Volume 119 — Maryland Reports

<p>Court of Appeals: points not raised below. Bankrupt Act of 1898 : judgments excluded from benefit of discharge; actions for fraud, etc. Fiduciary capacity: failure to account.</p> <p>Questions are not open for review by tbe Court of Appeals that do not appear by the record to have been made or considered in the Court below. p. 2</p> <p>A judgment of a surety against the principal for money paid for and on account of a default of the latter in his contract with his employer, is not a judgment in an action for fraud or created by the debtor’s fraud, etc., so as to be excluded from the benefit of discharge under sec. 17 of the Bankrupt Act of 1898. p. 7</p> <p>Pailure to account is not necessarily a fraudulent failure, p. 7</p> <p>The term fiduciary capacity as used in see. 17 of the Bankrupt Act of 1898, refers to technical and express trusts and excludes conversions and frauds by commission men, brokers, agents, parties, etc., and other implied trusts. p. 9</p>

<p>Cloud on title: right to maintain bill to remove — j possession; tenant in possession; recording of deeds when grantor has no title; bill to set aside. Easements; cesser of use.</p> <p>Placing on record a deed and mortgage conveying property to ■which the grantors and mortgagors had no right, is liable to cause, a cloud upon the title to the property, and by a proper proceeding such deeds may be declared null and void. p. 16</p> <p>Possession by a tenant is such possession as will enable the landlord to maintain a bill to remove a cloud upon the title. P- H</p> <p>When a owner owns two properties, no use of one property by him can give rise to an easement by prescription over the other. p. 18</p> <p>A party can not have an easement over his own land. pp. 18-19</p> <p>A cesser of a use, coupled with an act clearly indicating an intention to abate the right, has the same effect as an express release of an easement without any reference to time. p. 19</p> <p>Certain parties, owners of a comer lot, claimed an easement in the use of an alley in the rear of the property and leading to the street from an adjacent lot; the fact that they had long closed up a window overlooking the alley; that they no longer let their eaves drip on the alley, and they had extended their building so as to close the alley operated as a cessor of the easement. ■ pp. 19-20</p>

<p>Appeal from the Circuit Court for Baltimore Citv (Boed. JO-</p> <p>The facts are stated in the opinion of the Court.</p>

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

<p>Bills and notes: executionsj question for jury; consideration; parol evidence; signature; waiver of proof under Code, Art. 75, sec. 24, sub-sec. 108. Practice: evidence; order.</p> <p>In suits between the payee and maker of a note, the parties may show all the facts and circumstances surrounding its execution and relating to the existence of a consideration.</p> <p>p. 44</p> <p>But where a consideration is shown, the legal import and operation of the note, as such, can not be contradicted by parol testimony. p. 44</p> <p>The execution of a note is a question of fact for the determination of the jury. p. 47</p> <p>Whether a note is a forgery, or whether it was obtained by proper means or influence, is a question for the jury. p. 47</p> <p>After the closing of a defendant’s case the plaintiff is entitled to introduce no other evidence except it be in rebuttal, p. 48</p> <p>Under Art. 75, sec. 24, sub-sec. 108, of the Code of 1912, if the signature of a note is not denied by the pleas, proof of that fact is considered as waived. p. 48</p>

<p>Two appeals from the Circuit Court for Baltimore City (Hetjiseer, J.).</p> <p>The facts are stated in the opinion of the Court.</p> <p>The two causes were argued together before Born, C. J., Briscoe, Pearce, Thomas, Pattison and • Stockbridge, JJ.</p>

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

J.j, to which the cause had been removed from Howard County. The facts are stated in the opinion of the Court.

<p> Fire insurance: authority of agentsj binding slips. Insurance pending application; loss before issuance of policy. </p> <p>Where the binding slip given by an insurance company for temporary insurance is in the form of an executed contract, and not in the form of a contract executory only, the conditions of a policy issued and tendered, after the applicant has sustained a loss, can not be read into the contract, pp. 86, 87</p> <p>Where such a binding slip and application is silent as to the question of “other insurance” it is not competent subsequently to inject into the contract any restrictions of that character. pp. 87-88</p> <p>After a loss has occurred it is too late in such a case, to reject the application. p. 88</p>

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

<p>Contracts: evidence; antecedent conversations; construction of contracts for the Court. Bills and, notes: parol evidence, may not destroy import. Evidence: exclusion of correct — ; verbal facts; scientific boohs. Production of boohs and papers used in cross-examination. Sale of machinery: guaranty; breach; burden of vroof; tests; waiver by giving notes.</p> <p>An antecedent conversation is inadmissible to supplant an agreement in writing. p. Ill</p> <p>It is- hot reversible error to exclude testimony proper to -introduce in evidence, where the same facts have, already been proved by other testimony, and its exclusion did not injure the party who sought to offer it. p. 113</p> <p>Where it is a controverted question whether certain statements were made or not, irrespective of their truth, evidence may be given of the conversation, as of other facts sought to be proved. p. 113</p> <p>Scientific books are not admissible in evidence. p. 113</p> <p>But in cross-examination questions may be based upon the contents of such books, or upon extracts from them, in order to test the value of the opinion of a witness. p. 114</p> <p>The rule that the Court has power to compel a cross-examining counsel to produce a book or paper as to which he is examining a° witness, and to submit it to the examination of the opposing counsel so that he may use it for re-examining the '■ witness, does not apply to evidence that would be inadmissible if offered. p. llo</p> <p>Where a' paper called for by one party is produced by the other and inspected by the party calling for it, it becomes ' evidence for both parties, and the jury can not be restricted to a consideration of part of it alone. p. 116</p> <p>Bat the exclusion of part of the paper from the,jury’s consideration is not reversible error when the part excluded could not have benefitted the exceptant. p. 116</p> <p>Where there is any evidence tending to support the defence, a plaintiff’s prayer is erroneous which asserts that there is no evidence legally sufficient to support the defence. p. 116</p> <p>The construction of contracts is for the Court and not for the jury. pp. 116-117</p> <p>In a suit for the contract price of a boiler that was guaranteed to show a certain efficiency and economy, the defence was that the results guaranteed were not attained; held that,. in such a case the question of the sufficiency of the test was for the jury to decide. p. 117</p> <p>It was upon the defendant to show a failure of consideration. p. 117</p> <p>Whether or not the boiler had been operated according to the instructions furnished by the vendor was a question for the jury. p. 117</p> <p>Where a guaranteed article has been tested, the giving of noies for the payment of its purchase price, operates as a waiver of defences on the ground of any alleged breach of warranty. pp. 118-119</p> <p>In a suit for the purchase price agreed to be paid for a machine, a prayer requiring the jury to find for the defendant if they should find that the machinery was not a “practicable appliance” is erroneous, as it would allow the jury to find as they pleased. p. 119</p> <p>The maker of a note -will not be allowed to destroy its legal import and operation by the introduction of parol testimony; he will not he allowed to contradict the note by any alleged previous statement of the payee that the note would not have to> be paid. p. 120</p> <p>Where a defendant takes defence on one clause of a warranty only, a prayer that directs a verdict in his favor if the jury find any failure in other clauses of the warranty is erroneous. p. 12!</p>

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

<p>Appeal from the Circuit Court for Anne Arundel County (Brashears, J.).</p> <p>The facts are stated in the opinion of the Court.</p> <p>The cause was submitted to Boyd, C. J., Briscoe, Pearce, Burke, Tiiomas, Pattison and Stocicbridge, JJ.</p>

<p>Sealed verdicts: errors in — ; corrections. Galling the plaintiff.</p> <p>When a sealed verdict has been rendered the Court may amend it as to inadvertent errors, omissions or inaccuracies in matters of form. p. 137</p> <p>If a plaintiff fails to answer, when called before the verdict is announced, a non-suit is entered. p. 141</p> <p>When a sealed verdict is returned, the plaintiff should be called, and he must then elect to hear the verdict or take a non-suit, and the election should be made before the sealed verdict is delivered to the Court. p. 142</p> <p>Where a plaintiff is called, when a sealed verdict is presented to the Court, and answers, and then agrees that the jury should be allowed to return to their room to correct the verdict, the plaintiff need not again be called upon the return of the jury with their corrected verdict. p. 141</p>

<p>Deeds: restrictions and, reservations in — ; effect on heirs and assigns; on grantor’s adjacent lands.</p> <p>A vendor may impose restrictions on land conveyed by him, for the benefit of his remaining land, in such a manner as to be binding, not only on the vendee, but on his assigns, even though they are not, strictly speaking, covenants running with the land. p. 148</p> <p>A vendor may also impose obligations upon his remaining land for the benefit of land conveyed by him, so that the restrictions shall bind his heirs and assigns. p. 1£8</p> <p>But the mere fact that the vendor has imposed restrictions on certain lots conveyed by him does not make the same restrictions binding upon his adjoining lands; and the fact that he binds himself by covenants in reference to restrictions, does not make them follow the land and bind his heirs. p. 148</p>

<p> Executor and Administrator: debts of decedent; duty to pay; personal liability; judgments against an administrator; Orphans’ Court no power to enforce. Commissions. Presumption in favor of lower Courts. Decedents’ estates: distribution; widow, no children surviving. </p> <p>Tt is the duty of an executor or an administrator, if he has assets, to pay the debts of the decedent without delay, unless he has good cause to contest them; he enters into such a contest at his own peril and becomes personally liable for the costs. p. 155</p> <p>Where without probable cause an administrator resists payment of a claim against the decedent’s estate, an allowance of counsel fees and costs is improper. p. 156</p> <p>Although a creditor of a decedent’s estate may recover judgment against the administrator personally, yet the Orphans’ Court has no jurisdiction in settling the estate to enforce the payment by the executor; the creditor must resort by proper proceedings to other tribunals to assert whatever right he has. p. 157</p> <p>It is the duty of the Orphans’ Court to fix and award commissions to the executor, even though such commissions are not claimed. p. 157</p> <p>The amount of commissions to be allowed, Avithin the limits fixed by law, is discretionary with the Orphans’ Court, and from their decision no appeal will lie. p. 156</p> <p>Under secs. 308 and 309 of Art. 93 of the Code of 1912, if a decedent leaves a widow and no infant child or children surviving him, the Avidow is entitled to an allowance of $75.00, or its equivalent in house or kitchen furniture. p. 156</p> <p>In the absence of anything to the contrary, it is to be assumed that the Orphans’ Court in its rulings acted correctly and according to statute. p. 156</p>

). Tbe facts are stated in tbe opinion of tbe Court. Tbe following are tbe prayers tbat were offered and tbe ruling of tbe trial Court thereon: Plaintiff’s Fvrst Prayer. — Tbe Court instructs the jury tbat if they believe from tbe evidence tbat tbe defendant, Henry B. Keyser, on tbe 31st day of July, 1896, being treasurer of tbe Maryland Manufacturing and Construction Company, and in charge of tbe financial affairs of tbat company, presented to tbe witness Thomas, as…

<p>Plaintiff’s right to recover: as of time of filing svÁt. Stoclc: assignment of — j payment from dividends declared. Contracts: construction; surrounding circumstances. Interest.</p> <p>In general, the right of a plaintiff to recover depends entirely upon the right,and title which he,has at the commencement of the suit, and the non-existence of a cause of action at that time is fatal to his right to recover and may he availed of by a demurrer. p. 178</p> <p>Where stock is assigned to an assignee to be paid for by the application of one-half of the dividends that are declared from time to time, and it was agreed that until the full purchase price is paid the stock should be held by the assignor as collateral to be reassigned to the assignee when the stock was fully paid, there is no obligation upon the assignees to pay for the stock except in the method provided for by the contract. p. 178</p> <p>In construing contracts, courts may consider the situation and circumstances of the parties at the time it was entered into. p. 179</p> <p>Where an employer conveyed to an employee, the manager of the company, certain shares of the capital stock of the corporation, with the agreement that the stock should be paid for by the application of one-half of the dividends as the same might be declared from time to time, with the provision that additional payments might be made at thé option of 'the assignee, and that on all payments made by him interest at the rate of 4% would be allowed, it was held, that in consideration of all the facts of the case no interest was to he paid or be demandable upon the deferred payments of the purchase price. ■ ■ p. 179</p>

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

<p>Appeal from the Circuit Court of Baltimore City (Bosro, JO-</p> <p>The facts are stated in the opinion of the Court.</p>

<p>Orphans’ Courts: opinions and orders; presumptions. Decedents’ estates: jurisdiction of Equity and of Orphans’ Court; trusts; duration of — ; trustee and executor; one and the same person or corporation; accounting; presumption as to — ; termination of trust; Statute of Uses. Income or corpus of estate: taxation; collateral inheritance; widows.</p> <p>[f is the order of an Orphans’ Court, and not its opinion, that affects the rights of parties, and on appeal to the Court of Appeals from the Orphans’ Courts it is only with such orders that the Court is concerned. p. 229</p> <p>On appeal from a ruling of the Orphans’ Court, it is to be presumed in the absence of any facts upon which to base a conclusion, that the ruling of the Court was correct, p. 230</p> <p>Under section 120 of Article 81, Code (1912), the collateral inheritance tax is not to be charged against a widow for property bequeathed to her by her husband. p. 230</p> <p>The principle for determining whether a fund received by an estate is to be treated as corpus or as income, as laid down in Thomas v. Gregg, 78 Md. 556, affirmed. p. 230</p> <p>When the same person is executor and trustee, and where the executor’s account has been passed before the expiration of the year allowed him within which to pass his account, the question whether the estate has passed from the executor, as such, to the same party as trustee does not arise. p. 233</p> <p>By his will a testator, after making certain legacies, left the residue of his estate, to a trustee, in trust to pay the net income to his wife for life; on her death the trustee was to pay over the property to' certain remaindermen; the widow died within a year of her husband’s death, and before the executor (who was also the trustee), had made any payment to her or for her, and before he had passed any account. Held, that in the final account of the executor a proper allowance and entry would be, from the full amount of income with which the executor charged himself, to deduct the net amount of the income collected and owing by him to the wife up to the time of her death. p. 231</p> <p>If there had been active duties for the trustee to perform for the benefit of the remaindermen, other than the mere passing over of the estate to them, it would have been the duty of the executor to turn the property in his hands over to the trustee, whether himself or some other. p. 234</p> <p>It is not within the jurisdiction of the Orphans’ Court to decide whether or not a trust has ceased or determined. Such power is vested solely in Courts of Equity, and Avithout such affirmative adjudication a trustee may properly decline to pay over the trust fund in his hand. p. 235</p> <p>Where all the purposes of a trust have ceased, or are at an end, the absolute estate is in the person entitled to the last use. - p. 234</p> <p>Whether or not a trust survives the death of the life tenant depends upon the terms creating the trust. p. 234</p> <p>The Orphans’ Court is a Court of limited jurisdiction and has, in general, no power either to construe Avills or administer trusts under the general powers given by Article 93, section 235 of the Code of Public General Laws (1912). p. 232 Orphans’ Courts are the proper tribunals to settle the estates of deceased persons, and under their power such Courts may • in certain instances construe wills, as, for example, when they use that power to approve accounts of executors by which payments of legacies have been made. - p. 232</p> <p>In order to give a Court of Equity jurisdiction over the estates of deceased persons, some special circumstance must appear, as when a trust has devolved upon a trustee about which he is doubtful. p. 233</p> <p>The Statute of Eses (27 Henry VIII, Chap. 10), has no application to personal property. p. 232</p>

). The following are the prayers of the plaintiff and of the defendant, together with the action of the Court upon each: Plaintiff's First Prayer. — If the jury should find from the evidence that the plaintiff was arrested in Baltimore City on or about the 28th day of October, 1910, and taken to the Western Police Station and kept in custody during a part of that day and was released on bail for the action of the Grand Jury, and that the Grand Jury on or about the 4th day of…

<p>Pleading: several counts; general demurrers; duplicity in pleas; distinct causes in one count. Bill of particulars', waiver of — ; by pleading. Warranties: no special terms required; breach;, rights. of purchaser; damages; price of chattel as evidence; return of chattel; waiver. Evidence: experts. Written contracts: parol'evidence; variance. Prayers: on theory of which no evidence.</p> <p>Where a declaration contains several counts, some of which are good and some had, a demurrer to the whole declaration should be overruled. p. 255</p> <p>A count in a declaration which embraces two or more distinct causes of action, is void, for duplicity. p. 256</p> <p>A count which embraces a breach of express warranty that a machine is sound, etc., and a breach of a contract to keep the machine in repairs, etc., violates the rule against duplicity in pleading. p. 256</p> <p>By pleading to the declaration a defendant waives his right to exact a bill of particulars.- p. 256</p> <p>In order to create an express warranty, it is not necessary that the word “warranty” be used. p. 258</p> <p>Any affirmation of the quality or condition .of the thing sold (apart from the mere opinion or belief), made by the seller at the time of the sale, for the purpose of assuring the buyer of the truth of the facts affirmed, and inducing him to make the purchase, if,so received and relied on by the purchaser, is an express warranty. p. 258</p> <p>Upon a breach of warranty, the purchaser may return the chattel within a reasonable time after discovering the breach, and recover in assumpsit, on the common counts, the amount paid; or he may retain the chattel and sue on the contract for damages for the breach. p. 258</p> <p>In the latter case the measure of damages ordinarily is the difference between the value of the article with the defect warranted against, and the value it would have had without the defect. p. 258</p> <p>The price is strong prima facie evidence of the value of the article if sound according to the warranty. p. 258</p> <p>Persons having technical and peculiar knowledge on certain subjects are allowed to give their opinions as experts, when the question involved is such that the jurors would be incompetent to draw their own conclusions from the facts without the aid of such evidence. p. 258</p> <p>A witness not possessed of the requisite technical knowledge and experience should not be allowed to testify as an expert. p. 263</p> <p>Evidence must correspond with the allegations and be confined to the issues of fact made by the pleadings. p. 259</p> <p>Any circumstances that may afford a fair and reasonable presumption of the facts to be proved are to be received and left to the consideration of the jury; but collateral facts which are essentially misleading should not be received in evidence. p. 259</p> <p>Where an action for breach of warranty is brought on certain express warranties, evidence of other and different warranties are inadmissible. p. 259</p> <p>Where a purchaser of an automobile received and used the car four months before he paid for it, and continued to use it for several months thereafter, he forfeited his right to repudiate the contract and return the car.' p. 260</p> <p>Proof that other owners had trouble with cars of the same make is not admissible in evidence, without showing under what conditions such cars were run and used. p. 263</p> <p>Prayers are erroneous when based'upon a theory of which there is no evidence legally in the case. p. 266</p> <p>Where the written contract for the purchase of an automobile concluded: “Here follow with form of warranty/’ but the terms of the warranty were omitted, parol evidence may be introduced to show what were the terms of the warranty. p. 268</p> <p>In such a case such proof does not contradict, or vary, but is perfectly consistent with the written contract. p. 268</p>

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

<p>Negligence: damagesj burden of proof; pleadings and evidence; cause and effect. Printing presses: injuries to minors.</p> <p>In an action for damages for injuries claimed to have been due to the negligence of the defendant, the burden of proof is upon the plaintiff to show that the injury was caused by the negligence of the defendant as alleged in the pleadings: and the defendant has the right to have the jury confined to-the issue as made by the pleadings. p. 281</p> <p>Jt is not upon the evidence alone, but upon the pleadings and the evidence applicable to the pleadings that a plaintiff may recover in any case. p. 281</p> <p>A plaintiff can not, in order to sustain a single demand, rely upon two or more distinct grounds or matters, each' of which independently of the other, amounts to a good cause of action in respect to such demand. p. 282</p> <p>The negligence alleged and the injury sued for must bear the relation of cause and effect. p. 283</p> <p>In a suit for damages against a printing company for injuries received by a minor, alleged to have been injured by the employer’s negligence, it was held, that the charge of negligence in the declaration was not supported by the evidence. p. 284</p> <p>Prayers of a plaintiff not based upon any theory set out in the pleadings are erroneous. p. 284</p>

), to which Court it had been removed from the Circuit Court of Anne Arundel County. The facts are stated in the opinion of the Court.

<p> Riparian rights-, flow of streams; erection of dams. Conceded prayers-, inconsistent prayers. Negligence-, duty of plaintiff to reduce damages. </p> <p>According to the maxim aqua currit et debet currere, an individual is prohibited from interfering with the natural flow of water.. p. 299</p> <p>Conceded prayers become the law of the case. p. 302</p> <p>A prayer that is inconsistent with conceded prayers in the case is erroneous. p. 302</p> <p>Where a plaintiff sues for damages occasioned by the wrong or negligence of the defendant, all consequences resulting from his own wilful failure or gross neglect to use timely and reasonable precautions to prevent an extension or increase of the injury fall upon himself. p. 301</p> <p>But want of some diligence on his part does not necessarily exclude his every right of recovery. p. 301</p> <p>A riparian landowner built a dam across a stream, thereby causing the waters to back up and flood and render useless a spring of an owner of other riparian land further up the stream; it was held, that a prayer that the plaintiff was not entitled to recover if they should find that he contributed to the alleged injury, was erroneous. p. 301</p>

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

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

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

). The facts are stated in the opinion of the Court. The following are the prayer’s that were offered by the plaintiff and by the defendant, and the action of the Court upon them: Plaintiffs First Prayer. — The plaintiff prays the Court to instruct the jury that the defendant, the Security Storage & Trust Company of Baltimore, is liable to the plaintiff in this action for any loss of, or injury to, the goods, consisting of the furniture and other household effect belonging…

<p> Surety Companies: deposits with State Treasurer; specific trust for policy holdersj voluntary dissolution. </p> <p>Under Article 23, section 110 of the Code (1912), certain funds are required to be deposited, by each Surety Company doing business in Maryland, with the State Treasurer, to be held by him in trust as security for all the holders of the company’s policies; such a company, while solvent, went into voluntary dissolution; the receivers filed a petition to require the State Treasurer to deliver to them, the securities that had been so deposited with him by the corporation; upon appeal by the Treasurer from an order of the Court directing him to deliver the securities, it was held, that, under the law and the facts of the case, there was no warrant for the Treasurer to deliver the securities which had been so placed in his hands for specific trust purposes. p. 357</p>

<p>Appeal from the Circuit Court for Anne Arundel County (Brashears, <L).</p> <p>The facts are stated in the opinion of the Court.</p>

<p>Appeal from the Circuit Court for Anne Arundel County (Beasheaks, J.).</p> <p>The facts are stated in the opinion of the Court.</p>

<p> Appeals: effect of decision on new trial and appeal. Directors of corporations: building committee; technical trustees; misapplication of funds; personal liability. Interest: in equity. </p> <p>Upon a second appeal of a case, the Court of Appeals may look into and decide questions involved in the record previously brought up; provided no decision of those questions was made in the former appeal. p. 381</p> <p>But the Court of Appeals is presumed in every case to have considered all questions properly presented by the record, and raised on appeal, which were found necessary for the determination of the rights of the parties to the suit. p. 381</p> <p>The allowance of interest as a general rule is discretionary •with the Court in equity cases. It may be allowed or not,', according to the equity or justice between the parties, except in cases where interest is recoverable as a matter of right. pp. 383, 384</p> <p>T. C. B., the director of a corporation, and member of a building committee, to whom certain funds were entrusted,, personally participated in and profited by a wrongful conversion and application of some of such funds; and on a former appeal was found personally liable for $21,000; no mention of interest was. made in the decision or decree in that appeal; on a second appeal it was held, that in view of all Ihe circumstances of the ease it would not be equitable or reasonable to charge him with interest, excepting from the date of the decree of the lower Court to which the case had been remanded for further proceedings. pp. 380, 384</p>

<p>Appeal from the Circuit Court for Anne Arundel County in Equity (Brashear, L).</p>

<p> Appeals: remanding for further proceedingsj effect of former decision. Attachment: sale of property; creditors’ rights in equity. Costs in Court of Appeals: unnecessary matter in record. </p> <p>But the decree should not authorize the seizure or sale of the bonds in the condemnation proceedings until after the cancellation of the registration, so as not to sacrifice,the bonds. pp. 401-402</p> <p>Questions raised and decided on appeal are not open to question or review upon a second appeal of the same cause. pp. 392-393</p> <p>Where a decree is reversed on appeal, on certain points only, and remanded for further proceedings in accordance with the opinion of the Court of Appeals, it is error to alter the decree upon points as to which there had been no reversal on the first appeal. p. 393</p> <p>Certain bonds held by trustees had been wrongly registered in-the names of parties other than the true owner; the owner had obtained a decree for the cancellation of such registration and for the return of the bonds to him; meanwhile, and pending the further proceedings, creditors of the true owner endeavored' to attach the bonds and to prevent their delivery to him; the owner then instituted proceedings to resist the cancellation, and it was held, that equity was under no obligation to aid him in avoiding his creditors, but that it was its duty to give.the latter the equal protection of the laws, and not to exercise its power to put the bonds beyond their reach. p. 397</p> <p>Should the real owner of the bonds interfere with the cancellation, then, it was further held, the trustees should be ordered to deliver the bonds to the sheriff, to be sold while still registered, the purchaser to take necessary steps to have the registration cancelled. p. 401</p> <p>Property attached is not sold under the attachment proceedings; but, after a judgment of condemnation, an order of fieri facias is issued for the purpose of selling the property condemned. p. 398</p> <p>Where the record contains much matter which should not have been included, and the main questions were1 decided against the appellant, the costs may be ordered to be paid from the fund. p. 402</p>

<p>Sealed Instruments: seal placed by another. Sundays. Judicial notice: question must be raised in lower court. Testamentary Capacity: capacity to execute deed or contract. Evidence: witness expressing doubt as to ability to judge.</p> <p>If .a scroll (or seal) is placed upon an instrument before it is executed, although it be done by another, nevertheless it is the seal of the signer as much as though placed there by himself. p. 407</p> <p>It is the duty of the Court to notice the days of the week on which particular days fall, provided the attention of the Court be called to it and provided it is not a date that fell long before (as eight or nine years). p. 407</p> <p>Pacts, when judicially noticed, fulfill the object for which evidence is designed, and make evidence of them unnecessary. p. 408</p> <p>When the date upon which a bond was executed fell upon a Sunday, but no objection to the bond as evidence was made upon that point below, and the attention of the Court below was not called to it, such objection may not be raised and will not be considered on appeal. p. 408</p> <p>Where a witness on being questioned as to the capacity of a party to make a valid deed or contract on a particular day, replied that she could not say because she was not there, it did not affect the admissibility in evidence of her general opinion as to his capacity, when she was a sister of the party and had long lived with him. p. 409</p> <p>An instruction to the jury, that if L., at any time prior to the execution of a note, was incapable of executing a valid deed or contract, however remote the time may have been, and without stating the character of the insanity, etc., whether permanent or otherwise,, then the burden of proof, etc., was on the plaintiff, is erroneous. p. 4Í1</p> <p>A prayer that is indefinite and uncertain, and that may mislead the jury, is erroneous. p. 411</p>

<p>Appeals in Equity: only after answer filed; general demurrer. Practice in Equity: exhibits must be filed; before process can issue. Injunctions: allegations in bill; evidence.</p> <p>For the purpose of appeal, a demurrer to a whole hill will he treated as an answer within the meaning of section 27 of Article 5 of the Code (1912). p. 415</p> <p>Under section 142 of Article 16 of the Code (1912), no order or process may he made or issued upon any hill, petition or ■ other paper, until such hill, petition, etc., with all the exhibits referred to as part thereof, is actually filed with the Clerk of Court. p. 415</p> <p>In all applications for an injunction or for a receiver, the Court must he informed by the hill itself and its accompanying exhibits, if any, of every material fact constituting the case of the plaintiff, in order that it may he seen whether there is a just and proper ground for the application of so summary a remedy. p. 416</p> <p>Strong prima facie evidence of facts on which the plaintiff rests must he presented to the Court. p. 416</p>

Several appeals for the Superior Court of Baltimore City (Dobler, The facts are stated in the opinion of the Oonrt. The several appeals were argued together before Boyd, C. J., Briscoe, Pearce, Burke, Thomas, Pattisow, Usher and Stockbridge, JJ.

Three appeals from Circuit Court No. 2 of Baltimore City (Gorter, J.). The facts are stated in the opinion of the Court. The three appeals were argued before Bovn, C. J., Briscoe, Burke, Thomas, Pattisoet, Ureter and Stockbredge, JJ.

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

<p> Unconstitutional Laws: injunction by taxpayers against officials; individually; costs. </p> <p>An injunction may be issued at the instance of a taxpayer to enjoin the individuals, or officials named in an act, from carrying out any of its provisions, or contracting any obligations thereunder, where the act is unconstitutional and void. p. 465</p> <p>On a bill to test the constitutionality of an Act, and to enjoin the officers named in the Act from acting under it, if the officers'are sued individually, the law is declared unconstitutional, it is inequitable to impose the costs upon them. p. 465</p>

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

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

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

<p>Four appeals from the Circuit Court for Baltimore Gounty, sitting in Equity (Duncan, J.).</p> <p>The facts are stated in the opinion of the Court.</p> <p>The four appeals were argued before Boyo, C. J., Briscoe, Burke, Thomas, Pattisost, Ureter and Stockbrldgb, JJ. '</p>

<p>Religious societies-, deeds to — ; sanction of Legislature; void conveyances; adverse possession. Recording of instrur ments; neglect of cleric. Incorporation of religious societies: curative acts. Specific performance : interest; decree for resale of property.</p> <p>A deed of land to trustees in trust for a place of worship is void, unless sanctioned by the Legislature. p. 513</p> <p>By open, notorious and undisputed possession of the land for over sixty years, such title may, however, become valid, and the successors of the trustees acquire title against all persons except those under legal disabilities. p. 514</p> <p>The Clerk of a Circut Court had failed to provide and keep the record book for recording certificates of religious societies desiring to incorporate under the provisions of Chapter III of the Acts of 1802; the trustees of a religious corporation of that county filed a bill for the specific performance of a contract for the sale of land, occupied by it for over sixty years, against the vendees, who refused to accept the ■ property on the ground that the vendor had never recorded any certificate of incorporation, as required by law, and that it was not a corporation and could not convey title; on appeal from an order directing the purchase money to be brought into Court, it was held, that it would be inequitable to hold that the plaintiff had never had any legal corporate existence merely because of the failure of the Clerk of Court to perform his duty.. p. 515</p> <p>In order to perfect the incorporation of the religious society, Chapter 756 of the Acts of 1910 provided for the recording of the original certificate, which should have been recorded under the requirements of the Act of 1802, but which certificate had been set out in full and in due order among the ancient records of the society, and there certified to by the Justice of the Peace of that time and for that county. Held, that for the purpose of the Act of 1910, such certificate should be considered as the original. p. 515</p> <p>Where a vendee refuses to complete his contract of purchase, because of objections to the title, and equitable proceedings are instituted to determine the matter, the vendee should be charged, in general, with interest only from the date of the final decree. p. 515</p> <p>On a bill filed for the specific performance of a contract for the sale of real estate and praying for no other relief, it is error for the Court to order the property to be resold unless the purchase money be brought into Court within a time named. p. 516</p>

<p>Perpetuities: statute against — j vesting within a life or lives in being.</p> <p>Where property is rendered inalienable, or its vesting is deferred for a longer period than a life or lives in being and 21 years and 9 months thereafter, the law denounces the devise, bequest or grant as a perpetuity, and declares it void. p. 523</p> <p>The event upon the happening of which the remainder is to vest must be one that is certain to happen within the prescribed period, or the limitation will be void. p. 523</p> <p>A daughter and her prospective husband conveyed to a trustee certain of her real x>roperty, reserving to herself alone the full power and authority to sell, dispose of or convey the same, and reserving to herself the right to receive and appropriate the income; subsequently, with her husband and trustee she conveyed the property to the same trustee that had been named in the will of her father, and subject to all the powers, declarations and limitations mentioned and declared in her father’s will. By his will the father had left his property in trust for the said daughter, and after her death, as she should by will, etc., direct. The daughter, by her will, devised all of her property in trust, with certain limitations and powers of appointment, to M. In such a case, the validity of limitations contained in the will of M., as to the property so devised, should be considered as written in the will of the daughter of the original testator, and not as though written in the will of the testator himself. p. 524</p> <p>In determining whether limitations are void as against the statute of perpetuities, it is immaterial to what number of lives the property be restricted, so that the property will certainly vest within the period prescribed by law. p. 523</p>

). The following' are the prayers of the plaintiff and of the defendant, with the action of the trial Court upon each: Plaintiffs First Prayer. — The plaintiff prays the Court to instruct the jury that if they shall find from the evidence that the plaintiff was indicted, tried and acquitted in the Circuit Court for Allegany County, State of Maryland, on the charge set forth in the record of the Court and the docket enfries read in evidence; and shall find that the defendant,…

Two appeals from the Criminal Court of Baltimore City (Elliott, J.). The facts are stated in 'the opinion of the Court. The two causes were argued together, with the cause of Wagner v. State, before Boyd, C. J., Briscoe, Burke, Thomas, Pattison and Stockbredge, JJ.

). The facts are. stated in the opinion of the Court. The cause was argued (together with Cochran v. State, and Smith, v. State) before Boyd, C. J., Briscoe, Burke, Thomas, Pattison and Stockbridge, JJ.

IOTT, J.). The facts are stated in the opinion of the Court. The cause, together with Cochran v. State and Wagner v. State, was argued before. Boyd, C. J., Briscoe, Burke, Thomas, Pattisow and Stockbbidge, JJ.

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

<p>Appeal from the Circuit Court for Cecil County, in Equity (Hopper and Adkins, JJ.).</p> <p>The facts are stated in the opinion of the Court.</p>

J., Hopper and Adkiks, JJ.). The suit was prosecuted below by a judgment creditor of one of several devisees and legatees, sought to have the will of tho testatrix so construed, and the proceeds of the estate of the testatrix so applied as to enable him to collect a debt due him from the devisee and legatee. The decision of the Court being in favor of the creditor, on questions of evidence and account, this appeal was taken.

<p> Markets: stalls; streets; abutting owners. Baltimore Gity. </p> <p>A market is a public place appointed by public authority for the sale of wares necessary to the maintenance or convenience of life. p. 617</p> <p>Power conferred upon the Mayor and City Council of Baltimore to maintain and regulate the use of the streets of the city is a trust for the benefit of the general public, of which the municipal corporation can not divest itself. p. 624</p> <p>But this power can not be so exercised as to defeat or seriously interfere with the enjoyment of the streets by the public. p. 624</p> <p>The City has the right, in the exercise of the police power delegated to it, to erect market stalls along the curb on Eutaw street, within the limits of Lexington Market, as established by its ordinances, and to authorize and license the use of such stalls for market purposes. p. 625</p> <p>Such a use of the street is a reasonable use of the City’s power, and is not a violation of its duties to the public, or to the owners of the abutting property. p. 626</p> <p>The owners of abutting property have the right to use the street as means of ingress and egress to and from their properties, but the right is subject to such reasonable use of the streets, not inconsistent with their use as public highways for the public good or convenience. p. 626</p>

<p>Appeal from the Circuit Court for Montgomery County (Petek, J.). ■</p> <p>The facts are stated in the opinion of the Court.</p>

<p>The facts are stated in the opinion of the Court.</p>

<p> Probate of Wills: exclusive jurisdiction of Orphans’ Oourt; testamentary papers only; decision conclusive until reversed; —in rem; as to character 'of papers, etc. Contracts in consideration of marriage: agreement as to will. </p> <p>The jurisdiction conferred by section 338 of Article 93 of the Code (1912) upon the Orphans’ Court is exclusive, but in its exercise such courts are limited to the probate of wills, testaments and codicils, and they are not authorized by it to take the probate of any paper writing not of such a character. p. 652</p> <p>A petition to probate a will is in rem; and not only involves the testamentary capacity of the testator, his residence within the, jurisdiction and the sufficiency of the execution of the will, but also involves the fact that the instrument probated is testamentary in character. p. 652</p> <p>Like any other judgment of a competent jurisdiction, the probate of a will is conclusive until revoked or set aside according to law. • p. 653</p> <p>A paper writing having the form and verbiage of a will and codicil, and executed as such, was presented to the Court for probate by Jane B. Bradley, wife of the deceased; in presenting the paper she stated under oath that she did not “know of any will or codicil of Henry Bradley other than the above instrument of writing,” and after taking the affidavits of witnesses thereto made in the usual form, the Oourt passed its order admitting it to probate as the true and genuine last will and testament and codicil of Henry Bradley, deceased. This was the judicial determination of a Court made in the exercise of the exclusive jurisdiction conferred upon it by statute, and was held to be conclusive until reversed or set aside. p. 654</p> <p>Where by a valid contract, in consideration of marriage, a man had agreed to make by will a certain provision for his wife, on his death, the widow has the right to have the contract established and enforced by a Court of Equity; and the -right is not defeated by caveat proceedings which determine that the testamentary paper left by him was not a valid or effective will. p. 654</p>

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

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

<p>Eminent Domain: private property; public use; private use; power of Legislature; judicial question; railways; closing private ways. Condemnation of land for private way: railways; use of land; public. Condemnation proceedings: Chapter 117 of Acts of 1912,- “jury in court” instead of of sheriff's jury. Jury panel: exhaustion of — . Prayers : without evidence.</p> <p>There is no express prohibition in the Constitution or Declaration of Rights against taking private property for private ■ use; hut the prohibition is implied in section 40 of Article 3 of the Constitution. p. 677</p> <p>The Legislature can not make a particular use public or. private, merely by so declaring it. p. 678</p> <p>Whether the use for which private property is taken is to be public or private, within the meaning of the Constitution, is a judicial question to be decided by a Court, p. 678</p> <p>The right that railroads acquire over the lands they occupy is not for a private, but for a public use. p. 679</p> <p>Where a railroad company having power of condemnation sought by apt proceedings to acquire certain land, including a strip on which to open a new private road to replace a private road which it wished to close, in order to widen its right of way and provide additional tracks, etc., it was held, that it could not be objected that the strip of land so acquired would not enure to the public service nor tend to promote public use nor have relation to the public welfare and convenience. pp. 668-681</p> <p>In general, if for any reason there is no regular panel in attendance, when there are cases to he tried which require the interventioh of a jury, the Court has power to order a special Venire; This is a common law power inherent in the courts. p. 684</p> <p>When, however, at the time to he fixed hy the Court for trial of such matters as are to be heard by a jury, the regular . panel for the term will be present, or under the practice of existing statutes it can be reconvened for the purpose of hearing such matters at that time, the Court should, in the absence of some sufficient cause to the contrary, direct the jury to be selected from the regular panel, and for that purpose take such steps as may be necessary to have them present. If there be not a sufficient number of qualified jurors then present, the Court may, of course, direct such number of talesmen as may be necessary to be summoned. p. 684</p> <p>The failure of the sheriff (in condemnation proceedings) to include in his return the names of the persons summoned under the order of the Court to serve as jurors, can not invalidate the return nor affect the eligibility as jurors of those summoned by him under the order of Court to which such return was made. , ' p. 684</p> <p>Chapter 117 of the Act of 1912, providing that the condemnation proceedings therein provided for “shall he before a jury in Court instead of before a sheriff’s jury,” does not require such jury to be selected in the usual way from those regularly drawn as jurors, to serve at a given term of the Court. p. 684</p> <p>But the testimony in such proceedings is to be taken and the case tried in the presence of the Court and subject to its direction as in other cases. p. 684</p> <p>In condemnation proceedings, a prayer by the defendant based upon the theory that the plaintiff corporation could “with reasonable convenience, for the necessary extension and addition to its yards aforesaid,” use certain other lands spoken of by the witnesses, is erroneous where there was no testimony in the case that the plaintiff could use such lands with reasonable convenience. pp. 685-686</p>

<p> Directors of Corporations; fiduciary relations; directors acting as purchase agents. </p> <p>Where a director of a corporation acts as its agent in purchasing real estate, and directly or indirectly, receives a share in the commissions for such sales, he is accountable to the corporation therefor.</p>