Volume 120 — Maryland Reports

). Suit was brought against the Bartlett-Hayward Company for the use of the widow and children of James H. Smith, who had been killed by the fall of a scaffold on which he was working while in the employ of the defendants; the judgment was in favor of the equitable plaintiffs, with a verdict for $4,000, apportioned as follows: To Catherine Mary Smith, widow............$1,000 To James Thomas Smith, infant............ 1,400 To Joseph Smith, infant.................... 1,600…

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

<p> Divorce: statutory jurisdiction j allegations in bill; evidence need not be set forth. Abandonment and desertion. </p> <p>A divorce a mensa et thoro may be granted for abandonment and desertion without regard to its duration. p. 12</p> <p>The jurisdiction to grant a decree of divorce a mensa et thoro is purely statutory (Code, 1912, Article 16, section 38), and in its exercise courts are confined to the causes specified in the statute. p. 12</p> <p>Where a bill for divorce contains the allegation, that the parties were married, it will be assumed that the marriage was a lawful one, until proof to the contrary appears. p. 14</p> <p>Abandonment and desertion, to constitute a ground for divorce a mensa under the statute, must be the deliberate act of the party complained of, done with the intent that the marriage relation shall no longer exist. p. 13</p> <p>Abandonment and desertion and cruelty are not purely and exclusively, questions of law; they are mixed questions of law and fact, to be decided at the final hearing. p. 14</p> <p>The bill need not set out all the facts and circumstances which constitute the evidence of the causes of the divorce alleged; if the bill charges the enumerated grounds of divorce in the language of the statute, it is sufficient. p. 14</p> <p>The complainant is not required to disclose the evidence upon which he relies to support his case. p. 14</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>

Two appeals in one record from two orders of the Circuit Court of Baltimore City (Haklaw, 0. J\, and Elliott, L). The facts are stated in the opinion, of the Court. The two appeals were argued together before Boyd, O. J., Bubke, Thomas, Pattison, Henee,, Stockbbidge and Constable, JJ.

<p> Issues and Pleadings: burden on defendant. Master and servant: assumption of risk; concealed dangers; negligence; not connected with injury; minors; carelessness of third party. </p> <p>A defendant has the right to have the jury confined to the issues made by the pleadings. p. 30</p> <p>The burden is upon the plaintiff to offer legally sufficient evidence to prove the allegations of the declaration which constitute the ground of action, and, if he fails, he is not entitled to recover. p. 30</p> <p>To order an employee, a minor (without previous experience), to clean a meat-chopping machine, which could be set in motion by a button on the machine- — without warning him with reference to it — is negligence, and for injury,’ the result of such negligence, the employer would be responsible, p. 33 The principle, that the servant assumes the risk of all open and obvious perils incident to the service he undertakes, does not apply where the servant, by reason of tender years, is unable to appreciate or understand those perils from his own observation. p. 33</p> <p>To entitle a plaintiff, in an action of negligence, to recover he must show, not only that he sustained an injury, but that the defendant has been guilty of somé negligence which produced the particular injury. p. 35</p> <p>The negligence alleged and the injury sued for must bear the relation of cause and effect. The concurrence of both and the nexus between them must exist to constitute a cause of action. - ’ p. 35</p> <p>Where an employee, a minor, was injured by a machine he was ordered by the employer to clean, and the injury was caused, not by the negligence of the employer, but by the carelessness of another employee, who volunteered to help, and who thoughtlessly set the machinery in motion, it was held, that the employer was not liable. p. 35</p> <p>In this case it was primary negligence to subject the child, without warning or instruction as to the risk of injury from the inadvertent or careless turning on of the current; and it was concurrent negligence of another immature servant of the defendant that produced the result 'by which the plaintiff was wrongfully injured; both causes of action were set in motion by the defendant, and whether or not they constituted negligence for which the defendant was responsible, should be left to the jury, and should not have been withdrawn from their consideration (per Urner, J.). p. 39</p>

<p> Evidence: province of jury. Prayers segregating facts; prayers without evidence. Entries in boohs. </p> <p>Prayers arc erroneous when based upon a theory of which there is no legally sufficient evidence in the case. p. 45</p> <p>Where evidence is conflicting, it is for the jury to determine the truth. p. 46</p> <p>Instructions should leave it for the jury to say what they believe from the evidence, and not what they believe as the result of some inferences which they might draw, with or without foundation. p. 46</p> <p>A prayer segregating facts is erroneous if from the facts excluded the jury would be justified in drawing a conclusion different from that which such a prayer requires them to draw. p. 48</p> <p>In construing an instruction upon any given question, all other instructions bearing upon the same question should be construed as a whole, provided it appears upon their face that such prayers qualify the others, or indicate by their order, or by apt reference as granted in conjunction. p. 47</p> <p>To sustain a prayer segregating facts, the facts segregated must support the theory of the prayer, non obstante the truth of the other facts offered in evidence. p. 46</p> <p>Entries in a plaintiff’s books are not binding upon the defendant unless it be shown that the defendant assented directly or indirectly to the correctness of the same. p. 48</p>

<p>County Commissioners: quasi corporations; acts of individual members; right to open and close roads. Appeals: to Circuit Court; exclusive jurisdiction.</p> <p>The power of County Commissioners to open and close roads is expressly given by statute (Code 1912, Article 25, section 12); and from their action in such a case an appeal to the Circuit Court of the county is provided for, and once the jurisdiction of the Circuit Court has attached, it is exclusive.</p> <p>p. 51</p> <p>The County Commissioners are a corporation; they act, not as individuals, but in their corporate entity. p. 52</p> <p>The fact that an individual member of a Board of County Commissioners may have been indiscreet, or even perniciously active, in relation to a matter to be acted on by the Board, should not be imputed to the Board in its corporate capacity.</p> <p>p. 52</p> <p>The fact that certain individuals have given notice to a Board of County Commissioners of an intention to apply to it to do an act which the General Assembly has expressly clothed the County Commissioners with the power of doing, can not be assumed to constitute a fraudulent act on their part in furtherance of an illegal conspiracy. p. 52</p>

). The plaintiff offered no prayers. The following are the defendant’s prayers that were granted: Defendant’s Srd Prayer. — The defendant prays the Court to instruct the jury that if the jury find that the injuries to the plaintiff sued for in this action were caused by the negligence of Charles Sadoski, the deckman, and that said Charles Sadoski was employed and assigned by one John Smith, the foreman of the defendant, to the position above stated on the boat on which the…

Isaac Silver having been killed at Odenton while driving across the tracks in front of an approaching express train, suit for damages was brought against the railroad company to the use of his wife and children. A judgment having been rendered on a verdict found in favor of the defendant, this appeal was taken.

<p> Negligence: street railways; amount of travel on street and tracks; duty of railways; time for stopping of car; sounding of warnings; evidence; experts; province of jury. </p> <p>Passenger in another’s vehicle: negligence of driver. Improper evidence: when not reversible error.</p> <p>In an action against an electric railway company for damages received by the plaintiff from a collision between the carriage in which he was riding and one of the cars of the defendant, it is admissible for the plaintiff to show the amount of travel on the street at the place of the accident, and the fact that both roadway and tracks were used indiscriminately by the traveling public. p. 82</p> <p>A greater degree of care is required of an electric railway company in running its cars through the crowded streets of a city than through the open country where the travel is less.</p> <p>p. 82</p> <p>Iu an action for damages for injuries received in a collision with an electric car, when one of the issues is, in what «distance the car could have been stopped after the motorman saw or ought to have seen the perilous condition of the plaintiff, it is competent for the latter to prove by expert testimony what was the distance in which such a car could ordinarily have been stopped. p. 82</p> <p>But one who had no knowledge upon the subject, other than that of any casual user of a trolley car, is not competent to testify as an expert on the question. p. 83</p> <p>The admission of improper testimony is not ground for a reversal when testimony to the same effect is properly in the ease, aliunde. p. 83</p> <p>Whatever liberality may be allowed in admitting the opinion of experts and other witnesses, they should not be allowed to usurp the province of the court and jury by drawing those conclusions of law or fact, upon which the decision of the case rests. p. 84</p> <p>In an action against an electric railway for damages caused by a collision between one of its cars and the vehicle of the plaintiff, it is not admissible to examine a witness as to whether in his opinion the motorman had not time, after he first saw the situation of the plaintiff, to have stopped the car so as to have avoided the accident. pp. 83-84</p> <p>In an action for damages for a collision with an electric car, after the motorman had been examined at length and in detail as to what he did as he was approaching the place of the accident, the plaintiff has the right, on cross-examination, to contradict his testimony, if possible, by examining him as to matters which were not brought out on the examination in chief. p. 84</p> <p>Where traction companies use the streets of a town, in common with the public, their rights are not superior to those of the public, and due care requires them to keep a sharp lookout and use care that they do not run down pedestrians or vehicles. This is especially true at crossings, where the ears should be. under such control as to be stopped promptly should necessity so demand. pp. 85-86</p> <p>The failure to sound a warning as an electric car was approaching the crossing where an accident occurred does not, of itself, render the railway company liable when, as a mater of fact, 'the plaintiff knew otherwise of the approach of the car.</p> <p>p. 85</p> <p>In such a suit it is not proper to leave to the jury to decide whether the motorman had time to stop the car when he saw the plaintiff on the track. The question should be, whether the motorman had not time enough from the time that he should have seen the plaintiff, because it was his duty to watch for those approaching as well as for those upon the track. p. 86</p> <p>Where a passenger, driven in a vehicle, is injured by a collision of the vehicle, the negligence of owner, or of the person driving can not in general be imputed, to the passenger. p. 86</p> <p>The only negligence to be attributed to the passenger, in such a case, is such as he might be guilty of when he became aware that he was in a position of peril. p. 87</p> <p>Prayers are erroneous when based on theories of which there is no evidence properly in the case. p. 88</p>

). The facts are stated in the opinion of the Court. The cause was argued before Boyd, O. J., Briscoe, Burke, Thomas, Pattisow, Urwer, Stockbridge and Cow-stable, JJ.

<p>Appeal from Circuit Court iSTo. 2 of Baltimore City (Stump, L).</p> <p>The facts are stated in the opinion of the Court.</p>

<p>Appeals: questions of jurisdiction. Stock and stockholders: duty of corporations. Attachment: stock of foreign corporations.</p> <p>The situs of stock, for the purposes of attachment and execution, is the domicile of the corporation, and that place only. p. 116</p> <p>Jurisdiction in attachment proceedings is derived from statutory law, and it must affirmatively appear on their face that the requirements of the statute have been substantially complied with; otherwise the Court issuing the attachment would be acting without jurisdiction, and the judgment thereon would be void. p. 112</p> <p>Objection to the proceedings on such grounds may be taken advantage of by motions to quash, in arrest of judgment after verdict, or, without objection in the Court below, may be relied on, on appeal; for the judgment, if rendered without jurisdiction, is coram non judice and void. p. 112</p> <p>Stock of corporations is not attachable, except by express statute; and, when allowed, only extends to corporations existing in the State, for the reason that the corporation is the debtor. p. 113</p> <p>Our attachment laws (Article 9, section 18, and Article 23, section 68, of the Code of 1912) do not authorize the seizure and sale of the stock of a foreign corporation owned by a non-resident, where the stock itself is not within the jurisdiction of the court. • p. 112</p> <p>A corporation is the custodian of its stock ánd is clothed with power to protect all persons’ interests from unauthorized transfers; and it is its duty to exercise diligence in the discharge of its trust to see that unauthorized transfers are not made, to the prejudice of cestuis que trust. p. 117</p> <p>A foreign corporation, upon which a process of attachment had .been laid, by service upon the local agent, attaching the shares of its capital stock standing in the name of a nonresident debtor, has the duty of protecting its stockholder’s interests, and might itself be liable in suit for damages, and has the right to have its right and obligations with respect to the stock definitely determined by the Court of Appeals.</p> <p>p. 117</p> <p>In a question of jurisdiction, whether special or limited authority has been pursued or not, the objection may be reviewed in the Court of Appeals on appeal or writ of error, although the point was not made below. p. Ill</p>

<p> Specific performance and bill for perpetual injunction; equitable considerations; loss to defendant, without gain to plaintiff. Closing old road. </p> <p>Hot every plain and certain contract will be specifically enforced by a Court of Equity, even though a right of action at law might apply for its breach. p. 127</p> <p>If to enforce an agreement specifically would do one party great injury and the other but comparatively little good, so that the result.would be more spiteful than just, equity will not require its execution. _ . p. 127</p> <p>Any bill in equity must contain a clear statement of the facts on which the plaintiff relies for relief. p. 125.</p> <p>To warrant a court in issuing an injunction, a full and candid disclosure of all the facts must be made. There must be no concealment, and the res gestae must be represented as they actually are. p. 125</p> <p>The principle which applies to a bill for specific performance applies with equal force to a bill for a perpetual injunction, ■when the injunction accomplishes all that could be accomplished by a bill for specific performance.- p. .126</p> <p>A bill was filed for a perpetual injunction to prevent the closing of an old private road, alleging an oral promise to keep the road open, but did not disclose .the fact, shown by the evidence, that another way, equally as convenient, had been opened for the use of the complainant; the evidence all showed that to close the old road would do no harm to the complainant, but to keep it open would cause great damage and loss to the defendant. Held, that under all the circumstances the application for a perpetual injunction should be dismissed.</p> <p>p. 127</p>

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

Two consolidated cases, containing nineteen appeals in one record from the Baltimore City Court (IIkuisler, J.). The facts are stated in the opinion of the Court. The appeals were argued together before Boyd, C. J., Burke, Thomas, Pattisox, Urner, Btookbridoe and (''on-stable, JJ.

<p>•County Commissioners: powers and duties; liability for condition of roads; road engineer for Kent County; authority and liability of — .</p> <p>Where county commissioners are given control of public roads, charged with the duty of keeping them in good repair, and are supplied with the means of discharging their duty, and to meet their liability, they are liable for injuries caused by any defect in a public road' due to their negligence. p. 155</p> <p>The fact that the road engineer is not appointed by the County Commissioners or subject to be removed by them does not control or diminish their responsibility for the condition of the roads. The Road Engineer of Kent County, by the Act of 1910, is not given entire charge and control of the roads, and is not independent of the County Commissioners. He must report the expenditures to them, and may not expend more than the amount lent by them, without their permission. pp. 157-158</p> <p>The power conferred by Chapter 403 of the Act of 1910, upon the road engineer of Kent County, does not wholly repeal sections 1, 2 and 7 of Article 25 of the Code (1912), nor section 80 of Article 15 of the Public local laws, conferring broad and ample powers upon the County Commissioners for the supervision of the county roads; by section 167A of section 2 of the Acts of 1910, all laws pertaining to the County Commissioners and roads theretofore enacted are to remain in full force and effect, except in so far as they are repealed by or are in conflict with the provisions of the Act.</p> <p>pp. 158-159</p> <p>The Act does not relieve the County Commissioners from liability for defects in.the public roads of the county. p. 159</p> <p>The County Commissioners of Kent County are given full power to levy and appropriate such sum or sums, in excess of the 20 cents on the $100, as they may deem necessary for repairing and maintaining the public roads and bridges of the county. p. 160</p> <p>While the Road Engineer of Kent County, under the Act of 1910, is in a sense a public officer, yet in the discharge of his duties he is in a large measure subject to the control of the County Commissioners, and in respect to liability for injuries resulting from the bad condition of the public roads, he is to be regarded merely as the agent of the county. p. 161</p>

<p>Creditors’ Rights: insolvent corporations. Illegal preferences; decree of dissolution. Banks and hankers: insolvent depositors; lien of bank.</p> <p>In the absence of fraud or collusion, a bank holding a note of an insolvent depositor, which had been discounted and credited to his account, can withhold from the insolvent, or his assignee, enough of such deposit to protect the note. p. 167 A prior decree for dissolution of an insolvent corporation is essential to the maintenance of a bill by the receiver to set aside an unlawful preference made by the corporation.</p> <p>p. 3 65</p>

<p> Contract: construction; “ivithout expense.” </p> <p>A contract between certain parties, having interests in a recreation pier, etc., settling claims for rent in arrears, etc., and providing for the reversion of the property to a certain company, contained the provision that certain personal property, essential to the use of the pier, should under certain contingencies become the absolute property of the company “without expense” to it; this provision was construed not to mean that the title to the property should pass without consideration, but simply meant that there should be, no expense borne by the company incident to the sale or transfer of the property. p. 175</p>

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

<p> Wills: construction; loans or advances "to be charged to respective shares”; exceptions to evidence in equity; time for talcing; appeals. </p> <p>Where by his will a testator directs that all loans and advances which he has made or might thereafter make, should be brought into his estate and form part thereof, and be charged against certain respective shares, etc., the only question to be considered is the identification of the charges and the proofs submitted to uphold them. pp. 190-191</p> <p>And if the loans or advances made to a devisee exceed the amount of his devise or share of the estate, such devise is properly excluded from x>articipating therein. p. 195</p> <p>Exceptions to evidence taken before an examiner that were not filed until after the decree, and then do not appear by the record to have been acted on by the Court below, are not properly reviewable on appeal to the Court of Appeals.</p> <p>p. 196</p>

<p>Principal and factor: title to goods, when — ,• passes on delivery, etc.</p> <p>Where goods are delivered to a party to be sold by him for the shipper, it creates the relation of agency, and the title remains in the principal; the factor or agent is not liable for a particular price, but is only liable to account for the proceeds when sale is made. ' p. 200</p> <p>If the intention of the parties, to be gathered from the whole agreement, is that the title should pass to the party receiving the goods for a price, then the transaction is a sale. p. 200</p> <p>In construing contracts, the intention of the parties, gathered from all the items taken together, must prevail, unless inconsistent with some rule of law. p. 200</p> <p>Certain canned goods were shipped to certain brokers under an agreement that they should advance the shipper $1.50 a case; and, in addition, when the goods were sold, that they should pay the shipper all that they might receive from the sale over $1.50 a case, less certain costs, interest and brokerage; in such a case the transaction was held to be a sale, and the title to the goods passed by delivery to the broker.</p> <p>p. 201</p> <p>The mere presence of the words “consignment” and “advances” in such a contract does not necessarily import the relation of principal or factor. p. 202</p> <p>Where such a contract provides that the shipper is to receive one-half of the excess, etc., the implication is that the other party will receive the other half. p, 201</p> <p>One of the fundamental rights of a principal who has sent goods to a factor to he sold is the right to have the goods returned to him, if demanded before sale, subject to repayment of any advances made, with interest and necessary expenses. , p.202</p>

• Appeal from the Criminal Court of Baltimore City (Elliott, J.). The facts.are stated in the opinion of the Court. The cause was argued before Boyd, C. J., Briscoe., Burke, Thomas, Pattisok, Prxee, Stociibridge and Constable, JL

<p>Equity: pleading; bill for discovery and accounting; parties; need not be partners; general demurrers in equity; statute of frauds and limitations. Receivers of corporations : continuing business; subject to duties and liabilities of the corporation.</p> <p>A wife had loaned certain jewelry to her hushand to be used by him as collateral in raising a loan; through various transactions the jewelry passed to the hands of 0., as security for a balance due by the husband; the husband sent certain business to C., under agreement that, after paying the actual cost of materials and labor, the profits should be divided, and that the husband’s share should be applied to the payment of the balance on the loan due to 0. A bill was filed by the wife ei al. against the receivers of a corporation, which was the assignee of 0., for discovery, an accounting and the appointment of a receiver, with a prayer for the return of the jewelry and proper application of the profits, should it appear that the debts so secured, and interest had been paid: Held, that equity had jurisdiction to entertain the bill, and that the remedy of the parties was not simply in contract, to be enforced at law. p. 221</p> <p>It is not necessary, under all circumstances, that a technical partnership should exist between parties to an agreement in order to entitle one to maintain a bill of discovery and account against the other. p. 222</p> <p>Unless it affirmatively appear that a contract is in parol, the defense of, the Statute of Frauds can not be raised in equity by demurrer, but must be by plea or answer. p. 224</p> <p>If the “year clause” of the statute is to serve as a defense, it must be disclosed by the bill that the contract could not by any possibility be performed within the year. p. 224</p> <p>Where a contract was to last until a certain indebtedness should be paid, the time for the payment is indefinite, and as the debt might have been paid within the year, the contract is one to which the year clause of the Statute of Frauds did not apply. p. 225</p> <p>The statute of limitations may be availed of, in equity, by a general demurrer only, when on the face of the bill it can be seen that the bar applies, and where no facts are stated sufficient to relieve the contract from the operation of the statute.</p> <p>p. 226</p> <p>Certain security had been given to secure the balance due on a debt, which debt was to be paid by the application of certain profits, after deducting therefrom certain charges and expenses; a bill was filed, praying for discovery, an accounting, and for the appointment of a receiver to hold and take charge of the security, and for the statement of an account to show what, if any, of the debt was still due, and for the return of the security, and the proper application of the profits, should it appear that the debt and interest had been fully paid; to such a bill it was held, that the statute of limitations was no defense to improper or excessive charges or deductions that had been made before so applying the profits to-the extinguishment of the debt. pp. 226-227</p> <p>The receiver of a corporation, continuing its business, takes the place of the corporation and its officers, for the purpose of performing the corporate duties and functions, and has the same power for such purposes; he is to be held to be substituted for the corporation and to assume its duties. p. 227</p>

<p> Witnesses: evidence in conflict with statements made to party calling him; contradiction of witness; discretion of Gourt. </p> <p>Motion to strike out all evidence: when to he overruled. Bills of exception: must contain one exception only.</p> <p>If a witness has made to the party who calls him or to his attorney a statement totally variant from his sworn testimony, and on the faith of which statement he was called, he may he asked if he made such former statement, and if he denies it, proof of the statement may be given, not for the purpose of impeaching the general character of the witness, but for the protection of the person calling him. p. 233</p> <p>But not every statement that may be made, even to the party litigant or his attorney, may be contradicted by the party calling the witness; it is a matter for the discretion of the trial Court. pp. 233-234</p> <p>A bill of exceptions can not be made to embrace several exceptions to rulings on the evidence, and where a bill of exceptions includes more than one exception, it will not be considered by the Court of Appeals. pp. 234-235</p> <p>A motion to strike out all the witness’s testimony should be overruled, if any of the testimony is admissible. p. 236</p> <p>In general, testimony is not admissible to contradict a witness, unless a foundation for it has first been laid. p. 236</p>

<p>Agent’s declarations: when not binding on principal. Motion in arrest of judgment; objections that may be raised by demurrer. Bill of particulars: effect of — : not demurrable. Verdicts: improper evidence; ivhen Court of Appeals no power to correct.</p> <p>The practice of attorneys agreeing together to reduce the size of the tecord, by omitting all irrelevant matter, is greatly commended by the Court of Appeals, as it saves cost to the parties, and relieves the Court of the burden of reading documents and testimony not necessary for the appeal.</p> <p>p. 240</p> <p>In general, the declarations of an agent, made in the course of and accompanying the transaction which is the subject of inquiry, and while acting within the scope of his authority, are binding upon the principal, and may be proved in evidence against him. p. 242</p> <p>But the declarations of an agent, on his own authority, not accompanying the making of a contract, or the doing of an act on behalf of his principal, and not made at the time of the transaction referred to, are not binding on the principal and are not admissible in evidence. p. 242</p> <p>It is incumbent on a party seeking to bind a principal by statements made by third parties, to show that such statements were made at a time, and under such circumstances as to be binding upon him. p. 247</p> <p>A motion in airest of a judgment on the ground that the verdict improperly and illegally assessed damages * * * for claims * * * that were unliquidated, was held properly overruled, where a certificate of the judge of the trial Court showed that there had been no objection of that character raised during the trial, and that in the argument before the jury, counsel for the parties used the statements of their respective claims, and each side argued for a verdict for a specific amount, and counsel furnished the jury copies of the detailed statements of their respective claims which they allowed the jury to take with them into the jury room.</p> <p>p. 250</p> <p>Under section 9 of Article 75 of the Code (1888), a motion in arrest of judgment will not be allowed for any matters or causes which could have been availed of on. a general demurrer to the declaration or other pleadings. p. 249</p> <p>While a bill of particulars can not itself be made the subject of a demurrer, and does not form part of a declaration so as to cure any substantial defect in the latter that would be fatal on demurrer, yet a bill of particulars shows the entire cause of action under all the counts of the declaration, and precludes giving evidence of any other demand or claim.</p> <p>p. 251</p> <p>A demurrer, entered after a bill of particulars is filed, admits the cause of action to be as there stated, and denies that it furnishes any ground of action. p. 251</p> <p>Where in a suit for breach of contract the prayers left for the finding of the jury a number of overcharges made, and of proper credits that were not allowed by the one party or the other, and a general verdict was rendered, although, on appeal, the objection of one of the parties to the admission of certain items in evidence was sustained, it was held, that the Court of Appeals had no power to correct the verdict by a remittur for the admission of the item which was wrongly allowed to go to the consideration of the jury. p. 256</p>

Apjieal from tlie Criminal Court of Baltimore City (Gorter, J.), where the appellant, convicted of selling liquor without a license, and fined five dollars and costs, took this appeal.

). The facts are stated in the opinion of the Court-. The cause was argued before Boye, C. L, Briscoe, Bur-ice, Thomas, Pattison, IJrhee, Stockbridge and Coatstabee, JJ.

<p> Streets: negligence; automobiles. </p> <p>It is the duty of a person using public highways to exercise reasonable care, and to bear in mind that he does not have the exclusive right of user, whether he be a mere pedestrian, a rider or a user of an automobile. ' p. 280</p> <p>Ordinary care and caution must be used and the quantum of care required is to be estimated by the exigencies of the particular situation. p. 280</p> <p>The use of automobiles upon the public highways should be accompanied with every degree of prudence in their management, and consideration for the rights of others which is consistent with their safety. ,p. 280</p>

), to which Court the case had been removed from the Circuit Court for Howard County. The appellee, while riding on the lazy board of a hay wagon, in Howard County, by colliding with a telegraph pole planted in the turnpike, had his leg crushed, and was obliged to have it amputated.

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

<p> Mortgages: foreclosure; injunction to restrain; liability of surety for amount found due by the mortgagor; interest and costs. Decree of Court of competent jurisdiction: no collateral attach for mere irregularities. </p> <p>On a bill for an accounting a Court of Equity has power to decree the payment of the amount found to be due from the plaintiff to the defendant. p. 312</p> <p>Where a Court has jurisdiction to pass a decree, the decree can not be impeached in a collateral proceeding on the ground of any mere irregularity. p. 313</p> <p>In a suit under an injunction bond where the injunction was not prosecuted with effect, mere questions of irregularity in the decree of the Court dissolving the injunction can not be raised. p. 313</p> <p>Independent of any statutory provisions, when an injunction is applied, for, a Court of Equity in issuing the writ, may grant it upon a bond being given with such terms and conditions as it may deem proper. p. 316</p> <p>On a bill to enjoin the foreclosure of a mortgage and for an accounting, where the Court has jurisdiction to decree the payment of a sum found to be due from the plaintiff to the defendant, and the condition of the bond requires the plain- ' tiff to perform such decree as the Court shall pass in the premises, the surety is liable for the amount named in the decree which the plaintiff is ordered to pay. p. 317</p> <p>Section 18 of Article 66 of the Code refers only to sales and proceedings under the power of sale contained in the mortgage referred to in the article, and has no application to injunctions issued to restrain proceedings to foreclose other mortgages. p. 317</p> <p>No statute authorizes a Court of Equity to determine the damages sustained by a defendant in a bill for an injunction, by reason pf the issuing of the writ, unless such power is conferred by section 81 of Article 16 (relating to application of executors or administrators to stay proceedings at law), and section 18 of Article 66 of the Code of 1912 (relating to the stay of foreclosure proceedings under a contract to a decree).</p> <p>p. 316</p> <p>On a petition by a mortgagor for an injunction to stay the foreclosure of the mortgage and for an accounting, etc., the Court has jurisdiction in dissolving the injunction to order the mortgagor to pay the balance found due, with interest and costs (and such a decree is not a decree for damages).</p> <p>p. 317</p> <p>In such a case when the bond given in the injunction suit was conditioned upon the injunction being prosecuted with effect, and upon the further condition that the plaintiff (the mortgagor) should perform such decree as the Court might pass in the premises, if the injunction is not prosecuted with effect, the surety on the bond is liable for the amount that the plaintiff is ordered by the decree to pay. p. 317</p>

). Suit was brought by the equitable plaintiff, to recover damages from the defendant for the death of her son caused by one of its tenders and engine running over him, while his foot was caught in the defendant’s tracks; a verdict and judgment being rendered in' favor of the plaintiff for $2,200, the defendant appealed.

). The traverser having been indicted for malfeasance in office, and found guilty, was sentenced by the Court to be removed from the office of Constable; the traverser appealed.

<p>Appeal from the Orphans’ Court of Cecil County</p> <p>The facts are stated in the opinion of the Court.</p> <p>The cause was argued before Boyd, C. J., Briscoe, Burke, Thomas, Pattison, Urner, Stockbrid&e and Constable, JJ.</p>

<p>Corporations: by-laws; officers1 salaries. Directors: powers of — .</p> <p>Where the by-laws of a corporation vest the authority to fix salaries in the directors exclusively, an agreement between an officer or employee and the president as to an increase of salary is ineffective. p. 339</p> <p>The fact that such officer or employee and the president together held the majority of the capital stock of the corporation, gave 'them no authority to modify final actions of the hoard of directors.upon a subject-matter committed to their exclusive control. pp. 339-340</p>

<p>Appeal from the Orphans’ Court of Baltimore City.</p> <p>The facts are stated in the opinion of the Court.</p>

<p> Contracts: construction; Baltimore City sewers; approval of engineer; charges and deductions against the contractors. Prayers: assuming facts. </p> <p>In a contract for building the sewers of Baltimore City, in regard to certain portions of the work, there was the provision that “the plastering will not be paid for separately, but it is to be included in and covered by the price paid for the masonry” ; the engineer for the city held this to mean, that the price bid for the masonry, there referred to, included the charge for the plastering, and did not mean that the plastering was to be measured and paid for at the same rate as the masonry. p. 359</p> <p>By the same contract it was provided that the engineer should be a referee, and that he should in all cases determine the amount, quality and acceptability of the work to be paid for; that in case of any question arising between the parties touching the contract, his estimate and decision should be a condition precedent to the right of the contractor to recover any monies under the contract; held, that, under this provision, the engineer had power to determine whether in such a case the pay should include the masonry only, or the masonry and the plastering. p. 360</p> <p>Under the provisions in the contract, relating to the removal of certain obstructions which should be found to follow the line or occupy tlie place of the excavation, etc., it was held, that a 20-inch water main intersected by a high-pressure pipe of that diameter, in the sewer excavation, was to have been taken care of by the Sewerage Commission, and not by the contractor. p. 367</p> <p>Prayers that assume as proved facts of which there is no evidence are erroneous. p. 367</p> <p>In a suit by the contractor for a balance due for work on the sewer, a prayer of the plaintiff to instruct the jury that he was entitled to money paid out on account of extra cost of the work incurred, because of the failure of the city to remove certain obstructions, high-pressure water mains, etc., in the line of the excavation, was held to be erroneous, because it assumed that there was such extra cost. p. 367</p> <p>A provision in which a contract authorizes the engineer for the city to have certain repairs made by the city department, and deduct the cost from any amount due or that might become due the contractor, does not authorize the repairs to be made at any price that the department doing the work may see fit to charge, without any right on the part of the contractor to dispute it. p. 369</p> <p>In making such charges, the city is not entitled to charge for repairs or renewal of' water mains, etc., made necessary by their bad condition, and not because of any act of the plaintiff. p. 370</p> <p>Whenever such contracts do the contractors injustice they should be liberally construed in their favor. p. 369</p>

). The appellee lost his sight through blood poisoning as the íesult of septic matter introduced into his system while engaged in performing a surgical operation; he brought suit upon an accident policy covering such an accident. A verdict for $7,500 having been rendered in the plaintiff’s favor, and judgment, entered thereon, the defendant appealed.

<p>Causing breach of another’s contract; action for damages. Competition in trade. Declaration: counts must not be double. Statute of Frauds: oral contract; unenforcible, but not void. Limitations: replication. Lost letters: parol evidence; foundation for- — . Commissions to tahe testimony: exceptions.</p> <p>A declaration, whether based upon a contract or on tort, can not combine two causes of action in one count. p. 388</p> <p>But a count in a declaration is not made double by immaterial matter, or by matter pleaded only as necessary inducement to another allegation, nor by matters, however numerous, provided their construction be one cause of action. p. 388</p> <p>In an action for damages against a defendant for wrongful interference with the contract relations between the plaintiff and a third party, the fact that the plaintiff set out such contracts in his declaration does not make the action bad for duplicity; such contracts were not the cause of the action. p. 388</p> <p>Nor does the fact that one of the contracts was oral, and void under the Statute of Erauds, affect the sufficiency of the declaration. p. 388</p> <p>An oral contract is not void, merely because of its being unenforcible under the Statute of Frauds. p. 388</p> <p>Under Article 57, section 14 of the Code of 1912, a replication that alleges that the plaintiff was kept in ignorance of his rights by the false, fraudulent and wrongful statements of the defendant (until within three years of the bringing of the suit), although he used ordinary diligence to discover them, will defeat the plea of limitations. p. 389</p> <p>Under the rule of the Supreme Bench of Baltimore City, after the jury has been sworn and the examination of witnesses has begun, it is too late to file exceptions to the deposition of a witness, and exceptions to the execution. and return of the commission will be considered as waived. p. 389</p> <p>Where a letter or paper has been lost, sufficient foundation must he laid before parol evidence of its contents is admissible. p. 391</p> <p>It is a violation of legal right to interfere with contractual relations recognized by law, if there is no sufficient justification for interference. p. 392</p> <p>Malice in this form of action does not mean actual malice or ill-will, but consists in the intentional doing of a wrongful act without legal justification or excuse. p. 392</p> <p>In a suit for damages against the defendant, for having caused a third party to break a contract with the plaintiff, no allegation that the plaintiff was able and willing to complete the contract is necessary. pp. 387-388</p> <p>The right of one manufacturer to compete with others furnishes no justification for interfering in the contractual relations between third parties or for causing a breach of contract between them. p. 399</p>

<p>Appeal from the Circuit Court for Dorchester County (Jones, J.), whence the case had been removed from Somerset County.</p>

<p>Police: pay of sergeants in Baltimore City. Chapter 503 and Chapter 847 of the Acts of 1912. Statutes: repeal; hy implication.</p> <p>Chapter 503 of the Acts of 1912, fixing at $30.00 the salary of police sergeants in Baltimore City detailed for clerical work at headquarters, was repealed hy Chapter 847 of the same session of the Legislature, and which was subsequently approved, and which repealed and re-enacted Chapter 234 of the Acts of 1908, which provided that each sergeant should receive $22.00 per week. pp. 406-407</p> <p>Where there are two acts for the same subject the rule is to give effect to both, if possible; but if they are repugnant in their provisions, the latter Act, without any repealing clause, operates, to the extent of the repugnancy, as a repeal of the first. p. 405</p> <p>[n general, the repeal of a former statute by a subsequent one is not favored by the courts, if by any reasonable construction the two acts can be made to stand together. p. 405</p>

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

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

<p>Appeal from the Circuit Court for Wicomico County (Pattison, C. J., and Jones, J.).</p> <p>The facts are stated in the opinion of the Court.</p>

<p>Equity :• amendments; must not make entire new bill. Partnership : bill to dissolve; may not, by amendment, become bill by co-tenant for sale of property; dissolution of partnership; essential allegations in bill; receivers; real estate pur- ■ chased with partnership assets. Demurrers in equity: waiver of objections, by answers.</p> <p>A plaintiff is not at liberty to abandon tbe entire case made by his bill and make a new and different case by way of amendment. , p. 440</p> <p>A bill for the dissolution of a partnership, for the settlement of accounts as between the parties, and the disposition of the partnership property, can not be amended into a bill by one tenant in common against his co-tenant for the sale of property not susceptible of division. p. 440</p> <p>A. bill for the dissolution of a partnership on the ground of irreconcilable differences should not merely allege such differences, but should also allege facts sufficient in their character to make it appear to the Court that, if supported by proof, the differences were irreconcilable and of such a nature as to terminate or seriously imperil a continuance of the partnership relation. p. 440</p> <p>Where a partnership has been formed for the purchase, improvement and selling of real estate, the allegations of one partner that the other would not agree to sell at a fair and reasonable-profit, and that having agreed to a sale, he refused to consummate it, are not sufficient to support a bill for the dissolution of the partnership. pp. 440-441</p> <p>The dissolution of a partnership by decree of Court may be refused when the circumstances of the particular ease render such dissolution improper, as where large operations have been begun which could not be arrested without serious loss. p. 441</p> <p>By answering the bill, a defendant waives any objection that he might have raised by demurrer. • p. 441</p> <p>If there are proper allegations in a bill for the dissolution of a partnership, and the evidence shows that the mutual confidence of the partners is destroyed; that frequent bickerings have induced the belief in the mind of each that the other is endeavoring to overreach or gain unfair advantage, the dissolution should be decreed. p. 441</p> <p>A partnership at will may be terminated at any time upon notice given; and a bill of complaint for the dissolution of the partnership is all the notice that is required, pp.441-442</p> <p>It is only necessary to appoint a receiver, upon the dissolution of a partnership, in cases where the partners can not agree among themselves for a division of the property. p. 442</p> <p>Beal estate purchased with partnership assets is considered in equity as personalty, for the purpose of settling the partnership accounts, in paying creditors, etc., but the sale or transfer of the realty must be in accordance with the statutes governing the conveyance of real estate. p. 442</p> <p>But as regards creditors of the firm, or the adjustment of accounts between the partners themselves, where real estate is purchased with partnership funds, for partnership uses, equity treats it as personalty. p. 442</p> <p>When, however, the property has fulfilled all its functions as personal property as regards the partnership, partners and creditors, and is no longer wanted for these purposes, it becomes, in the hands of those who hold the legal title, real estate, subject to all the incidents thereof. p. 443</p>

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

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

<p> Corporations; ultra vires; directors; duties; sales of property of corporations; discretion; ratification by stockholders; presumption. </p> <p>In its proper sense the term ultra vires denotes some act or transaction on the part of a corporation which, although not unlawful or contrary to public policy if done or executed by an individual, is yet beyond the legitimate powers of the corporation, as they are defined by the statute under which it is founded or which are applicable to it, or by its charter or acts of incorporation. p. 488</p> <p>There is no presumption of illegality or unfairness in transactions between two or more corporations, from the mere fact that a portion of the board of directors of each constitute a part of the board of the others and participates in the dealings between the corporations. p. 485</p> <p>The Union Railroad Company for a long time had owned and operated a line of road which served as the necessary link in connecting the Northern Central, the Philadelphia, Wilmington & Baltimore and the Baltimore & Potomac Railroad in and about the City of Baltimore. The Pennsylvania Railroad owned a large majority of the stock of two of the roads and somewhat less than a majority of the stock of the Northern Central; the rate of tolls that had been established by the Union R. R. having become exorbitant, a contract for the sale of the stock as a road at par was obtained by the Pennsylvania R. R. The Northern Central R. R. was furnishing nearly all of the traffic over the Union R. R., and the stock was transferred to the Northern Central and paid for by it, it being understood at the time by the directors of the several roads that the purchase was made for the benefit of all three connecting lines ;• subsequently the capital stock of the Union R R was doubled, and the new stock paid to the Northern Central R R as a stock dividend. In 1893 the Philadelphia, Wilmington & Baltimore R R Co. was contributing 42% of the traffic over the Union R R., and the directors of the Northern Central sold to that road five-twelfths of the capital stock of the Union R. R. at par. At this time several directors were common to the boards of the several lines. The sale was ratified by the directors and reported to the stockholders as a sale made “in order to give the companies, contributing to the traffic of the Union R. R., an ownership therein based upon the amount of such contributions,” but the consideration was not stated. As thus stated in the report and published in the newspapers, the sale was ratified by the stockholders. In the year 1910 certain minority stockholders of the Northern Central filed a bill against the Northern Central and the Philadelphia, Baltimore & Washington (the successor of the Philadelphia, Wilmington and Baltimore R. R.), and the Pennsylvania R. R., asking that the sale be set aside as fraudulent and ultra vires; held,</p> <p>That the transaction was not beyond the corporate or statutory powers of the corporation or its directors. p. 487</p> <p>That under the evidence adduced the plaintiffs have failed to show fraud on the part of the directors. p. 487</p> <p>That there must be other than constructive fraud, and proof of the misconduct charged must be affirmative, going to establish fraud in fact. p. 486</p> <p>As the sale was ratified by the officers and directors and .was further ratified by the stockholders through the adoption of the annual report, the stockholders, whether present or absent, were bound. p. 487</p> <p>Under all the facts of the case and in view of the published reports of the roads, the failure to state the price at which the stock was sold was not evidence of fraud. p. 491</p> <p>Where stockholders have every opportunity to know the details of a transaction consummated by the directors and ratified by the stockholders, they must be presumed to have full knowledge of the same. p. 494</p> <p>Where the principal actors to the transaction are dead and the records of all that transpired are inaccessible or lost, a Court of Equity will hesitate to disturb or inquire into a transaction which transpired many years (16 years) before. p. 494</p> <p>Where one party to a transaction has been permitted over sixteen years to rest under the belief that a transaction was regularly approved, and said party has made large expenditures under such belief, a Court of Equity will hesitate before setting it aside more tlian it might have done at or about the time of the transaction. p. 494</p>

<p> Equity pleading: claims not in the bill; appeals. </p> <p>Where certain claims for payments made were not mentioned in the bill, or in the court bolow, it,was held, on appeal, that, under the circumstances stated in the opinion, the Court of Appeals was not called upon to determine whether the plaintiffs were entitled to recover such payments when claimed in the appeal. p. 513</p>

<p>Wills: interpretation; presumption against intestacy. Bequests of securities in certain named vaults, etc.; bequests of ' income of certain property; when does not carry corpus of property.</p> <p>In general, where a party makes his will containing a residuary clause, it is presumed he does not intend to die intestate as to any part of his estate. p. 525</p> <p>But a will beginning with the clause, “after the payment of all my just debts and funeral expenses, I give, devise and bequeath my estate, as follows” — does not necessarily imply that the testator disposes of the whole of his estate; such a devise and bequest is qualified by the subsequent provisions of the will. pp. 526-527</p> <p>When the intention does not clearly appear from the words used in a clause of a will which is to be construed, resort may be had to the introductory clause, if there be one. p. 521</p> <p>If a testator devises or bequeaths property definitely and specifically mentioned, and adds no clause which is more comprehensive, there is no presumption that he intended to devise or bequeath other property not so mentioned or included. p. 526</p> <p>A testator by Ms will disposed of certain securities, etc., described as being in certain deposit boxes and vaults named in the will, without any residuary clause or any other direct attempt to dispose of the whole balance of his estate; the evidence considered as to what property and security, under such circumstances, should pass under that clause of the will.</p> <p>pp. 527, 530</p> <p>In such a case, where one of the vaults were destroyed by fire after the execution of the will, it was held, that securities placed and kept in safes, which were used in lieu of the former vault, should be included in the property to pass by the will. pp. 530-531</p> <p>In general, a devise in regard to rents, profits, interest or income of property passes the entire fund or estate absolutely, in the absence of a counter intention. p. 531</p> <p>A testator bequeathed to Ms sisters the income, etc., to be derived from the investments by the executors of certain moneys, securities and property, with authority to his sisters “to devise their interest in the income of the property * * * as they see fit”; held, that this devise carried only an eqMtable interest in the property mentioned out of which the income was derived, and that the executor should hold the property as trustee when his duties as executor should be completed, and pay over the income, less expenses, to the testator’s sisters during their lives. p. 532</p> <p>The trust for each sister terminated with her life, and such bequest is not void of indefiniteness. p. 532</p> <p>The duration of a trustee’s estate is measured by the substantial objects and purposes of the trust, and not by the technical words used in creating it. p. 533</p>

<p>Appeal from the Circuit Court Ho. 2 of Baltimore City (Stump, J.).</p> <p>The facts are stated in the opinion of the Court,</p> <p>The cause was argued before Boyd, C. I., Brisooe, Burke, Thomas, Pattison, Urner, Stocicbridge and Constable, JJ.</p>

<p> Wills: interpretation. Personal rights: majority; law of domicile. </p> <p>A testatrix died abroad, but her will was admitted to probate in Baltimore City. Tn a proceeding filed in the Circuit Court of Baltimore by one of the legatees to construe a certain clause of the will and for an accounting by the trustee for the said legacy and income left in trust for her by the said clause, it was held, that the admission of the will to probate in Baltimore City, in so far as such proceedings were concerned, conclusively established the residence of 'the testatrix in Baltimore City. pp. 548, 549</p> <p>Tn general, the personal rights of a party — his majority or minority, his marriage, succession or inheritance — are governed by the law of his domicile. p. 548</p> <p>Wills of personal property must be governed with reference to the law of a testatrix’s domicile at the time of her death, unless it appears in the face of the will that it should be controlled with reference to some other law. p. 552</p> <p>By her will a testatrix had left a legacy to a trustee to be held in trust for a niece who was a resident and subject of Austria, until she reached her majority; held, that, in the absence of any evidence that the testatrix intended her will to be construed in reference to any other law than the law of Maryland, the legatee (having attained the age of 18 years),'was entitled to receive the legacy, and her right would not be affected by any Austrian law as to the time of her reaching her maturity. p. 552</p>

<p>Repeal of statutes: implication. Police justices of Baltimore City: jurisdiction; licenses of automobiles, etc.; Ch. 133 and Ch. 777 of the Act of 1912; inconsistent. Penal statutes: special exceptions; indictments need not negative. State licenses: revocable. Police power: State can not divest itself of — . Contracts: protection of U. S. Constitution; refers to property rights only. Motor vehicle license law: Ch. 133, Acts 1912; special license exacted of profes- ' sional chauffeurs; constitutional; a taxing of business; not unfair discrimination; penalty; imprisonment for failure to pay; not imprisonment for “debt” in constitutional sense. Title of statutes.: suffi,cient description.</p> <p>On a question of repeal of statutes by implication, the test is one of repugnancy, whether the two laws can stand together and be executed at the same time. p. 559</p> <p>Chapter 133 of the Act of 19.12, authorizing police justices of Baltimore City to try and determine violations of the law requiring licenses for the operators of motor vehicles, is inconsistent with Chapter 777 of the Acts of 1912, which was approved latex-' -that the police justices of Baltimore City shall not have power to determine any violation of the Public General Laws relating to licenses except as to hawkers ox-peddlers, but shall cause all such offexxders to be committed or held for bail for trial in the Crixnixxal Court. — and is repeáled by it. pp. 558-559</p> <p>Where, after general words of prohibition, an exception is created in a sxxbsequent claxxse or sectioix, such exceptioxi must be interposed by the accused as a matter of defense, and it'is not necessax-y in such a case that the indictment should xxegative the exceptions by express avex-xnent. p. 559</p> <p>Mex-e licenses issued by the State are always revocable, axxd the police power of the State can not be bax-gained away. -, p:560</p> <p>The contracts which the Constitution-of-the'Fni'ted States protects relate to property, and not to gov'erixxixexxtal 'rights.->.'560</p> <p>The provision in Chapter 207 of the Act of 1910, that the license of operators of motor vehicles shall,he $2.00 and shall he good until siispended or revoked, etc., was merely intended to define the privilege accorded the licensee, and does not have the effect of binding the State hv a contract which can not be constitutionally rescinded. p. 561</p> <p>Chapter 133 of the Act of .1912, regulating license fees for professional chauffeurs and other operators of motor vehicles was passed for the purpose of regulating the use of rapid transit upon the public highways, and is directed to the protection of public safety and its enactment is within the police power of the State. • p. 561</p> <p>In the exercise of this power, the Legislature may classify the persons to whom the prescribed regulations shall apply, provided that the classification is not unreasonable and arbitrary. p. 567</p> <p>The propriety of such provisions will be presumed unless it is apparent that they do not rest upon any reasonable ground. p. 561</p> <p>Exemptions in the law as to motor vehicles used for ambulances, or for municipal purposes, and under public authority and control, is consistent with valid legislation for the purpose of regulating the use of such means of transportation for private convenience or profit. p. 562</p> <p>Exemption as to traction engines employed in hauling agricultural machinery is proper, in view of the essential design of the Act to regulate motor vehicles capable of being operated at a high rate of speed. p. 562</p> <p>The requirement that professional chauffeurs shall obtain an annual license at a cost of $5.00, while other operators pay a fee of only $2.00 for a license which does not require renewal, is a proper regulation from the point of view of supervision in the case of those who operate motor vehicles as a regular business. pp. 562, 563</p> <p>Such a provision'is valid, as an exercise of the power of the State to impose license charges upon occupations within its limit. p. 563</p> <p>These special license fees required of those operating motor vehicles for salary, wages or profit is not a deprivation of property without due process of law, within the meaning of the Tour tenth Amendment to the Constitution or of the Twenty-third Article of the Declaration of Rights of Maryland. p. 562</p> <p>License fees charges are a tax on business or occupation, and is not in violation of the first clause of the Tifteenth Article of the Bill of Rights as a direct tax on property. p. 563</p> <p>Chapter 133 of the Act of 1912, in its title, refers to section 138 of Article 56 of the Code, under the title “Licenses,” subtitle “Motor Vehicles,” and is a sufficient description of the provisions in the body of the Act. pp. 563-564</p> <p>The penalty provided by Chapter 133 of the Act of 1912, providing as a penalty for violations of the Act imprisonment in jail for a limited period in default of the payment of the fine authorized by the Act to be imposed, is not an imprisonment for debt, within the intention of section 38 of Article 3 of the State Constitution. p. 564</p> <p>The term “debt” as there employed in the Constitution means an obligation arising otherwise than from the sentence of a Court for breach of the public peace or commission of a crime. p. 565</p> <p>The provision in Chapter 133 of the Acts of 1912, in providing for a special annual license for professional chaufTeuis, is not repugnant to section 29 of Article 3 of the Constitution because not sufficiently described in the title of the Act.</p> <p>This provision forms a part of section 138 of Article 56 of the Code, title “License,” sub-title “Motor Vehicles,” and the title of the Act of 1910 describes the subject of its enactments by reference to that article and section of the Code, which is a sufficient description of the contents of the Act to satisfy the constitutional requirement. p. 564</p>

<p>Promissory notes: co7isideration; signature; presumed that of party for value. Corpoi-aiions: pwchase of own stock; stock all owned by one pen-son; creditors’ 7'ights.</p> <p>Under section 43 of Article 13 of the Code (1912), a promissory note is intended prima facie to be for a valuable consideration, and any person whose signature appears thereon is presumed to have become a party thereto for value. p. 568</p> <p>In the absence of express authority, a corporation can not purchase its own stock, and one lending a corporation money with which to buy its own stock (knowing that it was to be for such a use) can not recover from the corporation to the prejudice of its creditors. p. 569</p> <p>When one person is the owner of all the stock of a corporation, a Court of Equity will go behind the mere form, when necessary to prevent fraud or injustice, and will not permit an individual to hold property and contract debts in the name of a corporation, of whose stock he is the sole owner, and then use the corporate property for the payment of such of his individual debts as he chooses to pay, leaving the corporation’s existing creditors unprovided for. p. 571</p>

<p>Race Trade and Fair Associations: right to control grounds; delivery of feed upon premises. Injunction : remedy at law.</p> <p>Although it may he apparent that the complainant filing a bill for an injunction is no longer interested in the subject-matter of the controversy, yet if the decision of the questions raised on the record may he of importance to the defendant, the Court of Appeals will sometimes consider theln in so far as may he necessary for the purpose of the case. p. 578</p> <p>While courts of equity 'exercise a very extensive jurisdiction in eases involving property rights, such jurisdiction does not in general exist where a plain, adequate and complete remedy can he found at law. p. 580</p> <p>A corporation or party owning public fair or race grounds, stables, etc., has entire control of them, and has the right within reasonable limits to control its own grounds, and can lawfully refuse to allow any individual to frequent them for the purpose of soliciting orders for feed, etc., and can refuse the privilege of making sales on the grounds to others than those to whom it has sold such privileges. p. 580</p> <p>The proprietors of such grounds have the right in the interest' of the public and for the protection of their own rights, upon reasonable complaints, or from their own knowledge, to exclude from the grounds persons guilty of dishonest conduct and corrupt methods in dealing with their patrons. p. 582</p> <p>But a party who has already made contracts for the sale and delivery of feed, etc., for horses on the grounds, before, he was notified of any rule to the contrary, should be allowed to carry out such contracts. p. 582</p> <p>Equity will not, in the exercise of its remedial power, enlarge its jurisdiction by taking the affairs of a corporation out of the management of its own officers and jdacing it in the hands of a receiver or others, except where fraud, mismanagement or collusion is shown. pp. 582, 583</p>

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

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

<p>Streets: change of grade; usually no damages recoverable; otherwise when part of land is taken under the power of eminent domain. Damages: regrading balance of lot.</p> <p> What benefits are excluded; project for which condemnation is undertaken. </p> <p>'T'he principle, that damages are not ordinarily recoverable for an injury to adjacent land caused by a lawful change in the grade of a public highway, is confined to cases in which no part of abutting property is taken for that ..purpose, p. 610</p> <p>Where any of the land is taken for such a purpose in the exercise of eminent domain, the “just compensation” required by the Constitution to be paid where private property is taken for public use, must be paid, and must include not only the value of the land condemned, but also a due allowance of damages for injury to the remainder. p. 611</p> <p>The measure of compensation for the injury done the residue of the land taken in the exercise of eminent domain is the difference produced in its value, by the appropriation and use of the separated portion for the purposes contemplated by the condemnation. p. 611</p> <p>Or it may be considered by the impairment of its availability for convenient and beneficial use with respect to the preexisting ' street, (where any of the land is taken in connection with the ordering of change of grade of a street,' p. 613</p> <p>In allowing compensation for land so taken, the appreciation of values produced by the project to which the condemnation is incident must be disregarded. p. 613</p> <p>The most rational and reasonable measure of the effect of taking a portion of land, in the exercise of the power of eminent domain, on the value of remaining land, is the cost of the regrading that would be reasonably necessary to restore it to its relative position for advantageous use which it occupied before the appropriation of a part of the property for the particular object contemplated. p.'614</p> <p>Where, in order to widen and regrade a public highway, a portion of the abutting property is taken under the power of eminent domain, the owner is entitled, in his compensation for damages, to have included the cost of repaving the portion of the land so taken for the sidewalk, and the cost of regrading the portion so taken and the regrading reasonably necessary for the land not condemned. p. 615</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 argued before Boy», C. J., Briscoe, Burice, Thomas, Pattison, Brner, Stocicbridge and Constable, JJ.</p>

<p> Wills: construction. Trustees: survivorship; right of successor. </p> <p>A will contained the following provision: “I appoint my sons-in-law, J. S., J. I. M. and J. H. B., my executors and trustees, for the purposes hereinafter mentioned, and in the event of the death or failure of either to act, in his or their stead, either of my friends (naming them), so as not to have more or less than three. I then devise and bequeath all my estate, real, personal and mixed, to my three sons-in-law, J. S., J. I. M. and J. H. B., or imthe event of either one or more of them declining or intentionally failing to act or accept the trust, then in his or their stead one or more of the other friends previously named as may be preferred and chosen by my two daughters, H. S. G. M. and H. G. B., and my granddaughters, E. A. L. and E. S., or their father or other compe- ■ tent, discreet friend choosing for them, my grandchildren, or such of the three as may accept the trust hereinafter mentioned, and the survivor or survivors of them, their heirs and assigns forever.” In construing this will, it was held, that, although the intention of the testator was that there should be three trustees to perform the important act of dividing all the estate into three parts, as elsewhere provided in the will, yet that afterwards the survivors or survivor of them should execute the duties of the trustee, with the same powers and responsibilities as the original three possessed. p. 630</p> <p>Upon the petition of any person interested in a trust estate, a Court will appoint a trustee in the stead of a deceased trustee, and the fact that contingent remaindermen were not parties and their assent was not obtained does not affect the validity of the powers of the trustee so appointed. , p. 631</p> <p>When a trustee named in a will has powers of sale not personal to him merely, such powers survive to a new trustee appointed in his place. p. 632</p>

<p>State Road Law : Ghapter 217 of Acts of 1910; interpreted. Injunctions: public wrongs; taxpayers; special burdens.</p> <p>Under the State Roads Law, Chapter 217 of the Acts of 1910 (Code of 1912, Article 91, section 78), the Circuit Court of any county where the powers conferred upon the State Roads Commissioners * * * have been or are about to be exercised, has jurisdiction over any cause of action for a violation, or a contemplated violation, of the road laws. p. 637</p> <p>Individuals can not sue to restrain alleged public wrongs, unless they have a special interest requiring protection; but if the unauthorized act complained of would result in an increased taxation, those, upon whom this burden would fall, constitute a special class, with an interest distinct from that of the general public, and are entitled to seek relief by injunction. p. 638</p> <p>There is such a relation between an alleged diversion of funds for the improvement of county roads and the general taxation as to give a Court of Equity jurisdiction to entertain an application for an injunction by taxpayers who complain of an alleged intended wrongful diversion of such funds.</p> <p>pp. 638-639</p> <p>The passage of Chapter 370 of the Acts of 1912 authorized an additional loan of three million, one hundred and seventy thousand dollars, in order to complete the construction of the State public roads, as provided by Chapter 141 of the Acts of 1908; the intention of the Legislature was that the second fund should simply serve to supplement the first in accomplishing the single purpose of establishing within a limited time a State highway system selected and defined, with a general view to an apportionment of its benefits among all the counties on the basis of public road mileage, pp. 640-641</p> <p>Under that Act, the apportionment out of the supplemental loan, for use in Baltimore County, is lawfully applicable in part to the reimbursement of the commission for road construction theretofore done in that county in excess of its due proportion of the original fund. p. 643</p>

<p>Streets: change of grade; taking of property; damages; structure blocking up entrance to and from property; abutting property owners. Joint tort feasors: liability of — ; agreements between.</p> <p>In an action for trespass against the City of Baltimore, if the act complained of was done by lawful authority, a plea of non cul is sufficient, and under such a plea the city may offer in evidence the ordinance under which the work was done.</p> <p>p. 653</p> <p>With the consent of the Legislature (Chapter 621 of the Acts of 1910), the City of Baltimore, in order to avoid the grade crossings of several streets over the tracks of the B. & O. R: R. Co., entered into an agreement with the latter hy which the city was to change the grade of one-half the width of certain such streets and make the new grade rise hy an incline until it reached the height of some thirty-odd feet above the grade. of the other half of the street and of the railroad tracks; the width of this incline and elevated street was 25 feet, and was built within a few inches of the building line of the houses on one side of the street; although the city changed the grade and ordered the work, the B. & O. R. R. Company performed the work and bore the expense of the construction; the effect of this structure was to effectually bar all ingress and egress of certain abutting property and to cut off all light and air for the houses; in an action for damages against the city and the railroad brought by some such abutting property owners, it was held, that such a change of grade and construction amounted to a taking of the property of the plaintiffs which the city could neither do, nor authorize, without paying just compensation therefor, p. 657</p> <p>The city and the railroad were both liable to the plaintiff as joint tort feasors. p. 657</p> <p>And the plaintiffs are entitled to recover against either or both.</p> <p>p. 658</p> <p>The fact that the city and the railroad had any understanding and agreement as between themselves for the liability for damages, does not concern the plaintiff.' p. 658</p> <p>When the erection of a structure in a street cuts off the light and air and the ingress and egress to and from a building abutting on a public street, it is an act which not even a municipal corporation has the right to do, without due compensation, and amounts to a tort, for the commission of which the city is liable. It amounts to a taking of property, even though there has been no actual physical invasion. p. 657</p> <p>Whether a particular structure is consistent or inconsistent with the use of a street as a street must be largely a question of fact, depending upon the nature of the structure. p. 654</p> <p>An abutting property owner has the right to the street as a thoroughfare in common with others; and for any infringement of this right which he suffers in common with others he has no right of action, even though, by change of grade, etc., he is more or less inconvenienced. p. 654</p> <p>But abutting property owners have rights or easements in the public streets in addition to those of the public; they are entitled to the benefit of the street for ingress and egress, and can not be deprived thereof without compensation. p. 657</p>

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

<p>Taxation: direct tax assessed by Legislature; special assessment for improvements already completed; jurisdiction of equity to restrain illegal taxation. Act of 1912, Chapter 688.</p> <p>Chap. 688 of the Acts of 1912 levied a special tax on property-in Baltimore City, which it was stated had been specifically benefited by improved paving, at certain rates and according to certain classifications embodied in the Act; the applicability of such classification and rate to particular property was to be determined by the Appeal Tax Court; the proceeds of such taxes were dedicated by the Act to a general paving fund for the city; held, that such act was a valid exercise of the legislative power and was free from constitutional objection. p. 680</p> <p>The provisions of existing laws relating to notice and appeals from actions of the Appeal Tax Court, were made applicable to the notice to be given and the right of appeal from that Court, and were held to be ample. p. 677</p> <p>The constitutionality of the law is not affected by the fact that the proceeds of the paving tax go into a fund, and are not raised to pay for improvements specifically benefiting the property assessed. p. 680</p> <p>A Court of Equity has jurisdiction to restrain the levy of taxes which, if levied, would be unlawful. p. 674</p> <p>Where the Legislature fixes the amount of a tax, no additional notice is necessary, and in the absence of clear evidence that the tax is arbitrary or oppressive the legislative decision is conclusive on the courts. p. 677</p> <p>The Legislature has ample power to levy special taxes for local improvements and to impose special assessment for road or street improvements, when not restricted by constitutional provisions. p. 680</p> <p>A special assessment may be levied upon an executed consideration, for a public work already done. pp. 678-679</p> <p>An assessment upon abutting property owners of the cost of paving the sidewalk is valid, and of public benefit as well as local advantage to such owners, though they may object to the improvement. p. 678</p>

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