Volume 124 — Maryland Reports

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

<p>Master and servant-, duty of master; safe machinery; duty not to be delegated. Foreign statutes, as evidence : when admissible.</p> <p>Statutes of other States, opposed to the policy and statutes of the State in which suit is brought, or which are deemed unreasonable by the courts of that State, are not to he given force; but where such a statute of another State is not against the policy or the statutes of the State in which the trial is had, and where it is a statute which, presumably, was read into a contract of employment between the employer and employee, upon which, or because of which, suit is brought, such statute may he given in evidence. p. 20</p> <p>An employee was injured in a West Virginia manufacturing plant of the defendant corporation, where lime and other materials were prepared from crushed stone; a suit for damages for the injury was brought in Maryland, where service upon the company was had; in the course of the trial a section of the Code of West Virginia was offered in evidence to show the duty of manufacturers, etc., in that State.to protect employees from injury by dangerous machinery; held, that the statute of West Virginia was admissible. ' p. 20</p> <p>It is the duty of an employer to provide his employees with ■safe machinery, and appliances, and a reasonably safe place, for the work undertaken by them; and this duty is one which can not be delegated. p. 16</p> <p>■ In a lime manufacturing plant there was a conveyer consisting of an endless screw that revolved in a trough, by revolutions propelling the substances that were to be crushed .and ground; the trough was low upon the ground, and in a position where the employees were obliged to step over it; in some places opening had been made in the trough and had been covered by bags; the bag covering one of these openings was ■concealed by a deep layer of dust which had settled upon it, and an employee stepping over the trough in the prosecution of work for the company which he had been directed to do, not knowing that there was any opening in the trough, stepped upon the bag, and his foot going through, was caught in the screw and crushed: Held, that, under such circumstances, there was presented such a prima facie, case of negligence on the part of the employer as to demand the submission of the question to the jury. p. 18</p>

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

<p> Wills: construction; life estates; with power of sale; when purchaser not required to look to the application of the purchase money. Trustees’ sales. Executors: sales Toy. </p> <p>The great.object in construing a will is to ascertain from the face of the instrument the intention and desire of the testator, which is always to be carried into effect, unless opposed by some principle or positive law. p. 33</p> <p>A will and codicil constitute one instrument, and the codicil, revoking in terms a portion of the will, in effect, republishes the whole will, as of the date of the codicil, in respect to all parts of the will not revoked by it, by express terms, or by provisions •so entirely inconsistent with the terms of the will as to make it impossible to give effect to them. p. 34</p> <p>By her will, a testatrix devised all of her property to her husband for his natural life, then to her children, etc., and named her husband her executor; by a codicil, she conferred "upon him, in the exercise of his judgment and discretion, full power and authority to sell, in any manner that he might see fit, any or all of the lands or property, or the estate bequeathed and devised, etc., to him, etc., with power to convey, transfer ■and assign the same to the purchaser or purchasers thereof; the ■codicil further provided that the proceeds arising from any ■such sale or sales should be invested or reinvested by him from time to time, he to have absolutely the income thereof and therefrom during the term of his natural life, etc.; it was held, that, by the will and codicil, the husband was authorized to sell all or any of the land and property of the testatrix in which an estate was devised and bequeathed to him for his natural life;, and that since such an, estate was given, etc., in all property and land of the testatrix, he was thereby authorized to sell all or any of the estate, and was not limited to the sale of his life-estate. pp. 34, 35, 36</p> <p>Such authority was not conferred upon him as executor, and no report of any sale or sales was necessary to be made by him, as such, to the Orphans’ Court. p. 36</p> <p>Purchasers at sales so made by the husband are not required to see to a proper application of the purchase money. p. 37</p> <p>When a trustee is required to sell and reinvest for the same trusts and purposes as those expressed by the instrument creating the trust, the purchaser will be discharged from responsibility for the application of money paid by him to the trustee., p. 37</p>

<p> Wills: capacity; undue influence. Prayers: unsupported by evidence. Prayers taking case from jury. </p> <p>Although a prayer may be correct in principle, it should not be granted unless there be evidence in the case to support the theory on which it is granted. p. 41</p> <p>In order to condemn and avoid a will on the ground that it was procured by undue influence, it is not sufficient to show that there was influence which affected the testator’s disposition of his property; but in order to vitiate his act it must appear that such influence at the time he made such disposition dominated his will, took away his agency, and prevented the exercise of judgment and choice by him. pp. 42-43</p> <p>Upon a question of a testator’s, capacity to make a will, it is not competent evidence for a witness to speak of what other persons knew, or their opinion of the testator’s habit of making wills. . p. 44</p> <p>In the trial of issues from an Orphans’ Court, as to the question of undue influence, etc., a prayer to take the case from the jury, on the ground of want of evidence, should refer to the whole evidence, and not to the evidence of the caveators alone. p. 45</p>

The facts are stated in the opinion of the Court. The following are the prayers that were offered by the -plaintiff and by the defendants, and the Court’s action upon the same: Pltf.’s 1st Prayer.—The jury are instructed that if they find the execution and delivery of the two notos described in the declaration, and that the same were discounted by the plaintiff for Alien Hoffman a few days after their respective .dates, and that subsequently on or about the 6th day of May,…

<p>Corporations: insolvency ; administration of assets; trust fund for creditors. Subrogation. Contractors and sub-contractors : contractor’s bond. State Roads law.</p> <p>When a corporation becomes insolvent, it is so far civilly dead that its property may be administered as a trust fund for the benefit of its stockholders and creditors. p. 73</p> <p>The bond given, under Chapter 217 of the Acts of 1910 (the Roads Law), by the construction company to the County Commissioners, to guarantee the completion of a contract to furnish the materials and labor for a bridge, according to certain specification, etc., is not liable for the debt of the construction company to a sub-contractor employed by it for work, etc., done by the sub-contractor. p. 74</p> <p>In general, a sub-contractor, employed by the general contractor, without the consent of the principal or owner, must look to the contractor for. payment, and has no claim against such principal or owner. pp. 74, 75</p> <p>The doctrine of subrogation will not be applied when it would work an injury upon third parties by destroying their legal or equitable rights. p. 75</p>

<p> Malicious prosecution: evidence; appearance before grand jury. Prayers: inclusion of facts that are unnecessary ; segregation of fads. </p> <p>In an action for malicious prosecution, the plaintiff is entitled to have the jury consider, as reflecting upon the question of malice, evidence of the defendant’s interest in the prosecution, other than the particular conduct under which a valid cause of action could be predicated. p. 83</p> <p>An action for malicious prosecution was based upon a proceeding instituted before a justice of the peace, which resulted in favor of the party accused; one of the prayers of the plaintiff (not otherwise open to criticism) contained a reference to the fact of the defendant’s having appeared as a prosecuting witness, as to the same charge, before the grand jury, which failed to return an indictment; held, that although such reference to the proceeding before the grand jury was not necessary, yet its inclusion in a granted prayer did not present reversible error. p. 84</p> <p>It was further held, that since the evidence that the defendant had so appeared before the grand jury was legally in the case, and was undisputed, such reference in the prayer was not wrongfully prejudicial to the defendant, and could not be said to enlarge the basis upon which damages might be awarded against him. p. 83</p> <p>Where a prayer instructs the jury that the plaintiff is to recover if certain facts are found to exist, its effect is to withdraw from the consideration of the jury all facts other than those specified; and such a prayer is erroneous if the facts which it excludes admit of a conclusion different from the one to which it is directed. pp. 82, 83</p>

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

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

<p>Charter parties: construction. Contracts: province of court and jury; impossibility: destruction of subject-matter. Rescission of contracts. Parol evidence. Usage and custom.</p> <p>Where by a charter party it is agreed that the owner of a line of ships will furnish one of such ships, about a certain time for freight at a certain port, subsequent notice by such owner, to the shipper, naming a particular ship for that service, if assented to by the shipper, modifies the contract, to the extent of substituting a contract for that particular ship in place of the open contract for any ship of the line. p. 107</p> <p>The fact of such notice by the owner and of assent to it by the shipper is a question that should be left for the determination of the jury. p. 107</p> <p>Parol evidence is not admissible to add to, detract from or very tbe terms of a written contract. p. 106</p> <p>But parties to a contract, may, by mutual consent, rescind it, enter into a new contract, or modify tbe existing one. p. 106</p> <p>Tbe construction of a written contract is for the Court. p. 107</p> <p>But where one of the parties to a written contract attempts to modify it, in due time, by a notice to the other, to which the other neither assents nor dissents, the question of what the contract was is for the jury. p. 107</p> <p>Where the performance of a contract depends on the continued existence of a given person or thing, it implies a condition that impossibility arising from the perishing of such person or thing excuses performance. p. 108</p> <p>'Where by a charter party the owner of a vessel agreed to have it at a port named at or about a certain date to carry a cargo for the shipper to a named port, and in the meanwhile the vessel so named was lost, without any fault of the owners, such facts constitute a good defense in a suit by the shipper against the owners for breach of contract. p. 108</p> <p>The refusal of a Court to allow immaterial questions to be asked presents no reversible error. p. 109</p> <p>The usage of parties may sometimes be shown in evidence, but mere usage or custom can never be received to modify the express terms of a contract. p. 109</p>

<p>Appeal from the Superior Court of Baltimore City. (Bond, J.)</p> <p>The cause was argued before Boyd, C. J., Burke, Thomas, Urner and Stookbridge, JJ.</p>

<p>Appeal from the Circuit Court Yo. 2 of Baltimore City. (Ambler, J.)</p> <p>The facts are stated in the opinion of the Court.</p> <p>The cause was argued before Boyd, O. J., Briscoe, Burke, Thomas, Pattison, Ubnek, Stockbridge and Constable, JJ.</p>

<p> Wills: caveat. Fraud or undue influence: evidencej relations between other parties. Administrators; pendente lite; duties of—; accounts. Evidence : rulings on—; when not reversible error. </p> <p>In cases where fraud and undue influence are alleged, great latitude is allowed in the introduction of evidence. p. 129</p> <p>The action of the trial Court in permitting, or refusing to allow an answer to be given to a question that was objected to, persents no reversible error, if the evidence sought to be elicited was otherwise included without objection. pp. 121,122</p> <p>Where a party is charged with having procured the execution of a will by fraud or undue influence, his situation towards the person who procured it, and the antecedent relations between them, are proper subjects of inquiry; but evidence of his conduct towards others in no way connected with the victims of his alleged influence or fraud, and which sheds no light upon the issue, is not admissible. p. 12fl</p> <p>It is the duty of an administrator pendente lite to collect and preserve the estate pending a contest over the validity of the will. ■ p. 127</p> <p>Letters of an administrator pendente lite are revoked by the-granting of letters testamentary' or of administratiqn, and he is then required to state an account and turn over the estate in his possession to the executor or administrator, who, upon his failure so to do may bring suit upon his bond. p. 127</p> <p>At the trial of issues under a caveat to a will, involving the question of fraud, etc., the caveator offered in evidence a copy of an account presented to the Orphans’ Court by the defendant as administrator pendente lite, designated as “his first and final account,” and the copy of the exception of the plaintiff fhereto; the exceptions were on the ground that the account did not fully show the condition of the estate, and did not account for all the property of the testator; the admission of the evidence was refused; it appeared from the record that the jury had had before them the confession of the defendant that he had presented the account, and that the plaintiff had had the full benefit of all such facts and of any inferences that could be drawn from them; under such circumstances, it was held, that evidence of the plaintiff’s exception to the account was immaterial. pp. 126,127</p>

<p>Practice Act: Baltimore City; withdrawal of pleas; replications; effect of—; waiver of rights under Act. Appeals: when erroneous rulings no ground for—. Trials at law: right to open and close; damage suits. Pleas: limiting right of recovery to sum named; not a tender of such amount. Interest: question for jury. Insurance policies: warranties by assured; estoppel against insurer. Experts: sales agents. Words: special meaning.</p> <p>In a suit under the Practice Act of Baltimore City—Baltimore City Charter, sec. 812 (see Baltimore City Code, 1906, p. 265)—pleas which had been filed in the time required by statute, were withdrawn by leave of Court in writing, and new pleas filed, supported by affidavit and a certificate; to these pleas the plaintiff filed a replication and proceeded to trial; on appeal from the ruling of the Court in permitting the pleas filed to be withdrawn, it was held, that the replication and the proceeding with the trial amounted to a waiver by the plaintiff, of the right to raise, on appeal, the question of the correctness of the ruling. p. 133</p> <p>In such a case, the proper course is to decline to reply, and suffer judgment by default, from which judgment an appeal can be taken. pp. 133-134:</p> <p>Even if such an appeal could have been allowed, the judgment should not have been reversed, as the ruling appealed from caused no injury to the plaintiff (the appellant), since it appeared that the judgment was in the plaintiff’s favor for the full amount of the claim. p. 134</p> <p>Erroneous rulings of a trial court do not afford reversible error, when it appears that no injury to the party appealing was caused thereby. p. 134</p> <p>The question of the right to open and close a case is that the right belongs to the party against whom judgment would be rendered if no evidence were introduced on either side. p. 136</p> <p>A plea of a defendant seeking to limit the right of the plain-1 iff to the recovery of a particular sum named, amounts to the denial pro tanto of the plaintiff’s claim, and requires the plainliff to adduce evidence in order to sustain his claim; under such circumstances, the plaintiff is entitled to open and close the case.</p> <p>p. 136</p> <p>Where the only question submitted to a jury is the question of the amount of damages, the right to open and close the case is properly given to the party claiming the damages. p. 137</p> <p>The word “supervise” or “supervising,” as used in insurance contracts, is not a word with so clear, distinct and definite a meaning as to render inadmissible, any extraneous parol evidence to explain it. p. 137</p> <p>A word whose meaning is generally clear, may be shown to have a special meaning in a certain trade or occupation, when 1he exact meaning of the word is in question. p. 137</p> <p>Where a “selling” agent of a motor-boat manufacturing company, among other things, has traveling and supervising duties, not including setting up or testing of machinery, the word “supervise” did not exclude the duty of inspecting and examining the motor boats. p. 138</p> <p>An accident insurance company had issued an insurance policy, where the applicant, in the schedule of warranties, had given notice to the company that he had supervising duties, etc.; the insurance company, without inquiring what those duties were, had assumed to know of what they consisted; held, that, under such circumstances, the company should not be allowed, in a suit upon the policy, to restrict the meaning of the term, or to exclude evidence tending to show the full field of employment of the assured, in the particular trade or occupation to which he had represented himself as belonging. p. 139</p> <p>Interest is ordinarily a matter which rests in the discretion of the jury, but a plaintiff may debar himself from demanding interest where a tender of an amount has been made and refused, and the amount of the verdict, exclusive of interest, does not exceed the amount tendered. p. 139</p> <p>The plea of a defendant, to the effect that the plaintiff is not entitled to recover more than a sum named, does not amount to a tender of such sum, so as to affect the plaintiff’s right to interest thereon. . p. 139</p> <p>Expert witnesses, who, from study or experience, have acquired a peculiar knowledge in regard to the matter in dispute, may testify, not only as to the facts, but may also give their opinion, based upton facts within their own knowledge, or upon facts proved by other witnesses. p. 138</p> <p>The weight of the evidence, in such cases, is a matter for the consideration of the jury. p. 138</p> <p>A citizen who for many years has been engaged, by many firms, as agent in the sale of gas engines for the use of motor boats, and knew from his experience what was required of such agent, may testify as to what such requirements are. p. 138</p>

<p>Appeal from the Circuit Court of Baltimore City.. (Durey,- J.)</p> <p>The facts are stated in the opinion of the Court.</p> <p>The cause was argued before Boyd, O. J., Briscoe, Burke, Thomas, Pattison, Urner, Stookbridge and Constable, JJ.</p>

<p>Condemnation of streets in Baltimore City: eminent domain; assessment of benefits; grade must first be fixed—; witnesses; Street Commissioners, etc; inspections of land by jury. Bam,ages: injury to balance of property. Evidence: other proceedings. Experts: not allowed to qualify; questions not reviewable on appeal.</p> <p>In condemnation proceedings for the opening of streets, Baltimore City exercises, through the Street Commissioners, the power of eminent domain. p. 158</p> <p>In condemnation proceedings for the opening of streets, Baltimore City can not lawfully assess benefits against abutting property, until the grade of the proposed street has been first ¡established. p. 156</p> <p>And when an assessment for benefits for the opening of a ■street has been made before the fixing of the grade, on appeal to the Baltimore City Court, a prayer instructing the jury that there is no evidence in the case legally sufficient to justify an ■assessment for benefits against the property, is proper, p. 157</p> <p>On appeal to the Baltimore City Court from the benefits assessed in condemnation proceedings for the opening of streets, the Street Commissioners, their clerks, and other agents are competent witnesses under section 179, Chapter 32 of the Acts of 1912, and may be summoned and examined as to the principles upon which their awards and assessments were made. p. 157</p> <p>On appeal from the action of the Street Commissioners in awarding damages and assessing benefits, in condemnation proceedings, the courts should be careful to see that the rights of the property owners are fully protected. p. 159</p> <p>In estimating the damages to he paid for condemnation of property, the jury must include in their award of damages,, not merely the market value of the land actually to he taken, but also a due allowance of damages for injury to the remaining land. pp. 160-161</p> <p>On appeal from condemnation proceedings for the opening of streets under one ordinance, the proceedings undertaken for the opening of another street, under a distinct and separate-ordinance, are not admissible. p. 158</p> <p>Where a witness was not allowed by the trial court to qualify as an expert, the Court of Appeals can not review the ruling of the lower Court upon other questions which might have been properly asked had the witness been allowed to qualify, p. 159'</p> <p>Where the jury in condemnation cases are sent to inspect the land, under section 179, Chapter 32 of the Acts of 1912, they are not confined to the duties and limitations which the principle of common law imposes upon a common law jury. p. 161</p>

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

<p>Rights of way: not of necessity; do not pass by implication ; easements; sale of pari of tract. Evidence: admitted without objection; effect of—. .Roads: wrongful maintenance and use over another’s land; injunction.</p> <p>A party has no easement in his own land; all the uses of an easement are fully comprehended and embraced in the general right of ownership. pp.195-196</p> <p>In general, no right in a way which has been used during unity of ownership will pass upon the severance of the tenements, unless proper terms are employed in the conveyance to show an intention to create the right de novo. p. 196</p> <p>A portion of a tract of land was sold, partly bordering on a public road, to which it had access by a road wholly within the area sold; a more convenient way to a public road was an ordinary uninelosed and unimproved way, over the balance of the' property, and through another farm; this was the road that had! generally been used by the owners of .the whole tract; the conveyance of the tract sold was with “all and every the rights,, alleys, ways, waters, privileges, appurtenances and advantages; to the same belonging or in any wise appertaining” : Held, that such latter road wa,s not a way of necessity, and the right to use. it did not pass by the conveyance. pp. 197-199</p> <p>Evidence that is admitted without objection may he given effect as competent proof. p. 198</p> <p>The wrongful use s.nd maintenance of a road over the land of another, is such an appropriation of such land, and such an injury to it, as to warrant relief in equity by an injunction. p. 199</p>

<p> Railroads', conductors’ duties to passengers; escorting to seats. </p> <p>Where the conductor of a railroad train finds passengers in the baggage car, and informs them that there are seats for all in one of the passenger coaches, and offers to escort them to a seat, it is not to be construed as an order to go to the other coach. p. 205</p> <p>It is not incumbent upon a railroad company to afford a passenger assistance when going from one part of a car to another, unless the passenger is laboring under some known or apparent disability or infirmity, or there are other circumstances requiring special care. pp. 206, 209</p> <p>In all actions for damages for negligence, it is the right of the defendant to have the jury confined to the issue as made by the pleadings. p. 205</p>

<p>Master and servant: corporationsj liability for torts of servant; slander; slander of tradesmen, etc.; mere disparagement of wares, not—.</p> <p>The acts of a servant, done in the course of his master’s service, and for the master’s benefit, if within the general scope of his employment, are to be treated as those of the master, although no express command or privity of the master be shown, and even though committed in opposition to the master’s orders. pp. 213, 214</p> <p>The question whether the act of a servant complained of, was in furtherance of the master’s business, or within the scope of the employment, is generally one of fact, to be determined by the jury. p. 214</p> <p>In such cases, the burden of proof is on the defendant to show that the servant was not engaged in the course of his employment. p. 214</p> <p>A declaration in slander for words uttered by a servant of a corporation, • is not open to demurrer merely because it fails to allege that the words complained of were uttered by the authority of the defendant, or that they were subsequently ratified by it. . pp. 214-215</p> <p>A corporation may be held responsible for the torts of its agent, done while acting within the general scope of his employment, although without express authority, or subsequent ratification, and even though the question of malice be involved. pp. 213-214</p> <p>No recovery of damages can be had in an action of slander, where the words are not actionable per se, unless special damages are alleged and proved. p. 215</p> <p>Defamatory language, when used in disparagement of a person’s property, or of the quality of the articles which he manufactures or sells, and which contains no imputation upon him as an individual, or in respect to his office, profession or trade, is not actionable, unless special damages can be shown. p. 215</p> <p>To say of a dentifrice that it “contains grit that would take cr scratch the enamel from the teeth and other ingredients injurious to the gums,” does not amount to an imputation against the manufacturer of the dentifrice, sufficient to render the words actionable per se, and without special damages beiug alleged and proved. p. 217</p>

<p>Testamentary law: powers of sale to executors j failure or refusal to act; appointment of administrators c. t. a.s section 29.1 of Article 93 of the Code.</p> <p>The purpose of section 291 of Article 93 of the Code was to avoid the cost and-delay incident to chancery proceedings, and to confer upon the administrator d. b. n., with the will annexed, or the administrator with the will annexed, appointed by the Orphans’ Court, “all the power and authority to sell, which the original executor derived from the will.” p. 25JJ.</p> <p>It includes every case where an executor refuses or declines to act, or died without executing the power given him by the will,. p. 221</p> <p>The provisions of the Code are not limited to cases where a will has been admitted to probate, and the executor dies after, qualifying and receiving his letters' without executing his powers. , p. 221</p> <p>The powers, in such cases, conferred upon an administrator, c. t. a., are not powers acquired by virtue of- the probate and the qualification of the administrator, but are powers derived from the will. p. 221</p> <p>A testator devised real estate to a devisee for life, upon his death, to be sold by the executor, named in the will, and the proceeds divided among his nephews and nieces; the will was not probated until after the death of the life tenant and executor; letters of administration c. t. a. were granted, and the administrator ordered to sell the property as directed by the will; upon an appeal from an order.overruling exceptions to the ratification of the sale, on the ground of want of jurisdiction of the Orphans’ Court to direct the sale, it was: Eeld, that the facts brought the case under the provisions of section 291 of Article 93 of the Code of 1912, which confer upon the Orphans’ Court jurisdiction to direct a sale, where the executor dies without having exercised the power of sale conferred by the testator, and the order was affirmed. p. 223</p>

<p>Testamentary law: distributionj widow’s rights; devises in lieu of thirds; Code, Article 93, secs. 302, 305, 309. Orphans’ Courts: accounts; correction of errors; revocation of orders; hearing on bill and answer; issues of fact.</p> <p>Where a testator directs a legatee to pay a mere nominal sum to the widow, it does not pass to her such an interest as to bar her rights to furniture or $75 under sec. 309, nor to her thirds, under secs. 302 and 305 of Art. 93. p. 228</p> <p>As the provision was committed to a legatee and was not a direct bequest, or an appropriation of any of the assets, it formed no part of the administration accounts. pp. 227-228</p> <p>The Orphans1 Courts have authority to correct errors in administration accounts, even after final ratification, and abrogate their own orders, when it is necessary so to do in order to promote the ends of justice. p. 229</p> <p>But such applications must be made within ‘ a reasonable time; and what is a reasonable time depends upon the facts of .each particular case. p.229-</p> <p>Under the circumstances of the case, where nothing appeared to make inequitable the opening of the estate, the lapse of two years and a half from the time of ratifying an account in an.</p> <p>Orphans’ Court, was held, not to be unreasonable delay in filing a petition to open the account. pp. 229-230</p> <p>Where a petition, filed in an Orphans’ Court by one purporting to be the widow of the decedent, is heard on bill and answer, its formal averment as to the character in which the petitioner filed the petition, cannot be taken as denied by a simple statement in the answer, that the reason why a certain payment had not been made, had been because the respondent was without knowledge as to whether the decedent’s widow was still living. p. 230</p> <p>In such cases, to put the fact in issue, the answer should have declined to admit or deny the allegation as to the relationship, and have called for proof. p. 230</p>

Two appeals in one record from the Baltimore Citjr Court. (Sopee', O. J.) The facts are stated in the opinion of the Court. The causes were argued together before Boyd, C. J., Briscoe, Burke,' Tttomas, Pattisoet, Ureter and Constable, JJ.

<p>Married women: property rightsj Code of 1860, Article 45; Chapter 457 of Acts of 1898; deeds to husband. Statute of uses.</p> <p>The Act of 1898, Ch. 457, has no application to the deed of á married woman, disposing of her property, executed prior to January 1st, 1899, but such deed must be governed by the preexisting law. p. 246</p> <p>Before 3 anuary 1st, 1899, a married woman could not convey to her husband, by her deed alone, property held by her under the provisions of section 1 of Article 46 of the Code of I860. . pp. 246-247</p> <p>An owner of property may, in his individual capacity, make a valid conveyance thereof to himself as trustee. p. 248</p> <p>A married woman, with the joinder of her husband in the deed, has power to convey to him as trustee her statutory separate estate under the provisions of Article 45 of the Code of 160. p. 249</p> <p>Without necessity or some good and sufficient reason, equity should not require circuitous methods when direct means can be adopted. p. 249</p> <p>Where property is conveyed in trust for a person expressly for life, with power to such person to dispose of the reversion, the Statute of Uses cannot enlarge such life estate into a fee. If, however, the trust is for a person generally, with power of disposition in such person, and the trust be a passive one, the statuto will act upon the whole fee simple estate. p. 250</p> <p>Where a deed of trust conveys an estate in trust for a married woman for life, with power of disposition, failing the exercise of which the property was to vest absolutely in her husband, his heirs and assigns, the Statute of Uses does not enlarge the life estate, nor deprive the remainderman of his contingent estate. p. 251</p>

<p>Administrators: concealment of assets. Jurisdiction of Orphans’ Court: sections 243-245 of Article 93 of Code.</p> <p>The action of the Orphans’ Court in requiring an additional bond, under the provisions of section 38 of Article 93 of the Code, is not subject to review, unless the discretion vested in the Court has been manifestly abused. p. 255</p> <p>If a person desires to bring himself within sec. 244 of Art. 93 of the Code, and sec. 245, limiting appeals from the Orphans’ Courts to the Circuit Courts of the counties, or the Superior Court, etc., of Baltimore City, his petition must substantially comply with the requirements of the section therein referred to.</p> <p>p. 256</p> <p>To give the Orphans’ Court jurisdiction under sections 243 and 244 of Article 93 of the Code, over an administrator, upon the question of concealment of assets, it must be alleged and shown, either that the administrator had concealed, or had in his hands, some part of the decedent’s assets, which he has omitted to return in the inventory or lists of debts. p. 257</p> <p>The Orphans’ Court may allow an inventory to be corrected if it improperly, includes property not belonging to the estate. p. 258</p> <p>It is not proper to hold an administrator for a fund, not part of the estate, merely because it was- paid to him, p. 258</p>

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

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

<p>Sale of goods: on trialj rejection; reasonable time; Code, Art. 83. Prayers: misleading; inconsistent theories. Evidence: non-reversible errors.</p> <p>Under Article 83 of the Code of 1912, upon a sale and delivery of goods, on approval, unless a time be fixed,' within which notice of rejection may be given, such notice, to be effective, must be given within a reasonable time; and if the purchaser retains the goods an unreasonable time, without giving such notice, he becomes liable therefor. p. 281</p> <p>The, ruling of a Court upon exceptions to evidence can present no reversible error, when testimony as to the facts sought to be proved by such evidence was admitted elsewhere during the trial. * p. 282</p> <p>Error in granting a prayer of one of the parties, which does not state correctly the legal principles applicable to the case, is i'oi. corrected by a prayer granted at tbe instance of the other party which states the law correctly as to his conflicting theory of the case. p. 282</p>

<p> Building contracts: work to be approved and accepted by a third ■ partyj recovery; rejection; good faith; burden of proof. </p> <p>Where, by a building contract, the quality and acceptability of the work is to be left to the approval of a third party, whose estimates and decisions are to be final and conclusive, there can be no recovery for work done, unless acceptance by such third party be shown, or unless it be shown that the work was rejected by him in bad faith and fraudulently. p. 289</p> <p>In such a case, in the absence of fraud or bad faith, the decisions of such third party are not subject to review by the courts. p. 289</p>

(Duffy, J.) The facts are stated in the opinion of the Court. The cause was argued before Boyd, O. J., Briscoe, Burke, Thomas, Pattison, l miner, Stookbridge and Cow-stable, JJ.

<p>Two appeals in one record from the Baltimore City Court. (Soper, J.)</p> <p>The facts are stated in the opinion of the Court.</p>

<p> Railway crossings: duty at—j structures that obscure the view; steam and electric roads; suburban lines; . siganls. Automobiles. </p> <p>Bailroad tracks are a signal of danger. p. 312</p> <p>In order to avoid the imputation of negligence, one attempting to cross a railroad track must first look and listen, and if the view is obstructed, he must stop, look and listen, pp. 312, 313</p> <p>And if these are obstructions which prevent a clear view of the tracks in both directions, then one about to cross the tracks must stop, look and listen, after he has passed the obstructions. pp. 313,314</p> <p>„ This rule has for its object the protection, not only of those who travel the public roads, but of those who travel in steam or electric railroad cars. p. 314</p> <p>The same degree of care is to be used in crossing the tracks of suburban electric railways as of steam railroads. p. 315</p> <p>The rule applies as well to electric roads, using public roads-, as to those using private rights of way. p. 315</p> <p>Both from the standpoint of their own safety, and from that of the menace they are to the safety of others, the observance of these rules is especially incumbent upon the drivers of automobiles. p. 316</p> <p>The fact that a railroad had failed to observe the law requiring signs to be erected at crossings, does not excuse one who erossés the railroad, at that point, negligently, and while knowing the railroad was there. p. 318</p> <p>The fact that a railroad has constructed a car barn near a crossing, in a way that obstructs the view, does not affect the rule as to contributory negligence, nor relieve persons of the effects of their crossing tho tracks, without the exercise of due care and caution. p. 319</p> <p>Negligence on the part of a defendant does not relieve the plaintiff of the duty to exercise due care and caution, or relieve him of the consequences of his failure to do so. p. 319</p>

<p> Promissory notes: corporationsj personal signature of officer; when liability is personal; evidence. Negotiable Instruments Act. </p> <p>Under the Negotiable Instruments Act (Code, Art. 13, sec. 39), the mere addition of words describing the maker as agent, or as filling a representative character, without disclosing his principal, deos not exempt him from personal liability. pp. 325-326</p> <p>An officer of a corporation, who, after the name of the corporation written or stamped, as the maker .of a note, signs his own name, without any qualification, or description, or the addition of his official title, is. prima facie personally responsible on the note. p. 326</p> <p>In an action by a payee on such a note, the use of the form “we promise to pay,” suggests the intention that he Avas personally bound. p. 324</p> <p>If an officer of the corporation signs his own name after the • corporation’s name to a promissory note, merely to complete the signature of the corporation, and not with the intention of making himself personally liable, for such a defense to prevail, in an action against him on the note, it must appear, and the jury must find from the evidence, that such was the understanding between the parties at or before the note was issued. pp. 327, 329</p>

<p>Administrators: payment of claims; sections 83, 97, 99 and 100, etc., of Article 93 of Code; claims already established by judicial decisions; deficient estate; protection of administrator. Husband and wife: ante-nuptial contracts; dower; jurisdiction of equity; desertion by wife.</p> <p>Sections 83, 97, 99 and 100, etc., of Article 93 of the Code, providing that administrators shall not discharge, or be allowed for, any claims against their decedents, unless first passed by the Orphans’ Courts, do not exclude from distribution claims established by courts of justice. p. 335</p> <p>At common law, ante-nuptial agreements were not sufficient to bar dower. p. 337</p> <p>Courts of equity have jurisdiction to enforce ante-nuptial contracts. p. 337</p> <p>The mere fact that a wife has separated from her husband, is not sufficient to defeat her enforcement of an ante-nuptial contract. ■ pp. 343-344</p> <p>Where a testator’s estate is not sufficient to pay in full an equitable claim against it, the decree therefor should he so framed as to protect the executor. p. 345</p>

<p>Deeds: equitable titlej actual interest of parties. Partnerships: individual and partnership property; presumptions. Trustees in bankruptcy: not purchaser for value.</p> <p>Where, in pursuance of an agreement between the purchasers of real estate, the deed was taken in the name of one of them, but to be held for the “joint and equal benefit of both,” and the excess contribution made by one of them to the consideration, to be considered as a loan to the other, the parties are to be considered as tenants in common, in proportion to their contribution, and in accordance with the agreement. p.,348</p> <p>As between the parties to a deed, it is always competent, in equity, to show what was their actual interest. p. 349</p> <p>Declarations of a party, favorable to himself, are not admissible, unless made in the presence _ of the other party, or as a part of the res gestas, or in contradiction of evidence previously given. p. 3§0</p> <p>A trustee in bankruptcy is not a purchaser for value, and can not maintain any greater claim than could the bankrupt. p.,350</p> <p>In. the absence of proof that the real estate has been purchased with partnership funds, - for partnership purposes, the property is deemed to be held by the parties as joint tenants or tenants in common. p. 351</p> <p>Where persons, who afterwards become partners, buy land in their individual names, and with their individual funds, before the making of a partnership agreement, the land will be regarded as the individual property of the parties, in the absence of a clear, explicit agreement, subsequently entered into by them, to make it firm property, or in the absence of controlling circumstances which indicate an intention to convert it into firm assets. p. 352</p> <p>Property, not part of the partnership assets, is not within the terms of a decree appointing trustees for the “co-partnership.” p. 353</p> <p>Property not bought witb money of a partnership that did not come into existence until two years later, that was never entered on the partnership books, is not made a part of the firm asserts, merely because it was used for partnership purposes, without the payment of rent. p. 352</p> <p>In general, the testimony of witnesses as to matters that are purely questions of law is not admissible. p. 353</p>

<p>Conspiracy: interference with contractual rights of others.</p> <p>Where plaintiff had communicated to an architect his intention to purchase a lot of ground, for the improvement of which he had employed the architect, a declaration that recites that the architect conspired with others and qiurchased the 'lot for themselves, but does not allege that the plaintiff had opened negotiations with the owner of the lot for its purchase, or done anything looking to the acquisition of any rights thereto, and that does not contain an allegation that but for such action on the part of the architect and other defendants, the plaintiff would have been able to purchase the lot, states no cause of action. pp. 358-359</p> <p>The mere fact that the plaintiff had suffered damage or lost an opportunity to profit financially, because of the action of the defendant in himself purchasing the lot of ground which the plaintiff had intended to acquire, gives to the plaintiff no right of action. ‘ p. 358</p> <p>Por such an act to be sufficient basis for a suit for damages, it must be of a character to create an actionable wrong, and to constitute an actionable wrong, some legal right of the plaintiff must have been invaded, and invaded knowingly. p. 358</p> <p>A combination or conspiracy to commit an act that is lawful in itself, does not render the act unlawful. p. 359</p>

<p> Court of Appeals: rules; effect of—; preparation of record; disagreement of counsel; delay in transmission. </p> <p>In the absence of proof that the Clerk of Court or the appellee was delinquent, the presumption is that the appellant was responsible for the delay in transmitting the record to the Court of Appeals, and he must satisfy the Court that the record could not, by proper diligence, have been prepared and transmitted ir> time. p. 363</p> <p>Where the clerk is not in default, a very strong case must be made out to rebut the presumption of negligence on the part of the appellant. p. 368</p> <p>The rule of the Court of Appeals, in regard to the time of transmitting the record, and of taking an appeal, has the binding force of a statute, and the observance is obligatory on the Court. p. 363</p> <p>In the ease of disagreement between counsel as to what the record should contain, the question should be determined by the trial judge. p. 368</p>

<p>Appeal from the Baltimore City Court. (Stump, J.)</p> <p>The facts are stated in the opinion of the Court.</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> Sunday laws: Baltimore City; baseball. Police power. Statutes: constitutionality; duty of courts. </p> <p>Courts will not declare an Act or ordinance unconstitutional, merely because it may seem unwise or inexpedient, nor will they strike idown merely because it operates harshly upon the persons whom it affects. p. 389</p> <p>An Act of the Legislature can not bo declared void upon constitutional grounds, unless it plainly contravenes some provision of the Constitution. p. 389</p> <p>The Ordinance of-1827 of the Mayor, etc., of Baltimore City, prohibiting the playing of g'ames on' Sunday, and retained in force by sub-section 3 of section 906 of the City Charter, is broad and comprehensive enough to prohibit the playing of baseball on that day, even though it be played in a secluded part of a large, natural park, out of the sight of houses or dwellings, without any reward for playing, or charge for admission, but merely as a recreation and in a quiet and peaceful manner, without noise or conduct distm*bing the public peace. p. 389</p> <p>The passage of such an ordinance is within the proper exercise of the police power that is vested in the State and in Baltimore City. p. 394</p> <p>Such an ordinance is not obnoxious either to Article 36 of the Declaration of Rights, guaranteeing religious freedom, or to the 14th Amendment of the Constitution of the United States, protecting civil rights. p. 389</p>

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

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

.(Henderson and Keedy, JJ.) The plaintiff, a brakeman on the R & O. B. B., was permanently injured by falling in a cinder pit in one of the •company’s railroad yards,—while going across the yard at night for a drinking cup', for the use of the engine crew of a train being prepared to engage in interstate commerce; the verdict was for $5,300, and the defendant appealed.

<p>Railroads: ancient ordinances regulating—; not applied to modern street cars. Negligence: crossing trades in front of closely approaching car. Contributory negligence: effect of—.</p> <p>The Ordinance of the Mayor and Oity Council of Baltimore of 1839, to regulate “railroad cars,” codified as section 7 of Article 30, of the Baltimore City Code of 1906, and prohibiting the driving, hauling or propelling the cars of railroads or railways, within the city, at any faster speed than a walk, does not apply to the present system of street cars. p. 437</p> <p>One who attempts to cross a track, in full view of a moving car coming towards him, and so near, etc., that no person of ordinary care and prudence would have made the attempt, is guilty of contributory negligence as a matter of law, and not entitled to recover, when there is no evidence that the car could have been stopped between the time he left his place of safety and the time he was struck. pp. 438, 442</p> <p>In general, where a plaintiff has been proved to have been guilty of contributory negligence, the question of negligence vel non of the defendant becomes immaterial. p. 441</p>

<p> Partnership agreements: fraud; insufficient evidence; special advantages to one or more parties; right to buy out others; appraisement; rights of possession; dissolution; absence of confidence. </p> <p>A partnership agreement was attacked on the ground of fraud, and the charges held, not proved. p. 450</p> <p>ATo rule of law prevents parties to a partnership from agreeing among themselves that one of them have an advantage or interest over the others. _ p. 450</p> <p>A provision in a partnership agreement, that so long as the relations continued, the partners should share equally in the losses, as well as the profits, hut that in case of a disagreement, a settlement should he made in a particular manner, giving to one of the parties the prior right to purchase the assets, after an inventory and appraisement, is not of itself any evidence of fraud. p. 450</p> <p>But such an agreement does not authorize one partner arbitrarily to oust the other parties, and take exclusive possession of the property, without any appraisement or inventory. pp. 451-452</p> <p>In such a case, if the partner with the right to the prior option should intentionally provoke a disagreement in order to exercise his option, equity could intervene. p. 451</p> <p>Where such an agreement does not provide how or by whom the inventory and appraisement of the stock is to be made, in ■ease of dissolution, the presumption is that it is to be made by the partners. p. 452</p> <p>In general, without special agreement, no one partner is entitled to the possession and control of the partnership assets to the exclusion of the others. p. 452</p> <p>The basis of the partnership relation is the mutual confidence of the parties; if that element is lacking, or is destroyed, the ■ends and aims of the partnership are defeated. p. 451</p>

<p>Wills: probate; notice to near relations; presence of any of relatives sufficient under sections 344, 345, of the Code, Article 93.</p> <p>It is only where none of the near relations of a decedent are present, when the will is exhibited for probate, that it must be made to appear that reasonable notice was given to them; where any of the near relations attend, and no objection or caveat is filed, the Orphans’ Court is authorized to admit the will to probate. p. 459</p> <p>In such a case, there is no necessity for showing that the near relatives of the deceased had received reasonable notice of the time when the will would be exhibited. p. 459</p> <p>"Where the Orphans’ Court, in admitting a will to probate, and granting letters testamentary, proceeds regularly in accordance with the provisions of the statutes, its order should not be rescinded simply because one of the heirs at law or next of kin determines to file a caveat. p. 460</p>

(Soper, C. J.) A valuable racing mare, belonging to the appellee, was hitched to' a sulky, in charge of a careful and competent driver, and was being driven at a walk, upon the extreme right-hand side of the road to the racing track. The automobile of the defendant coming in the opposite direction, on . the wrong side of the road, came into' collision with the mare and sulky, breaking the sulky and injuring the mare.

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

<p>Husband and wife: gifts; certificates of stock in wife’s name. Stock: endorsement in blank. Evidence: erroneous rulings; when no ground, for reversal.</p> <p>"When a man causes a certificate of stock to he issued in his wife’s name, and delivers the same to her with the intention of giving her the stock, nothing more is required to complete an absolute and irrevocable gift. p. 488</p> <p>In such a case, the mere fact that the wife signed a blank assignment of the certificate is not evidence sufficient to disprove the gift. p. 490</p> <p>A blank assignment endorsed upon a certificate of stock, which remains in, or is restored to, the possession of the assignor, is not operative and may be cancelled. p. 490</p> <p>The refusal to admit testimony offered in evidence presents no grounds for reversal, even though erroneous, if the same testimony, or other testimony to the same effect, was otherwise ad-1 initted in the case. p. 490</p>

<p>Appeals: criminal cases; Stale’s exceptions. Constitutional law : section 29, Article 3; title of statutes. Chattel loans: regulating liens; Ch. 208, Acts of 1902; constitutional.</p> <p>Under the Act of 1892, Chapter 506 (section 80 of Article 5 of the Code of 1912), an appeal in a criminal case brings up for review the exceptions and the judgment upon the demurrers. p. 490</p> <p>But, under this Act, as under the Act of 1872, Chapter 316, on the State’s appeal in criminal cases, the Court of Appeals is required to notice the State’s exceptions only where the parties accused have been convicted, and have also taken exceptions and appeals. p. 496</p> <p>Where, however, the defendant has not been tried on the indictment, nor upon one or more counts charging different offenses, and the State’s appeal brings up for review the judgment of the Court on the demurrer, a different principle applies. p. 497</p> <p>In such a case, if it shall be found that there was error in the rulings excepted to by the accused, so that a new trial can be awarded him, it is then the duty of the Court of Appeals to consider and determine all questions raised by the State on its appeal, so that in the new trial, the Court helow can be guided by the judgment of the Court of Appeals on all such questions, as well as on those raised by the accused. p. 495</p> <p>While a liberal construction is to be given to section 29 of Article 3 of the Constitution, relating to the title of statutes, yet where in any case, the title of an Act violates the provisions of that section, it is the duty of the courts so to declare. p. 497</p> <p>The purpose of. this constitutional requirement is to prevent the combination in one A'ct of several distinct and incongruous subjects, and that the people may be fairly advised of the real nature of the pending legislation. - p. 498</p> <p>To gratify this provision, the title need not bo an abstract of the bill, nor give the details of the Act; but it must, not be misleading by apparently limiting the enactment to a much narrower scope than is found in the body of the Act. p. 498</p> <p>The title to the Act of 1902, Chapter 208, declares the Act to be for the regulation of loans secured by liens “upon household furniture and effects, musical instruments, typewriters and sewing machines,” in use or located in any dwelling house; while the body of the Act includes not only all personal property of the kinds named, whether in use or located in a dwelling house, or- not, but also includes “any other chattels,” and contravenes the provisions of section 29 of Article 3 of the Constitution, and is invalid. p. 499</p> <p>A traverser ought not to be called upon to answer a count containing some good charges and others upon which there could be no conviction. The accused, in such a case, has the right to have the invalid counts eliminated before trial on an indictment containing other counts that are good. p. 500</p>

<p>Constitutional law: section 29, Article■ 3; title and subject of ■ statute. Parle Fund of Baltimore City: to be applied by Parle Board: Chapter 109 of the Acts of 1900, in so far as it affects Parle Fund, unconstitutional. Public Local Code for Baltimore City: 1906; no legal sanction; its provisions not ratified by mere reference in subsequent statutes.</p> <p>Chapter 109 of the Acts of 1900 (attempting, among other things, to prevent the Park Board of Baltimore City from spending any part of the Park Fund, unless authorized by the Board of Estimates, etc.), by its title declares it to be for the repeal and re-enactment, with amendments, of sections 10, 57, 59, 77 and 176 of the Acts of 1898, Chapter 123, entitled “City of Baltimore,” sub-title “Charter”; the enacting clause repeals and re-enacts the same sections, with amendments, etc., in the usual form; but the body of the Act amends section 97 of the Acts of 1898, affecting the management, control or distribution of the Parle Fund, and the Act of 1900 is therefore unconstitutional so far as concerns the amendment of the said section 97. p. 515</p> <p>In order to comply with section 29 of Article 3 of the Constitution, relating to the title and subject-matter of statutes, while the title need not give an abstract of the Act, yet it must sufficiently describe the subject-matter of the legislation, and must not be misleading by apparently limiting the enactment to a much narrower scope than that covered by the body of the Act. pp. 511-512</p> <p>The fact that the Board of Park Commissioners, since the passage of the Act of 1900, did submit their estimates to the Board of Estimates, and spent no moneys not so submitted and approved of by the Board of Estimates, does not estop the Park Commissioners from claiming the right to an injunction to restrain the Mayor and City Council from diverting any part of the Park Fund to other purposes. p. 515</p> <p>The Public Local Code of 1906 has no legislative sanction, a.nd mere reference to its articles, in subsequent statutes, that have since been codified, do not have the effect of giving such sanction to its provisions. p. 516</p> <p>The Park Fund of Baltimore City, under the existing laws of the State, is to be applied to park purposes only, and to be expended and distributed for such purposes by the Board of Park Commissioners. p. 516</p>

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

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

<p> Decrees: setting aside; mistalce and surprise; statement of judge that he had not read pleadings. </p> <p>Ordinarily a decree once enrolled cannot be opened, except by bill of review, or by an original bill for fraud. p. 542</p> <p>The exceptions are where cases were not heard upon their merits, or where it is alleged that the decree was entered by mistake or surprise, or where the decree was entered under such circumstances as to satisfy the court that, in the exercise of sound discretion, the enrollment ought to be discharged and the decree set aside. p. 542</p> <p>A decree of a court of equity ought not to be set aside years after it was passed, merely because long afterwards the judge stated that it had been entered by mistake or surprise, and that he would not have passed the decree had he known of the questions presented by the pleadings, which, in spite of the allegations in the decree that all the pleadings and proceedings in the case were read and considered, as a matter of fact he had not read, owing to certain representations made to him by counsel. p. 547</p>

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

<p>JUxecutors: appointment; express words need not loe used. Administration : voaiver of right; notice; revocation; time for petition. Testamentary laws: purpose; speedy settlement.</p> <p>A will, without directly naming any executor, contained the following provisions: “I desire my trustees (hereinafter named), to pay my funeral expenses, all my just debts, and to erect a modest tomb over my remains. I appoint, as my trustees, to take charge of my estate upon my decease * * * J. H. C. and S. M. L.”; such language, and the duties it imposes upon the trustees, indicates that they are to be the executors as well as trustees. P- 570</p> <p>The designation of one as an executor need not be by the use of the word “executor”; any words which confer on a person the substantial rights, powers and duties of an executor, amount to such an appointment under the will, and are sufficient to clothe such person with the functions of the office. p. 569</p> <p>The right to administer is a valuable right of which, in general, a party entitled can not be deprived, but the right may be forfeited or lost. p. 573</p> <p>Where one of the parties entitled to letters of administration is present at the probate of the will, and the other party is a non-resident, and neither have qualified or given bond, according to the provisions of sections 43-46 of Article 93 of the Code, it is not necessary for a summons or notice to issue to them, before letters be given to the next person entitled. pp. 570-571</p> <p>Bor the one first entitled to letters of administration to have revoked the letters, which were granted another, he must' move to have them revoked within the same time, after his knowledge that they were granted, as that provided by law within which an original application for the letters should have been made. pp. 573-574</p> <p>The whole, purpose of the testamentary system of the State is to guard against all useless delay, and to secure as prompt and speedy settlements of estates as practicable. p. 575</p> <p>Where one who is entitled to administer has knowledge of the appointment of another in his place, the time within which he must petition for the revocation of the letters begins to run from the time of his knowledge of such fact, and not from the time when he informs himself on questions of construction as to the appointment. p. 575</p>

<p>Appeal from the Circuit Court for Prince George’s County. (Beall, J.)</p> <p>The cause was submitted to Boyd, O. J., Briscoe, Burke, Thomas, Páttisoet, Ureter, Stockbridge and CoetSTABLE, JJ.</p>

<p>Appeals: transmission of record; delay; burden of proof. Court of Appeals: rules; effect of law.</p> <p>The rules of the Court of Appeals, incorporated in section 6 of Article 5 of the Code, regarding the time for the transmission of records, have the effect of law, and can not he waived. pp. 582, 583</p> <p>Under this section and section 40 of Article 5, if the record is not transmitted in time, the appeal will he dismissed, unless it he shown that the delay was caused by the neglect, omission or inability of the clerk or appellee, and this burden of proof is on the appellant. p. 582</p> <p>In the computation of the three months allowed by the rule for the transmission of the record, the time begins with the date on which the appeal was ordered. p. 582</p> <p>Where the clerk had prepared the record in ample time, and had given it to the appellant to examine, who retained it so long that on the day it was due it was received at Annapolis too late for delivery, the appeal was dismissed. p. 585</p>

<p>Subscriptions to bonds: payments in installments; sums to be repaid on date certain; accrued rights and forfeitures; subscriber not a creditor in the meaning of attachment laws.</p> <p>F. “purchased” from an agent of the Guarantee Trust Oo. of Ga. a “bond” of that company to the general effect that in consideration of a certain cash payment to it, and of the payment to it of a certain sum for a certain number of consecutive months, the company obligated itself, as trustee, at the end of which number of consecutive payments, to pay a stipulated sum to the holders of record of the contract; there were provisions in the contract for an equitable distribution to such holders of similar “bonds'” of the surplus- accrued from interest, delinquencies, fees and investments, etc., and the Trust Company reserved the right to anticipate the specified date of payment, upon certain contingencies; but it assumed no obligation to pay the principal sum at any other time or date than the date specified; there was no undertaking on its part to repay, or pay, any lesser sum, or any portion of the installments paid in; the Trust Company having become insolvent, and so adjudicated, before the time specified for the payment of the sum stipulated in “F.’s” bond, “F.” issued a non-resident attachment against the funds in Baltimore City to recover the sums and installments that had been paid it by him, according to the obligations of his contract: Held, that the transaction was not a purchase, but a subscription to be paid in a certain way and time, with rights to accrue when all the installments had been paid when and as due, and with the possibility of forfeiture in ease of certain defaults. p. 581</p> <p>Before the arrival of the time when the sum to be paid by the Trust Company was due, the purchasers of such “bonds” are not creditors, in the sense of the attachment laws. p. 591</p> <p>A creditor is a person to whom any obligation is due, or one who has the right to require the fulfillment of an obligation. p. 591</p> <p>The insolvency of the Trust Company and the appointment of a receiver operated to mature its obligation, as a claim against the funds in the hands of the receiver, but do not constitute the holder of any of the bonds (whose installments are not all due) a creditor within the meaning of the attachment laws. p. 591</p>

<p>False pretenses: sufficiency of indictment. Indictments: negativing exceptions.</p> <p>The offense of obtaining goods or chattels by false pretenses, with intent to defraud, is a misdemeanor, and is made punishable by section 122 of Article 27 of the Criminal Code. p. 594</p> <p>It is essential to the validity of an indictment, that the particular offense should be charged with reasonableness and certainty, and that it should allege all the matters that are material to constitute the charge made against the accused. p. 595</p> <p>By section 498 and section 501 of Article 27 of the Criminal Code, the Legislature has removed the necessity for some of the technical allegations of fraud formerly required in indictments for obtaining goods under false pretenses. • p. 595</p> <p>Under these sections of the Criminal Code, an indictment charging that J. E., etc., did, by false pretense, etc., to D. L., who was then and there the agent and servant of L. W. (which said false pretense was not * * * a mere promise of future payment, etc., * * *), unlawfully, etc., did obtain from L. W., a clock, etc., etc., etc., is. not demurrable, although the indictment fails to charge that said D.‘L. was at the time acting within the scope of his authority as such agent and servant of L. W. p. 596</p> <p>In general, indictments may set out facts according to their legal import, or according to their outward form. pp. 597, 598</p> <p>What one does through his agent, he does, as a matter of law, himself. p. 598</p> <p>Indictments of statutory offenses are sufficient when set out in the words of the statute, and the traverser is brought within their terms. p. 598</p>

<p>Interpleader: nature of—; pleadingj effect, of answer; admissions; exhibits. Cross-bills: not available as defenses. Landlord and tenant: when entitled to an interpleader.</p> <p>Jurisdiction in cases of interpleader is founded upon a conflict between two or more persons severally claiming the same debt through separate and distinct interests, while the person liable to discharge the debt is unable to ascertain which claimant is entitled, and is threatened with two or more suits in respect to a subject-matter in which lie claims no interest, and in regard to which he is an indifferent stakeholder, pp. 606, 607</p> <p>Where a case is set down by tbe complainants for bearing on bill and answer, the allegations of pertinent facts, as distinguished from matters of opinion, in the answers, must he taken as time; and material averments of the bill denied by the'answers, or neither admitted nor denied, can not he considered. p. «07</p> <p>But admissions, within the meaning of the rule, need not he expressly made, but may he inferred from the necessary or natural import of the language used. p. 608</p> <p>In considering the import and meaning of the answer, the exhibits of the defendant may be considered. p. 609</p> <p>In general, in the ease of interpleader, the amount of the. fund in the hands of the complainant must he taken as stated in the hill, and can not he controverted by the answers. p. 609</p> <p>If it should be shown that the amount alleged to be due, and which the complainant offers to pay into court, is not in fact the true amount, because of improper deductions by the plaintiff from the amount actually due, it may disclose a case in which the plaintiff is not indifferent as between the defendants, and not entitled to require them to interplead. p. 609</p> <p>In an interpleader suit, the answer of one defendant may be read as evidence against a co-defendant, to prove that the defendant, whose answer is read, made a claim for the fund in dispute. p. 609</p> <p>In such a suit, a denial, in the answer of one of the defendants, of the facts upon which the claim of the other defendant ' rests, is immaterial, as relating to matters to be litigated between the defendants. p. 609</p> <p>. To entitle a complainant to a decree for an interpleader, it is not necessary for him to decide close questions of fact or nice questions of law; but it is sufficient if there is a reasonable doubt as to which of the claimants is entitled to the debt. p. 609</p> <p>Although in general a tenant can not maintain a suit for interpleader against his landlord, an exception is where there is privity between the landlord and the opposing claimant, as where the title of the other claimant is derived from that of the lessor, or where both defendants claim under the lessor by different titles. p. 610</p> <p>To defeat the complainant’s right to an interpleader on the ground that he is not an indifferent stakeholder, the. interest which it is objected that he has must be in the very thing or fund itself which is the subject-matter of the suit. pp. 610-611</p> <p>A subject not germane to the pending controversy can not be injected into that litigation by means of a cross-bill. p. 611</p> <p>A defendant in a strict interpleader suit can not have relief by cross-bill against the complainant. p. 611</p> <p>The litigation between the complainant and defendant must be confined to the thing or debt in the hands of the complainant, and the defendant can not inject a different subject-matter into the litigation. p. 611</p>

<p>Directors of corporations: liability to creditors.</p> <p>There must be a breach of duty by the directors of a corporation, and an injury therefrom resulting, before they can be held personally liable. • . p. 619</p>

(Gorter, T.) The facts are stated in the opinion of the Court. The following are the prayers offered by the parties and the Court's action thereon: CANTON CO.’S PRAYERS.

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

<p>Specialties: execution and delivery; possession; presumption; seal; effect of—,■ corporate seal; evidence; pleading; non esl factum; consideration implied; special pleas; fraud and ultra vires; “never indebted”—improper plea. Sealed instrument of indebtedness: implied promise lo pay. Prayers: too general. Corporations: promoters; payment for land, in stock; not entitled, to be reimbursed in money.</p> <p>While the mere presence of a corporate seal attached to a note does not necessarily render the instrument a specialty, yet when the words in the body of an instrument refer to the seal, and nothing on the face of the instrument shows any contrary •intention, and the obligation is declared on as a specialty, it is to be presumed, that the iusAumeut is such. pp. 646,641</p> <p>In the absence of any bv-lavv or other law or rule requiring a certificate of indebtedness signed by the treasurer of the corporation, with the corporate seal attached, attested by +hc secretary, does not require the signature of the president, p. 648</p> <p>In a suit upon a certificate of indebtedness, it is not reversible error io have introduced the certificate in evidence, prematurely, when subsequently its execution and delivery were sufficiently proved. p. 648</p> <p>Proof of execution and possession of a specialty is prima facie evidence of delivery, and in the absence of all proof by the obligor, it entitles the obligee to a verdict. p. 648</p> <p>Under the plea of non est factum, the consideration implied from a seal can not be inquired into; nor, under such a plea, can a specialty be excluded from evidence on the ground that it was fraudulent or ultra vires. p. 648</p> <p>In order to create a writing obligatory, it is not necessary that the instrument should contain an express promise to pay the sum named therein. p. 649</p> <p>A writing under seal that on its face shows the mater to be a debtor to the party named, or bearer, charges the mater with the payment of the money. ' p. 649</p> <p>A prayer, that under the pleadings and evidence in the case the plaintiff is entitled to recover a verdict, etc., is too general. p. 650</p> <p>A seal imports a consideration. p. 652</p> <p>In a suit upon á specialty, the presence of the seal mates erroneous an instruction that there was no evidence of any consideration. ’ p. 652</p> <p>The pica of never indebted as alleged is improper in debt on specialties. . p. 652</p> <p>The defense of ultra vires must be pleaded specially. p. 653</p> <p>Parties who purchase property and convey it to a corporation in payment for stoct of the company, can have no claim upon the company for the repayment of the purchase money paid by them for the land. p. 653.</p> <p>The mere fact of a corporate certificate of indebtedness being under seal, will not preclude the defendant from showing, if it can,'that there was no consideration for the certificate, or that the directors had no authority to authorize the issue. p. 653</p>

<p>Deposits in savings banhs: entered on account of owner ‘‘or another, or either of them”; retention of booh; no perfected gift. Trusts: creation of—.</p> <p>The words “in trust” are not necessary to indicate an intention to create a trust, nor are they necessary to a valid declaration of a trust with a power of revocation. p. 665</p> <p>But in order to establish a declaration of trust there must be clear evidence of an intention to transfer a present interest to the cestui que trust. p. 665</p> <p>And where one who has, or places, money in a savings bank “in account” with himself or another, “or the survivor of them,” and retains the possession of the deposit book, such facts, of themselves, raise no intention of any trust. p. 667</p> <p>Where the owner of money in a savings hank has the same entered “in account with” himself or another, “or either of them,” retains possession of the deposit book, and may withdraw the deposits at any time, such entry does not operate as a perfected gift. p. 667</p>

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

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

<p>Deeds: records; constructive notice; Acts of 1766, Chapter 14; . restrictive covenants; on land retained by grantor; valida ity of—; need not be by separate instrument. Equity: appeals; condensation of record.</p> <p>In general, implied notice from a recorded deed is held to exist only in reference to instruments which by law are required or authorized to be recorded. p. 684</p> <p>Under section 1, Chapter 14 of the Acts of 1766, all rights, encumbrances or conveyances, touching or in any wise concerning land should appear on the public land records. p. 684 Restrictions imposed by deed on lands retained by the grantor constitute easements in favor of the property conveyed, p. 685 Where a grantor conveys one of several lots of ground and, in the conveyance, imposes restrictions as to building, use, etc., upon the lot conveyed as well upon the others by a covenant declaring that each and every one of the lots should be subject to all of the restrictions, “whether the said lots should be sold or retained by the grantor,” and such deed is duly recorded, subsequent grantees, who take any of the lots, under the covenantors, are charged with constructive notice of such restrictions, and are bound thereby. p. 683</p> <p>Such covenants are within the scope and provisions of the Registration Acts. p. 685</p> <p>Such agreements, under the record laws, need not be recorded in the form 'of separate instruments. p. 685</p> <p>The right conferred, as appurtenant to a granted lot, to enforce the prescribed method of improvement as to the remaining parcels, is a valuable and important consideration for the purchase. p. 685</p> <p>One who obtains his title to real estate through the foreclosure of a mortgage, which was executed after an easement which he combats had become a matter of public record, is chargeable with implied notice of its existence and effect, p. 686</p> <p>While the rules of the Court of Appeals providing for the abbreviation of records on appeal in equity cases do not refer to a condensation of the report of the oral testimony, an agreement to summarize such evidence, as well as the documentary proof, is in harmony with the spirit and purpose of the rules, and should be resorted to whenever practicable. p. 686</p>

<p> Electric Railways: liability to passengers; moving train; stop to discharge passengers ad street corners; near and far side stops. </p> <p>Where a railway company discharges a passenger at a place of safety, on a public highway, from which there is a perfectly safe way to his destination, it is not liable if the passenger, in going another way, is injured by falling into a ditch, not on the right of way, nor in the way of the safe crossing. p. 696</p> <p>Where the passenger requests the conductor of an electric ear to let her off at a certain avenue, and the ear was accordingly stopped at said avenue, with the front platform opposite to or on that avenue, it is not evidence of ■ any negligence on the part of the railway that the stop was so made, instead of having been made with its rear platform opposite to, or on the said avenue, unless it be proved that the usage and custom were to make such a stop, or unless the passenger requested that the stop be so made. pp. 694-695</p>