. 378</p>

Two appeals from the .Circuit Court for Garrett County (HeJS'DEESOjV, J.). Held: notably in the cases of Davidson v. New Orleans, 96 U. S. 97 (24-616), and Yick Wo v. Hopkins, 118 U. S. 356 (30-220), that the police power can not be put forward as an excuse for oppressive and unjust legislation, it may be lawfully resorted for the purpose of preserving the public health, safety or morals, or the abatement of…

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

). The following are the prayers of the plaintiff that were directed by the Court to be set out in full: 1st Prayer — The plaintiff prays the Court to instruct the jury that it is the duty of the jury to determine whether or not the whole contract between the plaintiff and the defendant was embraced in the paper writing offered in -evidence signed by M. Meyer and dated November Ith, 1904, and if they shall find that the whole of the contract was not embraced in said paper…

). The following are the rejected- prayers of the defendant ordered by the Court to be inserted in the report of the case: Defendant’s 1st Prayer.- — At the request of the defendant, the Court • instructs the jury that under the uncontradicted evidence in this case, and under the pleadings, there is no evidence legally sufficient to entitle the plaintiff to recover, and the verdict must, therefore, be for the defendant (Refused).

<p>Appeal from the Circuit Court for Worcester County (Jones and Toadvin, JJ.).</p>

<p>Brokers or agents: employtneni; breaking off and renewing negotiations; commissions.</p> <p>A party can not act as agent or broker for both vendor and vendee in respect to the same transaction. p. 465</p> <p>Certain parties associated together were to share commissions as agents or brokers in an employment that was, however,, dropped and brought to a definite termination before the commissions were earned; certain of the parties rendered services and earned compensation upon a new, separate and distinct employment representing different interests, in which some of those first associated with them were not included, although the services related to the same subject-matter. Held, that in the absence of evidence to show an agreement that those of the former associates who were not included in the new transactions were, by the original agreement, to have been included in any subsequent employment concerning the same subject-matter as to which the others might be employed, no action for money had and received would lie by them against those of their former associates-who were employed in the second transaction. p. 466</p>

<p>Justices of the Peace: jurisdiction; title to land; Code, Art. 52, sec. 8; allegations. Standing timber; sale of — ; goods only.</p> <p>While exceptions are not allowed in trials of cases on appeals from justices of the peace, the evidence taken below may be certified to the Court of Appeals by the judge of the trial Court. p. 468</p> <p>To oust the jurisdiction of a justice of the peace, under section 8 of Article 52 of the Code of Public General Laws, the mere allegation of the defendant is not conclusive; hut it must appear to the Court from the nature of the act itself that it is one in which title to land is necessarily and directly at issue. p. 469, 470</p> <p>The contract for the sale of standing timber is a sale of goods only. p. 470</p>

<p>Justices of the Peace: jurisdiction. Appeals: only after final judgment by Court below.</p> <p>ÍT'o appeal can be taken to the Court of Appeals until final judgment. p. 472</p> <p>An appeal will not lie to the Court of Appeals overruling a motion to quash proceedings before a justice of the peace, under section 650 of Article 4 of the Code of Public Local Laws. p. 472</p> <p>In the absence of special authority, the Court of Appeals can</p> <p>only entertain an appeal in a case originating before a justice of the peace from a judgment of the lower Court, on the ground that the lower Court and justice of the peace were without jurisdiction to render the judgment. p. 473</p> <p>When such proceedings below are terminated, an appeal will then lie, and all errors of the lower Court in the whole progress of the case, if properly presented and not waived, will be proper subjects for correction by the Court of Appeals. p. 473</p>

<p>Appeal from the Superior Court for Baltimore City (Cor-tee, J.).</p>

<p> Pleading-, sufficiency of declarations. Prayers. Negligence; escaping steam; frightening horses. </p> <p>There is no liability on'an adjoining land owner for frightening horses on the highway, unless the object causing the fright is calculated to frighten horses ordinarily gentle, and unless the plaintiff’s horse was ordinarily gentle, . p.488</p> <p>Even under our simplified system, the fundamental principles of pleading are still recognized and enforced. p. 487</p> <p>A declaration which fails to state substantial facts essential to a recovery can not be recognized as sufficient. , p. 488</p> <p>An action for damages was brought against the owner of a grist mill- located along a turnpike, on the ground that smoke and steam escaping from the engine of the mill had frightened the horse of the plaintiff and had caused the latter to be thrown from his carriage and injured; the declaration failed to aver that the horse was frightened by the smoke, or that the steam was discharged in excessive or unusual volume, or that it was calculated to frighten a horse ordinarily gentle, or that the plaintiff’s horse was ordinarily gentle, or whether the steam pipe was faulty, or where it was placed, etc.; held, that the declaration failed to state a good cause of action and that it was properly demurrable. p. 489</p> <p>"When á prayer refers to the pleadings the sufficiency of the declaration may be inquired into. p. 489</p> <p>Where a declaration fails to state a legal cause of action, a prayer by the defendant asserting that under the pleadings the plaintiff is not entitled to recover should be granted. p. 489</p> <p>Prayers that are vague and indefinite are properly refused. p. 490</p>

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

<p>Appeal from the Circuit Court for Washington County, sitting in equity (Hew'dersoit, J.).</p>

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

<p>Appeal from the Circuit Court for Washington County, sitting in equity (Kebdy, J.).</p> <p>The cause was argued, before Boyd, C. 0., Briscoe, Pearce, Burkic, Thomas, Pattisoxt, Uriuer and Stock-bridge, JJ.</p>

<p>Fiduciary relations: voidable deeds; trust company officials; mother of grantor; wife’s inchoate right of dower. Rule in Shelly’s Case. Words merely descriptio personarum.</p> <p>Where those relations exist by means of which a person is able to exercise a dominion over another, Courts will annul transactions under which a person possessing that power takes a benefit, uirless he can show that the transaction was a righteous one. p. 531</p> <p>A deed of trust by which a very young man and his wife provided that after paying the expenses, including commissions to the trustee, the latter should paj over the balance of the income to the grantor and his wife, or either of them and upon the death of the survivor the property to vest in the next” of kin of the grantor, it was held that the deed should ho considered in the light of this principle, as regards the officers of the trust company and the mother of the grantor, in 'spite of the fact that the deed was for only a part of the grantor’s property, that it contained a revocation clause, and that the trustee and the mother, who was the then expectant next of kin, had but a small interest in the deed. p. 582</p> <p>As the deed appeared in this case to be righteous and to be the free and voluntary act of the grantors, it should be upheld. p. 536</p> <p>Where a deed of trust by a husband, in which the wife joins, provides that the income shall be paid to the grantors or either of them, and to the survivor for life, the wife can not be heard to complain that the deed destroys her inchoate right of dower in a ground rent issuing out of a lot of ground included in the property so conveyed. p. 537</p> <p>Where a deed of trust provides that the trustees are to pay to the grantor or his wife or either of them the income of the property, after paying the expenses and commissions to the trustee, and upon the death of the survivor the property is to vest in “such persons as would by the now existing law be the next of kin of the grantor;” it was held that under all the circumstances of the case these words determined particular persons answering the description at a particular time and in a special sense, and were merely descriptio personai'um and that the Rule in Shelly’s Case did not apply. p. 540</p> <p>The Rule in Shelly’s case is not a favored one in Maryland, although the Court will not refuse to apply it in a proper case. p. 540</p> <p>Where it is not the particular intent of the grantor to use the words of inheritance in their full legal sense, those words in the connection in which they are used, yield to that intent, thereby withdrawing the case from the application of that rule. p. 540</p>

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

<p>Appeal from the Baltimore City Court (Dobi.er, J.), where there was a judgment on verdict for $8,000 for the plaintiff.</p>

<p> Corporations: purchase of own stock ; agreement against public policy, and void; bond to secure payment, void; void and ultra vires; not affected by subsequent change of law. Statutes of foreign States, and common law; presumption. </p> <p>In the absence of express authority, a corporation has no power to contract for the purchase of its own stock; and a promise to pay money knowingly loaned, or advanced, for that purpose can not be enforced. p. 563</p> <p>Such a contract is contrary to public policy, and is illegal and void. p. 563</p> <p>A bond given to secure the payment of the price which a corporation so agreed to pay for its own capital stock, when not authorized by law so to purchase it, is a bond in furtherance of an illegal contract and carj not be enforced. p. 561</p> <p>In order to enforce a contract for the purchase of its own capital stock by a corporation, it must appear that the pur- ' chase was authorized by the law of the State in which the corporation was incorporated. p. 565</p> <p>The Courts of the several States will not take judicial cognizance of the laws of another State at variance with the common law; but in the absence of proof will presume the common law prevailing in such other State to be the same as in their own. ■ p. 565</p> <p>But where one State changes the common law by statute there is no good reason to presume that the legislatures of other States have done likewise. p. 565</p> <p>The validity of an agreement depends upon the law existing at the time it was made. p. 566</p> <p>If a contract is illegal by statute or on grounds of public policy when it was executed, it is not rendered legal by the repeal of the statute or a subsequent change of the public or legislative policy. p. 566</p>

<p> 7/usbandis duty to support wife. Alimony; discretion of Chancellor; review by Court of Appeals; alimonies where no divorce prayed; decree always subject to modi-' ficalion. Judicial notice. Cost of living. </p> <p>A Court of Chancery has the power to entertain a.n application for alimony although no decree of divorce is asked for. p.567</p> <p>It is not a sufficient defence to a suit for alimony for the husbond merely to assert that he is able and willing' to support the plaintiff. _pp. 570-571</p> <p>It is not for a Court unnecessarily to widen a breach between a husband and wife by its orders or decrees. p. 571</p> <p>But the law demands of the husband that he shall support his wife if he lias the ability so to do; and if they are separated by his act and not by the fault of the wife he must-make reasonable provision for her. p. 571</p> <p>Courts may take judicial notice of such things as are, or should be, generally known in their several jurisdictions. p. 571</p> <p>In an application for alimony Courts may consider the high cost of living. p. 571</p> <p>It is the duly of the Court, in determining the amount of alimony to be decreed, to inquire into the circumstances of the parties, not only as to the financial condition of the husband, but also as to his ability to earn the money. p. 572</p> <p>Although the Court of Appeals has the right to view the amount of alimony fixed by the lower Court, it should not disturb the large discretion vested in the Chancellor unless it is thoroughly satisfied that there is error in the amount named by him. p. 572</p> <p>When a decree provides for the payment of so much per week as permanent alimony, it is subject to the limitations fixed by law and can ofily continue during the joint lives of the husband and wife, and while they live apart. pr-573~</p> <p>When a decree a mensa et thoro is granted, or when there is an allowance for alimony without divorce, the decree may be' modified at any time, as circumstances may require, subject to well established rules. -p^574</p>

). The following are the prayers that were offered by the plaintiff and defendant respectively; the action of the Court thereon being as indicated upon the respective prayers: Plaintiff's Prayer. — The plaintiff prays the Court to instruct ihe jury, that if they find a verdict for the plaintiff, that the measure of damage shall he the sum of fifty-five hundred dollars ($5,500) ; and the jury, in their discretion, may allow the interest on the said sum from May 36th, 1909.

<p>Appeal from the Court of Common Pleas of Baltimore City (Elliott, J.).</p> <p>A motion to dismiss the appeal was argued before Boyd. O. J., Beiscoe, Peaece, Thomas, Pattisoh, Ubneb and Stookbbidge, JJ.</p>

<p>Appeal from the Circuit Court of AVashington County (Reedy, JA).</p>

<p>Insurance policies: cancellation; by company; notice; payment of unearned premium.</p> <p>Where, in a suit upon a fire insurance policy, the declaration recites that the payment thereon had been made by the plaintiff to the defendant, and the policy itself offered in evidence recites as its consideration “$25.00” premium, and the record does not show that any question of the payment of the premium was raised at the trial of the case below, the question can not be raised on appeal. p. 623</p> <p>The Court of Appeals will not decide any point or question which does not plainly appear by the record to have been tried and decided by the Court below. p. 624</p> <p>A fire insurance policy provided that it might be cancelled at any time at the request of the insured; or by the company, by giving five days’ notice of such cancellation. If the policy should be cancelled, or become void or cease, the premium having actually been paid, the unearned portion to be returned on surrender of the policy or last renewal; the company retaining the customary short rate; except that ■ should the policy be cancelled by the company by giving-notice, it should retain only the pro rata premium; a notice by the company tliat tbc policy would be cancelled the 20th of the month, was mailed to the insured on the 15th and received by him on the 17th, held that this notice was not sufficient. p. 625</p> <p>And in order to cancel such a policy there must he a present purpose carried out, and not a mere intent of future action. p. 626</p> <p>The return or tender of the unearned premium is a condition X>recedent to the right of cancellation upon the part of the eompiany. p. 628</p>

<p> Contingent remainders: transmissible, devisable and assignable; but not passing to widow of intestate; date of death of life tenant; time for determining remainderman’s heirs. </p> <p>A testator, Austin Jenkins, after providing for his other children, bequeathed to his daughter Isabella Jenkins an equitable estate for life, and in another clause provided as follows: “But in case my said daughter, Isabella Jenkins, shall depart this life without leaving a child or children,” etc., “living at the time of her death,” etc., “then in trust,” etc., to be disposed of in manner following: “ * * * and one equal fifth part shall go to, and I do hereby give, devise and bequeath the same to my son, Thomas Meredith Jenkins, above named, his heirs, executors, administrators and assigns, absolutely and forever, etc.” T. M. J. died intestate before the said I. J., leaving a wife, but no descendants; the widow died before I. J., leaving a will in which L. B. was named executor; upon the death of I. J., without descendants, a bill was filed by the trustees and others, — under the will of the said Austin Jenkins, to determine to whom the share of T. M. J. in the estate of I. J. should be paid — ; upon an appeal from an order of the Circuit Court of Baltimore City decreeing that one-half of the estate should be paid over to L. B., the said executor, it was held that the estate so limited to T. M. J. was a contingent remainder of the class that is transferrable, divisable and assignable, because limited to a certain designated person. p. 636</p> <p>But the remainder though it was descendible did not vest in the widow of T. M. J. p. 636</p> <p>If the contingent remainder had been real estate, the heirs at law of the intestate T. M. J., who were in esse at the time of the death of I. J., would have taken. p. 636</p> <p>And no distinction has been, or is to be, made in this respect, between real and personal property. p. 636</p> <p>And- the share to which T. M. J. would have been entitled under this clause of the will, vests in his brothers and sisters, and not in the executor of his widow. p. 638</p> <p>The date of the death of the life tenant, I. J., and not the date of the death of the contingent remainderman, is the point of time at which his heirs are to. be ascertained, and only such as were then living are entitled to take. p. 636</p>

<p>Appeal from the Superior Court of Baltimore City (Elliott, J'.).</p> <p>The cause was argued before Boyd, C. J., Brisooe, Pearce, Burke, Thomas, Pattisost, Urjver and Stock-bridge, J J.</p>

<p>Appeal from the Orphans’ Court of Washington County.</p> <p>Submitted without argument to Boyd, O. J., Briscoe, Pearce, Burke, Thomas, Pattison, Urner and Stock-bridge, JJ.</p>

<p>Appeal from the Orphans’ Court for Frederick County.</p> <p>The cause was argued before Boyd, O. J., Beiscoe, Pearce, Btjeke, Thomas, P'attison, Henee and Stock-beige, JJ.</p>

<p>Deeds of trust: spendthrift trusts; right of alienation; life tenant and remaindermen; proceedings to set aside mortgage and assignment of interest; parties; multifariousness.</p> <p>A deed of trust by which the grantor made provision for his wife and children, contained the following provision for his son, Harry Tiffany, to be held in trust that the trustee should manage the thereby granted property and collect and receive the rents, issues and income thereof, and, in his discretion, either pay such rents, etc., to the said Harry Tiffany, or apply the same for his use during his life, so that he should have no title to or control over said last named portion of the thereby granted property; and “from and after the death of the said Harry Tiffany, then in trust for his issue if he should leave any living at the time of his death, but if he should die without leaving issue, then in trust for the said Henry Tiffany (the grantee) and his heirs.” Some years after the death of the testator, the life tenant and Ills daughter, the remaindermen, joined together in a mortgage and assignment of the interest, so conveyed by the deed of trust, together with the income therefrom; subsequently the life tenant and the remaindermen filed a petition in the Court in which the trust estate was being administered, in which they allege that the deed created a spendthrift trust in favor of the life tenant, which was inalienable; that the life tenant when he executed the said mortgage and assignment was crazed by poverty and drink and was not responsible , for his acts; that the remaindermen by their joinder in the assignment thought they were uniting merely in the eon.veyanee of the estate of the life tenant and that they had only learned within the six months last passed that their own interest had been thereby conveyed away; the petition also alleged that of the amounts realized from the mortgage and assignment large sums had been retained as bonuses; and that the assignment was at most but an equitable mortgage; the petition prayed that the mortgage and assignment be vacated and annulled and the several parties thereunder remitted to their remedy at law, if any they had; that the trustee be directed to pay the income for the satisfaction of bills contracted for necessities for the life tenant and his family, and for general relief. It was held that: The petition was multifarious. The question as to the validity of the assignment should be raised by original bill and not by petition. p. 667</p> <p>The assignees of the estate, taking subject to the mortgage would not be affected by the setting aside of the mortgage and should not be required to defend the assignment in connection with the mortgagee. p. 666</p> <p>The remaindermen were improperly joined and should have presented any grounds they had for setting aside the assignment by a separate bill. . p. 666</p> <p>The deed of trust did not create a spendthrift trust; the clause “that he shall have no title to or control over said last portion of the said hereby granted property — ” related to the corpus and not to the income of the property. p. 665</p> <p>The deed gave to the trustee the discretion to pay over the income to those who advanced money to relieve the cestui que trust when he was without the means to obtain the necessities of'life. p. 664</p> <p>The deed did not prohibit the alienation or anticipation of the income. pp. 664, 666</p> <p>Where on an appeal from a Court of Equity about one-half of the record was unnecessary and not connected with the appeal, the Court of Appeals in reversing the order placed one-half of the cost of the record on the appellant and one-half on the appellee, including the cost of transmitting the record. p. 667</p>

<p>Appeal, from the Superior Court of Baltimore City (Gorter, J.).</p> <p>The cause was argued' before Boyd, O. J., Briscoe, Pearce, Burice, Thomas, Pattisox, Hrxer and Stock-bridge, JJ.</p>

<p>Justices of the peace: appeal and writ of error j jurisdiction; in Anne Arundel County; Act of 1908, ch. 524.</p> <p>When a statute gives an appeal from a judgment of a justice of the peace to the Circuit Court, the judgment of the latter is final and conclusive, whether the justice had jurisdiction or not, unless the statute gives an appeal to the Court of Appeals from the judgment of the Circuit Court. p. 680 But under a certiorari, the Circuit Court would he in the exercise of its ordinary common law jurisdiction, and from its judgment in such a case a writ of error or appeal could he taken to the Court of Appeals. p. 681</p> <p>Bills of exceptions are not allowed in the trial of cases upon appeal from judgments rendered hy justices of the peace; and if in the record will not he considered. p. 682</p> <p>A justice of the peace of the Sixth Election District of Anne Arundel County, under Chapter 524 of the Acts of 1908, has the same jurisdiction which the justices under pre-existing law had over offences committed in the First Precinct of the Second Election District. p. 682</p>

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

<p> Executors and administrators: failure to return assets and wearing apparel in inventoryj question of removal; counsel fees; discretion of Orphans’ Court. </p> <p>Mere omissions by an administrator to return in his inventory the wearing apparel of the decedent, the cash on hand at the time of death, and certain debts due, where no wrongful intent is proved and he testified that he intended to make the returns in his administration account, do not of themselves constitute grounds for his removal. p. 695</p> <p>An executor who should “unlawfully embark the funds of the estate, in his hands, as executor, in personal or private ventures and speculations of his own” should be removed, p. 696 But the charges must be established by proof, and the mere fact that for a while some of the funds of the estate were commingled with the executors does not justify his removal. p. 696</p> <p>The Orphans’ Court has the power to allow a fee to the counsel of an executor who represented him in a caveat to the will, and in proceedings for the removal of the executor. p. 696</p> <p>And where an estate consists of over $100,000 a fee of $500 in such case is not excessive. p. 696</p>