Volume 117 — Maryland Reports

<p>Primary Election Law: Acts of 1910, ch. 741; no provision for contested election: Constitution, Art. 3, sec. 47, and the Code of Public General Laws. Art. 33, secs. 127, 128.</p> <p>Tbe Primary Election Law (Acts 1910, ch. 741) does not give a defeated candidate (at such an election) the right to contest the nomination of the one returned nominated. p. 3</p> <p>Sections 160d, 160h and 160K of said act, providing that the primary elections shall be held, conducted and determined in manner and form according to and subject to all the regulations and requirements of Article 33 of the Code, in so far as they may be apqdied, unless otherwise provided, refer to the primary elections, and not to a contest of such an election after it is over. p. 4</p> <p>The contests provided for in the Constitution (Art. 3, sec. 47), and in sec. 127 of Art. 33 of the Code clearly relate' to contested elections, and do not relate to or include a contest as to tbe right to be a candidate for one of tbe offices therein named at the general election. p. 5</p> <p>The Code, sec. 128 of Art. 33 relates to the same kind of contested elections, as the Constitution and sec. 127 refer to, and hence does not include contests over nominations. p. 5</p> <p>A nominee of a political party is not an officer within the meaning of section 128. p. 6</p> <p>The procedure for contested elections provided for in Art. 33 is not such as the legislature would likely have intended to apply to primary elections. p. 7</p>

<p>Appeal from the Circuit Court for Kent County (Pearce, C. J.).</p> <p>A per curimn arder toas filed on October 6th, 1911, dis-dismissing the appeal, and on November 22, 1911,—</p>

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

<p>Cross-appeals from tlie Circuit Court of Baltimore City (Hiouisliou, J.).</p>

<p>Appeal from Circuit Court No. 2 of Baltimore City (Hab-lan, C. J.).</p>

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

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

<p>The following are the prayers that were offered by the plaintiff and defendant, respectively, and the action of the trial Court upon each:</p> <p>Plaintiff's 1st Prayer. — -If tlie jury ibid that on or about the 12th day of August in the year 1910, the plaintiff was injured in the manner stated in the declaration and that said injury resulted directly from the want of ordinary care- and prudence of the defendant, or its agents or servants, and not from want of ordinary care on the part of the plaintiff directly contributing to the injury, then the plaintiff is entitled to recover. (Granted.)</p> <p>Plaintiffs 2nd Prayer. — If the jury find that on or about the 12th day of August in the'year 1910, the plaintiff was injured in the manner stated in the first count of the declaration and that said injury resulted directly from the want of ordinary care and prudence of the defendant or its agents or servants and not from want of ordinary care and prudence on the part of the plaintiff directly contributing to the injury then the plaintiff is entitled to recover. (Granted.)</p> <p>Plaintiff's 3rd Prayer. — If the'jury find that on or about the 12th day of August in the year 1910, the plaintiff was injured in the manner stated in the second count of the declaration, and that said injury resulted directly from the want of ordinary care and prudence of the defendant, or its agents or servants, and not from want of ordinary care and prudence on the part of the pía infill d irectly contributing to the injury, then the plaintiff is entitled to recover. (Granted.)</p> <p>Plaintiffs IjtJi Prayer. — If the jury find that on or about the 12th day of August in the year 1910, the plaintiff was injured in the manner stated in the third count of the declaration, and that said injury resulted directly from the want of ordinary care and prudence of the defendant, or its agents or servants, and not from want of ordinary care and prudence on the part of the plaintiff directly contributing to the injury, then the plaintiff is entitled to recover. (Granted.)</p> <p>Plaintiffs 5th Prayer. — If the jury shall find a verdict for the plaintiff then in estimating the damages they are to consider his health and condition before the injury complained of as compared with his present condition in consequence of said injury and whether the same is in its nature permanent, and bow far if at all it is calculated to disable him from engaging in those employments for which in the absence of such injury he would have been qualified and also the physical and mental suffering, if any, to which he was subjected, by reason of said injury, and to allow him such damages, as in the opinion of the jury will be a fair and just compensation for the injury which he has sustained. (Granted.)</p> <p>Plaintiffs 6th Prayer. — The plaintiff prays the Court to instruct the jury that there is no evidence of contributory negligence on the part of the plaintiff in this case. (Rejected.)</p> <p>Defendant’s 1st Prayer. — -The Court instructs the jury that in order to entitle the plaintiff to a verdict in this case, he must satisfy the jury by a preponderance of evidence that the defendant was guilty of negligence and that such negligence was the direct and proximate cause of the injury; that the plaintiff’s team of mules was frightened by the bales that fell from defendant’s wagon; and the jury must be satisfied from the evidence in the case that there was no want of ordinary care and prudence on plaintiff’s part directly contributing to the injury complained of. (Granted.)</p> <p>Defendant’s 2nd Prayer. — The Court instructs the jury that if they find from the evidence in this case that the mules driven by the. plaintiff were roadworthy and easily controllable, that the driver was skilful and careful, that the vehicle and harness were sufficient and in good repair, that nevertheless the plaintiff in this case cannot recover if they shall further find that the said plaintiff might have prevented the injury by the exercise of reasonable care and caution. (Rejected.)</p> <p>Defendant’s 3rd Prayer. — The Court instructs the jury that ordinary care and caution is such a degree of care and caution as men of ordinary prudence under similar circumstances usually employ; and in determining whether the plaintiff used ordinary care and caution, they shall consider all the facts and circumstances of the case as given in evidence and with such facts the jury may consider the ordinary conduct and motives of men for avoiding all undue exposure to risk and danger in determining the question whether or not the plaintiff exercised reasonable care and caution to prevent the accident. {Granted.)</p> <p>Defendant’s l¡.th Prayer. — The Court instructs the jury that if they shall find from the evidence that the mules, or either of them, driven by the plaintiff were not roadworthy and easily controllable, but that one or both of said mules were young and not thoroughly broken, or if the jury shall find that the plaintiff, as a driver, was not skilful and careful, or if the jury shall find that the vehicle or harness was defective or out of repair, then the plaintiff cannot recover in this case unless they shall further find that the said plaintiff exercised the highest degree of care and caution both in the management of the said mules and in his own conduct seeking to avoid the injury. (Refused.)</p> <p>Defendant’s 5th Prayer. — The Court instructs the jury that even though they shall find from the evidence in this case that the mules were roadworthy and easily controllable and that the driver was skilful and careful, that the vehicle and harness were sufficient and in good repair, and that the said plaintiff used the requisite degree of care and caution in all things seeking to prevent the accident; that in such case, if they shall so find, these facts and circumstances in no way serve to raise a presumption of negligence on the part of the defendant. (Granted.)</p> <p>Defendant’s 6th Prayer. — The Court instructs the jury that the plaintiff cannot recover in this case if the jury believe from the evidence that any want of ordinary care on his part contributed to produce the injury complained of. (G muted.)</p> <p>Defendant’s 7th Prayer. — The Court instructs the jury that, the mere falling off from the defendant’s wagon into the public highway of the bales in evidence, through accident or misadventure, is not in itself actionable negligence, and that in order to entitle the plaintiff to recover in this case he must show by preponderating evidence that the defendant had notice that the said bales were upon the highway and failed to remove them within a reasonable time; and that if the jury believe that the defendant’s mill and business in Cecil county was under the .management and control of a superintendent and that he was not notified and did not know that the said bales had -fallen into the highway, if they shall so find, until the afternoon of the happening of the injuries to the plaintiff, and that he, the said superintendent, on the morning following the accident, had the bales removed then such removal was made within a reasonable time and the plaintiff cannot recover in this case. (Rejected.)</p> <p>Defendant’s 8th Prayer. — That there is no evidence in this case legally sufficient to entitle the plaintiff to recover damages for any joermanent injuries. (Rejected.)</p>

<p>Executor as trustee: presumption of law — . Jurisdiction of equity; Orphans’ Courts. Legatees: right to sue for legacy. Wills: construction; residuary legatees; distribution; life estate; stocks; stock dividends.</p> <p>Where the same party is both executor and trustee, a trust fund by operation of law will be considered in his hands in his capacity as trustee after the time limited by law for the settlement of the estate; and the probate of the will and the taking out of letters testamentary by the executor will be considered as sufficient evidence of the acceptance by him as trustee of the trust. pp. 74-75</p> <p>A Court of Equity is the appropriate tribunal to administer the trust; and any party interested in the trust estate has a right, under sec. 219 of Art. 16 of the Code, to apply to that Court to require the executor as trustee to give bond. p. 75</p> <p>The Orphans’ Courts have no jurisdiction over the administration trusts. p. 75</p> <p>Legatees have a right to file a bill in equity against an executor for the recovery of their legacies; and where it appears that many of the parties are non-residents the case is one which demands the larger powers of an Equity Court properly and satisfactorily to deal with the subject-matter and the parties. pp. 75-76</p> <p>In the interpretation of wills the cardinal canon of construction is that the intention of the testator, ascertained from the whole instrument, and read in the light of the surrounding circumstances existing at the date of its execution, musf prevail, provided it does not conflict with some rule or law of property. p. 78</p> <p>Tbe best evidence of a testator’s intention is wbat be says in bis will. ' p. 78</p> <p>After making numerous specific legacies, a testator, by tbe residuary clause of bis will, provided that all tbe rest and residue of bis estate should be divided into equal parts and be distributed among bis children; by other provisions tbe testator bad left certain property f0 ]ús -wife for her life, or during her widowhood; be also devised to bis executors certain shares of stock in trust, from tbe income thereof to pay various sums of money to, or on account of, bis wife during her life or widowhood; bis will then provided that upon tbe widow’s death, or her remarriage, whichever should first occur, tbe said stock and airy unexpended income therefrom should revert to the residuary estate; and it was still further provided that should tbe income of tbe said stock be insufficient to make tbe payments required to, or on account of tbe wife, then tbe executors were authorized to supply any deficiency from tbe residuary estate: Tbe widow was 80 years old; tbe income from tbe stock left in trust for tbe payment of her income was more than sufficient to pay tbe income, and tbe income showed large accumulation and surplus. Held, that it would be unreasonable, in tbe absence of language imperative requiring it, to bold that tbe testator intended to tie up tbe whole of a large estate during tbe life or widowhood of bis wife and thereby deprive bis children and other legatees of tbe possession and enjoyment of their part of bis estate for an indefinite time. p. 78</p> <p>After tbe death of tbe testator by a stock dividend of 100% tbe amount of tbe stock so left in trust for tbe widow, and tbe income from which tbe payments were to be made to her or on her account, had doubled in value; it further appeared that tbe stock and tbe accumulation of dividends held by tbe trustee were amply sufficient to gratify tbe provisions of the will made for tbe benefit of tbe wife. Held, that a division and distribution should be made, under a decree so framed as properly and safely to guard and make secure tbe provision made by tbe testator for tbe wife. • p. 80</p> <p>Where a stock dividend based upon the earnings of the company is declared it is to be considered as income. p. 80</p>

<p>Appeal from the Circuit Court of Wicomico County, sitting in equity, (ToadviN, J.).</p>

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

<p>Appeal from the Circuit Court of Anne Arundel County (Brashears, J.).</p>

<p>Appeal from the Circuit Court of Talbot County, sitting in equity, (Peae.ce, O. J., AdkiNs and Hoppee, JJ.).</p>

The appellant was tried and convicted in the Circuit Court of Anne Arundel County (Bbasiujabs, J.) on three charges of selling liquor to minors in violation of Chapter 647 of the Acts of 1910. Three appeals were taken.

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

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

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

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

<p>Appeal from the Circuit Court of Baltimore County, ■sitting in equity (Buree, J.).</p> <p>The Court declined to hear argument for the appellees.</p>

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

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

<p>Appeal from tbe Circuit Court of Baltimore County (DuN'caN, J.), where there was a judgment in favor of tbe plaintiff for $2,500.00.</p>

Appealed from the Circuit Court of Queen Anne’s Oounty (Peaboe, O.- I., Adkins and Hoppee, JJ\), where a judgment was entered up in favor of the plaintiff for $20,000.

). The following are the prayers that were offered by the plaintiff and the defendants, respectively, with the action of ithe trial Court upon each prayer: Plaintiff's 1st Prayer Modified. — If the jury finds from the evidence that the defendants employed the plaintiff as their purchasing agent for the purpose of purchasing furs or hides for said defendants for the season of 1909 and 1910 and agreed to pay the plaintiff a salary of seven hundred dollars ($700.00) and…

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

<p>Taxes: property under control of Court; duty of collectors; receivers' liability. Equity: pleading and practice; cases heard on bill and answer.</p> <p>When land or other property is under the control oí a Court of Equity, the ordinary statutory remedies for the enforcement of taxes levied upon, or payable in respect of, such property, are suspended and payment must be secured through the power and authority of the Court. p. 244</p> <p>Although not so required by statute, it is the duty of the collector to apply to the Court administering the property for the payment of the penalty on the taxes due thereon, as well as for the payment of the principal sum and interest due. . pp. 244-245</p> <p>If the collector fails to make such application, and the fund is disbursed, the city and State are bound, and can not recover the penalty from the receivers. p. 245</p> <p>Where a case is hoard on petition and answer, the allegations of facts contained in the answer must be taken as admitted. p. 245</p> <p>Where in the account in receivership and . foreclosure proceedings, the account for taxes duo as filed did not contain any claim for penalty, and such an account was duly ratified without any exception thereto by the State or city, and the fund was disbursed in compliance therewith without any objection, it was held that the city and State were bound by tbe ratification of tbe account and could not recover from tbe receivers penalties tbat bad not been claimed as due in tbe tax bills. pp. 245, 246</p>

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

<p>Appeal from tbe Superior Court of Daltimore City (Elliott, ,T.).</p>

<p>Appeal from the Circuit Court of Baltimore County sitting in equity (Dun CAN, J.).</p>

<p>Appeal from the Circuit Court for Howard County (BuasiíeaRs and Eobsythe, JJ.).</p>

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

<p>Appeal from the Circuit Court of Allegany County, sitting in equity (Hendbeson, J.).</p>

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

<p>Appeal from the Circuit Court for Washington County (Ejeedt and HeNDERSON, JL).</p> <p> The following is a reproduction of the portion of the pial referred to in the opinion of the Court. </p> <p> </p>

<p>Appeal from the Circuit Court of .Frederick County, in equity. (Putees and Motthe, JJ.).</p>

<p>Appeal from the Circuit Court of Baltimoi’e City (Heuis-ler, J.).</p>

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

<p>Two appeals in one record from the Superior Court of Baltimore Oity (GorteR, J.).</p>

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

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

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

<p>Appeal from the Circuit Coprt of Calvert County (Beall, J.).</p>

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

<p>Appeal from the Circuit Court of Baltimore City (Daw-ki.ws, J.).</p>

). The appellant was tried under an indictment for the murder of one Nellie Robinson, by causing her, without any legal justification or excuse, a miscarriage and abortion; being found guilty and sentenced to six years in the State Penitentiary, this apxDeal was taken.

<p>Two appeals in one record from Circuit Court No. 2 of Baltimore City (Stump, J.).</p>

). The following are the several prayers of the plaintiff and defendants that were offered in the case and the action of the trial Court upon them: Plaintiff's 1st Prayer. — Tbe plaintiff prays tlie Court to instruct tbe jury that if they find from tbe evidence that tbe defendants signed and delivered to the plaintiff tbe paper writing dated October 25th, 1900, and offered in evidence, and that the plaintiff signed and delivered to tbe defendants tbe letter or paper writing…

<p> Employer and employee: breach of contract by employer; damages; pleading. Exceptions: time for filing; extension. Statute of Frauds: 4dh section; year clause. </p> <p>The fact that an employer is appealed to to help collect a debt due by the employee or servant does not justify the discharge of the servant. p. 478</p> <p>Where there is no defense made to such a suit on the ground that the plaintiff did not properly perforin the services for which he was engaged, and no evidence that he was not faithful and diligent, the plaintiff is not bound to prove that he did exercise ordinary skill and diligence in performing his duties. p. 478</p> <p>The time for filing bills of exceptions was extended for 30 days after the motion for a new trial should be “heard and determined,” and the docket entries did not show when the motion was heard, but they showed on what date the motion was finally decided and disposed of. It was held, that the extension of the time for filing the bills of exceptions began to run from that date. p.475</p> <p>The year clause of the 4th section of the Statute of Frauds does not apply when the contract can, by any possibility, be fulfilled or completed in the space of the year, even though the parties may have intended its operation to extend through a longer period. p. 479</p> <p>In a suit by an employee against his employer for discharging him illegally before the term of his contract expired, he is entitled to recover the contract price, less such sums as may have been paid him, and also less such sums as he earned or by diligence might have earned, in the line of his business during the remainder of the period covered by the contract. p. 480</p>

). d'lie following are the prayers referred to in the opinion of the Court: Plaintiffs 1st Prayer. — The Court instructs the jury that if they find from the evidence in this case that the defendant operated a railroad in part through Baltimore county, in the State of Maryland, and at or near Phoenix Station, one of its stations in said county and State, on the east side of its railroad tracks at this point, maintained a signal tower as part of its railroad structure and for…

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

<p>Appeal from the Circuit Court for Howard County (BliASII KARS, J.).</p>

<p>Appeal from the Circuit Court of Montgomery County, sitting in equity (Uebteb and Motteb, JJ.).</p>

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

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

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

The following are the prayers that were offered by the plaintiffs and the defendants, respectively, and the action of the trial Court upon each: Plaintiffs' 1st Prayer. — The plaintiffs, by their counsel, pray tire Court to declare as the law of this case, that the proceedings offered in evidence, under which the property was sold to Andrew Mullen, the plaintiffs’ intestate and the deed from Kichard T. Browning, collector, were regular and in conformity with the law and…

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

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

<p>Two appeals, one from Circuit Court No. 2 of Baltimore City (Stump, J.), and one from the Circuit Court of Baltimore City (Heuisler, J.).</p>

<p>Criminal law: indictment; several counts; different offences; election by State; different dates; limitations. Statutory offences: sufficiency of indictment. liquor Laws: Harford county; sec. 228, Public Local Laws. Evidence : other similar offences; sales of liquor to other parties than those named in indictment.</p> <p>Where an offence is a statutory one, an indictment is sufficient if it describes it in the words used in the statute. p. 590</p> <p>An indictment for the violation of liquor laws need not, under section 446 of Article 27 of the Code (1904), specify the particular kind of liquor sold or disposed of. p. 590</p> <p>Two or more offences, either felonies or misdemeanors, may he charged in different counts of the same indictment. p. 591</p> <p>Where there are several counts in an indictment charging the defendant with one or more distinct and separate felonies or misdemeanors, it is competent for the Court, in its sound discretion, either to compel the prosecution to elect upon which he will proceed, or in a clear case to quash the indictment. p. 591</p> <p>Under an indictment for the violation of liquor laws, the State is required by Article 57, section 11 of the Code, to prove that the offence was committed within one year prior to the commencement of the prosecution. p. 592</p> <p>But the State is not confined in its' proof to the date alleged in the indictment; it is permitted to show the commission of the offence charged at some time within the period of limitations. p. 592</p> <p>In an indictment for the violation of the liquor laws of Har-ford county, section 228 of the Public local Laws of that county, whether or not the home in which the traverser lived and where the offence was alleged to have been committed was a place of business, within the meaning of the act, is a material question for the jury, and any fact or circumstance reflecting light upon it is properly admissible. p. 592</p> <p>In general, where an accused is upon trial for one offence, he is to be convicted, if at all, by evidence which shows that he is guilty of that offence alone, and, under ordinary circumstances, proof of his guilt of one or more other offences is to he wholly excluded. p. 593</p> <p>It is allowable to prove similar and distinct offences when knowledge or intent of the motive becomes material, and when the proof shows such- a connection between the different transactions as to raise a fair inference of a common motive in each. p. 593</p> <p>At a trial under an indictment for the sale of liquor to a party named at the place of business of the accused, in violation of the provisions of section 228 of the Public Local 'Laws of Harford county, it was held, that evidence of the sale of liquor by the accused at other times at the same place to other parties was admissible as evidence to show that that place was the place of business of the accused for the sale of spirituous liquors. p. 594</p> <p>A party accused in an indictment of having sold liquor to one party therein named can not be convicted under that indictment for having sold liquor to any other. p. 594</p>

J., ToadviN and JoNes, JJ.). The following are the prayers offered by the plaintiff and and defendant, respectively, and the action of the trial Court on each prayer: Plaintiffs 1st Prayer. — If the jury shall believe from the evidence that the Eastern Shore Produce Company delivered to the Baltimore, Chesapeake and Atlantic Railway Com-panv, at Mardela Springs, Wicomico county, Maryland, on the 17tli day of May, 1910, a carload of strawberries containing 269 crates,…

2 of Baltimore City (Stuaxp, J.). A bill for divorce a vinculo matrimonii was filed in the Circuit Court No. 2 of Baltimore City by Mary A. Harrison against her husband, George Harrison for a divorce for statutory causes, desertion and cruelty; the complainant alleged her residence and that of the defendant to be in Baltimore City. Besides permanent alimony the bill prayed for alimony 'pendente lite and counsel fees.

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

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

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

<p>Fire insurance policies: condition as to production of boolcs, duplicate bills, etc.</p> <p>An insurance policy contained the following clause: “Whenever required the assured * * * shall produce and exhibit the books of account, bills of purchase, or duplicates thereof, and other vouchers, * * * ” in support of the claim; and. also to exhibit, and permit to be examined, by any person named by the company, the property damaged, etc. After a fire, which destroyed his books of account, an insured under such a policy, upon making his claim, failed to produce or. exhibit his bills or duplicates when demanded, and testified that many of those that he did not produce he had made no effort to get, although he supposed he might have gotten them if he tried. Held, that under such a condition it was the duty of the plaintiff, when required by the defendant, to produce to the company duplicates of his bills, etc., before the loss could be payable. - X- 615</p> <p>The object of this condition is to protect the insurer by requiring the insured to x>roduce the means to test the accuracy of his j>roof of loss; it exacts nothing unreasonable or improper, and until one so insured can show that he has complied with a demand to furnish bills of purchase, or duplicates, or that it was not possible for him to do so by the use of all reasonable means within his x>ower, he can not maintain an action on the policy unless the company has waived its demand. p. 644</p> <p>Where, by the terms of the contract in an insurance policy, the loss is not jiayable until a condition has been comxdied with, or is. waived, or is shown to be impossible, the insured, before he can recover, must show, either that he has complied with the condition, or that it is not j>ossible for him to do so, or tliat it had been waived by the insured, and upon his failure to meet this burden the defendant is entitled to a verdict in his favor. p. 644</p>

). The following are the prayers that were offered by the plaintiff and the defendant, respectively, at the action of the trial Court on each.

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

Appeal' from the Court of Common Pleas of Baltimore City (Bond, J.).

<p>Bills of exception: preparation of — j time of signing; extensions; tule of Court. Howard county. Appeal: dismissal.</p> <p>Although the exceptions to the ruling of a Court must be taken at the time the ruling is made, the bills of exception need not be prepared or be signed until after the trial, at some convenient time during the term after which the case is tried; but a Court may, by a special order passed during the term, extend the time for preparing the exceptions beyond the term. p. 684</p> <p>Bills of exception may also be prepared and signed after the expiration of the term by consent of the parties. p. 684</p> <p>Eule 32 of the Circuit Court for Howard County among other things provides that it shall be sufficient if the parties taking exceptions “note the same at the time of the ruling made, and thereafter within a reasonable time after the trial, reduce the exceptions to proper form, in conformity to the rules prescribed by the Court of Appeals for the regulations of appeals, or submit the same to the judge or judges for his or their signature, and in no case shall the progress of the trial be stayed or delayed for the formal preparation of bills of exception or direction of the Court. But in every case unless otherwise expressly allowed by the Court, the bills of exception shall be prepared and submitted to the Court during the sittings of the term at which such exceptions shall be taken.”</p> <p>A case was tried during the September Term, 1911, of the Circuit Court for Howard County and on the 25th of that month a finding was had in favor of the plaintiff; on the 27th. of the month a motion for a new trial was filed by the defendant; the motion was overruled on December 4, 1911, and on the same day, during the September term, judgment was entered and immediately after the entry of the judgment the September term was adjourned and the December term called, and twenty-two days thereafter the bills of exception were signed; as the Court was in session until the 29th of September it was held that the appellant had ample time to have procured an order under the rule extending the time for the preparation and signing of the bills of exception. p. 686</p> <p>When exceptions were not signed during the term and no application was made to the Court, or order signed or agreement filed, for an extension of the time, they will not be considered on appeal. p. 686</p>

<p>Appeal from tlie Circuit Court for Carroll County (BkasheaRs, J.).</p> <p>Tlie plaintiff brought the suit in the Circuit Court for Baltimore County, to recover damages for injuries to his knee received by him while a passenger on the railroad from Baltimore to Towson. The case was removed to Carroll county for trial and judgment being entered in favor of the plaintiff for the sum of $1,800 the defendant appealed.</p> <p>The following are the prayers of the plaintiff and the defendant, respectively, and the action of the trial Court on each:</p> <p>Plaintiffs 1st Prayer. — The plaintiff prays the Court to instruct the jury that if they find from the evidence in this case that at the time of the happening of the accident complained of, the defendant was engaged in the operation and maintenance of an electric railway line between the City of Baltimore and Towsontown, on which it maintained and operated cars for the transportation of passengers for a reward and that the plaintiff became a passenger on a car so operated and maintained by the defendant, and paid his fare for the transportation thereon, and that whilst he was a passenger on said car, it was derailed, and that in consequence of such derailment the plaintiff whilst in the exercise of all reasonable care and caution, if they find he did exercise all reasonable care and caution, was thrown from the position which he occupied in said car and thereby injured, and shall further find that the defendant could by the exercise of the utmost degree of care and diligence which men of ordinary care and prudence would have exercised under like circumstances in the management and operation of said railway line and car, have avoided said injury, then the plaintiff is entitled to recover in this case. (Granted by the Court.)</p> <p>Plaintiffs 2nd Prayer. — The jury are instructed that if they find from the evidence in this case that the plaintiff was injured through some instrumentality in the control of tbe defendant or the management or operation thereof, whilst a passenger on one of the defendant’s cars, the fact of such injury (if any they find) is prima facie evidence of negligence on the part of the defendant, and casts upon it the burden of rebutting • this presumption by showing there was no negligence on its part. {Oranted by the Court.)</p> <p>Plaintiff’s 3rd Prayer. — The plaintiff prays the Oourt to instruct the jury that if they find their verdict for the plaintiff, then in estimating the damages they are to consider his health and condition before the injury complained of as compared with his present condition in consequence of such injury, and whether the same is in its nature permanent, and how far, if at all, it is calculated to disable him from engaging in employments for which in the absence of such injury he would have been qualified, and also the physical and mental suffering, if any they find, to which ho, was subjected by reason of such injury, and to allow him such damages as in the opinion of the jury will be a fair and just compensation for the injuries (if any they find) he has sustained. {Granted by the Court.)</p> <p>Plaintiff’s Jjih Prayer. — The plaintiff prays the Oourt to instruct the jury that if they find their verdict for the plaintiff, then in estimating the damages they are to consider his health and condition before the injury complained of as compared with his present condition in consequence of such injury, and whether the same is in its nature permanent, and how far, if at all, it is calculated to disable him fi’om engaging in employmnets for which in the absence of such injury he would have been qualified, and also the phy-' sical and mental sufferings, if any they find, to which he was subjected by reason of such injury, and to allow him such damages as in .the opinion of the jury will be a' fair and just compensation for the injuries (if any the jury find) he has sustained; but' the plaintiff is not entitled to recover in this action for any injuries that he could have avoided by the exercise of that degree of care and caution which a man of ordinary care and prudence would have exercised under like circumstances. {Granted by the Court.)</p> <p>Defendant’s 1st Prayer. — The Court instructs tbe jury that if they find from the evidence in the case the injuries complained of resulted from an unavoidable accident, then the verdict must be for the defendant. (Rejected by the Court.)</p> <p>Defendant’s 2nd Prayer. — The Court instructs the jury that a carrier of passengers is not an insurer of their safety, and for a mere accident unmixed with negligence, no action will lie. even though an injury has been done, and if the jury shall find from the evidence that there was no negligence on the part of the defendant, its agents and employees, then their verdict must be for the defendant. (Granted by the Court.)</p> <p>Defendant’s 3rd Prayer. — The Court instructs the jury that a carrier of passengers is not an insurer of their safety, and if the jury shall find from the evidence that the defendant, its agents and employees were guilty of no negligence in connection with the accident of July 10th, 1910, then even though the jury shall find that the plaintiff was injured in said accident, their verdict must be for the defendant. (Granted by the Court.)</p> <p>Defendant’s pth Prayer. — The Court instructs the jury that the law does not make a street railway company an insurer of the safety of its passengers, or require it to adopt every possible contrivance looking to their safety that human ingenuity can suggest, and that if the jury find from the evidence that the defendant, its agents and employees in reference to both the construction of its tracks and the operation of its car thereon at the time of the accident complained of, used every reasonable safeguard and care and caution which the nature of the business admitted, it has performed its duty in the premises, and the verdict must be for the defendant. (Granted by the Court.)</p> <p>Defendant’s oth Prayer. — The Court instructs the jury that the law does not make a street railway company an insurer of the safety of its passengers, and if the jury find from the evidence that the defendant, its agents and employees did in reference to both the construction of its tracks, and tbe operation of its car thereon at the time of the accident complained of, used every reasonable safeguard and care and caution which the nature of the business admitted, it has performed its duty in the premises, and the verdict must be for the defendant. (Granted by the Court.)</p> <p>Defendant’s 6th Prayer. — The Court instructs thé jury that if they find from the evidence that the plaintiff was a passenger on the car of the defendant, which car ran off the track on the night of July 10th, 1910, still .the burden of- establishing by a preponderance of proof satisfactory to the jury that the plaintiff received in the accident mentioned in the evidence, the injury which the plaintiff alleges rests upon the plaintiff. (Granted by the Court.)</p> <p>Defendant’s 7th Prayer. — The Court instructs the jury that even if they find for the plaintiff the jury are to allow him only such damages as in their opinion have been affirmatively proved with reasonable certainty to have resulted as the natural, proximate and direct effect of the injury received by him and mentioned in the evidence. (Granted by the Court in connection with plaintiff’s third and fourth prayers.)</p> <p>Defendant’s 8th Prayer. — The Court instructs the jury that even if Ihey should find that the plaintiff is entitled to recover, yet under the pleadings in this case there can be no recovery for permanent injury. ’ (Rejected by the Court.)</p> <p>Defendant’s 9th Prayer. — The Court instructs the jury that even if they .shall find that the plaintiff is entitled to recover, and that the injury complained of is in its nature permanent, yet if the jury shall further find from the evidence that the plaintiff is responsible for the permanency of the injury by having failed to follow the advice of his physicians, then he cannot recover damages based upon the permanency of the injuries. (Rejected by the Court.)</p> <p>Defendant’s 10th Prayer. — The Court instructs the jury that even if they shall find that the plaintiff is entitled to recover, and that the injury complained of is in its nature permanent, yet if the jury shall further find from all the evidence in the case that the plaintiff failed to use reasonable care to avoid the permanency of the injury, and that such failure on his part, if the jury shall so find, is responsible for the permanency of the plaintiff's injury then he cannot recover damages based upon the permanency of the injury. (Rejected by the Court)</p> <p>Defendant’s 11th Prayer. — That if the jury should find that the plaintiff was injured at the time and in the manner testified to by him, and shall further find that liis injury was of the character called a sub-luxation of the sacro illiac joint, then it was the duty of the plaintiff to use all reasonable means to effect its cure and to prevent an aggravation of such injury; and if the jury shall further find that he could have reasonably expected to have been cured by undergoing medical treatment at a hospital such as was advised by his physicians, if the jury shall so find, and shall further find that he did not submit to or take such treatment, and did not make all reasonable efforts within his power to obtain it, and shall further find that if he had followed the advice of his physicians and submitted to be treated for his injury at an hospital, he would have prevented the continuation of his injury, then the plaintiff can not recover any damages for his present or any future pain and the physical disability resulting from such injury; and if the jury shall find for the plaintiff, they are limited in assessing his damages to such sum of money as will be a reasonable compensation for the pain and suffering, he endured from his injury to the time when he could have reasonably expected to have been cured, if he had promptly taken the medical treatment advised. (Rejected by the Court.)</p> <p>Defendant’s 12th Prayer, as Offerred. — The Court instructs the jury that even if the jury shall find that the plaintiff is entitled to recover, and that the injury complained of is existing at this time, if the jury shall so find, yet, if the jury shall further find, that the plaintiff could have prevented his present physical condition, by promptly submitting to proper medical or surgical treatment at an hospital and shall further find, that the plaintiff failed to use reasonable and ordinary care to avoid the continuation of tbe injury be suffered, if any, and shall further find that such failure on his part to exercise reasonable care and caution to prevent the continuation of his injury, if the jury shall so find, is responsible for his present physical condition, then the plaintiff can not recover any damages for the qpain and suffering, mental or physical, which he has endured, if any by reason of his neglect in failing to have himself treated at an hospital as advised by his physicians.</p> <p>■Defendant’s 12th Prayeras Modified. — The Court instructs the jury that even if the jury shall find that the plaintiff is entitled to recover, and that the injury complained of is existing at this time, if the jury shall so find, yet, if the jury shall further find, that the plaintiff could have prevented his present physical condition, by promptly submitting to proper medical or surgical treatment; and shall further find, that the plaintiff failed to use reasonable and ordinary care to avoid the continuation of the injury he suffered, if any, and shall further find that such failure on his part to exercise reasonable care and caution to prevent the continuation of his injury, if the jury shall so find, is responsible for his present physical condition, then the plaintiff cannot recover any- damages for the pain and suffering, mental or physical, which he has endured, if any, by reason of his neglect in failing to have himself so treated. (Granted as modified.)</p> <p>Defendant’s 13th Prayer. — The Court instructs the jury that a carrier of passengers does not insure their safety in transportation and if the jury shall find from the evidence that the defendant, its agents and enpployees used the highest degree of care and diligence in the operation and running of the car in which the plaintiff was being carried as testified to by him; and shall further find, that the tracks and road bed of the defendant were properly constructed and maintained and were at the time of the accident in good condition ; and shall further find that said car was the usual and ordinary kind of electric car used for suburban traffic, being-equipped with the latest appliances for its operation, and was suitable for the safe transportation of passengers; and shall further find that said ear was inspected and examined by competent employees of the defendant within a reasonable time before the accident occurred; and shall further find that said inspection disclosed no defect in its condition; then the defendant has performed the duty it owed to the plaintiff in its carrying of him, and the management of its road; and if the jury shall further find, that the ear in which the plaintiff was riding jumped the track or was derailed, by reason of a cause unknown to the defendant or its agents or which it or they could not have discovered by the exercise of the utmost skill and diligence on its or their part, then under the pleadings, their verdict must be for the defendant, even though, they the jury shall further find that the plaintiff, without fault on his part did receive injuries by reason of the derailment of the car upon which he was riding. (Rejected by the Court.)</p> <p>Defendant's lJ¡.th Prayer. — The Court instructs the jury, that if they find from the evidence in the case that the plaintiff suffered no injury to his right sacro illiae joint from the derailment of the car as testified to by the plaintiff, then their verdict, under the evidence, must be for the defendant. (Rejected by the Court.)</p> <p>Defendant's 15th Prayer. — That even if the jury shall find that the car of the defendant in which the plaintiff was riding on the night of July 10th, 1910, was derailed by the negligence of the defendant, yet, the verdict of the jury must bo for the defendant, unless the jury shall further find by preponderance of the evidence that the plaintiff while using due care, was injured by the derailment of said car. (Granted by the Court.)</p> <p>Defendant’s 16th Prayer. — The defendant prays the Court to instruct the jury that if the jury shall find from the evidence in this case that the defendant used proper care and diligence in the care, maintenance and operation of its cars and track, and that the plaintiff by his own act, in sitting in defendant’s car with “his foot up on the side rail” of said car, as testified to by tbe plaintiff, contributed thereby to tbe injury which the plaintiff claims to have sustained as a result of the car of the defendant leaving the rails or jumping .the tracks on the night of July 10th, 1910, at Tow-son, Baltimore county, Maryland, then the verdict of the jury shall be for the defendant. {Rejected by the OouH.)</p>