Volume 118 — Maryland Reports

The facts are stated in the opinion of the Court. The following are the prayers offered by the plaintiff and defendant, respectively, and the action of the trial Court thereon: Plaintiffs 1st Prayer,. — If the jury finds from the evidence, that on or about April 1st, 1899, or a short time prior thereto, the defendant promised and agreed with the plaintiff, that, if she would come to his home in Washington county, Maryland, and keep house for him, he would in consideration…

<p>Appeal from the Circuit Court of Baltimore City (Harlan', O. J.). The facts are stated in the opinion of the Court.</p>

The facts are stated in the opinion of the Court. The following are the prayers of the plaintiff and of the defendant and the action of the Oourt upon .each: Plaintiff's 1st Prayer. — -The plaintiff, by his counsel, prays the Oourt to instruct the jury, that, if they shall find from the evidence that on the 11th day of June, 1911, the plaintiff was a passenger on the defendant’s railway round-trip excursion train from Romney, West Virginia, to Washington, D. O'., and return,…

<p>Appeal from the Circuit Court for Wicomico County (Pattisoet, O. J. and Toadviet, J.). The facts are stated in the Opinion of the Court.</p>

The following are the prayers that were offered by the plaintiff and by the defendants and the Court’s action on each: Plaintiff’s First Prayer — The Court instructs the jury that if they find from the evidence that the three shipments testified to were made to the plaintiffs upon what is known as “Order Bills of Lading,” and that such shipments, when delivered to the carriers by the consignors, were in good condition for carriage to their destination, and if they shall…

<p>Appeal from the Circuit Court ■ for Wicomico County (Toadvih and Johes, JJ.). The facts are stated in the Opinion of the Court.</p>

Cross appeals in one record from Circuit Court No. 2 of Baltimore City (Stump, J.). The facts are stated in the Opinion of the-Court. The appeals were argued together before Boyd, C. J., Briscoe, Pearce, Burke, Thomas, Pattison, Urner and Stockbridge, JJ.

). The facts are stated in the opinion of the Court. The cause was argued- before Boyd, C. J., Briscoe, .Pearce, Burke, Thomas, Fattisoh, Urker and Stock-bridge, JJ.

<p>Appeal from the Circuit Court of Baltimore City (Heuisrun, J.). The facts are stated in the opinion of the Court.</p>

), sitting in equity. The facts are stated in the opinion of the Court. The cause was argued before Boyd, C. J., Briscoe, Pearce, Burke, Tilomas, Pattisow, Urher and Stock-bridge, J J.

<p>Appeal from the Court of Common Pleas of Baltimore City (Bond, J.).</p> <p>The facts are stated in the opinion of the Court.</p>

<p>Statutes: mandatory and directory provisions: intention of legislature. Municipal corporations: paving loans; construction of — . Enabling act: limitations on amount to be issued in any one year; net amount to be expended.</p> <p> Delegation of power. </p> <p>The delegation of a power or discretion, requiring the judgment and determination of those entrusted with such power and discretion by the Legislature, is unlawful. p. 169</p> <p>A mandatory provision in a statute is one the omission to follow which renders the proceedings illegal and void. p. 366</p> <p>A directory provision is one the observance of which is not necessary to the validity of the proceedings. p. 166</p> <p>Whether a particular statute is mandatory or directory depends not upon its form, but upon the intention of the legislature, to be ascertained from a consideration of the entire act, its nature, object and consequences. p. 166</p> <p>Mere words do not control; but, generally, when no rights will be impaired, provisions with no negative words or implications concerning the time and manner in which official persons shall perform designated acts are directory. p. 167</p> <p>The provision in the Acts of 1906, Oh. 401, amended by the Acts of 1908, Oh. 202, authorizing the Mayor and City Council of Baltimore to issue stock for certain public improvements, providing that appropriations from said stock, based upon estimates of the paving commission, should be made annually by the Board of Estimates, is directory and not mandatory; and an appropriation of such stock made by the Board of Estimates and afterwards ratified by the paving commission, is valid. p. 168</p> <p>The statute also provided that the stock should be issued from time to time and in such amounts as the Mayor, etc., should by ordinance provide; it also vested power in the Commissioners of Einance to issue and sell the stock at the best price obtainable in their judgment; m the ordinance passed by virtue of this statute, the amount of the stock to be issued from time to time, and rate of interest to be paid, not to exceed four (4%) per cent., was delegated to the Commissioners of Einance; held, that under the circumstances, this delegation of restricted discretion was not unlawful, especially as the provisions of the ordinance did not vary from the statute. p. 170</p> <p>When a statute forbids a municipality from issuing more than a certain amount of stock or obligations in any year, but is silent as to the amount that may be expended therefrom in any one year, an ordinance that provides for the expenditure in one year of the moneys derived from stock that was issued in moré than one year, is not invalid, although such sums may exceed the amount of stock authorized to be issued in any one year. p. 171</p>

<p> Negligence: taxi cabs; evidence of ownership. Testimony: in other suits. Appeals: evidence not in record; remanding of cases for new trial. </p> <p>Code, Art. 5, sec. 22.</p> <p>Courts are liberal in admitting evidence tending to establish ownership in cases of suits for damages for injuries received from taxicabs or other vehicles. p. 175</p> <p>In such cases where there is any evidence to identify the vehicle as the property of the defendant there is a prima facie presumption that it was at the time of the accident in its possession or operated by means of its driver or servant. But where there is no evidence whatever as to the ownership of the vehicle or its control, the case should not he allowed to go to the jury. p. 175</p> <p>Testimony given in another suit where the parties are not the same is not admissible. p. 176</p> <p>Evidence not in the record will not he considered by the Court of Appeals. p. 176</p> <p>Where a j udgment in favor of a plaintiff is reversed on appeal, it will not he remanded for a new trial, under the Code, Art. 5, sec. 22, when in the judgment of the Court of Appeals there is no evidence in the record to justify a verdict for the plaintiff. p. 176</p>

<p>Appeal from the Circuit Court for Baltimore City. (LIeuisleb, J.). The faets are stated in the opinion of the Court.</p>

<p>Suits at law: settlements; when no estoppel. Judgment: injunction to restrain — ; fraud, etc. Justices of the Peace: revieiv by Circuit Courts.</p> <p>An appeal to the Circuit Court from a judgment of a justice of the peace was settled and the following receipt given, “Received of Defendant Company Fifty ($50.00) Dollars in settlement of above case by compromise,” which was signed by the plaintiff’s counsel. Subsequently, the plaintiff brought a new suit for injuries claimed, growing out of the same transaction; an injunction was applied for to the Circuit Court to restrain the proceedings on the ground that the above receipt was in settlement of all litigation for the same injury; it was held, that the receipt did not operate upon the plaintiff as an estoppel against any further litigation and the application for the injunction was refused. p. 188</p> <p>Where a party has a defense at law and neglects to avail himself of it, equity will not interfere. p. 186</p> <p>A party in Court is bound to be present in person or by attorney to take care of his rights and attend to their due prosecution, and cannot make the omission to perform the duty, of itself a foundation for an injunction. pp. 186-187</p> <p>Where fraud in obtaining a judgment is alleged as the basis of an application for an injunction to restrain its prosecution the facts constituting the fraud must be set out in full so that the Court may see whether, if true, they would constitute fraud in law. p. 186</p> <p>An injunction will not be granted by a Circuit Court to restrain a plaintiff from proceeding further in a suit brought before a justice of the peace, in the absence of any averment that the justice of the peace had no jurisdiction or that the judgment was obtained irregularly; that there had been no service of process, etc., or that there was fraud, collusion or surprise. p. 186</p> <p>A Circuit Court sitting as a Court of Equity cannot review cases heard at law by justices of the peace, where all the matters alleged in the bill in criticism of the powers of the magistrate to consider a cause or render a judgment, are matters which the defendant could have set up in a defense to the action, equity will not interfere. _ p. 187</p>

<p> Contracts; rescission. Specific performance; mistake. </p> <p>Two brothers each owned a stable near together; A., agreed to purchase one stable, thinking all the while he was agreeing to purchase the other: Held that, under all the circumstances he was not guilty of inexcusable carelessness, and that the agreement should not be specifically enforced. p. 197</p> <p>A contract made by the parties and reduced to writing will not be disturbed or rescinded by a Court of Equity for trivial causes; in order to justify the reeission of such a contract, the proof must be clear, convincing and such as should properly appeal to a Court of conscience. p. 194</p> <p>The right to the specific performance of a contract is not absolute; and if the contract is inequitable or harsh it will not be enforced although the difference might not be such as would warrant a rescission at the suit of the defendant.</p> <p>p. 194</p> <p>In general specific performance of a contract to buy land will not be enforced if on account of mistake it does not accurately express the terms really agreed upon. p. 194</p> <p>Even a unilateral mistake on the part of the defendant may be admitted as a defense when to enforce the contract would be harsh and unreasonable. p. 195</p> <p>But a mistake which is solely the result of the defendant’s inexcusable carelessness is not a defense against specific performance. p. 195</p>

<p> Amendment of pleadingsCode of Pul. Gen. Laws, Art. 15, sec. 3i; Orphans’ Courts; leave to amend; discretion of Courts; no appeal. Executors and administrators; delt to estate; limitations. </p> <p>The Code of Public General Laws, Article 15, section 34, relating to the amendment of pleadings, leaves it to the Court’s discretion to permit or refuse application to amend, p. 200</p> <p>And although the Code of Public General Laws, Article 15, section 34, applies only to Courts of law, yet the proceedings in Orphans’ Courts, where no formal pleadings are requisite, should not have applied to them rules more stringent than those applied to Courts of Law. p. 201</p> <p>Prom an order of the Orphans’ Court allowing an amendment to an answer, no appeal will lie. pp. 200,201</p> <p>Against a debt due- personally by an executor to his testator the statute of limitations does not run. p. 202</p>

<p> Wills: construction and effect; subsequent sale of land devised; ademption. Caveat: costs and counsel fees. </p> <p>Subsequent to the execution of his will, a conveyance by a testator of property devised therein removes the property from the operation of the will, and works an ademption of such property and is a revocation of the will to that extent.</p> <p>pp. 206,207</p> <p>Where a testator sells and conveys away land which he has devised by his will and takes a purchase money mortgage therefor, such land is withdrawn from the operation of the will and the money secured to him by a purchase mortgage falls into the residuary estate. p. 208</p> <p>Where there was a caveat to a will affecting the interest of the devisees and a settlement was made for the common benefit - of all, and a bill filed for a construction of the will and the administration of the estate under the jurisdiction of a Court of Equity, it was held the counsel fees to be allowed should be charged to each deviseo or legatee in proportion to the respective interests passing under ill© will. p. 208</p> <p>A special fee was also allowed the counsel who represented certain infant children in the cause, to he paid out of the estate of the residuary legatees passing to the children under the will. p. 209</p>

<p>Appeal from the Circuit Court for Baltimore County, in equity (Burke, J.).</p> <p>The facts are stated in the opinion of the Court.</p>

<p>School Commissioners of Baltimore City: trial of teachers; regularity of proceedings; right to have counsel. Inferior Courts and tribunals: regularity of proceedings. Certiorari: writ of — ,• no appeal from action of Court granting writ.</p> <p>The Board of School Commissioners of Baltimore City in trying charges preferred against a teacher, acts in a quasi judicial capacity. p. 225</p> <p>Ro appeal from the decision of the board is provided by law, and if the procedure adopted by the board is irregular and illegal, the teacher has a right to have the proceeding, reviewed and corrected by certiorari proceedings. p. 225 In such a ease a writ of error will not lie. p. 225</p> <p>A teacher in the public schools in Baltimore City was summoned before the Board of Public School Commissioners to answer certain charges, etc.; he applied for a writ of certiorari to question the regularity of the proceedings in that the charges were not definite and because he was denied counsel; the Superior Court issued the writ and upon the return thereto, refused the board’s motion to quash and struck out its judgment dismissing the teacher on the recommendation of the superintendent, and sent the matter back to the board for proper action. The School Board appealed from the action of the Superior Court to the Court of Appeals; held that the appeal should be dismissed. p. 228</p> <p>The writ of certiorari does not try the merits of a question, but is to test whether a limited jurisdiction has exceeded its bounds. p. 226</p> <p>Every inferior jurisdiction, whether created by a public or a private law, is subject to have its proceedings inspected either by appeal or by writ of certiorari and mandamus, where such jurisdiction acts judicially. p. 225</p> <p>The office of the writ is either to test the jurisdiction of the inferior tribunal, or to require it to adopt a legal and regu- ' lar course of procedure in the ,conduct of the proceeding in which it may be engaged. p. 226</p> <p>The service of the writ operates as a supersedeas and all future proceedings in the inferior tribunal are erroneous until the matter has been disposed of by the Court issuing the writ.</p> <p>p. 227</p> <p>Where the object of issuing the writ is merely to inquire into and direct 1he regularity of the proceedings before the inferior tribunal, the Court on the return of the writ exercises a quasi appellate jurisdiction and no appeal will lie from its decision. p. 228</p>

<p>Two appeals in one record from the Baltimore City Court (Elliott, J.).</p> <p>The facts of the case are stated in the opinion of the Court.</p> <p>The following are the defendants’ prayers, including those that are referred to in the opinion of the Court:</p> <p>DefendcMits' First Prayer. — The defendants pray the Court to instruct itself sitting as a jury, that there is no evidence in this case legally sufficient to show that the defendants are liable upon the promissory note sued upon, under the terms of the agreement offered in evidence and entered into between plaintiff and defendants on the twelfth day of June, 1906, and that the verdict of the Court sitting as such jury must be for the defendants. (Refused.)</p> <p>Defendants’ Second Prayer. — The defendants pray the Court to instruct itself sitting as a jury, that from the undisputed evidence in this case, the promissory note sued upon by the plaintiff was made in pursuance of a certain agreement entered into between the plaintiff and defendants on the twelfth day of June, nineteen hundred and six, and which agreement provided that the defendants, should guarantee the value of 50 shares of the capital stock purchased by the plaintiff of the S. M. Johnson and Son Coal Company, as based upon the condition of the company as shown by the statement of the first day of June, 1906, and it not having been shown that the said statements or any of the items thereof were untrue or inaccurate or that the condition of the said company was other than that represented by said statement on said first of June, 1906, the verdict of said Court sitting as such jury must be for the defendants. (Refused.)</p> <p>Defendants’ Fourth Prayer. — The defendants pray the Court to rule, as a matter of law, that if the Court sitting as a jury finds from all the evidence that both the promissory note sued on in this case and the agreement of June 12, 1906, were executed by the S. M. Johnson & Son Coal Co., a corporation; and shall further find that the said corporation had no power to execute the said note and agreement, and that the said corporation received no consideration for its said acts, that then its verdict must be for the defendant. (Refused.)</p> <p>Defendants’ Fifth Prayer. — The defendants pray the Court to instruct itself sitting as a jury, that from the evidence in this ease it appears that the promissory note sued upon by the plaintiff did not represent the real contract or obligation entered into- between the plaintiff- and the defendants, and that at the time of this suit the amount of said note was not due by the defendants to the plaintiff, and that therefore the verdict of the Oourt sitting as such jury must be for the defendants. (Refused.)</p> <p>Defendants’ Sixth Prayer. — The defendants pray the Court to instruct itself sitting as a jury, that the promissory note sued on in this case is not the entire and complete agreement between the plaintiff and the defendants, but that the evidence in said case shows the agreement of June 12th, 1906, to be the contract and agreement between the said parties, the plaintiff and the defendants, and that there is a variance between the pleadings, and the evidence in this case, and the plaintiff is not entitled to recover thereon. (Refused.)</p> <p>Defendants’ Seventh Prayer.- — The defendants pray the Court to rule as a matter of law, that if the Court sitting as a jury shall find that the promissory note sued on in this case was made pursuant to the terms of the agreement of June 12th, 1906, between the plaintiff and the defendants, and shall further find the defendants liable thereon, then the amount to which the plaintiff is entitled to recover must be limited to the amount of annual reductions and interest on said note due as provided in the said agreement. (Refused.)</p> <p>Defendants’ 8th Prayer. — The defendants pray the Oourt to rule as a matter of law, that if the Oourt, sitting as a jury, shall find from all the evidence that the promissory note sued on in this case was endorsed pursuant to the terms of the agreement of June 12th, 1906, between the plaintiff and the defendants, and farther find the defendants liable thereon, then the amount to which the plaintiff is entitled to recover must be limited to the annual reductions and interest on the said note due as in said agreement provided, less any amounts received by the plaintiff or withdrawn by E. W. Hughlett over and above the salary of twelve hundred dollars ($1,200) per annum, as in the said agreement provided.</p> <p> (Refused.) </p> <p>Defendants 10th Prayer. — The defendants pray the Court to rale as a matter of law, that if the Court, sitting as a jury, finds from the evidence that the promissory note sued on in this case was endorsed by the defendants as a guarantee to the plaintiff of the value of the stock, according to the agreement of June 12th, 1906, between the plaintiff and the defendants, and if the Court so sitting as a jury shall further find that the plaintiff did not tender to the defendants the stock so guaranteed and offer to return the same upon the due date of the said note or subsequent thereto, then the verdict must be for the defendants. (Refused.)</p> <p>Defendants’ 11th Prayer. — The defendants pray the Court to rule as a matter of law, that if the Court, sitting as a jury, shall find from the evidence that the promissory note sued on in this case, was endorsed by the defendants pursuant to the agreement of June 12th, 1906, between the plaintiff and the defendants and others, and shall further find that on June 12th, 1906, the S. M. Johnson & Son Coal Company of Baltimore City, the maker of the said note, was a corporation, duly organized and existing under the laws of the State of Maryland, then the verdict must be for the defendants, unless the Court so sitting as a jury further finds that on the date of the maturity of the said note, or subsequent thereto, the plaintiff presented or caused to be presented to the defendants a renewal note for a sum not less than three thousand dollars ($3,000.00), and demanded of the defendants the endorsement thereof and the payment of the interest and reduction in accordance with the terms of the said agreement. (Refused.)</p> <p>Defendants’ 12th Prayer. — The defendants pray the Court to instruct itself sitting as a jury, that the undertaking of the defendants as contained in the contract of June 12th, 1906, between the plaintiff and the defendants, was to guarantee the value of the stock testified to in this case, according to the items and valuations in statement of June 1st, 1906, in evidence in this case, and to indemnify said plaintiff for loss arising from any discrepancies in said statement; and that liability of defendants, if any, under said agreement can only be estimated by value of stock according to said statement and the measure of value therein agreed upon by the parties to said agreement. (Befused.)</p> <p>The two causes were argued together before Boyd, 0. J., Briscoe, Pearce, Burke, Thomas, Urker and Stock-bridge, JJ.</p>

Two appeals in one record from the Circuit Court of Baltimore City (Bohd, J.). The facts are stated in the opinion of the Court. The two causes were argued together before Boyd, C. J., Briscoe, Pearce, Burke, Thomas, Urner and Stockbridge. JJ.

<p> Corporations: subscriptions to stocks legalitys law of home Slates bonus stocks stock issued for property, rights, etc. New York corporation stock law: when full paid. Contracts: indivisibles ultra vires contract. </p> <p>Under the New York Stock Corporation Law, a corporation can not issue common stock for which no money had been or will be received by it from any source, and which represents no return to it in property or labor equal in fact to the par value of the stock, or so estimated in good faith by the directors. p. 258</p> <p>Stock is not issued for property or labor “so valued in good faith by the directors” when it is issued for property or labor not worth its par amount, and without an honest belief and determination on their part that such property or labor had the requisite value or without any knowledge to them on the subject and in reckless disregard of the real worth of such property or labor. p. 258</p> <p>Where in an indivisible contract of subscription to the preferred and common stock of a corporation, the contract is void as to the common stock, it is void wholly even as to the preferred stock. pp. 260-261</p> <p>Where a foreign corporation brings suit to recover a subscription for stock, the defendant may show that the contract upon which he is sought to be held liable is illegal by the law of the State of such corporation. p. 262</p> <p>Before the formation of a corporation, W. agreed with the promoter and other subscribers to take a certain amount of preferred stock of the corporation (when formed) ; as a bonus for such subscription, as part of the contract, it was agreed that the corporation should issue him 50°/0 of Ms subscription in common stock; in a suit by tbe corporation, against Mm for suck subscriptions, it was held tkat suck common stock (under tke facts of tke case) was necessarily to be either (1) unissued stock unlawfully issued as bonus stock to tke subscriber for no value, or (2) stock wkick had been unlawfully issued to tke promoter for worthless property not taken at a fair valuation and wkick had been returned by tke promoter to tke corporation for tke purpose of being issued to subscribers, and tkat, therefore, tke corporation could not sue W. upon suck an agreement since tke agreement could not be fully performed on its part except in connection with tke issuance by it of stock on terms forbidden by law. p. 260</p> <p>An executory contract with a corporation for an illegal issue of stock as full paid and -non-assessable will not be enforced even though tke subscriber would not, by bis acquisition of tke stock, assume any liability to tke creditors of tke corporation. p. 262</p> <p>An executory contract wMck is not merely ultra vires, but wkick is contrary to law or public policy will not be enforced.</p> <p>p. 259</p> <p>Tke subscribers to stock who at tke time had full knowledge of tke conditions wkick would make tke issue of tke stock illegal, are not estopped from setting up suck illegality, as a defense to a suit on tke subscription to tke stock. p. 262</p>

<p>Appeal from the Circuit Court No. 2 of Baltimore City (Stump, J.).</p> <p>The facts are stated in the opinion of the Court.</p>

<p>Bills of lading: notice. Common carriers: agreement as to special route; route temporarily impracticable; shipment of live stock; duty to feed and water; sale for charges; when amounts to conversion; “perishable freight” question for jury.</p> <p> Tender: pleaded specially. </p> <p>Where both parties, or their agents, sign a bill of lading, they are both chargeable with notice of its contracts. p. 210</p> <p>Where a shipper contracts for a definite route, a departure therefrom is a violation of the contract on the part of the carrier; and the fact that immediate shipment over that route is impracticable, as by a quarantine, imposes no legal obligation on the part of the carrier to forward by a different route. p. 212</p> <p>The defense of tender must be specially pleaded and evidence of a tender is not admissible under the general issue plea.</p> <p>p. 212</p> <p>Where by a contract of shipment it is the duty of the shipper to feed and water the live stock shipped, upon his failure so to do, that duty falls upon the carrier, who will be entitled to reimbursement by the shipper. p. 213</p> <p>Whether or not freight is to be regarded as “perishable” is a question for the, jury to determine. p. 214</p> <p>A special quarantine law prevented a carrier from delivering to its destination a carload of hogs, and in consequence the car was held on the road; the contract of shipment imposed upon the shipper the duty of feeding and watering the stock; this the shipper did not do; the carrier after caring for the stock for a few days sold them where they were, a place of small demand and of low prices. Held, that under the special circumstances the sale was unauthorized and amounted to a conversion. . p. 274</p>

Two appeals from the Superior Court of Baltimore Oity (Dobdeb, J.). The facts are stated in the opinion of the Court. The two causes were argued together before Boyd, C. J., Bbiscoe, Peabce, Btjbke, Thomas and Stockbbídge, JJ.

<p> Lessor ancl lessee: misuse of demised premises; injunction; waste. Contracts: intention; misrepresentation. Equity : power to cancel executed contracts. Landlord and tenant: fiduciary relation. </p> <p>A lessor may by injunction prevent Ms lessee or others claiming or holding under him, or acting by his authority, from converting the demised premises to uses inconsistent with the terms of the contract, and from making material alterations for such purposes and also from committing other kind of waste. p. 291</p> <p>Technical waste is not essential to the jurisdiction of equity to enable a landlord to restrain the tenant of premises demised for a specific purpose from devoting them to a different purpose, especially when the change will involve repairs and alterations tending to waste. p. 292</p> <p>There is an implied obligation on the part of a lessee of the same force as an. express covenant, against any change or use of the demised premises different from those for which they were leased. p. 292</p> <p>The existing intention of the party at the time of contracting is a matter of fact, and may be material to the validity of the contract; when a person fraudulently represents his intention in some material point, for the purpose of inducing a contract, it may be sufficient ground for equitable interference. p. 293</p> <p>The relation of landlord and tenant, in the estimation of a Court of Equity, so far partakes of a fiduciary character, that in all transactions between the parties in reference to the property, the utmost good faith is required. ' p. 293 By representing to a landlord that the lessee wanted certain property for his own residence and use only, the landlord was induced to so lease the property; the lessee against the well-known wishes of the lessor, took down fences, laid out a boardwalk and opened a thoroughfare through the property for public use. A bill making such allegations was filed by the lessor against the lessee asking for the annulment of the lease and for an injunction to withstrain the lessee from laying down such a walk and opening a public thoroughfare. , Held, that such a bill was not demurrable. p. 294</p> <p>The power of cancelling an executed contract by a Court of Equity should not be exercised except in a clear case and never for alleged fraud, unless the fraud be made clearly to appear, and never for alleged false representations, unless their falsity is certainly proved, and the complainant has been deceived and injured thereby. p. 294</p>

<p>Deeds: construction; description of lots conveyed; reference to another deed conveying the same and other lots.</p> <p>A deed executed in 1876, by its granting clause conveyed all the grantor’s “right, title and interest in and to the hereinafter described pieces or parcels of ground, lying and being” * * * “as conveyed by T. I. M. and others to W. W. McK. and others by deed dated June 30, 1885, which deed, etc.”; then followed a description of several lots; the earlier deed, of 1855, conveyed not only the lots specifically described in the later deed, but also several other pieces and parcels of ground. Held, that the deed of 1876 only conveyed the lots speeifioially described in it and did not convey all of the parcels or pieces of ground described in the prior deed. pp. 303-304</p>

Two appeals in one record from the Circuit Court of Baltimore City (Heuisler, J.). The facts are stated in the opinion of the Court. The two causes were argued together before Boyd, C. J., Briscoe, Burke, Pattisok, Urker and Stocicbridge, JJ.

<p>Wills: trustsj trustee to hold legal title only; power to life tenants to collect income. Equity: assuming jurisdiction of trusts; order to trustee; when no appeal by trustee. Appeals: by one only of several co-trustees.</p> <p>One of the trustees named in a will having died, the other resigned; upon the petition of the legatees a Court of Equity-assumed jurisdiction of the trust and appointed two other trustees; in the decree the trustees were ordered, among other things, until the further order of the Court, to collect the rents, etc., and after paying all taxes, etc., and a commission of five per cent, on the income to divide the balance of the rents or income among the parties entitled under the will. The will had. provided that' the trustees should not have any other duty than to hold the legal title for the remaindermen, and that certain legatees, tenants for life, should have the power to collect the rents and manage the property, etc.; subsequently to the appointment of the trustees by the Court a petition was filed by the life-tenants reciting that they desired to manage the property and collect the rents, etc., themselves and praying that the lessee of the property be ordered and directed to pay the rent to. them or to their counsel. On appeal taken by one of the trustees from an order of the Court so decreeing, it was held that the Court had the power to pass such a decree, and that the trustees who were appointed to execute the trust under the will could not complain of a decree so clearly in pursuance of the terms of the will. p. 333</p> <p>Trustees can not appeal from a decree merely because it involves their commissions, if the commissions are not contemplated by the will of instrument creating the trust.</p> <p>p. 333</p> <p>It was further decided that by the decree appealed from the Court had not surrendered all jurisdiction over the estate, and that if the life tenants should not properly pay the annuities, the ground rent, taxes, interest, etc., and all other charges upon the property, for which they were responsible, the collection of the rents should be taken out of their hands.</p> <p>p. 334</p> <p>Section 26 of Article 5 of the Code grants the right of appeal from any decree or order in the nature of a final decree passed by a Court of Equity to any one or more of the persons, partners to the suit, with or without the assent or joinder of plaintiffs and co-defendants, etc. Quaere, whether the statute includes one of several trustees, who form “but one collective trustee” ? p. 335</p>

<p>Contracts: failure to complete according to specifications; no recovery; acceptance; assumpsit for worJc and materials; damages. Evidence : weight of — ; for jury.</p> <p>If work under a contract is not completed in strict compliance with the specifications to which it refers there can be no recovery on the contract. ' p. 342</p> <p>But if the materials furnished and the work done by the plaintiff were accepted by the defendant, the plaintiff may recover in assumpsit the value of such materials and work, less any damage the defendant may have sustained by failure of the plaintiff to comply with the terms of the contract.</p> <p>p. 342</p> <p>•And the sum the defendant may have been required to pay for other materials or work necessary to complete the contract in accordance with its terms may be taken as the measure of damages sustained by reason of the plaintiff’s default, when there is no other evidence of such damage. p. 342 The value of the work necessary for the completion of the contract, or the damage that the defendants sustained by reason of the plaintiff’s failure or neglect to complete the work is a question for the jury and not for the Court.</p> <p>The weight of evidence, is a question for the jury. p. 344</p>

<p> Subrogation: definition; limitation of rights. Casualty com,panies: indemnifying against loss by accident, etc.; provisions of; no suit until after loss paid. Surety companies: guaranteeing payments of judgments. </p> <p>A bond of indemnity of a Casualty Company protected a Construction Company against loss by reason of accidents to any of its employees during the course of its work; such an accident occurred and resulted in the death of a workman; the hond provided that no action would lie under it except for loss actually sustained and paid, etc.; in order to relieve its funds, which bad been attached by way of 11011-resident attachment, to compel the payment of any judgment which might he obtained in the damage suit, the Construction Company had given to the testatrix of the victim of the accident a Surety Company’s bond conditioned upon the Construction Company’s paying on demand any judgment that might be recovered in the suit against it; such a judgment was recovered against the Construction Company, hut it had become insolvent and never paid the same; receivers of the Surety Company, which had gone into liquidation, paid the judgment and had the same entered to their use; they filed a hill to he subrogated to the rights of the Construction Company against the Casualty Company; held, that the receivers of the Surety Company acquired no rights against the Casualty Company by the payment, or an assignment of that judgment, which were not previously assured to the Construction Company by the terms of their policy. p. 352</p> <p>The only element of substitution in subrogation is that of one person in the place of another; the person so substituted can exercise no right not possessed by his predecessor, nor under any other conditions or limitations. p. 353</p> <p>An obligation to pay is not the same as payment. p. 356</p>

). The facts are stated in the opinion of the Court. The cause was argued before Bern, C. J., Briscoe, Pearce, Burke, Thomas, Pattison, Ureter and Stock-bridge, JJ.

<p> C07itracts: breach; liquidated damages; part performance. </p> <p> Good will: competing in same, business. </p> <p>In a contract the statement of the parties as to liquidated damages is generally regarded as a penalty unless the contrary intention is unequivocally expressed, so that harsh provisions will be avoided and compensation alone be awarded. p. 376</p> <p>Provisions in a contract for the payment of a sum of money as liquidated damages for the nonperformance of a contract should not be enforced when the payments specified could not possibly have formed a genuine pre-estimate of the creditor’s</p> <p>■ possible or probable interest in the performance of the principal obligation. ■ p. 378</p> <p>Where such an agreement has been partially performed, it is the policy of Courts to regard the damages as a penalty and allow the plaintiff to recover only such damages as he has actually sustained. pp. 378-379</p> <p>A. by a written agreement gave B. an option on his flour mill, elevators, etc., and certain other properties all set out in detail, for the consideration of $12,500.00. B. exercised the option and A. gave him a certificate to that effect agreeing to execute a deed for the property when B. should give collateral to secure the purchase money notes; in the original agreement there had been no mention of “good will” nor any restriction against A.’s going into the same business again; but without additional consideration, the certificate recited that for the consideration aforesaid A. agreed not to go in the same business for five years, near the same place under a penalty of $6,250; within a few months of the expiration of the five years, A. resumed business again at the same place; in a suit brought by B. to recover the $6,250, it was held that in view of all the circumstances it would be unconscionable to hold and declare such a sum to be liquidated damages in such a case of part performance. p. 370</p> <p>While B. in his action for the recovery of the sum named as liquidated damages might have recovered actual damage had he amended his declaration; as he did not do so, it was held, that he must abide the result of standing on the pleadings.</p> <p>p. 370</p>

), where a judgment and verdict for $700.00 had been rendered against the defendant. The facts are stated in the opinion of the. Court.

<p> Sales in equity: interest on purchase money; exceptions to ratification; unreleased mortgage. </p> <p>The purchaser at a trustees’ sale is ordinarily liable for interest from the time the sale is to be effective; but in dealing with the question Courts are influenced by equitable considerations. p. 395</p> <p>The terms of sale of a lot of ground, under a deed of trust for the benefit of creditors, provided that interest should be paid on the balance of the purchase money, and allowance made for taxes and ground rent, etc., accounting from the day of sale; after the sale it was discovered that there was on record an unreleased mortgage , on the property; the purchaser excepted to the sale on that ground and a creditor-excepted on the ground of inadequacy of price; although the purchaser made efforts to have the trustees explain the presence of the unreleased' mortgage the trustees did not do so for several months, after which the mortgage was properly released; some further delay then occurred in having the creditor’s objections dismissed; held that, under the circumstances the purchaser should not be charged with interest nor with taxes or ground rent from the day of sale to the day of ratification. p. 399</p> <p>The fact that a purchaser at a trustee’s sale discovers a mortgage on the property, not released of record, is ground for his objections to the ratification. p.897</p> <p>Purchasers at a trustee’s sale can not be expected to show an active interest in having exceptions to the sale dismissed, when the discovery of an unreleased prior lien on the property casts a doubt upon the title. pp. 397-393</p>

<p>Judgments or decrees: in rem; effect of — ; persons not parties.</p> <p> Trustee’s sales: exceptions; title of mortgagor. </p> <p>The purchaser at a mortgage foreclosure objected to the title, on the ground that the mortgagor was not the owner in fee of the land he had mortgaged; before the mortgage foreclosure a decree bad been made in a suit brought by the mortgagor to construe the will and deeds under which he claimed title to the property, which decree decided that under those instruments the fee simple title to the land had vested in the complainant, the mortgagor; to that suit the purchaser had not been a party. It was held, that while he was not hound by the decree, yet as the decree included the rights of all persons who could claim any interest in the property sold, the title through him would be free from all reasonable doubt and the sale should be ratified and confirmed. p. 404.</p> <p>A judgment or decree of a Court, having jurisdiction of the subject-matter and of the parties, can not be re-examined by the parties or their privies in another suit; it is conclusive upon them of all questions put in issue by the pleadings.</p> <p>pp. 403-404</p> <p>Kor can the decree or judgment be .re-examined in the same Court except upon some direct proceeding instituted for that purpose. p. 404</p> <p>LTntil set aside, by the Court which rendered it, or reversed upon appeal, a judgment or decree is final and conclusive of the question decided. p. 404</p>

<p>Wills: devises to children; selection to be made by them in order; not void for uncertainty; failure of those to act who have first right; jurisdiction of Equity. “Election.” Tenants in common: adverse possession. Title: parol proof. Estoppel: acts in pais. Deeds: recitals in — . Specific performance; titled-doubts. Trust: duration and termination. Statute of Uses.</p> <p>Where a testator leaves pieces of property to three children, one to have the first choice, one the second choice and the remaining tract to the third child, if the one with the first choice does not exercise it within a reasonable time according to the terms of the will, equity may give the other parties relief; and so also in the case of the party with the second choice should he fail to exercise his right of selection.</p> <p>p. 411</p> <p>Such devises do not create, tenancies in common of all the lots.</p> <p>p. 416</p> <p>Such devise is not void for uncertainty, because the will provides means by which the devisees can he made certain.</p> <p>p. 412</p> <p>Jd cerium est quod cerium reddi potest. p. 411</p> <p>In such a case, although some statement or declaration showing what selection had been made should he put on record, yet such testimony is not the only evidence by which it could he shown. p. 411</p> <p>An election may he determined by matter in pais as well as by matters of record; but it must, bo by plain and unequivocal acts. p. 412</p> <p>An “election” is a choice or selection; it is the obligation imposed upon a party to choose between two inconsistent or alternate rights or claims, in cases where there is a clear intention of the person, from whom he derives one right, that he should not enjoy both. p. 411</p> <p>Where the heirs or assigns of an intestate institute an action of ejectment to recover his lands, they may rely upon parol testimony to prove the death of such intestate, and who were his heirs. p. 412</p> <p>Title by adverse possession may be proved by parol evidence.</p> <p>p. 412</p> <p>Proof as to which child collected rent from which piece of prop- . erty; the recitals made in deeds by two of the children of the testator and their descendants; the statement in the executor’s accounts, etc., were held to be admissible to prove what selection had been made by the parties. pp. 413-415</p> <p>Recitals in deeds are not binding as to third parties. p. 415</p> <p>The children of one of the devisees had conveyed away one of the pieces of property mentioned in the will: Held, they were bound by the recitals in the deed and could not be permitted to assert title under the will to either of the other pieces of property. ' p. 415</p> <p>Title by adverse possession may be acquired by one tenant in common against others, but stronger evidence is required in such a case.- p. 415</p> <p>Where a testator left property to his son in trust for the latter’s children and fixed no time during which he should hold the property in trust, nor imposed upon him any duties except to select the property to be so held in trust, and made no disposition of the property after the death of the son’s children and did not limit their interest to life estates or any other estate than in fee, it was held that the trust did not extend beyond the life of the son, when all the children were of age. p. 416</p> <p>Under the Statute of Uses, the use was executed in the cestui quo trustent, and the legal and equitable title became vested in them. p. 418</p> <p>Where no intention to the contrary appears, the language used in creating a trust will be limited and restrained to the purpose of its creation, and when these are satisfied the estate of the trustee ceases to exist and his title becomes extinct.</p> <p>p. 417</p> <p>Specific performance of a contract for the purchase of real estate may be declared although the title of the purchaser will depend upon adverse possession. p. 418</p> <p>iSiot every doubt or suggestion, or even a threat of contest, will be sufficient to prevent the specific performance of a contract for the purchase of real estate. p. 418</p>

Twenty appeals in one record from Circuit Court Ho. 2 of Baltimore City (Stump, J.). The facts are stated in the opinion of the Court. The twenty appeals were argued together before Boyd, C. d., Bbiscoe, Peabce, Bubke, Thomas, Pattisok, Dryer and Stookbrtbge, JJ.

<p> Ejectment: equitable pleas; not admissible when available as defense at law. Chesapeake and Ohio Canal: title to land condemned; no adverse title against. </p> <p> Trespass: license and estoppel. </p> <p>Ail action oí ejectment brought by the trustees of the Chesapeake and Ohio Canal to recover a tract of land which, by condemnation proceedings had vested in the Canal Company since 1837; the defendant as an equitable defense pleaded that she and those under whom she claimed had for more than sixty years occupied the land in controversy, by actual ciLclosure and possession, without any interference from the Canal Company, its trustees, or officers; that on the land there had been erected a large house, etc., in which the plaintiff and her mother had lived for over sixty years; and she claimed that by reason of such non-user and non-claim on the part of the Canal Company she and her predecessors in title had laid out and expended large sums of money on the land in question, which said land she alleged was totally unlit for the use of the Canal Company. Held that this could have been given in evidence under the plea of not guilty and therefore could not be pleaded as an equitable defense. p. 451</p> <p>license and estoppel are legal defenses in an action of trespass.</p> <p>p. 451</p> <p>Under the Act of 1888, Ch. 547 (Code of 1912, Art. 75, sec. 86), a defense good at law may not be pleaded as an equitable defense. p. 449</p> <p>Under the Act of 1824, Ch. 79, incorporating the Chesapeake and Ohio Canal Co. and under the amendment of the Act of 1844, Ch. 287, no title can he acquired as against the canal, by mere length of possession, whether with or without the permission of the company, so as to deprive the said company of its rights in or to the said lands. pp. 452, 453</p>

<p>Tenure of office: constables; constitutional provisions; power of legislature; appointment by Mayor and City Council of Baltimore City; oath of office; time for talcing. Acts of 1912, Ch. 823.</p> <p>Where an appointment to public office is made in pursuance of the provisions of the Constitution which fix the term of office, the appointment can not be revoked or annulled, or the term of office abridged or extended by the legislature, unless so authorized by the Constitution. p. 459</p> <p>Section 42 of Article 4 of the Constitution regulates the appointment and removal of constables and fixes their term of office at two years. The Legislature may regulate the number of constables to be appointed for the wards of Baltimore City and the election districts of the counties, but it may not revoke or annul their appointment, or diminish the term of .office of any already lawfully appointed; even though they have not qualified. p. 461</p> <p>The power to appoint constables for a definite term is given by the Constitution to the Mayor and City Council of Baltimore and the County Commissioners of the counties, and the authority to remove is conferred upon the judges of the Courts having criminal jurisdiction, and then only upon conviction, etc., in a. Court of law. Where the appointing power has been lawfully exercised, the right of the person appointed for the term fixed for the constables is beyond the control of the Legislature. p. 461</p> <p>In the case of constables the right to qualify vests immediately upon the complete and lawful exercise of the appointing power, and under the Constitution this right is not subject to the control of the Legislature. p. 463</p> <p>Before the passage of Oh. 823, of the Acts of 1912, making changes as to the number and duties of the constables in Baltimore, the ordinance KTo. 87, of the City Council of Baltimore, was passed, and approved by the Mayor, naming certain constables to office for the term of two years. Such appointment was complete upon the passage and approval of the ordinance. In such a case a commission or certificate of appointment is not necessary, and the appointment could not be revoked or disturbed by the Legislature. p. 465</p> <p>Constables under the Charter of Baltimore City are to be appointed in accordance with the provisions of sec. 206, by the Mayor and City Council of Baltimore by ordinance, and not under the provisions of sec. 25, which provides that the Mayor shall have the sole power of appointment of all heads of departments, etc., subject to confirmation by a majority vote of all the members of the Second Branch of the City Council. p. 465</p> <p>It is the duty of a constable under sec. 1 of Art. 20 of the Code to take the oath of office within 30 days after his appointment; under sec. 7 of Art. 1 of the Constitution neglect of that duty is to be considered as a refusal to accept the office.</p> <p>p. 465</p> <p>A constable appointed by an ordinance of the Mayor and City Council of Baltimore applied to the Clerk of the Superior Court to administer to him the oath of office, he did not produce a copy of the ordinance or a certificate of his appointment, and no notice of such appointment had been received at the office of the clerk; held that without such evidence the clerk was not required to administer the oath. p. 470</p>

<p>Appeal from Circuit Court No. 2 of Baltimore City (Harlan, C. J.).</p> <p>The facts are stated in. the opinion of the Court.</p>

<p>Appeal from the Circuit Court for Anne Arundel County.</p> <p>The facts ■ are stated in the opinion of the Court.</p>

<p>Grantor and grantee; right of way through grantor’s land; when implied; subsequent grantees; rights against; ways of necessity.</p> <p>Where land is conveyed by one person to another, and the lot so transferred is entirely enclosed by the lands of others, the grantee is entitled by implication to a right of way over the lands of his grantor, as a way of necessity, so that lie may have means of ingress from and egress to the nearest public way. p. 496</p> <p>The test is the question of reasonable access to the property by the party claiming to be entitled to a way of necessity; p. 496</p> <p>The right can not he diverted by any subsequent grant of land of tbe grantor. ' p. 497</p> <p>Where the way claimed hv the grantee was only some 37 feet over an abandoned railway right of way and the way purposed by the grantor was over some 400 feet of road, existing on paper only, it was held that the former was the more reasonable. p. 497</p> <p>Where a grantor of a lot conveyed it subject to a right of way in a third party (a prior grantee of the same grantor), although the reservation might not give the prior grantee any right of action against the subsequent grantee, yet where the prior grantee was entitled to a way of necessity, his right exists against the subsequent grantee, even though not specified in the deed to the latter. p. 497</p> <p>The fact of the reservation is important as designating the location by the grantor and also as putting the second grantee on notice. pp. 497-498</p>

<p>Appeals: -final orders only. Demurrer to bills: effect of — .</p> <p> Divorce: jurisdiction of Equity; bill for alimony only. </p> <p>The effect of filing a demurrer to a bill is to admit all the facts there properly alleged as the ground for the relief sought. p. 500</p> <p>A wife filed a bill against her husband praying for the custody and guardianship of her child and for alimony; an order was passed enjoining the defendant from interfering with or removing the child from the State, regarding counsel fees and alimony pendente lite; on appeal by the husband, it was held, that none of such orders were reviewable. p. 500</p> <p>Yo appeal will lie from an order that is not final in its nature, and not decisive of any rights of the parties. p. 500</p> <p>The power of Courts to grant divorce is dependent upon statute only. p. 500</p> <p>The power of Courts to award alimony has been exercised since 1689, and has since then been continuously recognized as inherent in equity jurisdiction, and constantly exercised.</p> <p>p. 501</p> <p>By the Act of 1777, Ch. 12 (Code 1912, Art. 16, sec. 14), Courts of Equity are empowered to hear and determine all cases for alimony as fully as were the Ecclesiastical Courts of England. p. 502</p> <p>Alimony alone will not be awarded except on grounds which would be sufficient for granting a decree a mensa et thoro, together with incident alimony. p. 503</p> <p>The continuous acts of “gross misconduct” alleged in the bill apparently designed to humilate and degrade the wife, were held, if supported by prroof, to be such as would ampdy warrant a decree under Art. 14, sec. 58 of the Code. p. 504</p>

Pour appeals from Circuit Court No. 2 of Baltimore City (Stump, J.). The facts are stated in the opinion of the Court. The four appeals were argued together before Boyd, C. J./iBriscoe. Burke, Thomas, Urner and Stockbridge, JJ.

<p> Common carriers: not absolute insurersj reasonable care: liability in absence of special contract. Shipment of goods; delay in delivery; question for jury. Prayers : on theory, of which there is no evidence. </p> <p>Where there is no special contract between a common carrier and a shipper over its lines, the carrier is responsible under the common law liability alone. pp. 517-518</p> <p>In the absence of special contract, a common carrier is not an absolute insurer of' goods shipped.over its lines, but is responsible only for the duty of exercising ordinary and reasonable care and diligence under all the circumstances of the case.</p> <p>p. 518</p> <p>Where freight has been injured by delay in the delivery, it raises a prima.facie presumption of negligence on the part of the carrier; whether the evidence offered by the carrier in defense is a sufficient excuse, or not, is a question for the determination of the jury. p. 518 ■</p> <p>A prayer is erroneous which submits to the jury to find that it was negligence for a carrier to accept perishable freight, with the knowledge that it could not deliver the same in marketable condition, when there was no evidence in the case of any such knowledge. p. 519</p> <p>Prayers based upon a theory of which there is no evidence in' the case are erroneous. p. 519</p>

<p>Negligence: electric wire left hanging on public thoroughfare. Contributory negligence: questions for the jury.</p> <p>To leave a live electric wire of high voltage, hanging in a public thoroughfare, from Saturday to Wednesday, almost touching the ground, is negligence. p. 522</p> <p>One who would pick up such a wire in spite of warning and play with it and endeavor to make others touch it would be guilty of contributory negligence. p. 523</p> <p>Any evidence, however slight, that goes to contradict the defense of contributory negligence, is for the consideration of the jury. p. 523</p>

). The facts are stated in the opinion of the Court. The two causes were argued together before Boye, O. J., Briscoe Pearce, Tiiomas, Pattisoh and Stockbridgb, JJ.

<p>The cause was argued together with the cause of Love v. Rogers, see ante, page 525.</p>

<p>Supersedeas of judgments in civil actions only: form' of — . Recognizance.</p> <p>A party convicted of crime and sentenced to pay a fine and costs, signed with two others; the following entry on the Court Docket:</p> <p>“Aug. 15, 1911. Fine and costs superseded by us for six months. Witness our hands and seals this 15th day of August, 1911.”</p> <p>He was permitted to go at large and was never apprehended; the fine or costs not being paid, a fieri facias was issued upon this attempted supersedeas; on appeal from an order of Court overruling a motion to quash, it was held that the contract was a nullity; that the clerk had no right to take it, and that it did not supersede or affect, the execution of the sentence, and was not a judgment upon which an execution could issue. p. 538</p> <p>The writing in this case does not follow the form prescribed in see. 56 of Art-. 52 of the Code (1912) and would be void even in a civil suit. p. 542</p> <p>A recognizance is an obligation of record, and when forfeiture is declared and entered by the Court, it becomes a judgment and is then like an ordinary judgment enforceable by execution. p. 540</p> <p>The clerks, of the Circuit Courts of the several counties and the clerks of the Courts of Baltimore City (except the Criminal Court), have the power, under see. 28 of Art. 17 of the Code (1912) to take supersedeas of judgments and decrees in their respective Courts; and such a supersedeas so taken has the same effect as if taken by a justice of the peace; such a supersedeas is itself a judgment upon which execution may issue and operates to -stay the execution of the original judgment for six months thereafter. p. 540</p> <p>The right to a supersedeas is confined to judgments and decrees in civil actions only. p. 541</p> <p>In taking a supersedeas the form contained in the Code 1912, Art. 52, sec. 56, should he followed. p. 542</p>

<p>Appeal from the Circuit Court of Baltimore City (Heuisler, J.).</p> <p>The facts are stated in the opinion of the Court.</p>

<p>Appeal from the Circuit Court for Harford County, in Equity (Harlak, J.).</p> <p>The facts are stated in the opinion of the Court.</p>

<p>Contracts for personal services: injunction to enforce — ; to prevent breach; value and character of service; wages as evidence. Employer and employee: information acquired in course of employment.</p> <p>An injunction will not be granted to restrain one under a contract for personal services from rendering services to another in violation, of the contract, when the bill does not show that the duties required of the defendant by the contract were unique and extraordinary, requiring peculiar and marked ' ability to prosecute them successfully. p, 574</p> <p>The rate of wages provided in the contract of employment may be considered in determining whether the services were of such an extraordinary character as to warrant the issuing of an injunction. p. 575</p> <p>An allegation in the bill that the defendant had “the particular run of a class of trade in the employ of” the complainant, is not sufficient for such a purpose. p. 575</p> <p>The fact that the employee in a new employment profits by the experience and knowledge gained from his services with a former employer, does not, in the absence of any special or implied contract, constitute a legal wrong against the latter.</p> <p>p. 575</p> <p>A. was employed under a written contract as a salesman, collector and general utility man for a dealer in pianos and other musical instruments, for a certain territory; he was to devote his whole time to the performance of such duties, and the contract contained the negative agreement that ho should not enter into any contract of employment or be in any way interested or connected with any one other than the said dealer, in said territory, during one year, in similar employment; the compensation provided was $15.00 per week. A bill was filed against him, with a prayer for relief that be be enjoined from engaging himself as salesman, etc., within that territory with another firm in such business. The bill itself failed to allege that the defendant had entered a similar business or that he had engaged his services within the prohibited territory; on appeal from an order refusing the injunction it was held that upon the statement of all the facts and pleadings the injunction should not issue.</p> <p>p. 575</p>

<p>Municipal Corporations: judgment against — ; after tax levy for the year; mandamus; to impel special levy; when not to issue. Baltimore City: Board of Estimates.</p> <p>Under the Charter of Baltimore City, section 36 of Article 4 of the Code of Public Local Laws, as amended by Chapter 677 of the Acts of 1904, it is the duty of the Board of Estimates annually between the 1st day of October and the 1st day of November, to make three money lists, which shall embrace all monies to be expended for the next ensuing fiscal year for all purposes by the City, and to cause ’to be prepared a draft of an ordinance to be submitted to the City Council, providing appropriations sufficient to meet the amounts called for by said lists. p. 579</p> <p>The object of creating the' Board of Estimates was to provide for more orderly administration of the City’s finances, to secure more deliberation and careful judgment as to the expenditure of public money and greater watchfulness and economy in making the appropriations. pp. 579-580</p> <p>"When a judgment is recovered against the City of Baltimore after the' time for the making up of the ordinance of estimates by the Board of Estimates for that year, and after its introduction before the City Council, the orderly and proper provision for payment of the judgment is to include it in the ordinance of estimates to be passed for the year next succeeding; and a mandamus will not be issued to compel a special tax to be levied for the payment of such judgment.</p> <p>p. 580</p> <p>The writ of manda mus is not accorded as of legal right; it is within the discretion of the Court, not to be used capriciously, but according to rules long exercised at common law.</p> <p>p. 581</p> <p>Section 285 of the Acts of 1858 (Article 60 of the Code of 1912), amending the procedure relating to the issue of the writ of mandamus, does not take away the discretion of the Courts to refuse the writ. p. 581</p> <p>The writ is never granted where it is altogether unnecessary, when it would work injustice, where it would be nugatory, or where it would introduce into the municipal administration great confusion and disorder. p. 582</p>

<p>Prayers: rejection of correct — ; when no error; modification of prayers by Court; prayers taking case from jury; offering of evidence to sustain defense; waiver of right of appeal. Evidence: conflicting; question for• jury. Negligence: driving between other teams. Contributory negligence; when question for Court.</p> <p>Where a defendant’s prayer taking the case away from the jury is rejected, the defendant by offering evidence in support of his defense, waives his right of appeal from the action of the Court in rejecting the prayers. p. 589</p> <p>In cases of conflicting evidence the question of negligence is one for the determination of the jury. p. 587</p> <p>In order for a Court to be justified in assuming as a matter of law that the plaintiff’s actions amounted to contributory negligence, the uncontradicted evidence must establish some distinct, pronounced and decisive fact about which ordinary minds could not differ. p. 587</p> <p>Where there is ample room, between a wagon standing on the side of a street and another driving on the railroad track in the center of the street, for a party to drive a wagon between them in safety, it can not be declared as a matter of law that to attempt so to drive between them is negligence per se.</p> <p>p. 587</p> <p>It is no error to reject a prayer, proper in itself, if the law of the ease presented by it is covered by other prayers that have been granted. p. 589</p> <p>The modification of a prayer by the Court presents no reversible error when the modification is a change in form only and does not modify any statement of the law. p.-590</p>

<p>Appeal from the Superior Court of Baltimore City (Ambler, J.).</p> <p>'The facts are stated in the opinion of the Court.</p>

<p> Fair associations: liability for safety of grounds; not independent contractors; injury to visitors; breaking of railing; contributory negligence. Evidence: condition of locality; examination a month after event. </p> <p>In general evidence of the condition of a locality, subsequent to an accident or injury for which an action is brought, is not admissible; the test of admissibility is whether the facts it is proposed to offer, are relevant. p. 603</p> <p>The iron railing at a county fair gave way, and a visitor at the fair, with others of a crowd, leaning against the rails to watch the races, fell some distance and was injured; in an action against the Fair Association for damages, it was held that: the evidence of a witness as to the method of construction of the rail, and the way it was braced, was admissible, although his examination of the 'rail was not made until a month after the accident. p. 603</p> <p>In an action for damages for personal injuries received by the plaintiff from the alleged negligence of the defendant, the statement of the plaintiff as to his condition and feeling are legally admissible; their probative value is for the jury.</p> <p>p. 604</p> <p>Contributory negligence as a matter of law is not to be attributed to the party injured merely because of his presence at a place provided for him and to which he has been invited by the defendant. p. 605</p> <p>The theory of “independent contractor,” will not free a County Fair Association from liability for the breaking of a railing upon the grounds, by reason of which visitors are injured.</p> <p>p. 605</p> <p>Persons erecting and maintaining a place of public exhibition must use reasonable care in its construction, maintenance and management with regard to the character of exhibitions given therein and the customary conduct of spectators who witnessed them. ,pp. 606, 607</p>

<p>Injunctions: criminal proceedings. Horse racing and betting: Racing Commission-. Ch. 132 of the Acts of 1912; construction of — not officers of trust and profit in constitutional sense; no oath of office necessary; appointment of Commission not a delegation of legislative power.</p> <p>Where property rights would otherwise be destroyed, contemplated interference by criminal proceedings under a void law, may be enjoined by a Court of Equity. p. 614</p> <p>The members of a racing commission appointed by Ch. 132 of the Acts of 1912 are not required by that Act to take any oath of office, and as no civil commission was issued to them, they do not come under sec. 11 of Art. 70 of the Code (1904) relating to the oath of office required by the Constitution. p. 617</p> <p>The Act of 1912 does not create a public office, or convey upon the racing commission as individuals, the powers and duties that are committed to the commission itself as a board or quasi corporation. p. 617</p> <p>The racing commission acts by a majority vote of its members, and the individual members exercise no powers except by and through a majority of the body itself. p. 617</p> <p>Members of the racing commission are not persons elected or appointed to an office of profit or trust under the Constitution or under the laws passed pursuant thereto, within the meaning of Art. 1, Sec. 6, of the Constitution, and, independent of statute, are not required to take and subscribe to the oath before entering upon their duties. p. 619</p> <p>Laws regulating, restricting or altogether forbidding horse racing, bookmaking, etc., are within the police power of the State. p. 620</p> <p>The Legislature may, under certain conditions, create classes, and subject all persons coming within the classification to burdens and duties not imposed upon individuals outside of the classes. p. 620</p> <p>But such classification can not be mere arbitrary selection, it must be reasonable and rest upon some difference which bears a reasonable and just relation to the Act in respect to which the classification is proposed. p. 620</p> <p>The restrictions imposed by Oh. 132 of the Acts of 1912, upon horse racing, providing that no person, association or corporation shall hold or conduct any meeting in Harford Oounty, at which horse racing shall be permitted for any purse or stake, etc., except corporations formed for the purpose of racing, developing or improving the breeding of horses, or regularly incorporated agricultural associations, or associations for conducting city and State fairs, or regularly organized hunt clubs, are not unconstitutional as creating class legislation; the Act provides for a selection and designation so as to promote and safeguard the object and purposes of the Legislature. pp. 620-621</p> <p>The Act was not intended to suppress horse racing or prohibit betting thereon, except as limited by that and other preceding acts. p. 620</p> <p>The Act did not repeal the entire law with regard to racing, betting, bookmaking or pool selling on horse races even so far as Harford Oounty was concerned; but merely substituted a commission as the source from which the license should emanate in lieu of that provided by the general law. p. 621</p> <p>The fact that under the Act the commission is self perpetuating, is no objection to its constitutionality; the commission is the creature of the Legislature and the method of their appointment may be amended or repealed by the Legislature at any time. p. 622</p> <p>The Act is not unconstitutional as a delegation of the right of the Legislature; by the Act the Legislature provides certain rules to govern in the conduct of horse racing and betting on horse races, and the commission is appointed to supervise such races and betting and to make rules and regulations to that end. p. 623</p> <p>The wisdom and policy of legislation is not for the Courts, hut is a matter for the legislative branch of the State. p. 623</p>

<p>Appeal from the Superior Court of Baltimore City (Ambi/er, J.).</p> <p>The facts are stated in the opinion of the Court.</p>

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

William Cross having been indicted for the murder of John Elmer Scadden, - was tried in the Circuit Court of Washington County (Reedy, J.), and being convicted of murder in the second degree and sentenced to 12 years in the Maryland Penetentiary, took an appeal.

<p> Corporations', insolvency; illegal preferences; decree of dissolution, prerequisite to right to set aside. </p> <p>Chancery receivers are mere ministerial officers appointed by the Court to take possession of and preserve the property or fund pendente lile; they are mere custodians of the property for the benefit of the party ultimately to be entitled; but their appointment does not change the title or affect the right of possession. p. 676</p> <p>Prior to the Act of 1896, Ch. 349, corporations were not within the provisions of the insolvent law. p. 677</p> <p>By that Act a decree for dissolution is a prerequisite to the setting aside of an illegal preference made by the corporation.</p> <p>p. 680</p>

Two appeals from the Circuit Court for Washington County, in Equity (Keedy, L). Bbiscoe, Peabce, Bitbke, Thomas, Pattison and Stock-The two causes were argued together before Boyd, C. J., bbidge, JJ.