Volume 125 — Maryland Reports

<p>Partners: competing business; injunction to restrain. Injunctions : appeal; effect; discretion of court; Code, Article 5, section 29.</p> <p>From the action of a court, under section 29, Article o of the Code, in refusing to direct that an appeal from its order granting an injunction shall not stay the operation of the decree, no appeal will lie. p. 3</p> <p>Unless with the consent of the other partners, one partner can not carry on a busine'ss of the same nature and in competition with that of the firm. p. 3</p> <p>A violation of this rule may be -enjoined. p. 5</p>

<p>Infants: engaged in business; contracts; Article 56, section 39 of the Code.</p> <p>Article 56, section 39 of the Code, requiring minors to take out a license before engaging in certain kinds of business, does not render a minor liable on bis contracts, made in the prosecution of such business, in which he is engaged without a license.</p> <p>P-9</p>

<p>Evidence: res inter aliosj erroneous rulings; when no ground for reversal. Stock: subscriptions to—.</p> <p>For rulings of the trial court upon the admissibility of evidence to justify reversal on appeal, there must appear to have been error on the part of the court, and injury caused thereby to the appellant. p. IT</p> <p>Upon a question of whether the president of a corporation had personally and individually subscribed for certain shares, of stock in another company, the ledger of the former company, showing the account of the vendor of the stock with that company, is res inter alios acta. ■ p. IT</p>

<p>Partition of real estate in equity: Code, Article 46, section 34; appointment of commissioners; merely formal' irregularities in justification; failure to be sworn when first appointed; “due notice”; effect of—; equiva,lent to legal notice; commissioners’ return setting aside.</p> <p>The fact that commissioners, appointed by a court of equity to make partition of and divide real estate, failed to be sworn, as required by law and by their commission, does not vitiate their return, when it appears that no determination, decision or conclusion was reached by them, and no part of the duties imposed upon them was in fact completed, until each of the commissioners had taken the required oath. p. 18</p> <p>The returns of commissioners, appointed under Article 46 of the Code, to make partition of real estate, are not to be set aside for unsubstantial and merely formal irregularities.</p> <p>pp. 23-24</p> <p>“Due notice” means, in the manner prescribed by law. p. 21</p> <p>The statement in such a return that the commissioners had given “due notice,’’ is to he construed that they had given the notice required hy section 34. p. 19</p> <p>To justify a court in setting aside a partition of real estate on the ground of a mistaken judgment on the part of the commissioners, the mistake must be a serious one, and the evidence of it too plain to be in doubt. p. 24</p>

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

<p>Appeal from the Circuit Court for Howard County (In Equity. (Forsythe, Jr., J.)</p> <p>The facts are stated in the opinion of the Court.</p> <p>The cause was submitted to Boyd, C. J., Briscoe, Burke, Thomas, Pattisok, Erher, Stockbridg-e and Constable, JJ.</p>

<p> Baltimore City: assessments for benefits, and damages, for public improvements; not to be in excess of actual damages and expenses. </p> <p>Section 175 of Article 4 of the Public Local Laws, does not authorize the City of Baltimore, in a condemnation proceeding for opening a public highway, to assess an aggregate amount of benefits in excess of the total amount of the damages and expenses. p. 49</p> <p>The Legislature did not intend to authorize the city thus to make a profit out of such improvements, and could not have validly given the city such authority. pp. 49, 52</p> <p>Although the usual constitutional mandate enjoining equality and uniformity in taxation, does not generally apply to special assessments for local improvements, if a statute permitted a municipality to make such assessments in excess of the cost of. the improvements and the expenses incident thereto, it would unquestionably he contrary to Article 15 of our Bill of Rights, for such assessments would require those so assessed to contribute to the support of the government, to the extent of the excess, as other taxpayers are not required to do. pp. 50-51</p> <p>As the city has no power to assess benefits which materially .amount to more than the aggregate of damages and expenses, it is the duty of the Commissioners for Opening Streets to deduct the excess, if they find such, by allowing each assessment its proportion of the amount deducted. Their return should show that such deductions were made. p. 53</p> <p>Upon failure of the Commissioners for Opening Streets to make such deductions, the Court can do so, on appeal 1c it.</p> <p>p. 54</p>

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

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

<p>Constitution, Article 3, section 40: taking private property for public use; compensationj kind of “taking” prohibited; mere inconvenience, or mere diminution of light' and air not sufficient.</p> <p>The taking of private property for public use, without first making or tendering the just compensation therefor, as provided in sec. 40 of Art. 3 of the Constitution, may be prevented by injunction. . p. 82</p> <p>The constitutional right to compensation for private property so taken, does not extend to eases where the land is not actually taken, but is only indirectly injured. p. 85</p> <p>Mere inconvenience of access to property resulting from acts done, or the mere diminution of its light and gjr, does not constitute a taking of the property within the meaning of that provision. For such injury to come within this provision, it must be such as to amount to their substantial destruction. p. 87</p> <p>Acts done in the proper exercise of governmental powers, and not directly encroaching upon private property, do not constitute a taking of property within that constitutional inhibition, even though the consequences of those acts may impair the use of the property. p. 85</p> <p>Under the discretion and authority of a municipal ordinance, a railroad company, in order to form an approach to a bridge over another street, changed the level and the grade of the street and sidewalk in front of certain houses of the complainant. The effect was to .cut off the cellar windows of the house and thereby to reduce somewhat the amount of light and air, and also, in varying degrees, to change the relative heights of the doors of the houses from the pavement, but not so as to cut off the access to the street; but during the building of the structure the access and egress of the property was much impeded: Held that this did not present such a “taking” as to warrant the issuing of an injunction. p. 87</p> <p>For any damages or impairment of values to the property thus arising, an action at law would lie. p. 87</p>

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

<p>Decrees: enrolment; setting asidej delay, when not laches. Deeds of trust for benefit of creditors: receivership; contracts relating to—•.</p> <p>In general, a decree or decretal order after enrolment, can be revised or annulled only by a bill of review, or original bill, and not by a petition. p. 102</p> <p>But when tbe case was not heard upon the merits, or where the circumstances are such as to satisfy the Court that the decree should be set aside, or where the decree was entered by mistake or surprise (or fraud) the question may be raised by petition.</p> <p>p. 102</p> <p>Certain receivership proceedings for winding up a partnership and paying the creditors lay in Court for nearly twenty years; some assets then becoming very valuable were sold, and an audit was had, and an account stated and finally ratified, to one class of creditors, without notice to all parties in interest, it was held, that the question of whether the decree of ratification should be set aside, could be raised by petition. pp. 107-108</p> <p>In such a case, a delay of seven months after the final decree of ratification, is not such a delay as to bar relief, pp. 109-110</p> <p>Where a receivership case has lain in Court for nearly 20 years, creditors will not be presumed to have been continuously watching to see whether an audit was made, and a delay of six weeks after becoming aware of the audit, is not an unreasonable delay. p. 110</p> <p>Receivership proceedings were instituted to wind up a co-partnership and pay off the creditors; one of the partners made also a deed of trust of all his individual property for the benefit of his creditors; the trustee in this deed of trust was the same individual as the receiver; the partner subsequently guaranteed the indebtedness of the receiver to one of the receiver’s creditors, and later filed in the trust estate case his authority and direction to the trustee, after settling the expenses and debts due by himself in the trust estate, to transfer the balance to the receiver for the purposes of such receivership. Held, that the guarantee of one creditor’s debt had no priority, but all the surplus individual assets were applicable to the payment of the receiver’s unpaid creditors without preference. p. Ill</p> <p>Quaere: Whether a non-resident can come into a Court of this State, employ a solicitor to represent him in recovering a claim from an estate under the control of the Court, and then, if some proceeding is instituted in reference to the claim in accordance with the established practice of the Court, take the position that service can not be had on the solicitor of record who represented that claim. p. 109</p>

<p>Married, women: dower; may not be sold or conveyed; relinquishment; title of husband.</p> <p>But under sections 12 and 20 of Art. 45 of the Code of 1912, a married woman by contract with her husband may relinquish her right of dower, so that real estate then owned by liim, or which he thereafter acquires, will be held by him free and discharged from any claim upon her part to dower therein; and a deed by him for such real estate is valid and sufficient to convey title, without the joinder of the wife. p. 118</p> <p>The dower right of a wife in the estate of her husband is not such a right as may be bargained or sold. p. 115</p>

<p> Wills: construction; trusts; termination. Unexpected conditions: unprovided for in will; on unanimous petition of the parties entitled, equity may terminate trust. </p> <p>Female minor: release to trustee; Code, sections 7 and 8 of Article 79.</p> <p>A will devised all the residue of the estate to trustees, in trust, to he held by them to collect the income and apply the same to the payment of all expenses and indebtedness due thereon, with power to sell and reinvest, etc., the property to be so held in trust until it should be worth $20,000; then to be sold and divided and distributed in ten equal shares; the expenses were greater than the income, and part of the property was sold to reduce the indebtedness, and the remainder was worth less than $17,000. Held, that in view of such conditions, not provided for by the testator, and in the absence of any indication in the will that the property, after payment of the debts, should be held for a possible enhancement in value, that might increase if to $20,000, a court of equity should comply with the unanimous request of the parties entitled, that distribution be made without delay. p. 126</p> <p>Under sections 7 and 8 of Article 79 of the Code, authorizing any female over eighteen years of age to execute a release to any frustees for the proceeds of. a sale, and section 10, providing that such release should be a valid discharge, the fact that one female petitioner, out of many, was less than eighteen years old when the petition was filed for the distribution of the trust estate, does not require that there should be a continuation of the trust estate until she should arrive at the full age of 21 years, when she would reach the age of 18 years shortly after the entry of the decree. p. 127</p>

<p> Wills: construction; life estate; reversions. </p> <p>The will of C. H., after making other disposition of the property, provided as follows:</p> <p>(a) In regard to the one undivided third part of the residuum “ * * * J give and bequeath the net annual income thereof to my granddaughter, E. L. P., for her sole and separate use, for the term of her natural life,” etc.</p> <p>(b) “And after the decease of my said granddaughter, if she should leave a child or children then living, or the descendants then living of any child or children who may have died before her, then the income of said one-third part, as it shall become due, to he applied to'the support, maintenance and education of such child, children or descendant per stirpes for the term of 21 years after the death of the said granddaughter, or until the youngest child of the granddaughter living at the time of the testator’s death should reach maturity, and the principal of said third to he then distributed amongst them per stirpes.”</p> <p>(c) But if the said granddaughter did not so leave descendants living at the time of the testator’s death, or should all of her said descendants so living die within 21 years of her death, then the principal of such one-third part to go to the testator’s sister, E. L. H., if then living; if not, then to go to such persons as she may by will appoint, or to her residuary legatees if she had failed to appoint.</p> <p>The life tenant died, leaving two sons and no descendants of any deceased child; both of her sons attained the age of 21 years (before the end of 21 years after the life tenant’s death) : Held, that the two sons of the life tenant were entitled to the distribution of the said third of the estate, and that the (c) clause did not apply. p. 134</p>

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

<p> Divorce: remedy for innocent parties; none where complainant is guilty of wrong that could bar his suit. Equity: clean hands. </p> <p>The maxim that “he who comes into equity must come with clean hands,” is applicable in suits for divorce. p. 145</p> <p>Divorce is a remedy provided for an innocent party, arid any misconduct on the part of the complainant which constitutes a ground for divorce will bar his suit, without reference to the nature of the offense of which he complains. • p. 143</p> <p>If the proof discloses that both parties to the cause have grounds for a divorce, a decree should be-granted to neither.</p> <p>p. 144</p>

(Hablas, J.), to which Court the case had been removed from Baltimore County. The facts are stated in the opinion of the Court.

<p> Seduction: who may maintain action for—; parentsj loss of right. Judgment: striking out; during term; valid reasons must always he assigned. </p> <p>A parent may destroy the rights of the relation of master and servant by abandonment, neglect or cruelty; but in what manner and by what acts this can be done, must depend upon the special circumstances of each case. p. 161</p> <p>During the minority of a child, anyone standing in loco parentis, in whose service she is, may maintain an action for damages for the loss of services through her seduction by the defendant. p. 160</p> <p>A father had abandoned his family, and been divorced from his wife; he contributed practically nothing to the daughter’s support, and neither received nor claimed any service from her; the daughter lived with and helped the mother: Held, that in such a case, the mother could maintain an action for her seduction. p. 162</p> <p>When passing upon motions for striking out judgments which are made during the term, courts usually act liberally; but such judgments are not to be stricken out whenever such a motion is made during the term, nor as a mere act of form or caprice; but there must always be reasonable proof of circumstances which make it inequitable that the judgment should stand.</p> <p>p. 163</p> <p>The fact that an action growing out of the same cause has heen instituted by another party, is no ground for striking out a judgment, especially when it appears that such other action could not be maintained. p. 161</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>Equity: pleading; allegations of bill; must be clear and accurate as to essential allegations; general charge usually sufficient; fraud; how to be charged. Demurrers: conclu- . sions of law not admitted. Executors and administrators: duty of—; laches.</p> <p>Every material fact, which, it is necessary for a complainant to .prove to establish his right to the relief he asks, must be alleged in the bill with reasonable accuracy and clearness.</p> <p>p. 179</p> <p>A general charge of the matters of fact, however, is usually all that is required, and it is not necessary to state minutely all the circumstances which go to prove the general charge.</p> <p>p. 179</p> <p>But where the complainant seeks relief on the ground of fraud, he must do more than make the general charge; he must state the facts which constitute the fraud. p. 179</p> <p>A demurrer does not admit conclusions of law drawn by a plaintiff from facts stated in the bill. p. 181</p> <p>The law imposes upon all persons having the .settlement of ’ the estates of decedents the duty of protecting the estates.</p> <p>p. 182</p> <p>When a person with such a duty comes into court four and a half years after his appointment, and declares he could not by due diligence have discovered the alleged fraud, when, from his own admissions, the very thing happened which should have put him upon notice, he is guilty of laches, and to grant him relief would he aiding too far those who are dilatory in the performance of their official duties. p. 182</p>

<p> Malicious prosecution,', want of probable cause;'technical mal- ' ice; burden of proof; advice of counsel; when no defense. </p> <p>As used in. relation to the question of malicious prosecution, the phrase “probable cause” means such reasonable ground of suspicion, supported by circumstances sufficiently strong in •themselves to warrant a cautious man in believing the party accused to he guilty. p. 190</p> <p>The term “malice” in this connection does not mean spite or' hatred, hut merely "m.alus animus ” or improper and indirect' motives. ‘ .. p. 196</p> <p>In such cases the plaintiff must prove that the prosecution was both malicious and without probable cause, to entitle a recovery; hut the existence of malice, is a question of fact for the jury, under all the facts of the case. p. 190</p> <p>The jury should he instructed hypothetically as to what constitutes probable cause or want of it, leaving to them to find the facts embraced in the hypothesis. p. 191</p> <p>If a prosecution is instituted upon weak and unsubstantial grounds, for the purpose of annoyance, or of frightening and coercing the party prosecuted into a settlement of a demand, the surrender of goods, or the accomplishment of any other object than the vindication of public ■ justice, the party who puts the criminal law in motion, under such circumstances, lays himself open to the charge of being actuated by malice, p. 196</p>

<p>Contracts: assignment; personal trust and confidence; right and liability.</p> <p>Where a contract provides for mutual rights and liabilities, the latter can not be avoided by assignment, and the rights retained. p. 206</p> <p>Where the rights and powers conferred by a contract involve personal trust and confidence, the contract is not assignable.</p> <p>pp. 206, 207</p>

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

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

<p>Executors: suits against; on promises of testator. Mental capacity: evidence of attending physician; evidence of member of family. Prayers: arrangement in such paragraphs not commended.</p> <p>Upon a trial of a caveat to a will, evidence had been offered and admitted without objection, that the testatrix knew that the witness had worked to .pay for medical attendance, etc., for the witness’ husband, who was an invalid, and the son of the testatrix, and that the testatrix had said that such payments “'would all come back” to the witness; the witness was then asked what in round numbers was the total sum so paid; an objection to the question was sustained, and, on appeal, the ruling of the Court below was held to be correct. p. 232</p> <p>A physician who, for a number of years, regularly attended a testatrix, is competent to state his opinion as to the testatrix’s mental capacity, but he must state the facts and circumstances upon which the opinion is based. • p. 233</p> <p>In the evidence of a caveator, testimony had been adduced tending to show that the testatrix had said that it was not very pleasant for her at the home of her daughter, because “all that she heard was money”; in rebuttal, the cayeatees offered to show that money, investments, rates of interest, etc., and business conditions, were the favorite topics with the testatrix, and since she was not able to read she depended entirely upon what was told her. Held, that under the circumstances, the evidence was relevant and admissible. p. 234</p> <p>Testimony of the testatrix’s son-in-law, who had lived with her for 26 years, is admissible to show that he thought her a very staunch business woman. p. 235</p> <p>While the arrangement of a prayer in separate paragraphs, instead of in the usual form, is not one that is approved, yet it is not always of sufficient moment to warrant a reversal. p¡ 236</p>

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

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

<p>State Board of Education: appointment hy Governor after adjournment of Legislature; Chapter 584 of Acts of 1904.</p> <p> Statutes: construction; duty of courts. Legislative offices: power of Legislature over. </p> <p>'Where an office is of legislative creation, the Legislature may modify, control or abolish it, and may change the manner of appointment. p. 270</p> <p>In construing statutes, the intention of the Legislature is always be sought. p. 270</p> <p>In general, the words employed are to be considered, and they are to be interpreted according to their plain, ordinary and natural import; if they are clear, precise and unambiguous, the Legislature must be understood to mean what it has plainly expressed. p. 270</p> <p>By Chapter 584 of the Acts of 1904, the Legislature must be presumed to have intended to authorize the Governor to await, if he sees fit, until after the adjournment of the Legislature, before he makes his appointment to the State Board of Education. p. 271</p> <p>'' A statute should, if possible, be so construed as to give effect to every part of it. p. 271</p> <p>The policy of legislation is not to be determined by the courts, whose duty simply is to see that the legislative intent is carried out. • p. 272</p>

<p>Warranties: no express words necessary; province of jury; breach; waiver; what is not.</p> <p>To create an express warranty, the word “warranty” need not he used; nor is any precise form of expression required.</p> <p>p. 279</p> <p>Any affirmation of the quality or condition of the thing sold (not uttered as mere..opinion or belief), made hy the seller at the time of the sale, for the purpose of assuring the buyer of the truth of the fact affirmed, and inducing him to make the purchase, if so received and relied on hy him, is an express warranty. p. 279</p> <p>In the case of an oral contract, it is the province of the jury to decide as to the existence of these necessary ingredients of a special warranty, by considering all the circumstances attending the transaction; provided evidence adduced to show the facts was legally sufficient to he submitted to the jury. p. 279</p> <p>Upon a breach of warranty, the buyer may return the chattel, if delivered, within a reasonable time after discovering the breach, and recover, in the common counts, the amount paid. Or, he may retain the chattel and sue upon the contract for the damages resulting from the breach of warranty. p. 280</p> <p>Where A. had purchased cattle upon the assurance that they would be the same as he had been buying, and the cattle arrived at a station at some distance from A.’s farm, while he was absent on a trip South, the fact that his farm manager went for them and brought them to the farm, and the fact that A. had left a blank check for the cattle with an agent who filled in the amount for the bill, and delivered it to the vendors, did not operate as a waiver of a breach of the contract, when, as soon as A. returned and saw the cattle, he complained to the vendors of their condition, and requested them to take them off his hands. ' pp. 281-282</p> <p>In such ease, the question of the condition of the cattle sold is one for the determination of the jury. . p. 281</p>

<p> Railways-, freight cars; infury; trespassers; duty of railroad’s employees. </p> <p>Where, without the invitation, express or implied, a person, by his voluntary, independent act, without the knowledge or permission of the railway company, enters upon a freight car standing on a siding, he is to be regarded as a trespasser, p. 287</p> <p>Where, for the purpose of allowing a freight car to be unloaded by the consignee, a railway company leaves it standing upon a siding in front of a freight shed, and a person, without the invitation of the railway, either express or implied, and without its permission or knowledge, enters the ear, and while in the act of leaving it is injured by other freight cars, which were shunted against the car, such person is not entitled to recover damages resulting from the accident, unless he can show that the railway’s servants had knowledge of his peril in time to avoid the injury, and that they then failed to exert proper care to avoid the injury. p. 288</p>

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

<p> Equity pleading: cases on bill and answer. Municipal corporations : power—to assess the cost of public improvements; </p> <p> “front foot” rule; no preliminary hearing; no “taking of property” within constitutional prohibition. Notice. </p> <p>Where a case is submitted on bill and answer, tbe answer must be taken as true, in so far as it is responsive to tbe bill.</p> <p>p. 308</p> <p>Tbe purpose of Chapter 79 of tbe Acts of 1908 was to give tbe Town of Hyattsville tbe power to extend tbe sewerage system, and did not confine it necessarily to merely adding to tbe length of tbe old sewer constructed in 1904. p. 309</p> <p>Tbe Legislature has tbe power of taxing particular districts for local benefits or improvements; and to authorize municipal corporations to open, pave, grade, curb, etc., any street or part of street, and to assess the cost of sucb work upon tbe property binding upon sucb street or part thereof. And in tbe absence of any declaration of intent to tbe contrary, the presumption is that the Legislature considered that the purpose of such taxation or assessment was a public purpose, and that the improvement would inure to the special benefit and advantage of the owner of the adjacent property, upon which the assessment was laid. p. 311</p> <p>Acts of the Legislature, authorizing the assessment for such benefits according to what is called the “front foot” rule are within the constitutional right of the Legislature, even though no provision is made for any preliminary hearing as to benefits; such assessment does not constitute a “taking of property without due process of law.” pp. 311-313</p> <p>Where real property belonging to a married woman was for years assessed upon the tax books in the name of her husband, and the taxes paid by him, and where a notice of improvements, for which the abutting property was to be assessed, was sent to him, and he attended all the meetings in reference thereto, and was advised of the amount that was to be charged to the property that was assessed in his name, and where he, being an engineer, offered to prepare and draw plans for the improvement, it cannot be contended that the wife, the owner of the property, had no notice of the contemplated improvement.</p> <p>p. 316</p>

<p> Corporations: dissolutionj titlej receivers; trustee in mortgage; right to malee sale; appeal. Receivers: possession for the court. </p> <p>By section 79 of Article 23 of the Code, upon the dissolution of a corporation by the decree of any court, its property vests in the receivers appointed by the court; but when the corporation has executed a mortgage, etc., or where there is a power of sale, etc., in any mortgage, then (unless with the written consent of the other parties in interest) the receivers shall be authorized to sell only the equity of redemption * * *. In such a case, instead of appealing from the order appointing the receivers, a mortgagee in such a case should appeal for permission to sell the property, and from the court’s refusal of such right, an appeal will lie. p. 322</p> <p>In general, unless it appears by the record that the appellant was injured by the order appealed from, the appeal will be dismissed. p. 322</p> <p>The possession of the receivers is the possession of the court that appointed them. This appointment does not disturb or divest the lien of the mortgage. p. 322</p>

<p> Contracts: misrepresentation as to who was the vendor; stranger to contract no right to assume it. Sale of goods: when merely keeping possession no equivalent to acceptance. Baltimore Practice Act: failure to take judgment for amount admitted to be due. </p> <p>Where the agent of an individual represented to certain vendees that he represented a large corporation, whose name suggested the Goodyear Ruhher Company, and as such induced them to sign a contract, as if with such presumed corporation, with which they intended to contract, when as a matter of fact, there was no such corporation existing, there was no contract.</p> <p>p. 334</p> <p>In such a case, where the goods were shipped to the vendees before they had found out that no such corporation existed, but the goods never had been opened, and no demand for the goods had been made by the vendor, and there had been no conversion by the vendees, nor refusal to return them, an action of assumpsit by the vendor for the value of the goods will not lie. p. 342</p> <p>A person has a right to contract with whom he pleases, and another cannot be thrust upon him without his consent; and he cannot be held to have contracted with a person other than the one he contemplated. p. 340</p> <p>In general, one person can not make another his debtor without the latter’s consent. p. 342</p> <p>Ruder the Baltimore Practice Act, if the plaintiff fails to take a judgment for the amount that the defendant admits to be due, the defendant is not hound or estopped by his admission in the affidavit to the pleas. p. 341</p>

<p>Municipal corporations: liability for the condition of the streets; notice; negligence. Sidewalks', rights of the people; duty of.</p> <p>Where a municipal corporation is empowered by its charter to prevent and remove nuisances, to pave and keep the streets in repair, and to levy taxes therefor, the exercise of such power is not merely discretionary, but is imperative; and in such cases, it is the duty of the municipality not only to pass the necessary ordinances, but to be vigilant and prompt in their enforcement. p. 345</p> <p>But before a municipality can be made liable for injuries arising from the bad condition of its streets, it must be shown that it had actual or constructive notice of such bad condition.</p> <p>p. 346</p> <p>If the defect is of such a character as not to be readily observable, express notice, to the municipality must be shown p. 347</p> <p>But if it be one which the proper officers had notice of, or by the exercise of reasonable care and diligence might have had knowledge of, in time to have it remedied, so as to prevent the injury complained of, then the liability of the municipality attaches. p. 347</p> <p>Where a municipality is negligent in enforcing such an ordinance, it can not rely upon the ordinance as a defense, p. 349</p> <p>The streets and sidewalks of a city are for the benefit of all conditions of people, and all have a right, in using them, to assume that they are in an ordinarily good condition, and to regulate their conduct upon that assumption. p. 351</p> <p>A person using a sidewalk, where there are no obvious obstructions, is required to use only ordinary care. p. 351</p>

<p>Deposit by savings banlcs of bonds with Treasurer of State; in trust for depositors. Repeal by Legislature; right of depositors. Statutes: constructionj duty of courts.</p> <p> State officials: suit against; costs. </p> <p>Chapter 109 of the Acts of 1892, requiring certain savings-banks to deposit bonds -with the Treasurer of the State, the. same to be registered in his name, had the effect of constituting the Treasurer as a trustee for a certain specific purpose; but as the trust was created by Act of Assembly, it was analogous to a trust created by an individual with a reserved right of terminating the trust. p. 355</p> <p>TheMepositors in such banks were not, and technically could not become, cestuis que trustent, with regard to such bonds,, unless, or until, by the failure of such banks there was a necessity of having recourse to the bonds. p. 355'</p> <p>But under the provisions of that Act, the depositors had a distinct interest in the preservation of the fund, of which they could not be deprived, by any subsequent Act, which by its terms is prospective only. p. 356</p> <p>The Act of 1914, Chapter 781, directing the State Treasurer to forthwith surrender to each of the savings bank the bonds so deposited by each, respectively, and declaring that the Act is to be construed retrospectively as well as prospectively, violates no vested rights, contravenes no section of the Constitution, and is valid. p. 356</p> <p>With the wisdom or unwisdom of legislatures, the courts have nothing to do; the duty of courts is to carry out and give effect to legislative enactments, whenever the said enactments do not transcend the Legislature’s constitutional power. pp. 355-356</p> <p>Statutes, in general, are not given effect retrospectively, unless it appears either by express language or necessary implication, that such was the legislative intent. p. 355</p> <p>An Act of the Legislature is always subject to repeal by a succeeding Legislature. p. 355</p> <p>■ In suits against a State official, where the rights involved are of a purely private character, and for the benefit of the appellants, the costs should not be taxed against the official, even though the order appealed from be reversed. p. 356</p>

<p>Appeal from the Circuit Court No.. 2 of Baltimore City. (Ambler, J.)</p> <p>The facts are stated in the opinion of the Court.</p> <p>The cause was submitted to Boyd, C. J., Briscoe, Burke, Thomas, Pattison, TJrner, Stockbridge and Constable, JJ.</p>

<p> Criminal Court: grand jury; irregularities in drawing names; clerical misprision of names; party meant, the one actually drawn. Indictments: motion to quash; grand jury; irregularity in selection; effect of. </p> <p>A traverser having been indicted for a violation of liquor laws, made a motion to quash the indictment, on the ground that the name of one of the grand jurors by whom the indictment was found, was not on the list of names from which the jurors were to be selected, and that his name had been at any time placed in or drawn from the list from which such names were to be drawn; the State, in its answer, alleged that the juror drawn was the one intended to be draw, but by a clerical error the name was accidentally misspelled; the traverser demurred: Held, that as the demurrer admitted the juror actually drawn was the one intended to be drawn, and as no injury had been shown or alleged, the error was immaterial.</p> <p>pp. 369-370</p> <p>The motion to quash was a proper way to raise the question.</p> <p>p. 368</p> <p>Section 1 of Article 51 of the Code, stating the qualifications for grand jurors, is directory merely; and to invalidate an indictment upon the non-age of a juror, it must be made to appear to the court that the traverser has been prejudiced by reason thereof. p. 372</p> <p>Unless irregularities, incident to carrying out in good faith, the provisions of the law made for the selection of juries, are shown materially to violate the statute, or so affect the juries as to prejudice the right of citizens, such irregularities should not be treated as vital. p. 376</p>

(I)r.xc'A.v, J.) The facts are stated in the opinion of the Court. The cause was argued before Boyd, C. J., Briscoe, Burke, Tiio.uas, Pattisox, Fryer, Stockbridge and Coystabde, JJ.

<p> Mechanics’ liens: notice of claim of lien; time for—; several contracts; time for filing liens; must be- according to each contract; estoppel on owner, by ruling of architect. </p> <p>A supervising architect-is the agent of the owner. p. 394</p> <p>Unless notice of an intention to claim a mechanics’ lien , is given within the time prescribed by section 11 of Article 63 of the Code, no lien can be maintained. p. 395</p> <p>Where there are two separate and distinct contracts for labor or materials, although they have relation to the same building, they can not for the purposes of the lien be coupled together, so as to extend the date for the filing of the lien down to the time the last material was furnished or the last labor performed, under the later contract. pp. 395-396</p> <p>But as to each contract, the time for the giving of a notice, or the filing of a lien, is dependent for its being in season as to the particular contract under which the work is done; and conversely where there is a single entire contract, the time is to be computed from the last material delivered or work done, in connection with the contract, even though that be small in amount, or far removed in point of time from the balance of the work.</p> <p>p. 396</p> <p>For making alterations to a bank there was only one single contract; the supervising architect, b^y the contract, was made the judge of any dispute about the interpretation of the contract; a sub-contractor thought he had completed the work under the contract, but the architect ruled that some work under the contract was unfinished; the contractor and subcontractor, by agreement among themselves, did the work; the sub-contractor filed his notice of his intention to claim his lien for the work; if the work had been completed as the sub-contractor claimed, the time to claim a lien had expired; but, as the architect—the agent of the owner—had ruled that the contract had not been completed, it was held, that the owner was ■estopped, and that the lien should be allowed, as it h'ad been filed within the statutory time of doing the work. p. 397</p>

<p> Mayor of Baltimore City: Qualifications for office; member of Police Board not eligible during term for which he was appointed; “term of office”; resignation during term. Statute: </p> <p> Repeal by implication. </p> <p>Chapter 512 of the Acts of 1914, repealing section 16 of the City Charter (Acts of 1898, Chapter 123), and amending the law as to the length of time of residence in the City of Baltimore necessary to render eligible a candidate for the office of Mayor for that city, and omitting the requirement of his having been assessed with property and of having paid taxes thereon for two years preceding the date of the election at which he is a candidate, does not have the effect of repealing Chapter 15 of the Acts of 1900 (which it does not mention), or of repealing any of the former statutes declaring that no member of the Board of Police Commissioners of Baltimore City shall be eligible to an election or appointment to the office of Mayor during the term for which he was appointed to such board.</p> <p>pp. 405-406</p> <p>The term of office for which a member of the Board of Police Commissioners is appointed is.not ended by his resignation therefrom; and the fact that a member of such board resigns before tie expiration of tie time for which he was appointed does not render him eligible for the office of Mayor of Baltimore City. pp- 407-408</p> <p>Repeals of statutes by implication are not favored. p. 406</p> <p>It is only when they are clearly irreconcilable and not susceptible of any such fair interpretation as will admit of their standing together tiat such repeal will be declared. p. 406</p> <p>It is tie function of. courts to interpret legislation, and not to supply its omissions. p. 407</p>

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

<p> Specific performance; rules for—; misrepresentations; when a defense; fraud; must work: actual injury. </p> <p>Bad bargains: dxity of purchaser. ■</p> <p>Where a contract relating to real estate is in writing, and its nature and circumstances unobjectionable, it is as much a matter of course for a court of equity to decree its specific performance as it would be for a court of law to give damages for its breach. p. 427</p> <p>In such a case, the fairness or hardship of a contract, like its other qualities also, must be judged as of the time it was entered into. p. 428</p> <p>If it was then certain, mutual, fair in all its parts, and for an adequate consideration, it is immaterial that by force of subsequent circumstances it should have become less beneficial to one party, unless such change is in some way the fault of the party seeking its specific performance. p. 428</p> <p>If the contract was reasonable and fair when entered into, it will be presumed the risk of subsequent fluctuations in value was assumed by the parties, and such fluctuations will not be allowed to prevent specific performance of the contract, p. 428</p> <p>Misrepresentations as to the purpose for which it is proposed to purchase a piece of property, in order to be a ground for refusing to decree a specific performance of the contract, must not only be false, but they must have been material to the contract or transaction which is to be avoided, and must have worked actual injury to the defendant, or must have been the moving cause for entering into the contract of sale. p. 4291</p> <p>. But a purchaser is not bound to make the party he buys from as wise as himself; and every man must bear the loss of a bad bargain legally and honestly made. p. 430</p> <p>The fraud must work an actual injury to the party resisting the enforcement of the contract, and it must appear, not only that he did rely upon the false statement, but that he had the right to rely upon it, in the full belief of its truth. p. 429</p> <p>A statement that a tract of land was being purchased for a dairy farm, when the tract was not cleared and was totally unfit for dairy farming, and where the owner knew and claimed that it was specially valuable for sub-division and development, can not be regarded as a material misrepresentation, sufficient to form the basis for a refusal to decree the specific performance of a contract of sale, where the purchase was really intended for such last mentioned purpose. p. 429</p>

<p> Taxes: after settlement and distribution of estate; executors’ liability. </p> <p>Under the statutes in force in Maryland, the liability of administrators and executors for the payment of taxes upon the property of their decedent, does not extend to the payment of taxes becoming due after the settlement and distribution of the estate, although the annual valuation and assessment of such property, as well as the levy thereon, may have been made prior to such settlement and distribution of the estate. p. 443</p>

<p> Statutes: construction; repeals by implication not favored. </p> <p>Condemnation Law of 1914: no application to condemnation for highways.</p> <p>If-two Acts can be fairly construed together, the later Act can not be held to repeal the former Act by implication, p. 449</p> <p>The Acts of 1912 (Chapter 177) and 1914 (Chapter 463), repealing and.amending the Condemnation Laws of the State, especially exempt from their operation the law relating to the opening, closing or widening of highways. p. 448</p>

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

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

<p>Appeals: facts in the record only. Municipal corporations: private property; compensation.</p> <p>The Court of Appeals will not consider facts or plats that are not in the record, and whose accuracy is denied by the other side. p. 485</p> <p>A general demurrer to a whole bill can not be sustained if the relief prayed in any part of the bill is proper. . p. 484</p> <p>Municipal authorities have no right to take or occupy any part of private property without due compensation therefor.</p> <p>p. 484</p>

<p> Leases: liability of mortgagee and assignee after defaultj assignment. Ejectment: damages recoverable. </p> <p>A suit at law can not be maintained against tbe assignee of a lease wbo has assigned over, for rent falling due after tbe assignment to bim and before tbe assignment by him; tbe remedy of tbe lessor in such a case being in equity alone. p. 492</p> <p>Tbe mortgagee of a term, after forfeiture, bas tbe whole estate therein, and is liable on tbe real covenants in tbe lease, whether be becomes possessed of or occupies tbe premises in fact or not. ■ p. 492</p> <p>Tbe liability of an assignee of a term to tbe original lessor, or to those claiming under bim, grows out of tbe privity of estate; and such liability continues only so long as such privity of estate exists. So long as such privity exists, tbe assignee is liable ujDOn all covenants that run with tbe land, such as covenants to pay rent and taxes; and for any breach of such covenants the lessor may sue tbe assignee during tbe continuance of such assignment. p. 492</p> <p>An action at law can not be maintained against an assignee of a term, after assignment over, for tbe breach of any covenant running with the land during his holding; the remedy, in such a case, is in equity. p. 492</p> <p>The mortgagee is regarded as assignee • of the term, after default, in a moi’tgage which contains a condition allowing the mortgagor to remain in possession until default, and as such is liable for the future breach of any of the covenants in the lease that runs with the land, and this without the mortgagee taking possession. 492-493</p> <p>The mortgagee of a term is not liable under the covenants running with the land for taxes that fall due before a default in the mortgage, when the mortgage contains a condition allowing the mortgagor to remain in possession until default, p. 493</p> <p>In an ejectment brought by a landlord against a tenant, under the Code, section 73 of Article 75, the landlord may recover possession of the property, the taxes, ground rent and sewerage assessment which fell due, from the time the tenant became assignee of the term, until the date of the filing of the declaration in the ejectment suit, after which time any rent falling due may be considered in fixing the amount of damages.</p> <p>p. 498</p> <p>In an ejectment between landlord and tenant, under the Code, section 73, Article 75, the service of a copy of the declaration is substituted for the niceties of demand of rent and entry, required at common law. p. 494</p> <p>In such cases, if the landlord, by service of a declaration in ejectment, elects to determine the lease, he can not, though there has been no judgment in the ejectment suit, sue on covenants subsequently broken. p. 494</p> <p>The action of ejectment between landlord and tenant does not extinguish the landlord’s right to rent and taxes due prior to the time of the filing of the declaration. p. 494</p> <p>In an action of ejectment between landlord and tenant, under the Code, section 73, Article 75, the form of the declaration is that set out in section 71. pp. 495,496</p> <p>In an action of ejectment between landlord and tenant, under the Code, section 73, Article 75, under the plea of not guilty, the question to be tried is the right of possession and damages.</p> <p>p. 496</p> <p>In an ejectment suit between landlord and tenant, under the Code, section 73, Article 75, the landlord may recover possession, mesne profits and damages. p. 497</p> <p>The decision of a court upon a. claim in a former action is an effectual bar to a recovery in another suit upon the same cause of action as that of a jury, and the fact that thé Court’s decision was wrong does not give the injured party the right to bring another suit upon the same claim, for he might have appealed and had the error corrected. p. 499</p> <p>The law is adverse to multiplying suits; and if a party has the choice between two actions upon the same demand, and he selects one, which is decided by a competent tribunal, either for or against him, as a general rule he will not be permitted to resort to the other. " p. 499</p> <p>Quaere: Can a landlord or lessor institute an action of ejectment and recover the property without claiming, in that suit, rent or other profits he may be entitled to, and then afterwards sue to recover such rent and profit. p. 499</p> <p>A landlord who brings an ejectment against a tenant to recover possession of the demised premises and rents and profits, and recovers possession but fails to recover rents and profits, can not bring another suit and recover such rents and profits.</p> <p>p. 499</p> <p>A., who owned the reversion in fee in a lot of ground in Baltimore City, with the right to collect a yearly rent of $500 issuing thereout, brought an ejectment suit under section 73 of Article 75 of the Code against B., the holder of a mortgage in default on the leasehold estate, and in the declaration claimed recovery of the land and $2,500 damages; the mortgage contained a clause allowing the mortgagor to remain in possession until default. After the ejectment suit, but before verdict, the mortgagee assigned her mortgage to C. At the trial A. offered evidence, which was admitted subject to exception, tending to show that he had paid taxes and a sewer assessment on the demised property and the ground rent due, and offered a prayer instructing the jury that he was entitled to recover such sum; the prayer was rejected, and on the Court’s instruction a verdict was rendered for possession of the property, one cent damages and costs, on which judgment was rendered; A. excepted to this action of the Court, hut took no appeal. Thereafter, A. brought suit in equity against B., as assignee of the term, to recover the items of taxes, sewer charges and ground rent, which he had attempted to recover but did not recover in the ejectment suit; B. answered, setting up the defense of res adjudicate claiming that the judgment in the ejectment suit for the property named in the declaration—one cent damages and costs—was conclusive, and the lower court so held, passed a decree dismissing the bill, and on appeal it was: Held,</p> <p>1. That as assignee of the term, the appellee was liable for those items of taxes, ground rents and sewer charges.</p> <p>p. 498</p> <p>2. That they could have been recovered in the ejectment suit. ° p. 498</p> <p>3. That if dissatisfied with the rulings in the ejectment suit, A. should have taken an appeal therefrom. p. 499</p> <p>4. That not having done so, the above items of taxes, ground rent and sewer charges can not be recovered in the above named equity suit. p. 499</p> <p>5. That under section 73 of Article 75, a landlord can recover in an ejectment suit upon all covenants running with the land, the breach of which occurred before assignment over, and before the filing of the declaration in the ■ejectment suit. pp. 495,497</p> <p>6. That while after the filing of the declaration in the ejectment suit, the rent reserved in the lease can not be recovered qua rent, yet in assessing damages it should be considered. p. 498</p> <p>7. That in an ejectment suit between landlord and tenant, under the Code, Article 75, section 73, mesne profits and damages can be recovered. p. 498</p> <p>8. The Court refused to discuss the question, whether a landlord can institute an action of ejectment and recover the property without claiming rent and other profits, which he may he entitled to, and thereafter sue to recover such rents and profits. ' p. 499</p>

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

<p>Divorce: setting aside decree after enrollmentj rule for—.</p> <p>While influenced by threats of her husband, and under his control, a wife signed a letter, which had been read to her only in part, and which was a letter addressed to an attorney authorizing him to appear for her in divorce proceedings, to be instituted by the husband; it had not been disclosed to her what was to be the ground on which the divorce was to be sought for. nor had it been disclosed to her that the attorney’s duties were restricted to the filing of an answer, or that he was not to appear for her at the taking of the testimony; the decree was passed on March 10th, and the petition for its annulment filed on July 28th following; it was not shown that before the filing of the petition the status or position of the husband,, as a result of the decree, had been in anywise changed; a demurrer to her petition to have the decree of divorce stricken out having been overruled, on appeal it was: Held, that upon all the facts of the case, although the decree had been enrolled, the overruling of the demurrer was correct. p. 517</p> <p>In general, after enrollment, a decree or decretal order, can be revised only by a bill of review or original bill, and not by petition, excepting where the case was not heard upon its-merits, where the circumstances are such that the Court is satisfied that the decree ought to be set aside, or where the decree was entered by mistake or surprise. p. 516</p>

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

<p> State Roads Commissioners: authority and discretion. Juris-, diction of courts. </p> <p>The courts have the right to prevent the State Roads Commission from diverting' funds appropriated by the Legislature for the building and improvement of one road, or set of roads, to the construction of another or others. p. 532</p> <p>But to justify a Court in interfering with the powers and the large discretion vested in the commission, it should be very clearly shown that it was improperly using the funds. p. 533</p> <p>In appropriating the funds among the different roads in districts of a county, for every difference of opinion their judgment should not be reviewed by the courts. pp. 534-535</p>

<p> Testamentary law: collateral inheritance tax; appraisers; appointment by Orphans’ Court; removal; appointment of other appraisers. </p> <p>Under sections 124, 129 and 135 of Article 81 of the Code. (1912), providing that in all cases where real estate of any kind is subject to the (collateral inheritance) tax, the Orphans’ Court of the county in which administration is granted shall appoint the same persons to appraise and value the real estate - who may have been appointed to value the personal estate, such Orphans’ Court has the power and jurisdiction to entertain and determine the question of an additional and amended inventory and appraisement, of the real estate of the decedent, and to receive and hear evidence in relation to it. p. 540</p> <p>Under section 235 of Article 93 of the Code, the Orphans’ Courts have full power to direct the conduct and accounting of executors and administrators, superintend the distribution of estates, and administer justice in a)l matters relating to the affairs of deceased persons. p. 541</p> <p>But until appraisers duly appointed under said section 124 are removed by the Court, it has no authority to appoint others in their places. p. 542</p> <p>It is -within the power of an Orphans’ Court, upon charges of incompeteney, neglect of duty, or unfaithful conduct, injurious to the estate, sustained by proof, upon hearing, to remove the administrator or appraisers, and appoint others in their places. p. 542</p> <p>The Orphans’ Courts are without jurisdiction to try and •determine questions of title to real estate. p. 543</p>

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

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

<p> Conspiracy: bribery; emdence of detectives. Letters: mailing of—; letter chutes. </p> <p>In a prosecution for unlawful conspiracy, if the concerted action upon the part of the traversers is admitted (expressed), the issue remains whether their conduct was actuated by innocent motives or by unlawful purposes. p. 566</p> <p>That is a question for the jury, not reviewable by the courts.</p> <p>p. 566</p> <p>In the case of crimes, where an essential element is the want of consent of the individuals against whom they are committed, the instigation of the crime by the person to be affected is a defense to the prosecution. p. 570</p> <p>But this principle does not apply to the case of the prosecution of public officers for an alleged conspiracy to demand a bribe for official action. • p. 570</p> <p>In this State, the jury are the judges of both law and fact in criminal cases. p. 570</p> <p>The fact that the proposal of a bribe to influence certain members of a city council originated with a detective who was employed to investigate their ofliical conduct, does not exempt from prosecution public officials who unlawfully conspire to demand a bribe to influence their own action as city councilmen.</p> <p>p. 571</p> <p>Where there is a conflict of evidence as to how the bribe originated, it is a question for the jury. p. 571</p> <p>Where it is a question of the mailing of a letter, testimony may be given as to whether the mail chute into which it had been placed was connected with a letter box on the lower floor.</p> <p>p. 567</p> <p>In a trial for a criminal conspiracy to bribe city officials, the defendants have the right to ask, as reflecting on the bias or interest of a particular witness, whether he is one of those who promoted the investigation. p. 567</p> <p>But a general inquiry as to the names of the citizens who were instrumental in having the detective sent to investigate the officials is an irrelevant one. p. 567</p>

<p>Leases: construction; in addition to rent, money paid for improvements. Written contracts: construction; parol evidence. Equitable pleas: jurisdiction of law courts not extended.</p> <p>Besides the other terms and conditions for the payment of rent, a lease hy the covenant upon which a right of action was based was as follows: “at the expiration of this lease to pay to the said party of the prst part the snm of seven hundred and fifty dollars in cash for the purpose of converting the room into a suitable storeroom.” p. 576</p> <p>It was further agreed and understood, that if the parties of the second part (the lessees) became embarrassed or made an assignment for the benefit of creditors, or should be declared bankrupt, or should be sold out by sheriff’s sale, then the rent for the balance of the term, including the above sum of seven hundred and fifty dollars ($750) cash, to be paid at the expiration thereof, to at once become due and payable, as if by the terms of the lease it had all been payable in advance, and should first be paid out of the proceeds of such assignment, bankruptcy or sale, any law, usage or custom to the contrary notwithstanding: Held, that the conversion of the premises at once into a suitable storeroom was not a condition precedent to the payment of the money. pp. 576-577</p> <p>Where the terms and meaning of a written contract are clear and explicit, parol proof is not admissible to explain or vary^ Ihe agreement. p. 577</p> <p>The statute allowing equitable pleas does not enlarge the jurisdiction of courts of law, so 'as to confer upon them the power of cancelling or reforming contracts. p. 578</p>

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

<p>The Speedy Judgment Act of Baltimore City: Chapter 184 of the Acts of 1886; a special and statutory proceeding; strict compliance; account filed; liability of defendant to plaintiff.</p> <p>The Speedy Judgment Act, for Baltimore City, Chapter 184 of the Acts of 1886, was to obtain from both plaintiff and defendant a definite and sworn statement of both the claim and the defense (if any), so that the parties may know exactly wherein they differed and shape their action accordingly, p. 598</p> <p>The proceeding under the statute is special and statutory, and it is only when the provisions of the Act are strictly complied with that the court has authority under it to enter judgment by default. p. 598</p> <p>To obtain the benefit of the statute, the account which must be filed with the declaration must be one which either on its face shows the liability of the defendant and the amount of such liability, or one which itself furnishes the standard or means of arriving at such liability. p. 594</p> <p>Unless the account filed with the declaration conforms to these requirements, the court has no jurisdiction to enter a.judgment by default. p. 594</p> <p>A contractor having failed to install the kind of heating plant such as he had agreed to install, the plaintiff notified him that unless he made the necessary changes, to make it conform to the contract, that he, the plaintiff, would have the changes made at the cost of the contractor; the contractor failing or refusing, the plaintiff employed a mechanic to do the work; the plaintiff brought suit against the first contractor, under the Speedy Judgment Act; the account filed with the declaration was the hill of the mechanic against the plaintiff, and the liability of the defendant nowhere appeared thereon: Held, that such an account was not such a one as to bring the suit under the provisions of the Act. p. 594</p>

<p>Three appeals in one record from the Circuit Court of Baltimore City. (Dawkins, I.)</p>

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

<p> Marriages: setting aside; terror, fraud or duress; jurisdiction of equity. </p> <p>The authority of courts of equity to set aside marriages on the ground that they were procured by abduction, terror, fraud or duress, rests upon their general jurisdiction to set aside contracts affected by fraud, etc. pp. 621-622'</p> <p>But the courts exercise the power with extreme caution, and only where the allegations of the bill are sustained by clear, distinct and satisfactory evidence. p. 622'</p> <p>When ante-nuptial incontinence has taken place the charge of threat or menace unlawful, or fraud or duress, must be fully and satisfactorily established before a court of equity will annul the marriage. p. 622"</p> <p>The mere uncorroborated statements of the petitioner are not sufficient, especially when it is denied by all the defendant witnesses. pp. 628-629'</p> <p>The statement of a man, that, although he will marry a woman, he will never live with her, is not sufficient to render' the marriage ceremony void. p. 629'</p>

<p>Oyster laws: Chapter 265 of Acts of 1914; delimination of beds; constitutionality; evidence. Statutes: construction of.</p> <p>Substantial accuracy in the location of natural oyster bars, according to tbe provisions made by Chapter 265 of the Acts of 1914, is feasible, and the method prescribed for the location of the natural beds presents no ground for declaring the Act unconstitutional. pp. 632-633</p> <p>In providing for an appeal to the Court of Appeals from the judgment of the Circuit Court, in determining whether, under Chapter 265 of the Acts of 1914, a particular area of natural oyster beds was excluded in the surveys made under the Act of 1906, the Act of 1914 declares that the Court of Appeals is empowered to review “all questions of law and fact involved”: Held, that the presence of the word “fact” does not render the Act unconstitutional, as in violation of Article 15, section 6 of the Constitution, which guarantees the right of trial by jury; the word “fact” may be eliminated and the scope of the review confined to questions of law, without impairing the general effect of the law. p. 634</p> <p>Courts are not justified in declaring a whole Act unconstitutional, merely because one of its provisions may be open to that objection, unless the valid and void portions are so dependent upon each other as to raise the presumption that the law would not have been passed if the invalid portion had been omitted. p. 634</p> <p>In proceedings, under the Act of 1914, to determine whether a. certain area was improperly omitted in the survey made by the Shell Fish Commission for classification as natural oyster beds, as defined by that Act, evidence is admissible to show that, for more than five years prior thereto, the area in question had been under lease to private parties, for culture and stocking of oysters; such evidence is proper to rebut the presumption that oysters found there within five years indicated that the area was a natural bar. p. 635</p>

<p>Gifts: inter vivos; payment of interest to donor for life; secured by mortgage. Mortgage satisfied, but not released.</p> <p>To make a gift inter vivos perfect and complete, there must be an actual transfer of all right and dominion over the thing given by the donor, and an acceptance by the donee, or some •competent person for him; and it is essential to the validity of such gift that it should go into effect at once and completely; if it has reference to a future time when it is to operate as a transfer, it is but a promise without consideration, and can not be enforced either at law or in equity. p. 640</p> <p>The mere fact that the donor reserves an income for life from the thing given, or requires the donee to pay, and secure the payment of, interest to him for life, on the sum given, is not ■sufficient to defeat it as a gift. p. 641</p> <p>A donor had the donee execute, in the usual form, a mortgage ■of a piece of property, to secure the repayment, in five years from date, of the sum of $1,000, which the mortgage recited had been loaned to the mortgagor by the mortgagee, with interest, ■etc. By a separate agreement between the parties to the mortgage, they declared that upon the death of the mortgagee the ■said mortgage should be deemed paid and satisfied, and that the representatives should execute a good and sufficient release therefor, without repayment of the principal and interest; provided the mortgagor paid the interest, etc.; the mortgage was not paid at the end of the five years, and the mortgagee instituted foreclosure proceedings; the mortgagors obtained a preliminary injunction to restrain the sale; before the sale, the mortgagee died; her administrators were made parties, and moved to dissolve the injunction; on'appeal from an order of dissolution, it was: Held, that from all the evidence in the-case, the transaction was really a gift for a good and valuable consideration, and the mortgagee being dead, the mortgage-should be considered satisfied or extinguished. p. 648</p> <p>The mere fact that an instrument is in the form of a loan, does not necessarily make it conclusive. Courts will inquire into-the facts, and see what was intended, and not he governed simply by the form of an instrument, when, under the rules of evidence, that can properly be done. p. 641</p> <p>When a mortgage is satisfied, without default, it becomes inoperative and void, and the legal estate reverts to and becomes, vested in the mortgagor, without any reconveyance or release.</p> <p>p. 645</p>

<p> Divorce: foreign states; jurisdiction; bona fides of residence. </p> <p>Where a party leaves the State of Maryland, where he was married and had his matrimonial domicile, with a view and sole purpose of obtaining in another State a divorce from his wife, without any intention of abandoning his domicile in Maryland, or of becoming a resident of the other State for any purpose other than for the divorce, but with a well-defined intention of returning to Maryland as soon as his object is attained, he does not acquire a bona fide domicile in the other State, and the courts of that State do not acquire jurisdiction to grant him a divorce; such a decree, so given, would be a glaring and deliberate fraud on such Court, and is not one which should be recognized in Maryland, either under the “full faith and credit clause” of the Constitution of the United States or under the principles of comity. p. 665</p>

<p>State Board of Forestry: roadside trees; jurisdiction over—; Chapter 824 of Acts of 1914; right of owners of fee under highways. Police regulation: courts, duty of— arbitrary regulation. Constitutional law: delegation of power to governmental agencies. Private property and public rights.</p> <p>Chapter 824 of the. Acts of 1914, in requiring a permit from the State Board of Forestry for the trimming or removal of roadside trees on the public highways, does so as a regulation merely, and not as a possible prohibition of proprietary rights.</p> <p>p. 672 .</p> <p>It was designed to prevent interference with trees on the public highways, by persons acting without interest; but vested ownership is to be respected, and the. law is not to be construed as meaning that a permit could be denied to one having a valid right of property in such trees. p. 672</p> <p>Subject to qualification under special conditions, tbe general rule is that in the case of ordinary highways the public acquires only an easement of passage and its incidents, and, subject to-this servitude, the owner of the soil is entitled, except so far as required for highway purposes, to the earth, timber and grass growing thereon, and to all minerals, quarries and springs below the surface. p. 673</p> <p>While the owner of the fee in a public highway has property rights in the natural products of the soil within the highway limits, his right to their use or disposition is subject to such restrictions as the nature of the servitude demands. p. 673</p> <p>The right of the owner of the soil, subject to the use of a public highway, to fell or trim trees growing thereon, is capable-of being exercised to the prejudice of the superior interest, and is a proper subject of legislative regulation. p. 678</p> <p>The police power of a State embraces regulations designed to promote the public convenience, or general prosperity, as-well as regulations to promote the public health, morals or safety. . pp. 673-674</p> <p>In deciding whether particular classes of acts are proper subjects of regulation under the police power, it is not the duty of courts to determine the extent or gravity of the necessity for its exercise. p. 674</p> <p>The essential inquiry is whether the conditions to which the power is proposed tó be applied may reasonably be regarded as a possible source of injury to the public interest that is sought to be protected. p. 674</p> <p>Even though the need of regulating the removal or trimming of roadside trees should not be urgent, yet legislative action to-that end is so related to the promotion of the public rights and interests in the highways as to bring the statute within the scope of the State’s police power. p. 674</p> <p>While the State may have the right to apply the police power to a specific purpose, yet the regulations prescribed for the enforcement of the power must not be arbitrary and unreasonable. pp. 674-675-</p> <p>There is no constitutional prohibition against delegating to a public board or commission, serving as a governmental agency, the duty of fixing the fees to be charged for a public service.</p> <p>p. 675</p> <p>In the absence of any evidence or charge that the State Board of Forestry has established, or will establish, unreasonable rates or charges, in connection with the permits and inspection, in the matter of removing and trimming trees on the public highways, it is not to be presumed that the charges would be unreasonable. p.675</p> <p>The interests of individuals are subordinate to the public .good, and the constitutional guarantees of the security of private property do not operate to prohibit the restriction of its use for the public welfare within the sphere of the police power.</p> <p>p. 676</p>

(Soper, O. J.) The appellee, by her father, as her next friend, brought suit against the defendant for damages for injuries received through the defendants’ negligence, resulting in the crushing of her fingers and hand, in a set of rollers in the defendants’ belting factory. Judgment being for the plaintiff (the appellee) upon a verdict in her favor for $1,000, the defendants took this appeal.

<p> Debtors: preferences; fraudulent conveyances; void consideration. Parent and children: promise of payment for services not presumed. </p> <p>Apart from the provisions of the bankrupt or insolvent laws, a debtor has the right to prefer one creditor to another, when ■done bona fide, without fraudulent intent, and upon proper 'consideration. p. 688</p> <p>Services rendered by children to their parents, while residing with them, without any agreement for compensation, do not constitute a valuable consideration for a conveyance by a parent to a child, and such conveyances are void as against judgment creditors. p. 690</p>