Volume 123 — Maryland Reports

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

<p>Easements: rights of way; non-user; abandonment; inconsistent use.</p> <p>The mere non-user of an easement, even for more than twenty ■years, does not afford conclusive evidence of abandonment, p. 7</p> <p>But a non-user for a prescriptive period, united with an adverse use of the servient estate, inconsistent with the existence of the easement, will extinguish it. p. 7</p> <p>Where year after year, for thirty years, the owners of a servient estate, through which a dominant estate was entitled to a right of way, plowed, cultivated and planted with coin, and sowed in grass the fields over which the right of way passed, such use was held to be inconsistent with the rights of the owner of the easement, and the easement was thereby extinguished. p. 12</p>

<p>Administration: widow’s rights; payment in money or furniture; election; Code, Art. 93, sections 308, 309.</p> <p>Under sections 308 and 309 of Article 93 of the Code of 1912, in all cases of administration upon the estate of decedent, who leaves a widow, the widow is • to be allowed the sums therein mentioned, out of the personal estate remaining after the payment of funeral expenses, to be paid in money or furniture as she may elect; and right to such allowance becomes vested upon the death of her husband, and is not dependent upon any demand or claim by her, or election as to how the allowance is to be made. p. 16</p> <p>But the election should be made within a reasonable time, as otherwise she may forfeit her right to be paid in furniture, p: 16</p> <p>When such election is not made within a reasonable time, the allowance should be made in money. p. 16</p> <p>Tn such a (¡ase, upon the death of a widow before payment, the right to receive the money devolves upon her personal representatives. p. 17</p>

In Equity. (Stanford and Jones, JJ.) The facts are stated in the opinion of the Court. The cause was submitted on brief to Boyd, C. J.. Briscoe, Burke, Thomas, Patttson, Urnbe, Stockbeidge, and Constable, JJ.

<p>Rules of Court: review on appeal. Partnership: hill for accounting and dissolution; allowance of counsel fees. Appeals: in equity; appellant must show real interest.</p> <p>Where the rale of a Circuit Court is set forth in the record, authenticated by the certificate of the judge before 'whom the case is tried, as being then in force, the Court of Appeals may review the application of the rule made by the Court below.</p> <p>p. 31</p> <p>A bill was filed by one partner for the appointment of a receiver to wind up the partnership affairs, on the ground of irreconcilable differences and because of the temporary character of the partnership and the failure and refusal of the other party ever to give any account; a receiver was appointed as prayed, with an order nisi in the usual form; the bill had not alleged that the partnership was insolvent or that the financial assets would be inadequate to pay all of its creditors; upon an appeal by a creditor from the action of the Court, in overruling his exception to the ratification of. the receivers’ account by the auditor, allowing a fee of $150 to the attorney who filed the bill for the receivership, it was: Held, that as the -estate was not alleged to be insolvent, and as it nowhere appeared that the assets were insufficient to pay the creditors’ claims, the allowance of the fee worked no injury to the excepting creditor, and the order of ratification should not be overruled. pp. 30-31</p> <p>To sustain an appeal from an order of a court of equity, the appellant must show a real interest in the determination of the ■ questions involved. p. 31</p>

<p>Savings bank accounts: in name of depositors, and of third-parties named. Gifts inter vivos. Gifts in trust for third parties; delivery. Trusts: creation of — ; breach of trust; liability of banks.</p> <p>A husband who deposited money in a savings bank to the credit of himself and his wife, without reserving the right to withdraw the fund from the bank, thereby creates a tenancy by the 'entireties in the fund, which can not be destroyed except by the joint act of himself and wife; and to such tenancy the right of survivorship is incident. p. 40</p> <p>Where by the act or consent of both such parties the money was redeposited or -the entry in the deposit book changed so as to make the sum deposited payable, after their death or the death of the survivor, to certain other parties named in the book in the amounts specified, such entries do not amount to valid gifts inter vivos, there having been no delivery of the funds or deposit books to the parties named, and, by the terms of the parties, the funds were not made payable to such parties until after the death of the surviving depositor. p. 40</p> <p>A trust was thereby created in favor of the husband and wife for life and for the parties entitled after their death; such deposits constituted the husband and wife trustees of the funds for their own use during life and for the use of those who were Darned to receive them after their death; and upon the death of the survivor the trusts were at an end, the absolute estate being then in the persons to whom the funds were payable, p. 43</p> <p>The depositors having no right to revoke the trusts which they created, the bank held the funds for the trustees to be paid from their death to the parties designated. p. 43</p> <p>If a bank lias notice or knowledge that a breach of trust is being committed by an improper withdrawal of funds, or if it participates in tlie profits or fruits of the frauds, it is liable therefor. p. 43</p> <p>In order to transfer the title and perfect a gift inter vivos,' the donor must part with the possession and control of the subject of the gift, and delivery is essential to a complete surrender of his dominion over it. p. 41</p> <p>In case of a declaration of trust, the legal title is withhold from the donee and may be retained by the donor or transferred to a third person; but tbe equitable title vests in tbe cestui que trust and passes beyond the control of the donor, unless the declaration of trust contains a power of revocation.' p. 41</p> <p>When a deposit in a bank is made in the name of the depositor in trust for another, the possession by the depositor of the bank book is a possession as by a trustee, and does not detract from tbe force of the entry, or indicate that no interest had been given to the cestui que trust. p. 42</p> <p>A trust may be created without the words “in trust” being employed; the general purpose and intention of a donor, and not the use of one particular term or another, deciding the question of whether a party does or does not take in a fiduciary character. p. 42</p>

<p> Resulting trusts: payment of purchase money; title in another; presumptions; proof. Grantor and grantee: declarations after the deed; when not admissible in evidence. Title to land: reputation. </p> <p>When the purchase price of land is paid by one person and the title is taken in the name of another, a resulting trust arises in favor of the person paying the purchase price, and the holder of' the legal title becomes a trustee for him. . p. 55</p> <p>But where one purchases land with his own money and causes the title to be placed in the name of one for whom he is under a natural or moral obligation to provide, no presumption of resulting trust arises. p. 55</p> <p>In such a case, it is regarded prima facie as a gift or advancement for the benefit of the nominal pur chaser. p. 55</p> <p>In either case the presumption is one of fact and not of law, and the real intention of the parties may be shown, and be given effect, provided it does not contravene-some rule of property, or policy of the law. p. 55</p> <p>Payment, or advance of the purchase money, before or at the timé of the purchase, by the party claiming the trust, is indispensable. p. 58</p> <p>Such payment is the foundation of the trust and must be made out by plain, direct and unequivocal evidence. p. 58 The evidence establishing a resulting trust should be clear and satisfactory. p. 66</p> <p>Here parol evidence to establish such a trust should be received with the greatest caution. p. 58</p> <p>In general, the declarations of a grantor or vendor made after the conveyance, are not admissible to impeach the title of the grantee. p. 59</p> <p>But where creditors are seeking to annul a conveyance, on the ground of fraud, if evidence is offered to show prima facie a case of combination, or conspiracy between the grantor and grantee to defraud creditors, the declarations of the grantor, made after the deed, may be admitted. p. 59</p> <p>While the general reputation as to the ownership of property may sometimes be admitted for certain purposes, it can not be received in evidence to prove title, or to establish a resulting trust. p. 59</p>

<p>Insurance : accident — ; agreement to pay counsel fees; construction and obligation; right of assured.</p> <p>A policy of accident insurance provided that the insurer, a casualty company, would, at its “cost,” investigate all accidents and defend all suits against the insured, of which notice should be given as stipulated, with an agreement that the casualty company should not be responsible for any expenses incurred by the insured unless first specifically authorized by the insurer in writing; in such a case if the insurer fails or refuses to defend a suit brought against the insured (on a character of claim covered by the policy), the insured is entitled to recover from the insurer to the extent of the loss thereby occasioned, p. 71</p> <p>Such an insured was sued on such a claim; the counsel for the insurer wrote the insured that it seemed so much in sympathy with the plaintiff that the counsel of the insurer might be compelled to withdraw from the suit at the trial, in order to protect the interest of the casualty company, and suggested that the insured should have its own counsel present at the trial table, in order to protect its interests; the insured employed its own counsel, who assisted at the trial of the case; the casualty company paid the judgment which was recovered by the plaintiff in the suit, but refused to reimburse the insured the fee which it had paid its counsel specially employed by it: Held, that the position of the casualty company left the insured no alternative but to employ extra counsel; and for the reimbursement of the expenses so incurred the insurer was liable.</p> <p>pp. 70-71</p> <p>The obligation of the insurer to defend the suit at its own cost was not to be qualified or discharged because of its mere opinion or belief that the insured was acting in a manner prejudicial to a legitimate defense against the liability covered by the policy.</p> <p>p. 71</p> <p>Before the vested, contractual rights of the party entitled to the indemnity could be held to have been properly disregarded, or disturbed on such a ground, it must appear by affirmative proof that the acts alleged to have been prejudicial were in reality committed. p. 71</p> <p>The provision in the policy that the casualty company would not be responsible for expenses incurred by the insured in the absence of special authorization only applied where both parties were proceeding in accordance with the terms of the agreement. p. 72</p>

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

(Daw-•KlIfS, J.) The appellee sustained injuries to her ankle, by a fall while seeking a seat in a darkened theatre; in a suit against the Theatre Company, the judgment was in her favor, on a verdict for $500. The defendant appealed.

<p>Municipal corporations: streets; liability for — ; hidden defects ; contractor's’ liability. Witnesses: hostile or interested in other side; cross-examination; contradiction. A.p-' peals: review of rulings on questions ashed witnesses. Prayers: no evidence.</p> <p>A municipal corporation is not liable for injuries received from defects in the street of which it received no notice, and ' which defects were not apparent on the surface of the street.</p> <p>p. 92</p> <p>A contractor; doing work on a street for the City of Baltimore, and sued jointly with the Mayor and City Council for damages for injuries received by the plaintiff from hidden defects in the street, can not be held liable under a count in the declaration charging the Mayor and City' Council with negligence of its duty, under the city’s charter, to keep the streets in repair. p. 92</p> <p>The cross-examination of a witness should, in general, be limited to matters brought out by the examination in chief. pp. 94-95</p> <p>Where one party calls a witness who is more interested in establishing the contention of the other side, the party calling 1dm is not precluded from contradicting statements of such witness, brought out by the other side on cross-examination, nor is he precluded from relying on the testimony of other witnesses. pp. 94-95</p> <p>If there is any evidence in-a case proper for the jury to consider, it is error to grant a prayer that withdraws the case from their consideration. pp. 98-97</p> <p>Where an appeal is taken from the action of a court in sustaining an objection to a question, which had been raised before the question was answered, the Court of Appeals, in reviewing such ruling, will not assume that the answer would have been inadmissible. p. 97</p>

(Harlan, C. J.) The facts are fully stated in the opinion of the Court in a former appeal of the same ease in Tyng and Company v. Woodward, 121 Md. 422.

<p> Electric light companies: poles and wires in public thoroughfares; property of company; subject to their control; injuries' to third parties who ascended the poles'; spilces in poles not implied invitation to ascend. </p> <p>The principle of implied invitation, can not be invoked to hold a proprietor liable for injuries to third parties received where such third parties have come upon the property from motives having no relation to the business or interest of {he proprietor. p. 124</p> <p>The poles and wires of an electric light company, although located on and over a public thoroughfare, remain the company’s property, and are subject to its control in order that its obligation to the public may be performed and that its interests may be protected. p. 123</p> <p>The spikes driven in the poles supporting electric light wires, placed there to afford a permanent' and convenient means of ascent for the company’s agents in repairing its wires, etc., do not offer an implied invitation to the public to use the poles for purposes of their own. p. 125</p> <p>A kitten had climbed a pole that supported the wires and cables of an electric light company; for the purpose of rescuing the kitten, a pedestrian ascended the pole by means of the spikes which were driven into it for the purpose of enabling the companys’ employees to keep the equipment in order; he was killed by coming into contact with a heavily charged wire, and his widow brought suit for damages against the company; held, there was no mutuality of interest between the defendant and the deceased which would warrant holding that his ascent of the pole was induced by any implied invitation of the company, and it was further held, that the plaintiffs were not entitled to recover. pp. 124,127</p>

<p> Condemnation proceedings: collateral attach; errors, etc., reviewable on exceptions to report of examiners; lach of jurisdiction; damage to land other than land condemned. Jury: issues of law. </p> <p>Where County Commissioners in condemnation proceedings-take land for the construction of a road, etc., without observing all the provisions required by law, they fail to acquire title to the land and may be treated as wrongdoers for any trespass on the lands. . p. 140</p> <p>Suit can not be brought against County Commissioners for damages claimed to have arisen from matters growing out of condemnation proceedings, where such matters could have been taken advantage of by exceptions to the return of the Commissioners. pp. 135-139</p> <p>But the rights of the party condemning land are confined to the lands rightfully taken, and if any damage or injury is done to adjacent lands by blasting, by occupancy, or by using such lands as a roadway, etc., recovery in trespass may be had therefor. p. HI</p> <p>In cas.es of tort, the Court must decide and instruct the jury in respect to what elements, and within what limits, damages may be estimated in the particular action. p. 141</p> <p>To submit to the jury an issue involving the constitutionality of a statute or any other issue of law is improper. p. 137</p> <p>Where condemnation proceedings, or other judicial proceedings, are collaterally attacked and it appears on their face that the subject-matter and the parties were within the jurisdiction of the Court, such proceedings are not impeachable for any mere errors or irregularities. p. 138</p> <p>Such errors and irregularities must be corrected by some direct proceeding either in the same Court to set them aside, or on appeal. p. 138</p> <p>If, however, there be a total want of jurisdiction either of the parties or the subject-matter, the proceedings are void and can confer no right, and will be rejected, even though the objection to them bo raised in a collateral proceeding. p. 138</p>

<p>Condemnation proceedings: closing streets; Baltimore City; damages; property not contiguous; church property; loss of membership. Opening streets: increased facilities; when not assessable benefits. Right of way over land of grantor: implied covenants; t limit of right.</p> <p>In condemnation proceedings to close a street, by the Mayor and City Council of Baltimore, damages can not be legally demanded for consequential injury to property that is several squares distant and which has means of egress and ingress, independent of the street closed. p. 160</p> <p>Section 175 of the Baltimore City Charter, regulating condemnation proceedings, and providing that, in allowing damages the commissioners are to take into consideration all the advantages, and the disadvantages, that the owner ought to be compensated for, is to, be taken as meaning, for such as he ought to be compensated for under the established rules of law and practice in such cases. p. 149</p> <p>Increased facilities for travel, enjoyed by the owner of property in common with the rest of the community, because of the opening, etc., of a street, is not a proper element to be considered in estimating benefits for which he is to be charged. p. 156</p> <p>In considering the question of damages for the closing of a street, the financial loss sustained by a church, by reason of its loss in membership occasioned by such closing, is too difficult to estimate and too speculative to be taken into account, p. 157</p> <p>Eor the doctrine of implied covenant in a deed, as to a right of way over the grantor’s lands to apply, the lands must be contiguous to the lot conveyed and the right of way can only be claimed as far as it reaches some other street or public way. pp. 158-159</p>

<p>Wills: charitable bequestsj void for uncertainty; effect of Act of 1888, Oh. 249; when valid to the corporation capable of taking; title by adverse possession. Construction of wills; intention of testator. Heirs: no presumption of death without — . .Escheat.</p> <p>.Before, the passage of Oh. 249 of the Act of 1888, a charitable devise that was void for uncertainty could not be validated by the passage of any subsequent act creating a corporation to carry out the purposes of the devise. pp. 164-165</p> <p>A devise by a testator of a certain house and lot described in the will to The Young Catholics’ Friend Society of Baltimore City, for the purpose of establishing a children’s aid society with one-third of all the testator’s property for the support of said society, with the restriction that it should not be sold, is void, whether it be held as a trust, or as a direct gift to the Young Catholics’ Friend Society, because in violation of the rule against perpetuities. p. 165'</p> <p>The Young Catholics’ Friend Society, while essentially charitable in its nature, is not necessarily a religious corporation within the meaning of the Constitution. p. 165</p> <p>Even before the enactment of Ch. 249 of the Act of 1888 a charitable devise to the “trustees of St. Patrick’s School in Baltimore for the purpose of establishing a free school for boys and girls,” where such a school was a corporate body, incorporated for educational purposes and perfectly capable of taking property by bequest or devise, already in existence, was a valid devise. p. 166</p> <p>While the word “establish” most commonly means to found «or to bring into being, it may also be used to mean to place upon a secure foundation or ba.sis and to strengthen that which is already in being. ' p. 166</p> <p>Where the intention of a testator can be given effect, without doing violence either to establish legal principles or the language used by the testator, courts will always carry out their intent. p. 166</p> <p>A residuary clause, which leaves the balance of the testator’s property to the purposes elsewhere declared in the will, is void in so far as the particular purposes so named are void. p. 167</p> <p>Where the legatees to whom invalid bequests have been made have entered upon and exercised possession over the property so devised, exclusively, openly, continuously and adversely for a period (41 years) exceeding that necessary to give title by .adverse possession they acquire title by adverse possession; and an otherwise valid contract of sale by such devisees may be specifically enforced. p. 168</p> <p>The State alone can assert a right to property under and by vii’tue of a claim of escheat. p. 168</p> <p>■T-he law does not presume that a person who is proved to he- dead left no heirs; where death only is proved there must /be some negative proof as to the existence of issue. p. 168</p>

<p>Public schools: high schools; teachers and principals; County School Commissioners, and State Board of Education; jurisdiction; appeal.</p> <p>The question of which of two persons shall be recognized as a teacher of a school is one involving the proper administration •of the public school system, and is a dispute over which the State Board of Education has jurisdiction under sec. 11 of Art. 77 of the Code. pp. 177,181</p> <p>The control of high schools by the County School Commissioners, and their authority to appoint the principals of said schools is subject to the provision of the Public School Law, and to the summary and comprehensive visitorial power conferred by that law upon the State Board of Education. „ p. 181</p> <p>Where the reasons assigned by School Commissioners for the dismissal or removal of the principal of a high school, have been filed with the State Board of Education and the case tried •and evidence submitted and the board decides that the reasons •so assigned áre insufficient, the determination by the School Board is final and it is the duty of the School Commissioners to follow the board’s decision; and from such decision of the hoard no appeal to the courts will he allowed. p. 182</p> <p>In such a case where the State Board of Education refuses to reopen the case, its decision is not subject to review by the <, Circuit Court or by the Court of Appeals. p. 182</p>

<p> Municipal corporations: when estopped from denying franchises* </p> <p>A municipal corporation may set up a plea of ultra vires, or-its own want of power under its charter to enter into a given contract, or to do a given act, in exercise of its corporate power and authority, and the fact that the other party to the contract had expended money on the faith of such agreement does 'not estop the municipal corporation from so doing. < p. 192</p> <p>Put if a municipal corporation has the power to grant a right or franchise, and the corporation believing and assuming that it has the consent or grant of the municipality, has with the knowledge of the proper municipal authorities, proceeded to exercise the right or franchise, and has constructed, maintained and operated its work and applicances in the City streets, the municipality may, in a proper case, be estopped, by the conduct of its officers and representatives in knowingly permitting and acquiescing in the use and occupation of the streets, from asserting the invalidity of the grant of the franchise. p. 193</p>

<p>Appeal from the Circuit Court for Carroll County. (In Equity.) ('Thomas, C. J., Forsythe, Jr., J.)</p> <p>The facts are stated in the opinion of the Court*</p>

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

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

<p> Partners: accounts; laches; need not he specially pleaded. </p> <p>When a partnership is alleged and admitted, a prayer for an account is granted, in general, as a matter of course, unless the right of the complainant to relief is barred by lapse of time. p. .230</p> <p>But when it manifestly appears from the proof that the party asking the interposition of the Court has no real cause of complaint, and that no g-ood purpose could be accomplished by directing an accoimt, no account ought to be ordered. p. 23Q</p> <p>On the ground of laches, a Court of Equity may, in its discretion, refuse relief, although the Statute of Limitations is.not pleaded, or the bill demurred to. p. 231</p> <p>In equity, laches and lapse of time are as effectual as the plea of limitations in law, and they are analogously applied. p. 231</p> <p>What will constitute such laches and lapse of time as to bar a purely equitable claim, depends on all the facts of the case. p. 231</p> <p>Upon the death of a member of a partnership, all the parties in question accepted, the account which was then stated, and. submitted, and all outside creditors of the firm were paid. It was held, that after a delay of fifteen years, during which time no objection to the account had been made, it was too late to reopen the account. p. 232</p>

Two appeals in one record from the Circuit Court for Queen Anne’s County, .to which the cause had been removed from Tal-bot County. (Adkins and Hopper, JJ.) The facts are stated in the opinion of the Court and in the report of a former appeal in 117 Md. 496-497.

<p>Streets and highways: pedestrians’ rights; obligations of abutting property owners. Nuisances: injuries to persons passing; independent contractors; swinging scaffolds for painters. Res ipsa loquitur. Evidence: cross-examination; where defendant was called by plaintiff.</p> <p>Where the owner has a building painted by an independent -contractor, over whose work, etc., the owner has no control, the failure of the contractor properly to secure the swinging platform on which the painting is done, in consequence of which one of the painters falls, and in so doing injures a person walking on the sidewalk, the negligence is not attributable to the owner of the property, unless such injury resulted from the disregard or. negligence of some duty for which the owner ■of the property was responsible. pp. 264-265</p> <p>The free and unobstructed use of the public street is a right that belongs to the public, and it is the duty of those owning and occupying property abutting on highways so to use their property and keep it in repair, as not to endanger the public while in the use of any of its rights. p- 255</p> <p>If an abutting owner causes a nuisance to be erected on his property, and an injury to a person using the street follows as a result of the existence of the nuisance, the owner is not absolved from liability because of the fact that he employed an independent contractor to do the work. p. 255</p> <p>But such owner is not liable for the negligence of the employees of the contractor in a matter collateral to the contract. p. 255-</p> <p>The suspension on a building of a stage or scaffold, above the .sidewalk, for the purpose of painting the building is not such a menace to the safety of persons using the streets as to amount to a nuisance; and injury to a passerby by the falling of the painters from the scaffold or the fall of any object used by them is not one to be anticipated by the owners of the building-as a probable consequence of having the building painted in any manner. - p. 257'</p> <p>The testimony of a painter who has been engaged for a great: number of years in painting buildings, that in all that time he had not seen á man fall from a swinging scaffold is admissible-as evidence to show that swinging or suspended stages or scaffolds, for the painting of buildings, do not of themselves constitute nuisances. p. 258-</p> <p>I The owner of property abutting on a highway is not required. I to provide against all possible injury, and it is only such injury as may be reasonably anticipated that he is bound to take pre- | cautions to prevent- p. 261</p> <p>The owner of property abutting on public highways are not insurers to the public against injury, and they are not bound to provide against all possible injury, however remote. p. 264-</p> <p>° In general the question whether an injury received by a user-of a public highway from work being done on abutting property was one that might have been reasonably anticipated by the owner of the property as a probable consequence of work-contracted to be done, is one of fact for the jury. p. 265</p> <p>] In general, for the maxim res ipsa loquitur to apply there-I must be some reasonable evidence of negligence. p. 266-</p> <p>But, where the thing is shown to be under the management of' the defendant- or his servants, and the accident is such as, in the-ordinary course of things, does not happen if those who have the-. management, use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from want of care. p. 266</p> <p>Where a witness, the president of a defendant corporation, is called by the plaintiff, on cross-examination, he may be given an opportunity to explain the connection of the defendant company with the matter. pp. 266-267</p> <p>In general a re-direct examination must relate only to matters referred to on cross-examination. p. 267</p>

<p>Negligence: municipal corporations; defective gutters and drains Pleading : allegata and prohata. Prayers. Evidence: conditions long after question in dispute.</p> <p>A plaintiff can not recover otherwise than according to the allegations of his declaration. p. 280</p> <p>A prayer based upon facts which are different from the facts alleged in the declaration in respect to the causes of injury alleged, is improper and should not be allowed. p. 282</p> <p>In an action by a plaintiff against a municipal corporation for injuries alleged to have been caused by the defective manner in which a pavement had been laid and a gutter made, in the absence of all testimony as to how such work had been done, testimony of the condition of the pavement and the gutter sixteen months after the work had been done, is not admissible in evidence. p. 281</p>

<p>Municipal corporations: right to regulate streets; rights of public; abutting owners; poles and awnings; rules need not be the same for all streets. Property rights: regulations of use not a talcing of property.</p> <p>An act conferring upon a municipal corporation the right “to regulate the use of sidewalks for the use of signs, sign posts, awnings, poles, trolley poles, etc.,” and to prohibit “the erection of any posts, poles or wires,” and to compel the removal of any posts, “poles and wires,” in, over or above any streets, etc., is for the purpose of enabling the city to maintain and preserve the streets in such condition as may be most suitable for public use, and is a reasonable grant of power. p. 287</p> <p>The fundamental right of the general public, in the use of the street, is for passage over and along them. p. 287</p> <p>In the exorcise of this right persons employing vehicles are primarily entitled to the use of the bed of the streets, while pedestrians have a similar priority of claim upon the sidewalks. p. 287</p> <p>Owners of abutting lots are permitted to encroach upon the streets only to a limited extent necessary for the transaction of their business, provided they do not unreasonably interfere with the right of the general public to use the street for travel and transportation; such rights of abutting owners are permissive and subordinate. p. 287</p> <p>A municipal ordinance prohibiting awning poles on the sidewalks, while not prohibiting awnings otherwise constructed, is not objectionable on the ground of being an unreasonable and arbitrary classification. p. 288</p> <p>Such an ordinance amounts to the regulation of the method of constructing awnings and is not a prohibition of their use. p. 288</p> <p>■ The -wisdom or propriety of the exercise of the powers given by legislative enactment to municipal corporations, to regulate the use of the streets and to prohibit their obstruction, must be left to the municipal authorities, unless some vested right would be impaired. p- 288</p> <p>While laws should be general in their operation all places in a city do not necessarily require the same local regulation. pp. 288-289</p> <p>A city ordinance prohibiting awning poles on certain designated streets of the gity, is not, for that reason, invalid on the ground of being discriminative or arbitrary. p. 289</p> <p>The proper regulation of the use of property is not a taking of property within the prohibition of the Constitution, p. 289</p>

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

<p> Corpses: rights of custody and control. Insurance company’s right of inspection. </p> <p>In the absence of any contract or testamentary disposition to the contrary, the surviving husband or wife, or next of kind, has a quasi property right in the body of a decedent, not in the general property sense, but for the purpose of determining who shall have the custody of the body in preparing it for burial. p. 308</p> <p>Courts of Equity will protect such general rights from unreasonable disturbance. p. 308</p> <p>An insurance company had issued a policy to the insured payable to his family in the sum of $20,000 in the event of his death resulting directly and exclusively of all other causes, from bodily injuries sustained, during the life of the policy sold, through accident (excluding suicide, etc.), and provided that the insurer should have the right and opportunity to make an autopsy in case of death; upon the death of the insured such examination to make an autopsy was refused; held, that under such circumstances the insurer had a right to make an examination superior to any property right in any member of the family, and upon such demand being refused a Court of Equity has jurisdiction to entertain a bill for discovery and to appoint a receiver to have custody and control of the remains pending such an examination. p. 309</p>

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

<p> Streets: condemnation; assessments for benefits; grade to be -first determined. Condemnation proceedings: Baltimore City; appeals /Baltimore City Court; jurisdiction; Equity. </p> <p>The rule that damages are not ordinarily recoverable for injury to adjacent lands caused by a lawful change in the grade of a public highway, is confined to cases in which no part of the abutting property is taken for that purpose. p. 324</p> <p>Where the grade is established for the first time on opening a street, the cost and expenses of making abutting land conform to the use of the street should be considered in determining the extent that such abutting lands are benefited by the opening. p. 324</p> <p>When land is to be condemned for the bed of a public street or highway, the grade should first be established so that in estimating benefits to be assessed against the abutting lands, account may be taken of the cost of placing such land in condition to receive the advantage of the construction.of the street. p. 325</p> <p>' In opening a public street or 'highway, and establishing a grade, the grade should be one that, so far as it can then be determined, after a proper consideration of the rights and interests of the adjacent land owners, will for all time best subserve the public interest and convenience^ p. 325</p> <p>Sec. 119 of the local laws of Baltimore City (Sec. 10 of Art. 48 of the Baltimore City Code of 1893) provides an appeal in condemnation proceedings “by any person,” etc., “who may be dissatisfied with the assessment of damages or benefits,” etc., by petition to the Baltimore City Court, which Court is given full power to hear and fully examine the subject and decide on such appeal- p. 326</p> <p>In condemnation proceedings to open a public street or highway in Baltimore City the question of whether the permanent grade should not he established, before the assessment of benefits, is one within the jurisdiction of the Baltimore City Court, with the right of an appeal from its decision to the Court of Appeals. p. 326</p> <p>A Court of Equity in such a case has no jurisdiction to enjoin the condemnation proceedings in the Baltimore City Court on the ground that the condemnation is undertaken before the establishment of the grade of the street. p. 326</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>

(Dawkins, J.) Laura B. Crain having been injured by the collision of an automobile with one of the cars .of the defendant, brought suit therefor, with her husband, and recovered a judgment on a verdict in her favor for $3,000. This appeal was taken by the Bail way Company.

<p>Oyster Law: Code of 1912, Article 72. Board of Shell Fish Commissioners: survey of — ; review hy Circuit Courts; no appeal. Sufficiency of petition. Fraud. Attorneys-at-law: presumptions as to — . Jurisdiction of courts.</p> <p>A court of equity is always open when a charge of fraud is raised. p. 361</p> <p>Sections 93 and 94 of Article 72 of- the Code of Public General Laws (1912), in conferring jurisdiction upon the Circuit Courts, upon petition, to hear testimony and decide whether oyster beds, or barren bottoms have been excluded or included, in the survey made by the Board qf Shell Fish Commissioners, makes the decision of such courts final; and from such decisions no appeal will lie to the Court of Appeals, except in cases where the jurisdiction of the Circuit Court has been exceeded. p. 361</p> <p>For the Circuit Court to acquire jurisdiction under said sections of Article 72, it is not necessary that a plat be filed with the petition, provided the beds or bars in question be designated as fully as required by the other alternative — by landmarks, etc.' . p. 362 It is a sufficient compliance with, the statute if the signatures of the parties to such a petition ho l>y attorney. p. 362</p> <p>The presumption is that an attorney-at-law has the authority to act, and jurisdiction of a court to act may follow from the act of an attorney. p. 362</p> <p>The amended plat referred to in section 94 need not be filed until after the finding by the Court, and failure so to file it does not vitiate the finding. p. 362</p> <p>On an appeal from an order of the Circuit Court vacating an order passed under the provisions of sections 93 and 94 of Article 72 of the Code setting aside a survey made by the Shell Fish Commission, which order had been attach'd on I he ground that it had been obtained by fraud, it was held, that the fraud was not proved. p. 362</p>

, HLtnsi.'ER, J.), to which Court the cause had been removed from tho Circuit Court for Harford County. Tbo facts a.re stated in the opinion of the Court.

<p>Arraignment of person accused of crime: not necessary in case of misdemeanors; felonies, what are; attempted rape. ?w felony. Criminal trials: publicity; testimony must be taken in presence of the accused; propounding question ivhy sentence should not be pronounced. Rape: and attempted rape; punishment by death; not “cruel or unusual punishment." Docket entries: correction. Judgments: striking out.</p> <p>Where the docket entries in the trial court, and as appearing in the record, sent to the Court of Appeals, do not properly present the facts, a writ of diminution may he issued, and the trial court, upon motion made, may have the docket entries corrected by having the proper changes made. p. 37 6</p> <p>The action of the trial court in directing such changes so to l>e made is final, and not open for review. p. 376</p> <p>The action of the trial court in overruling a motion for a new trial is not subject to review by the Court of Appeals. p. 378</p> <p>But the action of the court in striking out judgment and sentences is reviewahle on appeal. p. 378</p> <p>In such a case the Court of Appeals is confined to what appears on the face of the record itself; and a hill of exceptions, or an agreed statement of facts, can not he substituted therefor. p. 378</p> <p>An assault with intent to commit robbery, murder or rape, is not a felony or an “infamous crime,” but is a misdemeanor. pp. 378, 380</p> <p>Only those crimes are felonies in Maryland which were such at common law or are declared by statute to be such. p. 378</p> <p>The fact that a crime is punishable by death or confinement in the penitentiary, or is “infamous,” does not make it a felony in Maryland. p. 378</p> <p>A traverser accused of a misdemeanor need not be arraigned in court; but it is indispensable that a plea should be entered to the indictment or that the record should show that he waived a plea. p. 380</p> <p>When the rules of court do not mention the time within which limits alone a motion for a new trial or a motion in arrest of judgment may be made, the time allowed by common law will apply. p. 381</p> <p>In general, a motion to strike out a judgment after sentence may be made at any time within the terra. p. 382</p> <p>If sentence should be passed upon a traverser before the expiration of the time for a motion for a new trial or a motion in arrest, such motion may be made thereafterwards, provided it be made within the time allowed. p. 381</p> <p>Before passing sentence on a traverser, failure to propound the question as to whether the traverser has anything to say why sentence should not be passed, only affects the sentence, even in capital cases, and does not affect the verdict, and is not a reversible error. p. 383</p> <p>But the practice of propounding such a question in capital cases or in eases where the punishment may be confinement in the penitentiary is recommended. p. 383</p> <p>The penalty of death, under sec. 17 of Art. 27 of the Code, as amended by Oh. 366 of the Act of 1908; for an assault with intent to commit rape, is not in violation of Article 16 of the Declaration of Bights, prohibiting cruel and unusual punishment. p. 385</p> <p>A criminal trial should not be so conducted as to have the appearance of “Star Chamber” proceedings; but cases sometimes occur which, may have a demoralizing effect on spectators, and to some extent upon the community, and in such cases, even out of regard for the interest of the accused, the trial may be conducted with less publicity than usual. p. 387</p> <p>Where for reasons of that sort, and with the consent of the traverser’s attorney, a criminal trial was held in the petty jury room instead of in the public court room, this of itself was held 1o furnish no ground for a reversal. pp. 388-389</p> <p>But to take testimony in a criminal proceedings out of the presence of the accused is reversible error. p. 389</p>

<p>Liquor laws: Baltimore Cityj license for bottlers; section 688 of Article 4 of the Public Local Laws.</p> <p>Section 688 of Article 4 of the Code of Public Local Laws (amended by Ch. 196 of the Acts of 1908), providing for a license of $160.00 for every person, co-partnership or corporation, conducting a bottling business, and selling fermented liquors only, does not apply to a dealer who pays a brewery company to bottle for him beer which he purchased from the brewery. pp. 396, 397</p> <p>The statute was intended to apply to cases where the licensee conducts a bottling business of his own, and sells only fermented liquors which he bottles himself. p. 396</p> <p>The fact that such dealer is himself a bottler of soft drinks does not entitle Mm to sell beer under the special license for bottlers of fermented liquors. p. 397</p>

<p>Public schools: district schoolsj consolidation of — . Powers of County School Commissioners, and of the State Board of Education: when courts have no jurisdiction.</p> <p>In a controversy or dispute involving merely the proper administration of the public school system, the courts have no power to interfere, and all such questions must be referred to and finally settled by the State Board of Education. p. 403</p> <p>Where purely legal questions are involved, the determination is, for the court. ' p. 404</p> <p>The provisions of section 43 of Article 77 of the Code, directing that there shall be one or more schools in- every school district of each county kept open for ten months of each year, if possible, does not impose a mandatory and imperative duty upon the Board of County School Commissioners; something is left by the law to the judgment and discretion of the board. p. 404</p> <p>The Board of Education Las power to advise the County School Boards with respect to any consolidation of district schools, and to correct any erroneous action which the School Board may take in such matters. p. 404</p> <p>This section 43 of Art. 77 of the Code is one involving the proper administration of the schools whose enforcement rests with the State Board of Education, and a mandamus should not be issued by a Circuit Court to compel the Board of County School Commissioners to keep open a school which they had resolved to consolidate with that of another district. pp. 402-404</p> <p>The visitorial power conferred upon the State Board of Education by section 11 of Article 77 of the Code of 1912, is summary and exclusive. p. 402</p>

2 of Baltimore City, (Gorter, J.) The facts are stated in. the opinion of the Court. The cause was argued before Boyd, C. J., Beiscoe, Bueicbi, Ti-iomas, Pattisow, Ubkee and Stockbeidge, JJ.

<p>Fiduciary relations: setting deeds aside; burden of proof; excepceptions; deed or gift from parents. Mental capacity: mere eccentricity.</p> <p>Whenever a fiduciary relation exists, legal or actual, whereby trust and confidence are reposed on one side, and influence and control are exercised on the other, courts of equity, independent of the ingredients.of positive fraud, will interpose to prevent a man from stripping himself of his property. p. 439</p> <p>In such cases, it is not necessary to prove actual exercise of overweaning influence, misrepresentation, or fraud aliunde the act complained of; the general rule is, that he who bargains in a mutter of advantage with a person placing a confidence in him, is bound to show that a reasonable use has been made of that confidence. p. 439</p> <p>A gift from a child to a parent is prima facie void, because a child is presumed to be under the control of ■ parental influence, so long as the dominion of the parent lasts, and while that dominion exists, the burden of proof lies on the parent maintaining the gift to disprove the exercise of parental influence by proof that the child had independent advice or by other proof. p. 440-</p> <p>But a voluntary conveyance of property from a parent to a child is not prim,a facie void unless, by competent proof, the reversed relation of the parties is shown to exist. pp.440-441</p> <p>In such a case if it is shown that confidence is reposed by the parent, with resulting superiority and influence on the part of the child over the parent, the rule should be applied, p. 441</p> <p>Ubi eaclem ratio, ibi idem jus. p. 441</p> <p>But the existence of a relation between parent and child such as might naturally occur from mere kinship and affection does not of itself imply dominion and control by the child over the property or person of the donor. p. 442</p> <p>Evidence of mere eccentricity in a person advanced in years is not sufficient of itself to warrant the presumption of lack of mental qualifications, when opposed to direct and positive evidence of disinterested witnesses as to the party’s mental capacity. p; 442</p>

<p>Growing crops: sale or reservation of — ; by parol; Statute of Frauds, and Uniform Sales Act. Landlord and tenant. Parol contracts: ivhen good defense, even though not enforceable.</p> <p>Growing crops, if frucius industriales, are regarded as chattels, and can he sold without complying with the 4th section of the Statute of Erauds. p, 451</p> <p>The principle followed by Eichelberger v. McCauley, 5 H. & J. 213, and Rentch y. Long, 27 Md. 188, to the effect that a sale of a crop not yet thrashed or gathered was-not within the 17th section of the Statute of Erauds, in cases where work and labor were necessary to prepare the crop for delivery, is modified hy the Uniform Sales Act of 1910, Article 83, section 97, of the Code of 1912. p. 451</p> <p>AYhere a vendor, in selling his land, reserves his share of (he growing crop, a tenant who delivers such share to the vendor, his former landlord, in conformity with such agreement, may plead the same in defense to a suit hy the vendee for such share of the growing crops, unaffected by the rule that a tenant may not dispute his landlord’s title. p. 450</p> <p>When a vendor of land reserves to himself, by parol, his share of the growing crop, delivery and acceptance of the crop by him, and his conveyance of the property according to the agreement, take the case out of the operation of the statute. p. 452</p> <p>As between the vendor and vendee o£ real estate, the vendor may .reserve the growing crops by parol without violating the rule that the terms of a written contract can not be varied by parol. ' p. 453</p> <p>A contract, although not enforceable under the Statute of Frauds (or the Uniform Sales Act), may yet serve as a defense to an action. pp. 452-453</p>

<p>Mortgages: usurious; right of junior encumbrancers. Usury: ‘ commissions to agent who procures loan.</p> <p>In the absence of an agreement on the part of a subsequent purchaser or encumbrancer to assume payment of a debt secured by a pre-existing lien, he may object to the payment of the debt in full, on the ground that it was usurious. p. 459-</p> <p>The fact that the lenders of money are interested in an estate that held a small amount of the capital stock of the corporation •that procured the loan, is too indirect to be considered in determining the question as to whether a charge of commissions by the corporation for procuring the loan was usurious. p. 461</p> <p>When a borrower employs an agent to procure a loan, he is justly obligated to pay for that agent’s services; and such payment can not be held to render the loan usurious. p. 463'</p>

<p> Unfair competition in trade names and, symbols. </p> <p>A henefi cial secret society was organized in Indiana in 1904, with the name “Order of Owls,” with subordinate bodies in different States which were given the name of “Nests”; by the terms of the constitution of the organization, persons of African descent were not eligible to membership. In 1911 a corporation was formed in the State of Maryland by colored people under the name “Afro-American Order of Owls, Baltimore Nest No. 1.” As soon as the Indiana organization heard of the Maryland corporation, it filed a. bill for an injunction to enjoin such corporation from using the name Afro-American Order of Owls, etc., as the name, and from using any name of which the name “Order of Owls” formed a part, and for other and further relief. Held: that the evidence did not show any-intention to mislead, in the organization of the Maryland corporation; that the evidence did not show that anyone in fact had been misled by the similarity in title; and that the organization of the Maryland corporation did not appear to have operated to the detriment of the complainant,- whose reports showed an increased membership. p. 473</p> <p>It was further Held, that there was no evidence that the defendants or their agents ever used the name without the words “Afro-American,” and it was Held that the use of the v ame should not be enjoined. p.473</p> <p>But as the symbol of the original order consisted of the figures of three owls upon a branch or rod, and as the defendant corporatipn had a similar device, with the addition of the letters “A.. A.” above,-and the letters “O.'O. O.” below, the figures of the owls, such device of the Maryland cor-poration was held misleading, and it was further held that the Maryland corporation and its officers, agents and servants should be enjoined from using any such symbol or modification thereof, as might be determined a misleading imitation of it. p. 474</p> <p>In all cases where unfair competition in trade is alleged as a ground for equitable relief, the test is whether the public has been misled by a similarity of name, style of package or representations, so that an ordinarily careful person, desiring to procure an article of given make or manufacture, would be deceived by such similarity into taking the competing article or preparation. p. 469</p>

<p> Covenant and assumpsit. Written instruments: parol evidence; when admissible. </p> <p>In a suit in covenant, tie plaintiff must stand by the terms of the instrument which he sets up; in order to rely upon a new and independent contract, suit should be in assumpsit. p. 478</p> <p>A written contract of sale for a great number of shares of stock did not contain any provisions as to the time for delivery; it was known at the time that all of the stock had been hypothecated by the vendor with various banks as security for various loans which had been made 1o him by them, and a certain amount of difficulty in delivery had been anticipated ; under such circumstances, it was held, that parol evidence tending to show that some of the stock was not to be delivered until a certain lawsuit had been terminated, did not vary the provisions of the written contract, and that the evidence .was admissible. pp. 484-485</p> <p>While parol evidence is -not admissible to vary the terms of a written contract, yet such evidence may he admitted to prove some collateral independent fact, or agreement, between the parties, about which the written contract is silent. p. 484</p>

<p> Insurance: against burglary, larceny or theft; proof of loss; waiver; prayers*and instructions; inconsistent with testimony. Evidence: res inter alios. </p> <p>A policy of burglary insurance qirovided that the insurer should be liable only in the event that the articles insured were lost as a result of burglary, larceny or theft; evidence examined and held to warrant the submission of the question of such loss for the determination of the jury. p. 493</p> <p>A provision in a policy of burglary insurance providing that the mere disappearance of an article should not be sufficient evidence of loss by burglary, etc., is valid and reasonable. p. 493</p> <p>The provisions in an insurance policy requiring the furnishing by the insured of preliminary proofs of loss are required for the benefit of the insurer exclusively, in order that the nature, character and extent of the loss may be ascertained. p. 495</p> <p>Good faith demands of insurance companies frank and open dealing with their policy holders, and any acts of the insurer or its representative which may mislead the insured and induce him to believe that the furnishing of such proofs of loss will not be required, or that they, would be insufficient or nugatory, amount to a waiver by the insurer of the right to insist upon strict compliance with the terms of the policy. pp. 495, 496</p> <p>Whether or not there has been a waiver of such right is a question of fact; such waiver may be inferred from conduct of the insured inconsistent with an intention to insist on the performance of such a condition. p.496</p> <p>Prayers not supported by the facts disclosed by the testimony or inconsistent therewith are erroneous. p. 496</p> <p>During the progress of a suit upon an insurance policy, the defendant sought to introduce a letter from an agent of the insured to the husband of the plaintiff, written a year prior to the issuance of the policy, informing the husband of the stipulated provisions to he therein named. In the absence of evidence, tending to prove that the insured knew of the contents of such a communication, the letter was held to he inadmissible in evidence. p. 496</p> <p>Knowledge by the insured of the terms of a policy of insurance is presumed. p. 496</p>

<p>Automobiles : injury to guests; liability of owner. Suits at law : collision; suits affecting persons not parties; damage suits, when -plaintiff protected by accident insurance policy.</p> <p>One wlio voluntarily accepts an invitation as a guest in an automobile does not thereby relinquish his right to protection from personal injury caused by the carelessness of the owner. p. 504</p> <p>The owner of an automobile is liable ¡for any injuries that accrue, through his negligence, to one whom he takes out as a guest to ride with him. • p. 504</p> <p>The mere fact that the result of litigation will necessarily affect the interest of a third person, who is not a party to the suit, does not make such a suit collusive or fictitious. p. 503 If the real and primary object of a suit is to redress the grievance of the plaintiff, and there is an actual controversy involving real and substantial rights between the parties to the record, the suit should not he dismissed merely because third parties are interested in it. p. 503</p> <p>Where a defendant is primarily liable for the negligence that caused to the plaintiff the Jnjury complained of, the fact that a casualty company is ultimately liable to the defendant, for th'e claim of the plaintiff, is no reason for dismissing a suit brought by the plaintiff against the defendant, on the ground that the injury complained of is covered by the policy of the casualty insurance company. p. 503</p>

<p>Orphans’ Courts: issues to Court of law; appeals; time for — „ Sec. 6 of Art. 15 of Code: Motions for neiu trial; no appeal.</p> <p>An appeal from the rulings of courts of law upon the trial of issues sent from the Orphans’ Court is an appeal from the determination of a Court of law, and must he taken within the time provided by Sec. 6, Art. 5, of the Code of Public General Laws. p. 509'</p> <p>Orders overruling motions for a new trial and motions to vacate and set aside verdicts, are orders within the discretion of the trial court and are not reviewable on appeal. p. 509</p> <p>A litigant will not he permitted to employ a motion for a new trial as a means of bringing to the Court of Appeals for review, matters occurring during the trial,, and to which objection was not made at the time of its occurrence. p. 510’</p> <p>A circuit court has no authority to enter a judgment on a verdict rendered on issues sent to it from the Orphans’ Court; appeals in such cases being from the determination and rulings of the court in the trial of the issues. p. 509</p>

<p> Wills: caveat; special administrator and attorney to represent infants; attorneys fees. </p> <p>A caveat was filed to the last will and testament of Joseph Friedenwald, dated December, 19.10, and was contested on the ground that the testator at the time of the execution of said instrument was not of sound and disposing mind; a previous will executed in 1903 was then offered for probate, and caveat thereto filed by some of the children of the decedent against his other children and grandchildren. The caveatees in their answer stated reasons why they did not wish to defend the will, but suggested that the grandchildren and their descendants born and unborn, had contingent interest under the will and should be represented by some one appointed by the Court to defend the will at the cost of the estate to the extent that such person in the exercise of his independent judgment in view of all the circumstances shall be deemed proper. Edward H. Burke, an attorney at law, was so appointed, charged with the duty of so defending the will. Issues were sent to the Circuit Court for Baltimore County for trial, and the verdict of the jury being in favor of the caveatees on the issue of undue influence the will was set aside. Burke, the special administrator, after setting out his sendees as aforesaid petitioned the Court that the administrators ■ c. t. a. be required to pay him such sum as the Court should find to be reasonable. The Court passed an order directing that $15,000 be paid him for the services rendered the estate as special administrator pendente lite and as attorney. The administrators appealed and the Court of Appeals found that in view of all the facts of the case, and of the services rendered that $8,000' was a proper fee for Burke’s services as special administrator and as attorney. , p. 526</p> <p>While the fact that a client is rich, can afford no justification for a charge by counsel in excess of what is a reasonable compensation for his services, the amount involved in a controversy bears a very different relation to the question and constitutes in many instances, in a large degree, the measure of the importance of the case and the responsibility of counsel. p. 526</p>

) The appellee injured her foot and leg by stepping in a hole in the bridge over the Potomac, in Allegany County; in a suit for damages against the Eoad Directors of that county, judgment being in her favor on a verdict for $500, the defendants tools this appeal.

<p> Appeals: in equity; auditor’s account; remanding, with directions to auditor; no nevj and distinct matters admitted. </p> <p>Where, upon an appeal from an order ratifying an auditor’s "account, the cause is remanded, with specific directions how the account shall be stated, new and distinct items of charges or credits can not be introduced in the account. p. 541</p>

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

(Hmtisler, J.) The facts are stated in the opinion of the Court.

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

<p> Specific performance of contracts: title of vendor; subsequently acquired. </p> <p>For specific performance of a contract to be decreed, the contract must be fair, reasonable, bona fide, mutual and definite, and certain in its terms. p. 599</p> <p>But a court of equity will not enforce a contract which does not express- the intention of the parties, or which is the result of the mistake of either or both of them. p. 600</p> <p>The rule that specific performance of a contract is not a matter of right, but rests in the discretion of the court, refers to the sound “judicial discretion controlled by established principles of equity, and exercised upon a consideration of all the. circumstances of the case.” p. 600</p> <p>When an agreement shows that the vendor had not at the time a clear and unencumbered title, but was to acquire it, and then convey a clear title, if the vendor is able to give such a title at the time appointed by the settlement, the contract is not lacking in mutuality, and, if not otherwise objectionable, is one that may be specifically enforced. p. 601</p> <p>In such a case,, where no time is named for the consummation of the contract, a court of equity will presume that a reasonable time was meant. p. 602</p> <p>On a bill for a specific performance of a contract of sale, where the defendant set up 'the defense that there was a ground rent upon the property, while he understood that the title was to be in fee simple, it was held, that the fact that the defendant had purchased a number of properties in the neighborhood, subject to ground rents, including property on the same street and adjoining that of the plaintiff, his explanation of why he supposed the property was in fee and did not make any inquiry about it, and the fact that the attorney who was employed to examine tlie title for Mm knew that it was leasehold property, and the further fact that the defendant had in Ms possession the unsigned agreement prepared by the plaintiff’s counsel, which disclosed that the property was subject to a ground rent, would at least suggest some doubt as to the accuracy of the defendant’s statement, that the agreement was that the property was to be conveyed in fee simple; and it was further held, that his evidence was not sufficient to overcome the positive evidence of the plaintiff, that he told the- defendant the property was subject to a ground rent of $40.00. p. 599</p>

<p>Executors: duty of — ,■ commissions; death before administration of testator’s estate; completion of administration. Guardian and ward: segregation of funds; payment by guardian; presumptions, Decedents’ estates : funeral expenses; headstone.</p> <p>Where one of two executors dies before the estate of their decodent is administered, the duty of filing tho accounts and of completing the administration rests upon the surviving executor, and not upon the executors of the deceased executor. pp. 605-606</p> <p>The commissions to the surviving executor arc in full compensation, so far as the estate of the deceased is concerned, for the entire administration of his estate. p. 607</p> <p>In such a case, if the executors of the deceased executor state tho account at the instance of the surviving executor, they are entitled to a reasonable compensation for their services, hut not to commissions upon the ostato of the original decodent. p. 606</p> <p>The payment, in such a ease, to the executors of the deceased executor for the account of the decedent’s estate prepared by them, at the instance of the surviving executor, must be by the surviving executor himself, and can not be charged to the estate. p. 607</p> <p>"Where a decedent’s, estate is solvent, the cost of a suitable stone to mark the grave is properly allowable as a part of the funeral expenses; but such expenditure must not bo disproportionate to the size or amount of the estate, or unsuitable io the condition in life of the decedent. ’ p. 608</p> <p>Where the net amount of an estate was only $4,000, an expense of $1,675.00, which was between 15 and 20 per cent, of the gross amount of the estate, for a tombstone and curbing for the burial lot was held to be grossly disproportionate. p. 608</p> <p>What would be a proper and reasonable amount is a matter for the sound discretion of the Orphans’ Court. p. 608</p> <p>It is the duty of a guardian to keep separate all guardianship funds, and in the absence of proof to the contrary, a court will not assume that the guardian has mingled the ward’s funds with his own. p. 610</p>

<p> Negotiable instruments', renunciation of rights; must be in writing. Negotiable Instruments Act: object and interpretation. </p> <p>Under section 141 of Article 13 of the Code of 1912, the renunciation by the holder of a negotiable instrument of his right against any party to the instrument, can be proved only by the holder’s written declaration (unless the instrument be delivered up, etc.). p. 615</p> <p>The term “renunciation,” as used in section 141 of Article 13 of the Code of 1912 — “The Negotiable Instruments Act”--describes the act oí surrendering a right or claim without recompense, but it can be applied with equal propriety to the relinquishment of a demand, upon an agreement supported by a consideration. p. 615</p> <p>The term as there used includes the* release of a claim by virtue of an accord and satisfaction, as well as a gratuitous waiver of liability. p. 616</p> <p>The object of the “Negotiable Instruments Act” was to secure uniformity in the laws governing negotiable instruments, and in order that the object may be realized, differences as to judicial construction should be avoided, and the language of the statute should be? given its full effect to which it is legitimately entitled, while unnecessary distinctions and qualifications restricting the scope and meaning of the terms of the Act should be avoided. p. 616</p> <p>Section 138 of the Article points out and designates the acts vehich discharge the contract, but it does not prescribe the character of proof by which acts must be established, and is not inconsistent with section 141, which refers, in part, to the mode of proof as to such particular methods. p. 618</p>

<p> Set-off: statutory defense; unliquidated damages not pleadable as set-off. </p> <p>Unliquidated damages can not be pleaded as set-off.* p. 622</p> <p>Set-off, as a defense, was unknown to the common law, ánd owes its origin altogether to statute. p. 622</p> <p>The object of allowing the defense of set-off is to prevent circuity of action, and to enable the parties to adjust in one suit claims which, at common law, could not he settled without two or more actions. 1). 628</p> <p>In general, to authorize the defense of set-off, the debts must he mutual, must he between the parties in their own right, must he. of the same kind or quality, and must he certain and dearly ascertained or liquidated. p. 628</p> <p>For a claim for damages to he allowable as a set-off, the damages must be such as were fixed by. the contract sued on; or the contract itself must furnish the standard by which the damages could he certainly ascertained. pp. 626, 626</p> <p>A plea of set-off that alleged a contract of the plaintiff to sell and deliver to the defendant certain articles at a price named, and then alleged that because of tbe failure and refusal cf the plaintiff so to deliver the articles the defendant was obliged to purchase them at a market rate named in the plea, which was higher than the contract price, etc., presents a case of unliquidated damages and is not a proper plea. p. 627</p>

(IIjEUISI/EK, J.) The facts are stated in the opinion of the Court. The following are the prayers offered by the plaintiff and the defendant and the action of the Court on such: Plaintiff's Prayer — If the Court, sitting- as a jury, shall find that the plaintiff delivered to one Edgar M. Xoel the certificate for thirty shares of stock of the TI.

<p>Municipal corporations: water service; extinguishing fires; negligence.</p> <p>Where a municipality furnished water gratuitously to he used in extinguishing fires, it acts in a governmental capacity; and for losses from fire, alleged to he due to its negligence in connection with water works, a municipality is not liable. pp. 610, 643</p>

<p> Trustees’ sales: mortgage foreclosure; mere inadequacy of price; time and place of making sale; differences of opinions of witnesses as to value. </p> <p>Mere inadequacy of price is not sufficient to vacate a sale, unless it be so gross and inordinate as to indicate some mistake or unfairness in the sale for -which, the purchaser is responsible, or misconduct or fraud on the part of the trustee or mortgagee making the sale. p.'647</p> <p>It can not be objected to after a sale under foreclosure proceedings, that there was a delay in the proceedings when the-sale was delayed by the trustee from August to December for the very purpose of enabling the mortgagor and others interested. to avoid a foreclosure. p. 648</p> <p>Where property sold under foreclosure proceedings had been formerly subdivided and platted, but all trace of the lots, streets and alleys had been lost and grown over by trees, weeds, grass and bushes, and all the stakes lost or removed, so that it was impossible in walking over the property to locate any lots, it was held, that there was no obligation to sell of offer the property for sale as separate lots, or to make the sale upon the property itself. p. 651</p> <p>Afore differences of opinions of witnesses as to the value of properties sold under a decree, furnish no ground for setting aside a sale farily made, when the trustee or mortgagee acts in entire good faith. p. 652</p> <p>A sale in eqxxity should not be set aside and a re-sale made as a mere experiment. p. 652</p>

<p>Deeds: restrictions in — / effect of — ; restrictions by subsequent incumbrancer; holder under superior title not bound or estopped. Equitable estoppel.</p> <p>Where there is a general plan for the improvement of property, a restrictive covenant imposed by the grantor upon individual purchasers of the land, in pursuance of such a plan, is enforceable, at their instance, as against the remainder of the land. p. 656</p> <p>But after the execution and delivery of a mortgage, the mortgagor, by his own act alone, has no power to impair or modify the estate conveyed, and a sale, under the mortgage, clothes the purchaser with the entire title held by the mortgagor at the time the mortgage was recorded. p. 65T</p> <p>Under the principle of equitable estoppel, where one party claims to have, been influenced by the conduct or declarations of another to his injury, it must appear that he himself was not only destitute of knowledge" of the true state of the title, but also of any convenient or available means of acquiring such knowledge. . p. 658</p> <p>Where the, condition of the title is known to both parties, or Loth have the same means of obtaining the truth, there can be no estoppel. p. 658</p>

<p> Building contracts: certified check with hid; forfeiture; hids not to he withdrawn. Baltimore City. </p> <p>Under section 15 of the Charter of Baltimore City, as amended hy Chapter 163 of the Acts of 1908, the certified check, which a bidder upon City contracts, is required to deposit at the time of filing his bid, is forfeited, if, his bid being accepted, he fails to execute the contract and furnish the requisite bond. p. 666</p> <p>The bids filed under that section are irrevocable, and can not be withdrawn or altered after filing. p. 663</p>

<p>Condemnation proceedings-, abandonment of — ; when damages may be recovered.</p> <p>Chapter 117 of the Acts of 1912, amending the law as to condemnation of land, while it makes no provision for abandonment of the condemnation proceedings, does not repeal, and is not inconsistent with, section 30 of Article 26 of Bagby’s Code, which reserves the right to abandon condemnation proceedings at any time within 90 days after ratification, provided the abandonment be by written notification to the owner. p. 673</p> <p>But a party, against whose land condemnation proceedings have been instituted, and afterwards abandoned, has adequate remedy for any injury ho has sustained thereon, through the acts of the condemning party. p. 674</p>

<p>Fraternal and, beneficial orders-, by-laws; amendment of — ; effect on existing member; limitations of time for bringing suit.</p> <p>Where a member of a beneficial society, in Ms application for membership, lias agreed to be bound by the rules or laws then in force, or which might thereafter he adopted, the society has the right to hind him by such after-adoplfid by-laws, even though the same be not made retroactive in its terms, provided only that such law be reasonable. p. 679</p> <p>The foundation of such laws is their mutual character, which could not be preserved if each member and Ms beneficiary were only bound by the particular by-laws which were in force at the timo each member joined. p. 679</p> <p>A by-law of a mutual beneficial society provided that no action should be brought on any claim unless instituted within one year from the time when the right of action accrued, which was declared to he sixty days after proofs of loss should have been furnished; held, such a rule was not an unreasonable restriction upon the rights of members, p. 680</p>