Volume 121 — Maryland Reports

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

<p> Land Patents: previous grants; caveat; discretion of commissioner to extend time. Deeds and grants: construction; calls and courses and distances. </p> <p>No patent should issue for land for which a patent has been previously granted, so long as such patent remains in force. p. 39</p> <p>Where the courses and distances in a grant do not agree with a call, the latter must prevail. p. 40</p> <p>Lands formed by alluvion, or receding waters, belong, in general, to the riparian proprietor. p. 40</p> <p>When a caveat filed in the Land Office can not be heard on the day fixed, within twelve months of entering the same, the commissioner should extend the time upon proper cause shown. p. 41</p>

<p>Appeal from the Circuit Court for Howard County (Forsythe and Brashears, JJ.).</p> <p>The facts are stated in the opinion of the Court.</p> <p>The cause was submitted to Boyd, C. J., Briscoe, Burke, Thomas, Pattison, Urner, Stockbridge and Constable, JJ.</p>

<p>Infants’: guardians of — . Jurisdiction of Orphans’ Court; domicile of infant; change of — . Natural guardian. Guardian’s bond. Administrator of decedent: not guardian for the infant children.</p> <p>An appeal will not lie from an order of the Orphans’ Court .appointing a guardian, when the Court had jurisdiction to make such appointment. p. 48</p> <p>The provisions of the Code (section 144, Article 93), conferring jurisdiction for the appointment of guardians of minor children on the' Orphans’ Courts where the infants reside, refers to the domicile and not to the mere place of the infants’ residence. pp. 48, 49.</p> <p>A minor can not by his own intention or act fix or change the place of his legal domicile. p. 50</p> <p>The domicile of a minor for purposes of guardianship is that of the parents or of those standing in loco parentis, even though at the time of such appointment such infant may he residing in another county or State. p. 50</p> <p>Where the mother of a minor, whose father is dead, has made her domicile in a certain county, the Orphans’ Court, of such county, upon her death, has jurisdiction to appoint a guardián for the infant. • p. 52</p> <p>The father of a legitimate child, and, upon his death, the mother, is the natural guardian of the children. pp. 50, 52</p> <p>Semble: the next of kin will not succeed to such office as of right. p. 53</p> <p>But before the mother may act as guardian she must qualify and give bond. p. 54</p> <p>Under the Code, a guardian, before proceeding to act as such, must file bond in such security as the Court shall approve. p/53</p> <p>On the death of the minor’s father and mother, one of her uncles removed her from the county to Baltimore City, where she and he intended her permanent home to be made; the uncle appealed from the order of the Orphans’ Court of the county, where the parents had died and which had been their residence, appointing a guardian for the infant. Held, that, without regard to other questions, since the uncle had not qualified as guardian by giving bond, he could not act as guardian for the purpose of changing the domicile of the infant, and the order of the Orphans’ Court appointing the guardian was affirmed. p. 53</p> <p>Section 151 of Article 93, providing that when no guardian is appointed the administrator of the testator’s estate should take charge of the estate and discharge the duties of the guardian to the infant, only contemplates the temporary care of the infant’s property. pp. 55-56</p> <p>■ The appointment of the administrator of a- decedent’s estate as guardian for his infant children is not favored. p. 56</p>

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

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

<p> Insolvents: firms or corporations; creditors’ rights; priority over partners or stockholders. Subscription to stock, or loan to the corporation. Presumptions. </p> <p>A stockholder o£ an insolvent corporation, as such, or partner of an insolvent firm, can not participate in the distribution of the assets until the claims of the undisputed creditors are satisfied. p. 70</p> <p>A payment of money to a corporation (in so far as the creditors were concerned), was held, to he an addition to its capital stock, and not to be a mere loan to the concern. p. 70</p> <p>To constitute a subscription to stock, an actual subscription is not necessary. p. 70</p> <p>A virtual subscription may he inferred from the acts and conduct of the party. p. 70</p>

<p>Receivers: appointment; bill and exhibits; effect of ansiver; appeals; what objections may not be raised; parties in interest who are not necessary parties. Wicles v. Westcott, 59 Md. 270, explained.</p> <p>Courts of Equity have jurisdiction, upon proper averments, to appoint receivers for corporations. p. 75</p> <p>Under sections 36 and 37 of Article 5 of the Code of 1912, on appeal from an order or decree of a Court of Equity, no objection can be made to the sufficiency of the averments of the bill, nor to the jurisdiction, unless it appears' by the record that the objections were made in the Court below. p. 75</p> <p>Where a receiver is appointed upon a bill alone, and an appeal is taken, under section 27 of Article 5 of the Code of 1912, the Court, in passing upon the propriety of the order, is confined to the case as made by the bill and exhibits, and can not consider the defendant’s answer. p. 76</p> <p>But when the order appointing a receiver is not passed until after the defendant has had notice and files his answer, the answer is considered below, and, on appeal, it may be considered by the Court of Appeals. p. 76</p> <p>"When the defendant, who has notice of an application for the appointment of a receiver, files his answer before the appointment and fails to object in the court below to the sufficiency of the averments of the bill, or to the jurisdiction of the Court, he can not be heard to make such objections in the Court of Appeals. p. 76</p> <p>And where a person is not a necessary party to the bill, but has such an interest in the subject-matter as entitles him to defend the suit, and, upon his own application, is made a party defendant after an order appointing a receiver has been passed on a bill and answer of the defendant admitting the fact and consenting to such appointment, and he desires to question the propriety of the order, he must do so by appropriate proceedings in the court below; otherwise he can not question its right on appeal, unless the case is one in which no circumstances whatever could give the Court jurisdiction. p. 77</p> <p>In the case of Wicks v. Westcott, 59 Md. 270, in explaining Code (1860), Art. 5, sec. 27 (now section 37), the Court did not mean to limit the application of that section to the original defendants, as distinguished from defendants who might be brought in afterwards upon the petition of the plaintiff, or who were made such upon their own application; the Court made that section applicable only to defendants in regular chancery proceedings, as distinguished from proceedings such as objections to sales. p. 78</p>

<p> Wills: construction; life estates; in funds; investments; rights of legatee in remainder; distribution; duty of executor. </p> <p>Where a legacy consists of money or of property whose use is its conversion into .money, it is the duty of the executor to invest the same in productive funds, or put it out on adequate security, under the direction of the Orphans’ Court, or of a court of equity, so that the dividends or income may be received by the legatee for life; and the principal, after the death of the legatee for life, may be received by the legatee in remainder. pp. 87-88</p> <p>But where a testator indicated by his will his intention that a life tenant should take the rest and residue of the estate, with full authority to invest and re-invest the principal according to her preference, and to use the income as she pleased, a distribution of the estate made to the legatees and to the life tenant is sufficient to show a full and complete administration. pp. 85, 89</p> <p>The remaindermen have the right to seek aid of a court of equity for the protection of their interest, if they are shown to be in jeopardy, provided such courts have jurisdiction over the parties or property. ' p. 90</p> <p>Where the life tenant in such a will is a non-resident, and the property is not within the jurisdiction of the courts of this State, such protection, even though desirable, can not be furnished by the courts of equity in this State. p. 90</p>

<p>Mortgages: prior equities; bona fide purchaser; security for money actually paid. Attorneys: implied power and authority. Trial by court without a jury. Constitutional rights'. Art. 4, sec. 8y issues from Orphans’ Court. Judgment : motion to strike out; time for making.</p> <p>In equity, a mortgage is deemed a purchase to the extent of the debt secured thereby. p. 98</p> <p>A mortgagee who takes his mortgage for value and without notice of prior equities, occupies the position of a bona fide purchaser, and is entitled to protection afforded to such a purchaser by a court of equity. p. 98</p> <p>In such cases, where the mortgage is sought to be vacated, because of alleged equities of which he had no notice, equity will allow the instrument to stand as a security for the money actually paid by the mortgagee. p. 99</p> <p>In general, whatever is done by an attorney in the scope of his duty, in the progress of the trial of a case, will, in the absence of proof to the contrary, be presumed to have been done by the authority of his principal. p. 100</p> <p>Under section 8 of Article 4 of the Constitution, parties to any cause may submit the same to the Court for determination, without the aid of a jury; and issues sent by the Orphans’ Court to a court of law for trial constitute “a cause” within, the meaning of this section of the Constitution, where such issues are submitted or tried by the Court sitting as a jury. p. 100</p> <p>In general, an application to strike out a judgment must be made within the time allowed to take an appeal and within a reasonable time of the discovery of the facts relied on. p. 100</p>

<p>Appeal from the Circuit Court for Frederick County in ■ Equity (Peter and Motter, JJ.).</p> <p>The facts are stated in the opinion of the Court.</p>

<p> Co-executors: deceased executor; unadministrated estate; petition for account; jurisdiction of Orphans'’ Court. </p> <p>Co-executors are regarded in law as one individual, and the acts of one in respect to the administration of the estate are deemed to be the act of all. p. 117</p> <p>Possession by one executor is possession by all, and powers and duties of executors that remain unexecuted or unfulfilled pass to the survivor. . p. 117</p> <p>Where an executor rests inactive for years (lo) and until Lis co-executor dies, before making any move towards the administration of the estate, he is not in a position to recommend himself to a Court as a party injured by his co-executor, p. 117</p> <p>Where such an executor makes no allegation of waste committed or assets concealed by his co-executor, a petition filed by him in the Orphans’ Court against the executor of the latter, requiring him to file a full itemized and detailed statement of the assets of the deceased executor, can not be treated as an application by one executor against his co-executor upon either of these grounds. . p. 117</p> <p>But where such a petitioner is not only a co-executor, but is also a legatee under the will, the Orphans’ Court has jurisdiction to entertain the petition and to hear and determine exceptions that may be filed to the account. p. 119</p> <p>When such a petitioner takes a position antagonistic to the deceased co-executor and denies all the payments claimed to have been made by the latter, he has no right to have all the vouchers of the deceased executor turned over to him. p. 119</p> <p>Such vouchers should be retained by the executor of the deceased executor for the protection of the estate, subject, however, to be produced before the Court at any hearing upon exceptions to the account rendered by them. p. 119</p> <p>While Orphans’ Courts are courts of limited jurisdiction, yet, by the Code, Article 93, section 235, they are vested with power to direct the accounting of executors and administrators, superintend distribution of estates of intestates and administer justice in all matters relating to the affairs of deceased persons; the language of this section vests in them power to protect the interests of all concerned. p. 119</p>

<p>Twice in jeopardy: invalid indictment; retrial for same offense. “Second offense”: heavier punishment; indictment and verdict. Liquor laws: violations; by licensee or others.</p> <p>Where the indictment under which a traverser , is indicted is declared invalid he may be indicted and tried again for the same offense. p. 125</p> <p>An indictment of a traverser for violating as licensee under section 14 of Chapter 179 of the Acts of 1908 (which section relates to the punishment of licensees found guilty a second time for violating the provisions of the liquor laws), is void, unless it alleges that the traverser was a licensee at the time of his conviction for the first offense. pp. 123,124</p> <p>A simple verdict of “guilty” in such a case does not justify the penalty provided by the statute for a second offense; to justify a sentence for a second offense it must appear from the verdict that the jury have found the party guilty of such second offense. p. 123</p> <p>On an appeal, in a criminal ease, where an error in the judgment or sentence itself is ‘the only error committed by the Court below, the Court of Appeals may reverse the judgment and remand the record, in order that a proper judgment may be prouounced upon the indictment and conviction. p. 123</p>

■ Three appeals from the Circuit Court of Anne Arundel County in Equity (Brashears, J.). The.facts, are stated in the opinion, of the Court. The three causes were argued together before Boyd, C. J., Briscoe, Burke, Thomas, Pattison, Stockbridge and Constable JJ.

<p>Banlerupts: conveyances in defraud of creditors; bill in State Court, for benefit of all creditors, to set deed aside; effect of subsequent discharge; such proceedings gave no lien; not void.</p> <p>The discharge of a debtor in bankruptcy is personal to him, and does not release his fraudulent grantees for liability for the formal conveyances made to them by the bankrupt, p. 142</p> <p>The discharge of a bankrupt does not affect the right of the trustee in bankruptcy, or of creditors of the bankrupt, to have the bankrupt’s property that was previously disposed of for the purpose of defrauding his. creditors, applied to the payment of his debts. p. 142</p> <p>Under the Bankrupt Act, the trustee may institute proceedings in a court of bankruptcy or in a state court, for the recovery of property fraudulently disposed of by the bankrupt, p. 143</p> <p>And where a judgment creditor, more than four months prior to the filing of a petition in bankruptcy against his debtor, filed a bill in a state court to set aside a fraudulent transfer of the latter’s property, and the state court acquires jurisdiction of the parties and the subject-matter of the suit, its jurisdiction is not divested by subsequent proceedings in bankruptcy against the debtor. pp. 144-145</p> <p>A bill filed in a state court by one not a judgment creditor, and filed in behalf of himself and of the other creditors, for the purpose of subjecting to the payment of his debts lands that had been fraudulently conveyed away by the debtor, gives to the creditor no lien, within the prohibition of section 67-P of the Bankrupt Act of 1898; and the proceeding was held not to be void, on the ground of having been instituted within four months prior to the adjudication in bankruptcy, where it did not appear from the record when such adjudication took place. ' pp. 145,146</p>

<p> Equity: sales under foreclosure; enforcement of surrender to purchaser of possession of property sold. Mortgagor and mortgagee: right of former to have proceeds of sale applied to payment of debts other than one specifically secured; adjustment of consequential equities governed by findings of fact. </p> <p>A writ in the nature of a habere facias possessionem is the appropriate remedy in equity to compel the mortgagor in possession to surrender the property sold to the purchaser thereof, after final ratification of sale under foreclosure proceedings. p. 162</p> <p>Where the mortgagor is indebted to the mortgagee for loans other than the one specifically secured by the mortgagee, the mortgagee may, with the assent of the mortgagor, apply a portion of the sum realized from the sale of the property under foreclosure proceedings in partial liquidation of the unsecured debts; and if the mortgagor voluntarily assents to such application of funds, he can not afterwards be heard to complain of the attendant reduction in the value of his equity of redemption. p. 162</p> <p>H., being the owner of three tracts of land, one of which was subject to a mortgage to one L. for $2,500, with the joinder of Ms wife, L. A. H., mortgaged all of said tracts to one 0. to secure a loan of $3,000; thereafter H. executed a second mortgage on the same properties to secure the sum of $1,000, his wife, L. A. H., being named as mortgagee; this mortgage was shortly thereafter assigned by H. and wife to one "W., who, during the next two years succeeding said assignment, loaned to IT. and L. A. H., his wife, some $2,500 on five different occasions, said sums being secured by separate bills of sale on peisonal property of the mortgagors; the original mortgage for $3,000 to O. was subsequently acquired by W. Thereafter, one of the tracts subject to the mortgage held by W., as assignee of O., was sold by H. and his wife. W. joined in the deed and released his mortgage lien thereon, the net proceeds from which sale (some $1,500) were paid to W., who credited no-part thereof to the $3,000 debt under the mortgage held by him as assignee of O.; thereafter, another tract, subject to the lien of both the original L. and O. mortgages, was sold by H. and wife; of the proceeds some $4,000 was paid in liquidation of the L. mortgage, and $1,254 to W., who credited $1,068 thereof on the debt secured by the O. mortgage held by him .as assignee. In addition to this, H. thereafter paid W. $150 in cash which was not credited on the mortgage debt, W. claiming that both said payments — $150 and $1,500 — were by him applied, with the knowledge and acquiescence of H. and L. A. H., his wife, to the reduction of their indebtedness to him secured by the bills of sale. Seven years later the last tract was sold under the foreclosure power contained in the C. mortgage held by W. for $3,100 and purchased by W., and the sale finally ratified and confirmed. The auditor’s account stated the mortgage debt of W. to be some $3,500, and allowed the net sum realized by the foreclosure proceedings, amounting to $2,912, to W., leaving no surplus for the liquidation of L. A. H.’s second mortgage of $1,000, which had therefore been reassigned by ~W. to L. A. H. By exceptions and petition, H. and his wife contended: (a) that the mortgagors were charged with more than due interest on the debt; (b) that W. had purchased the property for the benefit of H. and wife, and that when a final account was stated between them, it would be found that nothing was due under the C. mortgage held by W.; (c) that the $1,000 mortgage of L. A. H. had been assigned to W. as additional security for the 0. mortgage, and that had proper credits been allowed by W. on the C. debt, it would have been liquidated, and therefore the $1,000 mortgage would be entitled to a proportionate part of the fund in court; or (d) that W., having failed to apply the amounts by him received from M. upon the 0. mortgage, H. was entitled to receive out of the proceeds realized by foreclosure a sum equivalent to the total payments so made by him to W.</p> <p>The lower court overruled each objection so made to the auditor’s account, ratified said account, and directed H. and wife to surrender the property to W. On appeal, it was held:</p> <p>(1) That the evidence does not sustain the contentions a, b and d of L. A. H. and H., her husband; p. 161</p> <p>(2) That the testimony of H. shows that he knew, at the time of the various sales and payments, the extent of the credits to which he was entitled, and consented to the manner of their application, and that 1. A. H., his wife, agreed to all transactions made by her husband; and p. 161</p> <p>(3) That objection c was not well taken, inasmuch as both the C. mortgage for $3,000 and the L. A. H. mortgage for $1,000 covered the same property, and the O. mortgage was executed prior to the H. one, and the latter could not have been assigned as additional security for the payment of the debt secured by the former for the reason that it did not, because it could not, afford such additional security. p. 158</p>

<p> Corporations: deeds of trust to secure bonds; misapplication of funds; waste; jurisdiction of equity. </p> <p>A manufacturing company executed a mortgage conveying all its mill property, machinery and real estate, etc., to trustees, to secure its bondholders; the mortgage provided that the machinery, tools, equipment, etc., conveyed, or intended to be thereby conveyed, should be real estate for all intents and purposes thereof, and should be used and sold therewith, and not separated therefrom, except as therein provided; the mortgage made provision for releases of such real estate and leasehold property as might no longer be necessary or expedient to retain, no such property to be released, however, unless sold, or contracted to be sold or exchanged, and provided that all proceeds from such sales, etc., be set apart and held in trust for the purchase of other property, or in betterment of, or in addition to the mortgaged premises; new property acquired in exchange for any property so released, ipso facto, to become and be covered by the lien of the mortgage. The mortgage also provided that the company might from time to time dispose of any part of its machinery, equipment, etc., which might become obsolete, etc., to be replaced by other machinery, which should be subject to the lien of the mortgage. The mortgage contained a provision requiring the company to keep the mills and machinery in repair. The company dismantled and sold certain mills, receiving in payment therefor a note for $300,000, which it deposited with the trustee. Subsequently the corporation sold certain other machinery in another mill, and acquired new machinery under a leasing agreement, by which the title to the new machinery should remain in the vendors until-all payments bad been made. The company filed a bill to compel the trustee to apply the note to the account of the new machinery so acquired; on appeal the order of the lower Court denying such petition was affirmed. p. 172</p> <p>A court of equity will always actively interfere for the purpose of preventing waste of the corpus of a trust estate, p. 171</p>

<p>Mortgages: powers of sale; section 6 of Article 66 of Code; personal trust; assignment; corporations. Representative capacities: execution of deeds; presumptions.</p> <p>The power of sale authorized by section 6 of Article 66 of the Code to be exercised by the mortgagee, or the person named in the mortgage, implies a personal trust, and is an obligation that a corporation is incapable of performing. p. 176</p> <p>A power of sale in a mortgage to a corporation or its unnamed attorney or agent is inoperative and void. pp. 176-177</p> <p>But if the mortgage confers the power of sale upon a mortgagee corporation, “its successors and assigns,” or a designated person as attorney or agent, the assignee (and named attorney or agent) may execute the power if the mortgage so provides. p. 177</p> <p>Where the power of sale is in the first instance given to a mortgagee who is a natural person, the power is regarded as incident to the mortgage security, and as such passes to the successive assigns, even in the absence of any stipulation in the mortgage to that effect. p. 177</p> <p>In a mortgage a power of sale was conferred upon a corporation or H. H. B., its attorney or agent; the mortgage was transferred to another corporation, and hy it assigned to the said H. H. B. for collection; he signed the advertisement as “assignee of the mortgage”; the report of sale was signed “assignee and trustee”; the bond (although referring to the assignment) was executed by him in his individual capacity; the condition of the bond was that he should well and faithfully perform “the trust reposed in him by said mortgage and any decree or order in the premises.” Held, that a sale made by him in distinct reference to a power expressly and lawfully conferred upon him by the mortgage, was not rendered ineffective merely because the capacity in which he acts was not correctly stated. p. 177</p> <p>Where a party has various capacities and executes an authority delegated to him in one of those capacities, the law will attribute the act to the proper authority, although the party does not profess to execute it in virtue of tha paricular power. pp. 177-178</p>

<p>Two appeals from Circuit Court Ho. 2 of Baltimore City (Gorter, J.).</p> <p>The facts are stated in the opinion of the Court.</p>

<p>Two appeals from the Circuit Court of Baltimore City (GrORTER, J.).</p> <p>The facts are stated in. the opinion of the Court.</p> <p>The causes were argued together before Boyd, C. J., Briscoe, Burke, Urner, Stockbridge and Constable, JJ.</p>

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

<p>Distribution: title to personal property; through administration only — ; executors; death of — ; administrators d. b. n.c. t. a.; powers and authority; ivasted assets.</p> <p>A prayer instructing the jury that there is in the case no legally sufficient evidence from -which the jury could find a verdict for the plaintiff, and that their verdict must be for the defendant, amounts to a demurrer to the evidence, and admits its truth, but denies its sufficiency. p. 205</p> <p>When an executor dies without having made a full distribution and delivery of the estate and assets, it is necessary to appoint an administrator d. b. n., and it is not competent, as a general rule, for the executor’s executor to interfere with such assets or to render an account for the deceased executor, p. 207</p> <p>Title to the personal estate of a decedent can be transmitted only through the medium of letters of administration; the law vests the personal estate in the administrator who represents the deceased and the next of kin must derive their title through him. p. 208</p> <p>The authority conferred upon an administrator d. b. n. by section 70 of Article 93 of the Code, is to administer all things, not already administered, which are described as assets and which have not been converted into money, nor distributed and delivered, nor retained by the executor or former administrator, Under the Court’s direction. p. 208</p> <p>Under section 72 of Article 93 of the Code, the Orphans’ Court has the power on application by an administrator d. b. n. to order the administrator or executor of a deceased administrator or executor “to pay over to him money in his hands as such,” and upon a refusal to comply with the order, the Court may order the bond of the deceased administrator to be put in the suit. p. 203</p> <p>If the fund has been lost, wasted or misapplied by the deceased executor, a court of equity may, upon proper application, •appoint a trustee who would be entitled to maintain an action for the recovery of the fund. p. 209</p>

<p>Reversionary interests: owner of ground rents; injuries to property; claim for damages. Evidence: condition of place after act complained of. Experts: evidence of — .</p> <p>The landlord’s interest in the land, out of which an irredeemable ground rent issues, is but a money investment analogous to that secured by a mortgage. p. 216</p> <p>Por the owner of the reversion in a lot of land, leased for 99 years, renewable forever, under an irredeemable ground rent, to be able to recover damages for an injury to a building thereon, he must show that his reversionary interest was damaged in consequence of the injury or partial destruction of the house. p. 216</p> <p>Where it is a question of the condition at the time of the accident, evidence of the condition of the place after considerable time has elapsed, is not, in general, admissible, unless accompanied by evidence that such conditions had not changed since the accident. p. 220)</p> <p>Suit was brought for damages to a building claimed to have been occasioned by the digging of a sewer near it without the precaution having been taken to prevent the sinking of the land, etc.. To prove what precautions had been taken, a considerable time after the accident the cobblestone pavement was taken up and boards which had been driven in the ground for the purpose of shoring it up, and left in the ground after the sewer was constructed, were drawn out so as to show the depth and character of the soil. Held, that, under such circumstances, as the depth to which the boards had been driven had not been changed since the accident, the evidence was admissible. p. 219</p> <p>In an action for damages because of the careless digging of a trench near the wall of the plaintiff’s house, by reason of which the wall and house were injured, a person who, although not there the day the trench was dug, was there the day following when the trench had not been filled up, and while he could still see in the trench and see what had been done, and who had been an inspector of buildings, was held to be qualified to testify as an expert. p. 218</p> <p>Such a witness should not be allowed to testify that the work had been negligently done, without first having told the jury how it had been done. p. 218</p>

<p> Trustees: appointed by Court to malee sales; title; mere hand of Court; no interest in proceeds; injunction to restrain sale; suit on injunction bond. Pleading at law: declaraÜQns; too many, or too few parties; when ground for demurrer. </p> <p>Where a trustee is appointed by decree of a court of equity to make a sale of property, the sale is a transaction between the Court and the purchaser. p. 225</p> <p>The Court in such a case is the vendor, and the trustee is merely the Court’s agent to carry the order into effect, p. 225</p> <p>The trustee has no title, by virtue of his office, to the property decreed to be sold, and no interest as to the proceeds of the sale. p. 225</p> <p>And in order for the Court to stop such a trustee from making the sale, it is not necessary for the Court to issue an injunction. p. 225</p> <p>Trustees were appointed by a decree of a court of equity to sell property for the purpose of enforcing a mechanics’ lien: An injunction was issued to prevent the sale, but on appeal the order for the injunction was 'reversed; and suit on the injunction bond was filed by the trustees for damages suffered by them because of the injunction proceedings and for the deterioration of the property, and for the expenses, etc.; it was held, that the trustees were not entitled to recover. p. 227</p> <p>The trustees were not joint obligees with the other equitable plaintiffs on the bond. p. 227</p> <p>The interest of such trustees to the commissions is not a joint interest with that of the other equitable plaintiffs in the suit on the bond. p. 227</p> <p>Where trustees have title to the property to be sold and it is their duty to sue, etc., other principles apply. pp. 227-228</p> <p>A declaration filed against defendants with interests so diverse that it is impossible for them to file pleas which would be able to stand the test of a demurrer or which would bring the ease to issue, is demurrable. p. 228</p> <p>In an action ex contractu where there are too many, or too few, parties, and the effect is apparent on the face of the declaration, a demurrer will lie. p. 228</p>

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

<p>Attachment proceedings: amendments liberally construed; interrogatories to garnishees; answers under oath; signed by attorney; right to correct — ; exemptions; wages of employees not actually due; salesmen.</p> <p>Neither section 13 nor section 15 of Article 9 of the Code requires the answers of the garnishees, to the interrogatories filed in attachment proceedings, to be made under oath. p. 244</p> <p>The statute in regard to amending attachment proceedings is liberal; and answers signed by the garnishee, which were previously signed and filed for him by his attorney, were held to be admissible, even though the twenty days in which the garnishee is required to file such answers had passed (the answers, however, having been signed by the attorney within that time). . p. 244</p> <p>A salesman for a piano dealer is an employee, within the meaning of section 33 of Article 9 of the Code, exempting from attachment the wages or hire of any employee or laborer in the hands of the employer, unless actually due at the date of the attachment. p. 248</p> <p>In such a case, where an attachment is laid in the hands of the employer, if no wages were due at the time of bringing the attachment, the employer may plead “nulla bona ” although wages may have become due and have been paid at the date of the trial. p. 248</p> <p>Statutes exempting wages from attachment are to be given liberal interpretation. p. 248</p>

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

). The facts are stated in the opinion of the Court. The following are the prayers of the plaintiff and defendant and the action of the lower Court thereon: Plaintiff’s First Instruction. — The plaintiff prays the Court to instruct the jury that if they find from the evidence in this case that on the 20th day of October, 1911, she was traveling along and upon, the Williams street crossing of the defendant company in the City of Cumberland, Maryland; that said Williams street…

Two appeals from the Orphans’ Court for Washington County. The facts are stated in the opinion of the Court. The two causes were argued before Boyd, C. J., Briscoe, Burke, Thomas, Urner, Stockbridge and Constable, JJ.

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

<p>Appeal from the Circuit Court for Prince George’s County (Beall, J.).</p> <p>The facts are stated in the opinion of the Court.</p>

<p>Appeal from the Circuit Court for Prince George’s County (Beall, J.)</p> <p>The facts are stated in the opinion of the Court.</p>

<p>Appeal from the Circuit Court of Baltimore City (Bond, JO-</p>

<p> Master and Servant: injury to third party; when master not liable. Automobiles: chauffeurs. </p> <p>A master is not liable to third persons for the negligence of his servant, if at the time of the accident the servant was not acting within the scope of his employment, but was acting contrary to his master’s express orders and exclusively for his own individual purpose. p. 315</p> <p>A chauffeur having been sent back with his master’s automobile from Virginia and ordered to take the machine to the garage in Baltimore City, instead of so doing, when near Baltimore spent the day driving about with friends and going from road house to road house with them, and while so engaged ran into and injured the plaintiff’s carriage; held, that under such circumstances the servant alone was responsible for the consequences of his negligence. p. 315</p>

<p> Mortgages: foreclosure; advertisement; description, sufficiency; terms; whole tract or separate lots; •mere inadequacy of price. </p> <p>Where the advertisement of a mortgage foreclosure was published in full in a paper published in the county where the land lay, and also in a paper published in the City of Baltimore, for the full time required by law, and an abbreviated form of advertisement was inserted in another Baltimore paper, and large placards were placed on the property and galley-proof copies of the full advertisement were mailed by the auctioneer to more than a hundred persons likely, in his judgment, to be interested as possible purchasers, and where in all of said advertisements there- was the information that copies of the plat of the property and fuller details with regard to it could be had on application, etc., it was held, that this advertisement was greater than required by law, and that no valid objection could be made to the sale because of the means provided for public notice. p. 324</p> <p>It was further held, that objection to the sufficiency of description in the advertisement was not sustained by the proof. p. 324</p> <p>In a mortgage foreclosure it is the duty of the trustee to offer the property in such a manner as to bring its fair market value, and to exercise the same judgment and prudence that a careful owner would use in the sale of his own property. Whether it is advisable to sell the land by the acre or by building lots depends largely upon the location of the property and the surrounding circumstances. p. 32b</p> <p>Certain suburban land was sold under foreclosure proceedings subject to tbe lien of a prior mortgage; tbe prior mortgage contained provisions for releasing tbe land from time to time in one or more blocks into wbicb it bad been subdivided; according to tbe terms of tbe advertisement, tbe land was first offered by separate blocks and finally sold as an entirety; upon objection to tbe ratification of tbe sale on tbe ground tbat tbe land should have been divided and offered in separate lots instead of in bulk, it was held, tbat upon all tbe facts of tbe case no valid exception could be made on this ground to tbe ratification. p. 326</p> <p>Mere inadequacy of price is not sufSceint ground upon wbicb to set aside a sale, unless it be so gross as to indicate mistake or fraud on tbe part of tbe trustee or mortgagee making tbe sale, or unless there is some just cause wbicb tbe purchaser may be responsible for, wbicb affords reasonable ground to suppose tbat tbe sale was improperly made. p. 326</p> <p>Suburban property, consisting of 106 acres on tbe Pimlico Road near Baltimore, was sold under foreclosure proceedings for $36,000, subject to a prior mortgage of $66,000 and to other liens, costs and charges, making tbe actual aggregate purchase price $110,676; upon an exception to tbe ratification of tbe sale on tbe ground of inadequacy of price, it was held, tbat tbe price could not be said to be so grossly below its full value as to make proper a reversal of the decree ratifying tbe sale. p. 327</p>

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

<p>Usury: payments by others than the borrower; voluntary payments. Loans on chattels: Acts of 1894, Chapter 629; interest; loans an real and personal property. National banks: interest; Revised Statiotes; sections 5197, 5198.</p> <p>The usury laws of this State do not render the contract void; but only permit the borrower to recover, in law or in equity, the amount paid by him in excess of the interest allowed by law; or he may, when sued on a usury contract, be allowed such excess. p. 355</p> <p>But usury laws are enacted for the protection of the borrower only from the oppressive demand of the lender; and only from excessive burdens imposed on the borrower is relief afforded. p. 355</p> <p>One of the conditions of a written agreement under which a bank made a loan to a debtor was that, in addition to the legal i ate of interest, a debt owed by a third party to the bank should be paid by the borrower, if not paid before a certain date by certain relatives of the third party. Such payment was.in fact made by the relatives. Held, that there being no evidence that such payment was made at the request of the borrower, the bank was not guilty of usury. p. 357 Voluntary payments can not be recovered. p. 356</p> <p>A party is not entitled to recover payments which he was under moral obligation to pay. p. 356</p> <p>While relief may be had from usurious demands, regardless of the device resorted to by the lender, a borrower can not recover what he has not actually paid, in the absence of some statute authorizing him to do so. p. 356</p> <p>Under sections 5197 and 5198 of the Revised Statutes of the United States, recovery may be had for interest charged by national banks in excess of that which is allowed by law; but such actions must be commenced “within two years from the time the usurious transaction occurred.” p. 358</p> <p>Chapter 629 of the Acts of 1894, prohibiting corporations from making any loan on the security or chattels, etc., otherwise than in its own name, or at any rate higher than 6 per cent., and declaring such contracts in violation of such provisions to be null and void, does not apply to mortgages on real or leasehold property. p. 356</p> <p>This Act does not apply to a mortgage covering both chattels and leasehold property. p. 356</p>

<p> Land Office: appeals; patent for vacant lands. </p> <p>An appeal was taken from the ruling of the Commissioner of the Land Office, deciding that the patent applied for, for certain land alleged to he vacant, was valid and should issue as prayed; the evidence in the case was considered by the Court of Appeals and the ruling of the Commissioner affirmed. p. 365</p>

Appeal and cross-appeal in one record from the Baltimore City Court (Dawkins, J.). The facts are stated in the opinion of the Court. The two causes were argued together before Boyd, O. J., Briscoe, Burke, Thomas, Pattison, Stockbridge and Constable, JJ. The following are the prayers of the parties, together with the action of the lower Court thereon: , Petitioner s First.

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

<p>Streets: dedication; intention of grantor; reference in deeds to streets as boundaries; acceptance by municipal authority ; delay in — ; user by public.</p> <p>The dedication of k street to the public use by plats or deeds does not make it a public highway; such conveyance does not become final and irrevocable unless there has been an acceptance of it on the part of the public authorities. p. 392</p> <p>Where user or prescription is relied upon to establish a public highway, it must be an uninterrupted user by the public f&r at least twenty years; and such a user for a less period of time will not suffice. p. 393</p> <p>Where a municipality never formally accepted a street that had been so dedicated and laid out, and never made any repairs on it or exercised control over it, and where the use the public made.of it had been but slight, it was held, that there was no evidence sufficient to justify the inference that the street had been accepted as a public street or highway. p. 393</p> <p>Mere delay in the acceptance of a dedication will not bar the right of a municipality to control or open such a street p. 393</p> <p>But where a street that has been dedicated to the public had never been accepted by the municipality, it was held, that one who had for forty years occupied a dwelling in the bed of the street could not be dispossessed thereof or the building removed, without just compensation. p. 393</p> <p>An appeal will not be dismissed for failure to transmit the record in time, when it appears that the delay was attributable to the Clerk of the Court. p. 395</p>

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

<p>injunction: order restraining the complainant pending the final proceedings; Code, Article 16, section 199 ; Court to retain jurisdiction pending trial of issues as to legal titlej protection of railroad travel. Trespass q. c. f.: railroad emba.nk?nents; encroachments of — . Ejectment: title of plaintiff.</p> <p>One who owned land adjacent to and bordering along a railroad embankment filed a bill, alleging that the railroad was encroaching upon his land by extending the embankment and by placing dirt, or letting it fall and extend beyond the railroad’s lines, and prayed for an injunction to restrain the railroad from such acts; pending the injunction proceedings, the complainant began to cut away part of the embankment that he claimed encroached upon his land. The railroad filed a petition alleging that such cutting away of the embankment weakened the structure and disturbed the stability of the ties and rails, and endangered the lives of the traveling public, and prayed for an order restraining the complainant from interfering with the embankment until the final hearing, ^nd further prayed that in the meanwhile it might be given leave to make and maintain the embankment in a safe condition for the traveling public and for other relief; at the final hearing, the injunctions and the petition were dismissed without prejudice to any proceedings at law either party might be advised to .take. On an appeal by the railroad from the order dissolving the injunction and dismissing the petition, the cause was remanded, (as it was impossible for the Court of Appeals, from the record, to determine the true location of the parties’ lines) without affirming or reversing the order appealed from, the Court below to continue the injunction, with the relief prayed by the railroad and to provide for further proceedings at law to have the title determined within a day to be named in its order. p. 420</p> <p>An action of trespass quare clausum fregit will, lie to determine questions of title. p. 419</p> <p>An action of ejectment may involve simply the question of title to a piece of land in regard to the location and boundaries of which there is no dispute, or the contention may be whether the land in controversy, truly surveyed and located, is within the lines of the plaintiff’s or defendant’s title papers. p. 419</p> <p>But the plaintiff can only recover provided the title to the disputed tract is in him. p. 419</p> <p>Under section 199 of Article 16 of the Code of 1912, the Court may, at any stage of the cause or matter, on the application of any party thereto, or party in interest, issue an injunction commanding any party to such a cause or matter to do or abstain from doing any act or acts, etc. p. 413</p>

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

<p> Wills: construction; life tenant, with full power to sell and convey; purchaser’s rights; application of purchase money. </p> <p>A will left all the estate to E. J. M. for and during her natural life, with full power to sell any part of the property or estate so devised and bequeathed to her, and to reinvest the proceeds for her use or benefit during her life; held., that under this provision, E. J. M. had ample power to make a conveyance of the property, and that the purchaser was not bound to look to the application of the purchase money. p. 444</p>

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

Two appeals in one record from the Circuit Court for Harford County (Harlan, J.). The facts are stated in the opinion of the Court.

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

<p>Appeal from the Circuit Court for Howard Comity (Forsythe and Beasheabs, JJ\).</p> <p>The facts are stated in the opinion of the Court.</p>

The facts are stated in the opinion of the Court. Cross-appeals from the Circuit Court of Baltimore City (Bond, J.). The two appeals were argued together before Boyd. C. J., Burke, Pattison, Urner, Stockbridge and Constable, JJ.

<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>Equity: practicej preliminary legal questions. Baltimore City : assessments for benefits for local improvements. Fallsway: construction; delegation of power to Commission on City Plan, or Commissioners for Opening Streets; special funds provided, by Chapter 110 of Acts of 1910; assessments for benefit. Commissioners for Opening Streets: powers and duties. Municipal corporations: power from Legislature to • delegate authority; discretion.</p> <p>Under section 205 of Article 16 of the Code of 1912, a court of equity may have preliminary questions of law determined before the trial of any issue of fact in the case. p. 507</p> <p>The power to assess property in particular localities to the extent that it is deemed specially benefited by local improve^ rnents is one that has been expressly granted to the Mayor and City Council of Baltimore, and one that the City has long exercised. p. 508</p> <p>Such a right is to be referred to the power of taxation, p. 508</p> <p>By section 175 of the Charter of Baltimore City, the Commissioners for Opening Streets are required to assess benefits whenever they are directed by. ordinance to act in connection with street projects; the exercise of such power is not to be denied the commission merely because of the creation of a spe-</p> <p>eial fund for the purpose of providing the costs and expenses of the improvements. p. 510</p> <p>Exemptions from taxation are to he strictly construed. p. 510</p> <p>Chapter 110 of the Acts of 1910, relating to the construction of the Eallsway in Baltimore City, did not qualify or restrict the charter power of the City or of the Commissioners for Opening Streets to assess property specially benefited by the undertaking; a City ordinance empowered the Commissioners to condemn and open the thoroughfare by procedure in accordance with the said Act, and in accordance with such of the provisions of the City Charter as might be applicable; it was held, that the fact that the Act provided for a fund to meet the cost and expenses of the improvement, had no effect on the power of the City and the Commissioners to assess for benefits. p. 510</p> <p>' The right to assess such benefits does not depend upon the insufficiency of the fund intended to meet the expenditure with which the municipality is primarily chargeable. p. 511</p> <p>LTo considerations of public interest or private right make it proper to hold that by the permissive terms of Chapter 114 or Chapter 110 of the Acts of 1910 (as to the creation of the Commission on City Plan),-the City of Baltimore was required to delegate to the commission the execution of the plan contemplated for the construction of the Fallsway. p. 514</p> <p>When Acts of the Legislature leave to a municipality the authority to delegate certain powers to different commissions, the discretion as 'to which agency should be selected is in the municipality. p. 514</p> <p>The acquisition of the “adjacent land” authorized by Chapter 110 of the Acts of 1910, in connection with the Eallsway, was such as might be incident to the accomplishment of that object. p. 513</p>

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

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

<p>Penal statutes: construction; police power; control of private property; Baltimore City; 11th Amendment to U. S. Constitution; “Segregation Ordinance”; Ordinance 692 of Mayor and City Council of Baltimore, of May 15th, 1911; regulating the residential districts of races in Baltimore City; vested rights.</p> <p>While penal statutes are to be strictly construed, their construction must not he unreasonable or forced. p. 538</p> <p>In sections 1 and 2 of the Ordinance No. 692 of the Mayor and City Council of Baltimore, of May 15th, 1911, providing for the segregation of white and colored people in different residential districts, the words “in whole or in part” modify the words “residences or places of abode,” and the section means that where the buildings in a block, “so far as the same are occupied,” are used in whole or in part as residences or places of abode by members of one race, then no member of the other race shall occupy any building in that block as a residence. The words “in whole or in part” apply to blocks where all of the houses are wholly occupied, as well as to blocks where, although some are vacant, the other buildings are occupied by members of one race only. ' p. 530</p> <p>Where some of the houses are partly used as residences and partly as shops and stores, or for purposes other than for residences, only portions of the houses used as residences are to he considered in determining the question as to whether or not the block shall come under the operation of the ordinance. p. 539</p> <p>This ordinance is not a violation of section 221 of the City Charter. p. 540</p> <p>It is for the preservation of peace, the prevention of conflict and ill-feeling, between the white and colored persons in Baltimore City, and for promoting the general welfare of the City; provisions applicable to the white race are made precisely applicable to the colored race, and the ordinance does not present any ease of discrimination prohibited by the 14th Amendment to the Constitution of the United States, or by Article 23 of the Bill of Eights of Maryland. p. 540</p> <p>Ordinance 3sTo. 692 is unconstitutional, however, because its provisions are made applicable to property owned before its passage; under the guise of the police power, it is a taking away of vested rights. pp. 550, 551</p> <p>It is not to be presumed that the Legislature meant to confer upon the City the power to prohibit by ordinance one who was the owner of a dwelling when the ordinance was passed, from moving into it, simply because he is of a different color from other persons using the block, in which his house is situated as a dwelling or place of abode. p. 551</p> <p>The object of section 221 of the City Charter, providing that every ordinance enacted shall contain but one subject which shall be described in its title, as in the case of section 29 of Article 3 of the Constitution, is to prevent the incorporation in one Ordinance of distinct and separate matters of legislation having no connection with each other, and not referred to in the title. p. 540</p> <p>Under its Charter, the City of Baltimore, in the exercise of the police power, has the same power to pass ordinances for the maintenance of the peace, good government, health and welfare of the City as the Legislature has to enact statutes for that purpose. p. 540</p> <p>The Mayor and City Council of Baltimore has the power to pass ordinances for the segregation of races in Baltimore City. p. 548</p> <p>In determining the constitutionality of an ordinance passed under the exercise of the police power, courts must take into consideration the reasonableness of their provisions, and determine whether or not they are so reasonable or oppressive as to cause the assumption that the Legislature did not intend to empower the municipality to enact them. p. 541</p> <p>The 14th Amendment to the Constitution of the United States does not take from the states the police power that they possessed before the Constitution was adopted; and the states still possess those powers subject to the observance of the fundamental principles of civil rights. p. 544</p> <p>The absolute control of property by an owner may be subject to reasonable regulations under the police power of the State; and the owner may not use his property as he pleases, if such use injuriously affects others. p. 550</p> <p>Bolus populi, suprema lex. ■ p. 542</p>

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

<p>Statutes: duly authenticated; parol testimony may • not contradict.</p> <p>When the formalities required by law and established practice for preserving the identity of an Act of the General Assembly appear of record to have been duly observed, the proof thus afforded gives to the enactment such a degree of authenticity as to place it beyond the reach of contradictions which rest merely on parol and are subject to the infirmities and diversities of memory. p. 564</p> <p>Even the legislative journals do not have a probative quality, sufficient of themselves to contradict a statute duly authenticated, and are entitled to be considered, for such a purpose, only in connection with other competent proof. p. 566</p> <p>When an Act of Assembly has been duly authenticated with all the formalities provided by law, it can not he contradicted by the parol testimony of an engrossing clerk, to the effect that after the bill was engrossed he erased certain provisions merely by drawing lines through them, although it also appears that the journals of the two houses did not1 show any authority for any such alteration of the bill. p. 566</p>

). The facts are stated in the opinion of the Court. The following are the prayers offered by the plaintiff and defendant respectively and the action of the Court thereon: Plaintiff’s First Prayer. — rThe plaintiff prays the Court to instruct the jury that if they find from the evidence that the defendant agreed with the witness, Spalding, to purchase the farm as set out in the contract offered in evidence in this case, and that the defendant had sixty days within which to…

<p>Appeal from the Circuit Court for Baltimore County (Dub-cab, j.). ,</p> <p>The facts are stated in the opinion of the Court.</p> <p>The cause was submitted to Boyd, C. J., Briscoe, Burke, Thomas, Pattison, Urner, Stockbridge and Constable, JJ.</p>

<p> Trespass: entry of another’s land; damages; when nominal only. </p> <p>Any unauthorized entry upon the lands of another is a trespass, and whether the owner suffers substantial injury or not, he at least sustains a legal injury which entitles him to a verdict for damages, although they may be merely nominal. p. 588</p> <p>In such a case, in order to entitle the plaintiff to a verdict, it is not necessary that he should give affirmative proof that he had sustained that particular amount of damages. p. 588</p> <p>To entitle a plaintiff in such a case to more than nominal damages, it must be shown from the evidence that he has sustained special damages in consequence of the wrong complained of, or that the unauthorized entry or trespass was willful, wanton or malicious, or that the trespass was committed with such reckless disregard of the rights of the plaintiff as to entitle him to punitive or exemplary damages. p. 588</p> <p>Where a contractor employed in changing the grade and in paving a street, by mistake, took some loads of gravel from a vacant lot, in a way which caused it no injury, it was held, that owner of the lot was not entitled to any more than nominal damages. p. 590</p>

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

<p> Corporations and stockholders: title to property; assets of corporations. Trustees: construction of instrument. Fees: chargeable to the firm. </p> <p>Where a trustee’s administration of the estate, in view of a conflict of interests, can not be safely completed without judicial construction, the costs of the necessary proceedings are properly chargeable to the fund. p. 607</p> <p>A stockholder, as such, is not the owner of any portion of the property of the corporation, and, apart from his stock, has no interest in the assets capable of being assigned. • p. 604</p> <p>Where a person is the owner of all the capital stock of a corporation, his acts in reference to the property bind the corporation. p. 604</p> <p>But, in general, a stockholder, while retaining his ownership, can not assign the interest represented by his stock in any particular claims of the corporation’s assets. p. 605</p> <p>Certain cestui que trusts charged their trustee with having diverted the funds of a solvent corporation, of which he was the president and in which their estate, as well as said trustee individually, were the principal stockholders, into certain insolvent corporations, in the stock of which latter both were also interested, thereby incurring a large loss to the stockholders of said solvent corporation. In an agreement between the said cestui que trusts on behalf of their estate and their trustee, the latter agreed to pay the former a large sum of money to compensate them for the losses so incurred by them, and the former agreed to assign to him in consideration thereof “all the interest, estate, title, claim and demand of every description” of their estate “in the capital stock and shares of stock, property and assets of every description” of said insolvent companies: said estate, however, in which said cestui que trusts were interested, to retain its stock in the solvent corporation. Shortly afterwards the entire stock of the solvent corporation was sold, but the original holders thereof individually reserved and retained all of their claims (based on the advances so made by the said trustee as its president) against the insolvent corporations. Held, that the agreement did not operate as an equitable assignment, on the part of the estate in which said cestui que trusts were beneficially interested, to assign said estate’s interest in claims' originally due by said insolvent companies to said solvent company, pp. 605, 606</p>

<p> Prayers: “no evidence” ; duty of the Court; malicious prosecution; want of probable cause. Malice. </p> <p>Where, at the end of all the. evidence, both of the plaintiff and the defendant, the defendant prays for an instruction directing a verdict in his favor, on the ground that the plaintiff has offered no evidence legally sufficient to establish his case, on appeal, the Court must consider the whole evidence and not that of the plaintiff alone. p. 610</p> <p>Such a prayer amounts to a demurrer to the whole evidence, and the Court, in dealing with it, must assume the truth of the facts adduced in support of the plaintiff’s case. p. 610</p> <p>In such a case, the Court may consider other facts appealing in the record that have been proved, and not denied by the plaintiff. p. 610 '</p> <p>In order to enable a plaintiff to recover in a suit for malicious prosecution, in addition to the fact that he was prosecuted and acquitted,.he must show that he was prosecuted at the instance of the defendant, and that such prosecution was both malicious and without probable cause on his part. p. 611</p> <p>The want of probable cause in such a case is a mixed question of law and fact. p. 611</p> <p>In such a case probable cause is such a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in believing the party accused to be guilty. It is wholly immaterial whether the party was guilty or not, if the facts known to the defendant, and only known to Mm, were such as would warrant a cautious man in believing the party to be guilty. p. 612</p> <p>While malice may be inferred from the want of probable cause, a want of probable cause may not be inferred from even the most express malice. p. 616</p> <p>In an action for malicious prosecution, where the defendant in such action had caused the plaintiff to be arrested on the charge of conspiracy to defraud (by means of false certificates of weight as to several loads of hay), it was held, that the plaintiff had failed to establish want of probable cause and that he was not entitled to recover. . p. 617</p>

<p>Contracts: canners and growersj breachj refusal of defendant to accept goods; duty of plaintiff to minimize damages. Experts: capacity. Witnesses :<= estimates of — . Prayers: segregating facts; withdrawing facts from jury. Evidence: improperly excluded, when no ground for reversal. Suits on contracts: specially declared on; and bill of particulars.</p> <p>Where a person wrongfully discharged brings suit against the employer for his loss of wages, etc., he is required to show that he used all reasonable exertion to minimize the loss resulting from the breach of the contract. p. 624</p> <p>A tomato grower had a contract with a canner for taking his crop at a certain price; at a time when the canner was receiving more tomatoes than he could handle he refused to receive those of the grower; in an action by the grower against the canner, it was held, that the plaintiff and the jury would have been amply justified in inferring that such refusal was temporary only, one which might be terminated at any time, and there was no obligation upon the plaintiff to show that he had sought any other purchaser for the tomatoes so rejected. p. 624</p> <p>In an aetion by a tomato grower against a canner with whom he had a contract for the purchase of his crop, the defendant, by a certain prayer,. sought relief from liability as to all the tomatoes not accepted and receipted for, on the ground of the alleged unmerchantable character of some of the tomatoes tendered or delivered, constituting, as he claimed, a violation of the contract on the part of the plaintiff; at the time of snch rejection the defendant did not annul the contract on this ground, but, on the contrary, according to his own evidence, invited the plaintiff to send other tomatoes of a different quality, etc.; it was held, that such a prayer was improper, p. 625</p> <p>The fact that there was a contract between the plaintiff and defendant for the sale and purchase of the plaintiff’s crop, does not negative or modify the cause of action set out in a suit for goods bargained and sold; it only affects the price, terms and conditions of the sale. p. 624</p> <p>In a suit upon a contract, specially declared on, as such, and where such contract forms the basis of the claim, the price named in the contract, and not the actual value of the articles sold, must be the measure of recovery, limited to the extent, that if, in such a case, the plaintiff files a bill of particulars, he cannot recover in excess of what he sets out in the bill. p. 623</p> <p>In an action for damages for the breach of a contract between a tomato grower and a canner, one shown to have been both a tomato grower and a canner is properly qualified to express an opinion as to the merchantable character of the tomaloes in question, which he had seen. p. 622</p> <p>A competent witness may give in evidence his estimate of the number of animals, articles or persons, etc., observed by him, provided the inference be founded on adequate data. p. 622</p> <p>Answers of witnesses that are irresponsive to the questions asked may be properly stricken out, whether the answers were intended to be evasive or not. p. 622</p> <p>A prayer instructing the jury that the plaintiff is entitled to recover, provided they find certain facts, withdraws from their consideration all facts other than those mentioned; and if from any facts so excluded the jury would have been justified in drawing a conclusion different from that which the prayer requires them to find, the prayer is erroneous. p. 624</p> <p>The. wrongful action of the Court below in overruling an objection to the evidence of a witness, is not ground for a reversal when evidence of the same character had already been admitted without objection. pp. 621-622</p>

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

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

<p> General liquor laxos and special charter of corporation. Statxdes: repeal by implication; not favored. Injunctions: to restrain criminal proceedings; allegations and exhibits; hearing on bill and answer. </p> <p>Repeal of statutes by implication is not favored, and only when two Acts are so plainly inconsistent and irreconciliable that they can not stand together will the latter be held, by implication merely, to repeal the former. p. 652</p> <p>Section 37 of Chapter 245 of the Acts of 1894, incorporating the Commissioners of Chesapeake Beach, authorized the Commissioners to issue to the Chesapeake Beach Hotel Company licenses to sell liquor, and Chap. 120, Acts of 1900, amending that Act made it unlawful for any licensee to sell, etc., any liquor between the hours of midnight and 5 o’clock in the morning, with permission to sell liqupr at all other times; it was held, that these Acts did not repeal the general Sunday laws, and the right there given to sell liquor “at all other times” did not include the right to sell liquor Sunday. p. 653</p> <p>A municipal ordinance restricted the running of slot machines to the boardwalk, the-property of the Chesapeake Beach Hotel Company, upon the payment by the owners of the machines of a license fee for each machine. The Hotel Company, by an agreement with a certain C. P., allowed him the exclusive privilege to erect and operate such- machines for a period of five years in consideration of his paying to the Hotel Company a certain commission on the gross receipts. The said C. P. died during the term, and his estate continued the business of the slot machines; and upon a bill being filed by the Hotel Company to enjoin the sheriff of the county from making arrests, etc., or interfering with the slot machine business during the excursion season, and while the County Court was not in session, etc., until a Court of competent jurisdiction could pass upon the legality of such business, it was held, that the license and the agreement, etc., should have been filed or exhibited, or their absence accounted for, and that it should have been made to appear whether or not the said C. P. had been the owner of such machines, p. 655</p> <p>Where a plaintiff appeals to a court of equity to protect his legal rights, he must show a strong prima facie case in support of the right asserted, and show that irreparable or serious injury will result from the invasion of his right, the irreparable or serious injury he has sustained or will likely sustain, before such rights can be fully vindicated in the proper forum, being the equity on which the application for an injunction is founded. p. 655</p> <p>When a complainant seeks the intervention of a court of equity by way of injunction, he must make out a clear case, and if he has in his possession or can produce authenticated copies of papers or instruments in writing on which his equity rests, such papers must be filed in support of the bill. p. 651 When the application for an injunction is heard upon bill and answer, the answer must be considered, and if they determine the equity of the bill in such a manner as would authorize the dissolution on motion to dissolve the injunction, the injunction ought not to be granted. p. 651</p> <p>So far as they are responsive to the bill, such answers are to be taken as true,' but new matters set up by way of avoidance, which can only be established by evidence, do not, in general, avail to prevent the issuing of the injunction. p. 651</p> <p>But where the Court is satisfied that the complainants will not suffer by not having an injunction issued at once, and testimony can be taken in a reasonable time, if the new matter be of a character that if proven would ultimately require the dissolution of the injunction, the Court has discretion to issue the injunction or not. p. 651</p>

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

<p> Undue influence: effective at time of execution of will; issues for jury; prayers; refusal of correct. </p> <p>Where the evidence is legally sufficient to meet the burden of proof, but is conflicting, it is exclusively within the province of the jury to weigh it, upon proper instructions from the Court upon the law applicable to the facts of the case, and the jury’s conclusion of fact cannot be reviewed on appeal, and must stand, unless there was substantial error in the ruling of the Court. p. 672</p> <p>Unless the influence which the law terms “undue influence” was effective at the time the will was executed, the will cannot be said to be the product of undue influence. p. 675</p> <p>Where issues involving the question of whether undue influence was exerted to affect the execution of a will are sent to a jury for determination, prayers are erroneous which, in submitting the question to them, do not limit the consideration as to whether at the time the will was executed the testator was affected by such influence. p. 675</p> <p>But a prayer that requires the jury to determine from the evidence whether the testator was influenced by the caveatee or some other person in. making the disposition of his estate shown by the will, is not open to objection on that ground. p. 675</p> <p>But such undue influence, to effect the validity of a will, need not be exerted immediately and directly at the time at which the will was actually being executed. p. 675</p> <p>Prayers should be drawn with all the brevity consistent with a clear, accurate statement of the law affecting the facts of the case, and prolixitiy or unnecessary repetition tend rather to confuse than to enlighten the jury. p. 676</p> <p>Unless it appears that the party was injured by the refusal of his prayer, such ruling, even though erroneous, can form no ground for a reversal. p, 675</p>

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

<p>Mechanics’ liens: statutory remedy; Baltimore Oity; labor only; entire contracts.</p> <p>The right to a mechanics’ lien for labor, work done and materials furnished, under the law, is not a vested right, but is a remedy only created by positive statutory enactment. p. 690</p> <p>The right to a lien depends entirely upon the statute, and the party seeking the remedy fdr the lien must come within its provisions. p. 690</p> <p>In Baltimore City, under an indivisible building contract, including the furnishing of materials and labor, there is no lien for the payment of the labor furnished any more than for the materials supplied. pp. 690-691</p> <p>Under an entire contract for both labor and materials furnished in painting a structure, the fact that the party, a subcontractor, doing the work, agreed to buy the paint from the contractor who was erecting the building, and to deduct the cost from the consideration in the contract, did not change the character and nature of the contract, so as to give a lien for labor only. p. 693</p>