Volume 128 — Maryland Reports

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

<p>Deceit: action of—•. Contract induced by fraud: rights of party to repudiate—j or sue for damages. Constructive hnowledge of agents. Prayer talcing case from jury: sufficiency and weight of evidence.</p> <p>In passing upon a prayer to withdraw the case from the consideration of the jury, the only question for the judge to decide is whether the plaintiff has offered any evidence legally sufficient to sustain the declaration. p. 10</p> <p>If there is any evidence legally sufficient for that purpose it is the exclusive duty and province of the jury to say, when all the facts have been submitted to them, whether they have sufficient probative force to .sustain the plaintiff’s case. pp. 10-11</p> <p>In passing upon such a prayer, the Court must assume the truth of all the plaintiff’s evidence. . p. 11</p> <p>Where there is a conflict of evidence upon a vital question of fact it is for the jury and not for the court to decide, p. 12</p> <p>Where a prayer withdrawing a case from the consideration of the jury makes no reference to the pleadings,—the Court, on appeal, is not concerned with any question of variance between the declaration and the evidence. p. 29</p> <p>One who is induced to sign a contract by the deceit of the other party, is bound thereby neither in law nor in equity; such an instrument is voidable, and without regard to any question of fraud, it may be rescinded or repudiated. fj. 29</p> <p>Where one of the parties to an agreement is under no legal obligation to speak, his mere silence or mere non-disclosure of material facts will not be sufficient to form the basis of an action of deceit; but if he makes some mis-statement of fact, or such a partial or fragmentary statement as t'o mislead the other party—to the latter’s injury—such, action will lie. p. 32</p> <p>The existing intention of a party at the time of contracting is a matter of fact, and may be material to the validity of a contract ; if it be proved that a person falsely represented his intention at the time of making a contract, for the purpose of inducing its execution, it may be ground for avoiding the contract. p. 33</p> <p>Where a contract was induced by deceit, the party so deceived may repudiate the contract, or may sue for damages sustained by reason of the deceit practiced. p. 34</p> <p>In actions of deceit the knowledge of the principals may be imputed to the agents through whom the negotiations were conducted. pp. 30-31</p>

<p> Fraternal orders: discipline and suspension; effect of rules; jurisdiction of courts. </p> <p>In the matter of discipline, doctrine and internal policy of fraternal organizations, the rules by which the members have agreed to be governed constitute the charter of their rights, and courts decline to take cognizance of any matters arising under such rules. p. 49</p> <p>.But where it is shown that proceedings against a member have not been in accordance with the prescribed rules of procedure in such cases, and that, in violation of the rules, the member has been given no opportunity to appear and defend himself, a court, if called upon, should not hesitate to interfere against the invasion of the member’s rights. p. 49</p>

<p>Statutes: amendments; original statute invalid. Sureties: corporate; not favored by the law. Contracts for the benefit of third parties: rights under—. Bonds of public contractors : rights of laborers. State Roads Law: ■ , chapter 218 of the Acts of 1910.</p> <p>An amendatory statute is not invalid, merely because of the fact that the statute it purports to amend has been previously-amended, or has been held invalid. ■ p. 55</p> <p>Section 32D of Chapter 141 of the Acts of 1908 (creating the State Roads Commission, and which became section 32D of Article 91 of the Code of 1904), was repealed and re-enacted with amendments (adding an additional member of said commission), by Chapter 218 of the Acts of 1910; by Chapter 72.1 of the Acts of 1910, section 32D of Article 91 of the Code, as enacted by Chapter 141 of the Acts of 1908, was repealed and re-enacted with amendments providing that the bonds of the road contractors should bind them to pay all just debts for labor and material incurred in the construction, etc., of the roads contracted for: Held, that said Chapter 721 was operative and effective, although the said section 32D had been repealed by Chapter 218 of the Acts of 1910, before it was re-enacted with amendments by said Ch. 218. pp. 54-55</p> <p>Since corporate bonding companies are organized to become sureties on bonds for profit, the doctrine that a surety is a favorite of the law, and that a claim against surety is strictisdmi juris, is greatly minimized as to them; their business is that of insurers, and their liability is greatly extended beyond that to which sureties were formerly bound. p. 56</p> <p>A third person for whose benefit others make a contract may in certain eases recover upon it against a party to the contract who defaults in performing the beneficial condition. p. 58</p> <p>Where a contractor’s bond is given, not only for the protection of the State under the contract, but also for the protection of the laborers and material men, the latter, on a proper case, may maintain an action under it, irrespective of whether the right is given them by the express language of the statute and bond, or not. p. 58</p> <p>Under Chapter 218 of the Acts of 1910, amending the law as to the bonds to be required of contractors who obligate themselves to build roads under the State Hoads Law, laborers and material men may sue on the bond in their own names for sums due them by the contractor in building' or improving such roads. p. 59</p>

<p>Divorce and alimony: desertion; if fault of the wife, no ground for divorce.</p> <p>"Where the allegations of a bill for a divorce, if supported by proof, are sufficient to warrant a decree, they are sufficient, if proved, to support a bill for alimony alone. < ' pr;62'v</p> <p>But alimony alone should not be granted, unless the facts alleged in the bill and proved, would furnish sufficient cause for the granting of a divorce a vinculo or a mensa. p. 62</p> <p>Alimony is maintenance afforded the wife where the husband refuses to give it, or where from his improper conduct the husband compels her to separate from him. p. 63</p> <p>It is a provision for the wife, to continue during their joint lives, or so long as they remain separate. p. 63</p> <p>Where the refusal of the husband to live with the wife is due to such misconduct on the part of the wife, and disease resulting to her therefrom, as to render it impossible to continue matrimonial cohabitation with safety to his health or self-respect, it can not be considered as substantiating a charge of desertion, so as to warrant the granting of a divorce to the wife, on such grounds, or the awarding of alimony. p. 66</p> <p>Desertion as a matrimonial offense is the voluntary separation of one of a married couple from the other, or a voluntary refusal to renew a suspended cohabitation, without justification. ' p. 66</p> <p>On an application for divorce and alimony, the court can give no other relief than such as is provided by law and prayed for in the bill. p. 67</p> <p>On an application for a divorce and alimony, where the proof does not support the allegations, and justifies neither the granting of the divorce, nor the awarding of alimony, the court may not decree a restitution of property. { : ' ’ p. 67</p>

(Amulet?, J.) The facts are stated in the opinion of the Court. The cause was argued before Boyo, O. J., Briscoe, Burke, Thomas, Pattisow, Healer, Syockbridge and Cost-stable, JJ.

<p> Experts: examination; hypothetical questions. Will cases: attesting witnesses. </p> <p>Witnesses who are not experts and not attesting witnésses must disclose such facts and such adequate means of knowledge as to qualify them as non-expert witnesses "before they will he allowed to express an opinion as to the sanity of the testator. p. 82</p> <p>There must he a proper foundation laid to qualify such witness to express such an opinion. p. 82</p> <p>A hypothetical question to experts, which contains the conclusions, opinions and inferences of witnesses, is improper. p. 83</p>

<p> Corporations: stockholders; no right to deed for any particular part of corporate property. Camp-meetings: lot owner’s rights. </p> <p>Where, in virtue of certain certificates of stock in a camp-meeting association that had become incorporated, a stockholder sought to compel the execution to him of a lease dr deed for certain lots in the grounds of the association, it was: Held, that:</p> <p>Nothing in the charter or by-laws of the Washington Grove Association of the District of Columbia and Maryland requires it to execute a lease or deed to the stockholders for lots located by them, as sought in this case. p. 98</p> <p>In general a stockholder of a corporation is not entitled to a lease or deed for any part of the property of the corporation, in the absence of any valid and binding agreement to,that effect. p. 97</p>

<p> Practice-, verdict; plaintiff need not be called; non pros.; time for exercising right. </p> <p>Under Article 75, section 173 of Bagby’s Code, it is no longer necessary to call the plaintiff before the rendering of the verdict, and his right to submit to a voluntary non pros, must be exercised before the argument upon the facts is begun. p. 103</p> <p>In a trial before a court sitting as a jury it was agreed by the counsel of the respective parties that certain testimony in a certain chancery proceeding should constitute the whole evidence in the case before such court, and thijt on the day of argument the counsel should be permitted to offer prayers or instructions, and that the argument on such prayers, etc., and on the facts gathered from said evidence “should be argued jointly”; on a day named the arguments were made on the prayers and the facts, and the case submitted by the counsel for the respective parties to the court for its final decision: Held, in order to reserve their right to submit to a non pros, until after the court had ruled upon the prayers, the plaintiff should not have argued the case upon the facts when they did, for, by so doing this, they lost the right, reserved to them under the statute, of dismissing the suit, or submitting to a voluntary non pros. p. 104</p>

<p>Streets: Baltimore City; Commissioners for Opening—; appeals; failure to grade does not lengthen lime for appeal. Public officials: estoppel.</p> <p>Where it is sought to bind a municipality through the principle of estoppel because of misleading statements claimed to have been made by public officers of' the municipality, it is not sufficient to allege and prove that the party complaining actually was misled by the statement; it must further appear that the statement was calculated to mislead. p. 112</p> <p>Appeal was taken to the Baltimore City Court from the action of the Commissioners for Opening Streets in awarding damages and assessing benefits in the matter of the opening of Crwynn’s Falls Park; the City moved to dismiss the appeal on the ground that it was not taken within the time prescribed by law; an answer was filed by one of the property holders affected alleging, in substance, that one of the commissioners at the hearing, for which public notice had been given, had advised him and other property owners there present, that the assessments, etc., were not final and that, in view of the opposition to the project, it would probably be dropped, and that if final awards were made new notices would be sent; it was further alleged that upon learning that the awards in the case had been made final and without any such new notices having been given, the appeal was taken to the Baltimore City Court. On appeal to the Court of Appeals from the order of the City Court dismissing the appeal thus made, it was: Held (without regard to the legal sufficiency of the defense), that the evidence in the record did not sustain the allegations in the answer, that any of the commissioners had promised to give such further notice. pp. 113,114</p> <p>In condemnation proceedings for the opening of streets In Baltimore City, the fact that the grade of the proposed street had not been established at the time the Commissioners for Opening Streets assessed benefits that were objected to does not extend the time within which appeals to the Baltimore City Court may he made, or relieve one from the consequences of one’s delay. pp. 110-111</p> <p>The provisions of the municipal charter in regard to opening streets, condemning property, etc., are not only intended to safeguard the rights of'those interested in property affected by the matter, but to insure accurate and prompt performance of the duties imposed upon the public officers. " p. 112</p> <p>A municipality ought not to be bound or estopped by any statement or promise made by public officials, excepting as to such as are made in connection with and in relation to the discharge of their duties. • p. 112</p>

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

<p>Appeal from the Criminal' Court of Baltimore City.. (Doblek, Stump and Bond, JJ.)</p> <p>The facts are stated in the opinion of the Court.</p>

<p> Baltimore City: police power; places of amusement; permits; assent of the Mayor and City Council. Ordinances : title of—; sufficiency. </p> <p>The title of Ordinance Ao. 269 of the Ordinances of the Mayor and City Council of Baltimore City, passed May 20th, 1913, making it necessary that the assent of the Mayor and City Council should be obtained before the Building Inspector could grant an application for a permit to erect, etc., any building, tent, etc., for exhibiting any moving picture shows, is explicit and fulfills all constitutional requirements. pp. 132,139</p> <p>The City of Baltimore, by its charter, besides its power to license, tax and regulate all trades, business, etc., and for licensing, regulating and restraining public amusements, has, under the welfare clause, sub-section 31 of section 6, full power to pass all ordinances, not inconsistent with (the Charter) or the laws -of the State, as may be proper in executing any of the powers, express or implied, as well as such ordinances as it may deem expedient to maintain the peace, good government, health and welfare of the city. p. 133</p> <p>The requiring the assent of the Mayor and City Council to the licensing of buildings for moving picture shows is a proper exercise of the police power, and the said ordinance, and is a reasonable exercise of constitutional power. p. 134</p>

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

( Dawkins, J.) Charles Hawkins* a prisoner in the State Penitentiary, was injured while engaged in the manufacture of clay products by a corporation with whom the, State of Maryland had entered into an agreement allowing it to employ the prisoners in the penitentiary, under rates and conditions therein set forth; he brought suit therefor, in the Court of Common Pleas for $10,000, against the employer corporation.

<p> Appeals in equity: demurrers and pleas. </p> <p>The office of a demurrer is to demand judgment of the court as to the sufficiency of the case stated in the bill. p. 170</p> <p>A plea relies upon its averment of a distinct fact which is supposed to present, if proven, an effectual bar to the prosecution of the suit. pp. 170-171</p> <p>Where the demurrer to a bill in equity is sustained, the suit is dismissed, if the bill can not be aided by amendment. • p. 171</p> <p>Where a plea is held good, the issue of fact it raises is still open for trial and decision. p. 171</p> <p>The overruling of a demurrer determines that the case made out by the bill requires a defense, while similar action as to a plea decides the invalidity of the particular defense actually interposed. p. 171</p> <p>An order sustaining or overruling a demurrer to an entire bill is appealable because it decides the vital question as to the plaintiff’s right to proceed with the case'which the bill presents. pp. 170,171</p> <p>Whether a ■ plea is sustained or disallowed, the plaintiff is left at liberty to press his suit; if sustained the plaintiff may join issue as tor the truth of the facts alleged; if the plea is overruled .the ease proceeds to answer, issue and trial in the usual course. pp. 171-172</p> <p>The ruling on a plea settles no rights conclusively, and the question of fact involved remains open for determination by a final decree; on appeal from such decree all the interlocutory rulings are reviewable. p-172</p> <p>The considerations which support the right of appeal from an order overruling a demurrer to the bill of “complaint as a whole are not applicable to an order overruling a plea to a''bill, from which order no appeal should be entertained. p. 172</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>■Wills: caveators; interest in the property; proof of—.</p> <p>- Only those who have an interest in the property of a testator, in case his will should be annulled, are entitled to file a caveat to his will or to issues relating to its validity; and the rights of caveators to maintain such suit should be established before such issues are transmitted. ■ p. 185</p> <p>In pleading, matters which appertain solely to the jurisdiction of the court, or to the disabilities of the suitor, should never be blended with questions which enter essentially into the subject-matter of the controversy. p. 185</p>

<p> Injunctions: damages; interruptions to business; malicious prosecution. </p> <p>Where one with malice and without probable cause enjoins another from the use of property necessary for the latter’s business, or by so doing causes him other loss or injury, the defendant’s right of action at common law is not merged in his remedy on the bond, but an action on the case also will lie. p. 198</p> <p>In such a case, however, the pleadings must negative the existence of probable cause for the injunction; to allege that the writ was unjustly and wrongfully sued out will not suffice; there must be distinct allegations of malice and want of probable cause. pp. 200-201</p> <p>In such a suit the general requisites in pleadings in actions for malicious prosecution must be observed as far as possible. p. 200</p> <p>In general, the granting of a preliminary injunction ex parte should not be held to be conclusive of the existence of probable cause. p. 200</p>

<p> Husband and wife: husband's liability for goods sold to wife; goods sold on her sole credit. </p> <p>A husband is liable for goods sold to his wife, upon his credit and-by his authority or assent, whether such authority or assent be express or implied. . p. 204</p> <p>In such cases the wife becomes the agent of the husband, and the principles incident to that relation attach. p. 204</p> <p>But for goods sold to the wife, upon her credit solely, the husband will not be liable, even though such sale were with his knowledge and consent. p. 204</p> <p>This common law liability is not affected by the provisions of the Code relating to the property and contractual rights of husband and wife. p. 204</p> <p>Section 5 of Article 45 of the Code, to the effect that the husband shall not be liable upon any contract, made by his wife in her own name, and upon her own responsibility, does not apply to contracts made by a Avife as agent for her husband, or to those cases mentioned in the statute, where his liability is continued, as at -common law. p. 204</p> <p>In a suit for necessaries and wearing apparel sold to a Avife, the question of such agency vel non on the part of the Avife should be submitted to the jury. p. 206</p> <p>The fact that the seller filed the same bill under oath in the Orphans’ Court against the estate of the decedent husband was competent for the jury to consider, but was not conclusive of the question as to the party on the faith of whose credit the sale was made. p. 208</p> <p>The mere fact that goods bought by a wife were charged to her accoAmt on the seller’s books is not conclusive proof that the goods were sold and deliA^ered upon her credit alone; it is a question for the consideration of the jury. p. 207</p> <p>An entry upon the books of a seller is not conclusive as to the question of the person to whom credit was given. p. 207</p>

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

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

<p> Wills: constructionj vesting of estates; "heirs”; at death of testator; remaindermen; when—may convey interest. Trusts: devolve on heirs of trustee; not to fail for want of trustee. </p> <p>The law favors the early vesting of estates, and unless a will clearly expresses a desire upon the part of the testator to defer the time of vesting, or there is some manifest reason for so doing, a devise or bequest in favor of a person or persons in esse, whether such persons be individualized, or treated as a class, confers an immediate vested interest, though the time of enjoyment be postponed. p. 224.</p> <p>Trusts of real estate, upon the death of the trustee, devolve upon his heir at law for the preservation of the title, until the appointment of a new trustee. p. 226</p> <p>Equity will not let an estate or power fail for want of a trustee. p. 227</p> <p>A testator left to “S.” for life all of certain named real estate; there was no specific limitation over of the remainder, but under a residuary clause all the rest and residue of the testator’s estate was devised to his executor in trust, to be sold and the proceeds divided among the testator’s heirs, share and share alike: Held, that the remainder vested in those heirs of the testator who were such at the time of the testator’s death. p. 225</p> <p>Anyone having a vested remainder may convey his interest even before the termination of the life estate. p. 225</p>

<p>Decedents’ estates: taxation; situs; personal property; mortgages and mortgage notes. Collateral inheritance tax. Taxes: paid in error; officer receiving—, accountable 'to State. Register of Wills.</p> <p>Mobilia sequunter personam. p. 231</p> <p>The rule that personalty follows the person, even as to a property tax, is not of universal application, and always gives way to provisions of statutes fixing the situs of property for the purpose of taxation, where such provisions are not in conflict with the constitution. p. 232</p> <p>Where a decedent, a non-resident, at the time of his death owned mortgages on real estate in Maryland and notes secured thereon, and the administrator in Maryland collects the mortgage debt, it is such an estate in land as to be liable for the collateral inheritance tax, under section 120 of Article 81 of the Oode. p. 232</p> <p>In the absence of statutory provision, taxes paid voluntarily, in error of law, are not recoverable. p. 231</p> <p>A collateral inheritance tax paid to a register of wills is, as far as the administrator or executor is concerned, a payment to the State. pp. 231, 232</p> <p>A register of wills, in a suit by the State to recover the collateral inheritance tax, can not defend on the ground that the tax had been unlawfully collected and paid to him. p. 232</p>

<p>Appeal from the Baltimore City Court. (Gorter, J.)</p>

<p>Dogs: liability of owner, for injuries by—. Evidence: credibih ity; question for jury.</p> <p>At common law, the owner of a dog is not liable for injuries caused by it, unless it had vicious propensities and the fact had been brought to the notice of the owner. p. 247</p> <p>But when it is established that a dog is of a vicious disposition, and that the owner has knowledge of the fact, the same responsibility attaches to the owner to keep it from doing mischief as in the case of any other animal naturally ferocious; and in order to hold the owner responsible proof of negligence on his part is not necessary. p. 247</p> <p>In order to render the owner of a dog liable in damages to one bitten by the dog, it is necessary to show that the dog had a vicious propensity and that such vicious propensity was known to the owner. - p. 249</p> <p>But the owner’s knowledge need only be such as to put him on his guard, and to anticipate, as an ordinarily prudent person would do, the conduct of the dog which resulted in the injury complained of. p. 250</p> <p>Where there is evidence legally sufficient to prove the issue, its weight and credibility are questions' for the jury, and not for the court. p. 249</p>

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

<p>Grantor and Grantee: when in fiduciary relations; burden of proof; voluntary conveyances; between brolcers.</p> <p>Where the relations “between a grantor and a grantee are of a fiduciary and confidential nature, the burden of proof to sustain the deed is upon the grantee. p. 264</p> <p>But when snch burden of proof has been sustained, and the deed shown to have been the free, voluntary and unbiased act of the grantor, it will not be vacated or set aside at the instance of the heirs at law of the grantor. p. 263</p>

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

<p>Statutes: penal—; revocation; effect of repeal. Road laws: Prince George’s County road fund; distribution. Acts of 1910 and 1914: no vested rights.</p> <p>Where from the general framework of a statute and the manner in which the subject-matter is dealt with it is evident that the Legislature intended such a general statute to be a complete system of legislation in regard to the subject-matter, the statute thus passed must be considered as a substitute for all prior laws on that subject, and provisions of such prior laws not embraced in the latter statute are repealed. pp. 272-273</p> <p>By section 286 of Chapter 90 of the Acts of 1910, creating a board of road directors for Prince George’s County, after providing for certain'payments from the total of a sum received by the county for roads or bridges, it was directed that the balance should be distributed equally among the road districts into which the county was divided by the Act; such sums to be divided among the election districts of each road district according to the proportion of the mileage of each such election district to the road mileage of the whole district; it was made the duty of the county road engineer to see that no road district should exceed its allowance; other sections of the Act provided for a county road engineer and for his giving bond according to a form prescribed. Chapter 801 of the Acts of 1914 established, a complete system of road laws for Prince George’s County different from that which had existed and operated as a repeal of the provisions of the Act of 1910 so far as there was a conflict. p. 273</p> <p>Section 286 of Chapter 90 of the Acts of 1910 gave no vested rights as to the distribution of the road fund. p. 273</p> <p>Such rights were not given to any private individual, nor under it did any right accrue to the County Commissioners. p. 273</p> <p>After the passage of the Act of 1914, no action will lie on the bond of such road engineer for his failure to see to it that no road district should exceed its allotment under the provisions of the Act of 1910. p. 274</p> <p>JNo penalty incurred during the existence of a statute can be enforced after its repeal or expiration, unless there is a saving clause or special provision to that effect. p. 272</p>

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

<p> Negligence: raihvay crossing; duty of person approaching to look, stop, listen. Prayers: inconsistent—j confusing. </p> <p>Yo appeal will lie from the action of a lower court upon a motion for a new trial. p. 282</p> <p>After the close of the plaintiff’s case, if a prayer of the defendant that the case be taken from the jury is refused, production by the defendant of testimony in his behalf amounts to ■a waiver of his objection to the court’s action on his prayer. p. 283</p> <p>A prayer which does not point out any particular ground upon which the right to recover is asserted or denied, and does not direct attention to any particular error or omission of proof, is erroneous. p. 283</p> <p>A prayer inconsistent with a prayer already granted or which is conceded is erroneous. p. 284</p> <p>Conflicting and irreconcilable evidence is a matter for the consideration of the jury. p. 284</p> <p>In an action for damages resulting from a collision with an electric car at a public crossing testimony by the plaintiff and his driver that they stopped and looked before crossing and did not see the car, is not avoided by the evidence of another on a different day and under possibly different conditions, to the effect that from the same place he could have seen the car as it was advancing. pp. 285-288</p>

<p>Mechanics’ lien: purely statutory; heating plant; separate contract; repairs and additions; one-fourth value of building.</p> <p>A mechanics’ lien is created by statute, and to maintain, the lien and enforce it the requirements of the statute must be complied with substantially. p. 288</p> <p>A mechanics’ lien for the installation of a heating plant can not be enforced, under section 2 of Article 63 of the Code, against the building when the contract for the heating plant was separate and distinct from that for the building, and the building had been completed more than two months before the contract for the heating plant has been made. p. 289</p> <p>Hor can such a lien be enforced as repairs or improvements, under section 1 of that Article, when the heating plant was not equal to one-fourth of the value of the building. p. 290</p>

(Dawjkixs, J.) The facts aro stated in the opinion of the Court.

(Beall and Oamalieb, JJ.) The facts are stated in the opinion of the Court.

<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 Circuit Court Ro. 2 of Baltimore City. (Heuisler, J.)</p> <p>The facts are stated in the opinion of the Court.</p>

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

Three appeals from the Circuit Court of Baltimore City. (Dobleb, J.) The facts are stated in the opinion of the Court. The causes were argued together before Boyd, O. J., Bbiscoe, Bubke, Tiiomas, Pattison, Ubneb, Stockbbidge and Constable, JJ.

<p>Contracts: by corporations; entered into by resolution; board of directors; construction of—. Equity: set-off.</p> <p>A contract within the scope of their authority may be entered into by a resolution of the board of directors of a corporation, and when properly adopted will bind the corporation. p. 364</p> <p>Such a resolution when adopted can not be modified by any mere memorandum attached to it. p. 364</p> <p>When part of the assets of a corporation were sold to an officer by resolution of the directors, in proper form, no set-off' can be claimed against the assignee of such officer, for value received, for traveling expenses, attorneys’ fees and other expenses caused the corporation by such officer. p. 376</p> <p>Courts, in the construction of contracts, look to the language employed, the subject-matter and the surrounding circumstances ; they are never shut out from the same light which the parties enjoyed when the contract was executed.. pp. 373-374</p> <p>For a set-off to be allowed, in equity as well as at law, there must he a mutuality in the demands and the amounts must he liquidated and certain; and, in respect to mutual credits, in equity no more than in law, can set-off he allowed for uncertain damages or for torts. P- 375'</p>

<p>Title to land: trespass. Deeds of conveyance. Evidence: adverse possession; proof inadmissible; acts of mere trespass.</p> <p>In an action of trespass quare clausum fregii, where the patent for the lot in question is located on the plat, and. the lines ■of the lot are run according to the lines and courses therein contained, deeds purporting to convey the whole of said lot known by the name used in the patent, are admissible in evidence without themselves being located on the plat. p. 379</p> <p>Where the beginning point of a patent was unmarked, but the point was described by reference to the lines of another patent whose point .of beginning was marked and located, whence the lines of the first patent reversed could be located, then such first patent is admissible in evidence. p. 379</p> <p>To establish an adverse possession to an unenclosed wood lot, evidence of the cutting and selling of timber therefrom is not sufficient. p. 380</p> <p>Such acts might be mere successive acts of trespass, and nothing more. p. 380</p>

<p> 'Workmen's Compensation Act: horse-drawn vehicles; intoxication of employee; when no defense. Statutes: construction of—; general and particular words. </p> <p>The right to open and close a case follows the burden of proof, unless otherwise provided by law. p. 385</p> <p>When particular words of description are used in a statute to indicate the scope of its application, followed by general words, the latter are to be limited in their meaning so as to embrace only a class of things indicated by the particular things. p. 388</p> <p>But this is only a rule of construction to aid in arriving at the real legislative intent; it is not a rigid rule, and does not override all other rules, nor is it ever applied to defeat the real purpose of the statute, as that purpose may be gathered from the whole instrument. p. 388</p> <p>If the particular words exhaust the genus so that there is nothing ejusdem generis left, the general words may be given a meaning outside of the class indicated by the . particular words. p. 388</p> <p>Section 41 of Chapter 800 of the Acts of 1914—the Workmen’s Compensation Act—making the Act apply to the operation of * * * cars, trucks, wagons or other vehicles * * * propelled by steam, gas, gasoline, electric, mechanical or other power, covers the cases of vehicles drawn by horses or mules. p. 388</p> <p>For the intoxication of the employee to be a defense under the Act, it must appear that the injury which resulted in the death of the employee was the sole cause of the accident, p. 393</p> <p>The right of employees to compensation under the Act in no manner depends upon the negligence of the employer. p. 393</p>

(Dawkiks, J.) The facts are stated in the opinion of the Court. The cause was argued before Boyd, C. J., Briscoe, Burke, Thomas, Pattisow, ITrwer, S'tockbridg-e and Cow-stable, JJ.

<p>Appeal from the Circuit Court for Baltimore City. (Elliott, J.)</p> <p>The facts are stated in the opinion of the Court,</p> <p>The cause wras argued before Boyd, C. J., Briscoe, Burke, Thomas, Pattison, IJrner, Stockbridge and Constable, JJ.</p>

<p>Negligence: passengers falling from electric car. Evidence: judicial IcnovAedge.</p> <p>The mere fact that the plaintiff was injured while a passenger on the defendant company’s car does not of itself raise any presumption of negligence, in the absence of surrounding circumstances from which a legitimate inference of negligence could be drawn. p. 411</p> <p>Judges are not to shut their eyes to the knowledge of the incidents of railway travel common to all, p. 412</p> <p>Electric cars do not run with perfect smoothness; they have certain irregular movements which do not of themselves justify the inference of negligence or carelessness on the part of those in charge. p. 412</p> <p>A passenger standing on the step of an electric car preparing to alight, while the car was still in motion, fell and was injured; in a suit against the company, on the ground that the injury was caused by the company’s negligence, the only evidence in the plaintiff’s favor was his own, to the effect that while so standing the car gave “just a sudden jerking forward,” and he fell: Held, that this was not of itself sufficient to impute negligence to the company. pp. 411-412</p>

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

<p>Appeal from the Circuit Court for Frederick County. In Equity. (ITrner, C. J'., Worthington and Peter, JJ.)</p> <p>The facts are stated in the opinion of the Court.</p>

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

<p>Appeal from the Circuit Court for Worcester County... (Jones and Stanford, JJ.)</p>

<p> Savings banks: payments; forged orders; duty of bank. Prayers: “no evidence.” </p> <p>A deposit account in a savings bank was opened by a depositor who could not read; the first deposit was made in his name by a friend, E. W.; she was given the bank book and signature card; she returned the card with the cross-mark of the depositor witnessed by herself; the depositor went repeatedly to the bank with E. W., and received payments made directly to him or to her, on presentation of the bank book and orders or receipts with his name or mark on them witnessed by her; whenever he went to the bank he was accompanied by her, and it was she who presented the book: Held, that under such circumstances it was no sign of negligence for the bank to honor orders or receipts presented by E. W., which, although' forged, bore upon them the cross-mark of the depositor witnessed by the said E. W. as on the signature card. p. 459</p> <p>Savings banks, in making such payments, are only bound to use ordinary care. p. 457</p> <p>In reviewing the action of the trial court in refusing a defendant’s prayer to take the case from the jury, on the ground of “no evidence,” the Court of Appeals must assume the truth of all the evidence to support the plaintiff’s contention. p. 460</p>

<p>Municipal contracts: technical violation of charter; benefit to city; injunctions; actions of party pending—■. Ignorance of the law. Equity.</p> <p>In general, once equity acquires jurisdiction over the parties on an application for an injunction, they can not deprive it of jurisdiction by doing, before the Court acts, that 'which the Court was prayed to enjoin; and should that be done it may require restoration and compensation, should the pleadings and evidence authorize such relief. p. 472</p> <p>But there may be conditions which would not only make it futile to grant an injunction, but inequitable and unjust to require restoration or compensation, such as is sought, p. 472.</p> <p>The mere fact that a municipality can make a good bargain-does not authorize it to violate its charter; yet when it clearly appears that the act involves no loss, but actually results in a-decided benefit to the city and that the violation of the charter is only a technical one, involving only unintentional mistake,, equity should not deal with the case precisely as though there-had been a deliberate and inexcusable violation of law, especially if the latter was accompanied by fraud, collusion, or unjust treatment of others. p. 473^</p> <p>Where a taxpayer, as complainant, seeks by an injunction to-restrain a contractor from executing or completing a construction under a contract with a municipal corporation, and where-the injunction suit, if successful, might cause the contractor great loss and ruin, every principle of equity demands that the complainant should use diligence in the prosecution of his suit. p. 475</p> <p>Failure to prosecute with diligence a suit actually commenced may constitute laches, as well as any delay in commencing a suit. p. 474</p> <p>Where a contract for the construction of a public filtration plant is entered into by a contractor and a municipality, honestly on both sides, and with no intention of violating the law, and yet the contract is in conflict' with the city’s charter powers, •then, after the work is done, courts should not be zealous in depriving the contractor of his pay or profits, when it is not shown or • claimed that it was otherwise than well done, but shown to be of great benefit to the public, and when the taxpayer who brings the suit shows no injury to himself or to the city, and who after merely instituting such a suit used no diligence in bringing it to a conclusion. p. 475</p> <p>While ignorance of the law is not a valid excuse, contractors ■engaged in work all over the country can not be supposed to keep familiar with every detail of municipal charters. p. 476</p>

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

<p> Contracts for sale of land: title of vendor; —to be perfected; effect on contract. Payments on account: forfeiture. Cloud on title: Bill to remove. </p> <p>A contract for the sale of land is not rendered void merely because at the time of entering into it the vendor did not have such title as the contract called for, i. e., a good, marketable title. • p. 520</p> <p>Where a party—a purchaser under a contract of sale—endeavored to resell the property to others before he had acquired title or complied with the terms of sale, and at a time when his vendor had not yet perfected his own title, and when by the origina] contract of sale he was not yet required to have a perfect title to the property, such original vendor is not liable for the inability of his vendee to complete his sale. pp. 521-522</p> <p>Under an agreement of sale, a purchaser had made a payment on account; upon the payment of certain deferred payments, and the execution of a mortgage for the balance of the purchase money, a deed was to have been given; the purchaser defaulted in the deferred payments, defaulted in the final payments for which an extension had been given, and never tendered the mortgage; the intended purchaser never demanded the rescission of the contract, nor the return of the sum paid on account; meanwhile the vendor entered into a new agreement for the sale of the property, to a second purchaser; but the latter, fearing the former transaction might have the effect of casting a cloud upon the title, refused to consummate the purchase; on appeal, the Court affirmed the decree of the lower court quieting and establishing the title in the vendor, free from the claims of the first purchaser. p. 522</p>

<p>Fraternal or benevolent societies: after-adopted by-laws or rules; effect of—. Disappearance of member.</p> <p>In the absence of proof to the contrary, it is to be presumed that the by-laws of fraternal societies were regularly and properly passed. p. 526</p> <p>Members of fraternal or benevolent societies who agree, in their applications for membership or otherwise, that they will comply with the by-laws of the order, then in force or after-wards to be adopted, are bound by after-adopted rules, provided the same are reasonable in their nature and properly adopted according to the law of the order. p. 526</p> <p>A rule providing that registered notice shall he given at the last known residence of a member who is reported as having disappeared, and further providing that unless within six months’ from the time of such notice the member shall appear at a stated meeting of the order he shall he suspended therefrom and from all the rights of the order, is reasonable, p. 528</p>

<p> Answers in equity, sufficiency of—j answers not under oath. </p> <p>The only way to compel a defendant, who submits to answer at all, to put in a proper answer, is by exceptions; the same rule applies whether the answer is under oath or not under oath. pp. 532-533</p> <p>When a defendant submits to answer his answer must be full and perfect to all material allegations of the bill, and he must admit or deny all facts stated in the bill, with all their material circumstances, without any special interrogatory for that purpose. p. 533</p> <p>When answers are under oath, that were not required-to be sworn to, they have no other effect than would unsworn answers. p. 531</p>

<p>Appeal from the Circuit Court of Baltimore City. (Dobeer, J.)</p> <p>The facts are stated in the opinion of the Court.</p> <p>The cause was submitted to Boyd, O. J., Briscoe, Burke, Thomas, Pattisoh, Usher, Stockbridge and Constable, JJ.</p>

Two appeals in one record from the Circuit Court of Baltimore City. (Dobler, J.) The facts are stated in the opinion of the Court. The causes were argued together before Boyd, C. J., Briscoe, Burke, Thomas, Pattisow, Urner, Stookbridoe and Constable, JJ.

2 of Baltimore City. (Heuislbr, J.) The facts are stated in the opinion of the Court. The cause was argued before Boyd, O. J., Bbiscoe, Bub,ice, Thomas, Pattisoh, Uener, Stockbridge and OoxSTABLE, JJ.

(Henderson, J.) To which county the case has been removed for trial, from Washington County. The facts are stated in the opinion of the Court.

<p>Police power of State: mining operationsj regulation of—. Compulsory insurance.</p> <p>The police power- of the State extends to the protection of the lives, limhs, health, comfort and quiet of all persons, and the protection of all property within the State. p. 572</p> <p>Neither the Declaration of Rights nor the Fourteenth Amendment to the Constitution of the United States were intended to restrain the reasonable exercise of the police power hy the States. p. 573</p> <p>The provisions of Chapter 153 of the Acts of 1910, as amended hy Chapter 445 of the Acts of 1913, providing for a “Miners’ and Operators’ Co-operative Relief Fund,” for the relief of employees injured in coal and clay mining in Allegany and Garrett Counties, and for the relief of the dependents of employees who are killed in such mining, are well within the limits of the State’s police power. p. 575</p> <p>The police power is not above the Constitution, and not everything done in the name of the police power is lawful. p. 575</p> <p>The exercise of police power is always subject to considerations of constitutional limitations, when it is arbitrary, or is an undue, unjust and capricious interference with personal rights. p. 575</p>

Three appeals in one record from Circuit Court No. 2 of Baltimore City. (Hbuisler, J.) The facts are stated in the opinion of the Court. The causes were argued together before Boyd, C. J., Briscoe, Burke, Thomas, Pattison, Hrner, Stockbridge and Constable, JJ.

<p>Charitable uses and trusts: 43 Eliz. Chapter 4; not in force in Maryland. Wills: interpretation; trusts; creation of—. Act of 1888, Chapter 249, Code, Art. 93, sec. 328.</p> <p>The Statute of 43 Elizabeth, Chapter 4, known as the Statute of Charitable Uses, has never been in force in Maryland, and, independent of that statute a court of chancery can not, in the exercise of its ordinary jurisdiction, sustain and enforce a bequest to charitable uses which, if not a charity, would be void on general principles. p. 601</p> <p>In Maryland, when property is left to a corporation for such uses as are within the scope of its corporate purposes, or the objects to which the gift is to be applied are such as the corporation was organized for, such gift can not be declared invalid on the ground that it conflicts with the rule against perpetuities, unless the intention to create a trust is clear. p. 601</p> <p>In construing wills, the intention of the testator, as gathered from the four corners of the instrument, is to govern, unless it contravenes some positive principle of law, or is frustrated by Some unbending rule of construction in assigning an inflexible meaning to particular words. p. 603</p> <p>Even when technical words are used, though a testator will ordinarily be presumed to have used them in their legal sense, a different meaning will be given to them when the context clearly indicates that such technical import would defeat the testator’s manifest intention. p. 603</p> <p>Courts ought not to be astute in striving for a construction which would nullify a will, if there are other equally reasonable interpretations which would support it. p. 603</p> <p>A trust may be created either by the use of appropriate technical words, or by any other language, when the purpose is sufficiently clear. p. 603</p> <p>But if it be manifest that the design was not to establish a trust, then no trust will be declared, although the words employed would, but for the contrary intention, be sufficient to create a trust. p. 603</p> <p>A testator, by his will and last testament, made full provisions for the formation of a corporation for the carrying out of his wishes as to the founding of a home and technical training school for orphan children; after stating the plan and scope of the institution, a sub-section of the will directed that the provision should be made that all the white children of Washington County, in the State of Maryland, not under six nor over ten years of age, who had no father, mother, stepfather or stepmother to care for them, etc., etc., should be eligible for admission to said “Home and Institute,” and entitled to all the advantages and benefits thereof, etc., etc.: Held, that:</p> <p>It was not the intention of the testator to constitute each individual member of the class named a cestui que trust of the fund. p. 604</p> <p>It is against the policy of the law to construe a will so as to make it create a trust, when its language is susceptible of another reasonable interpretation. p. 604</p> <p>The intention of the testator was to pass the property to the corporation for its general corporate purposes as expressed in the will and in the charter of the corporation; that the corporation takes both the legal and beneficial title to the property, and that no trust was intended to be created. p. 605</p>

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

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

<p>Appeal from the ‘Circuit Court of Baltimore City. (Dob-lee, J.)</p> <p>The facts are stated in the opinion of the Court.</p> <p>The cause was submitted to Boye, C. J., Brtscoe, Burke, Thomas, Pattison, Ureter, Stockbridge and Constable, JJ.</p>

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

<p>Appeal from the Baltimore City Court. (S'tawtoa1, J.)</p> <p>The facts are stated in the opinion of the Court.</p>

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

<p>. Abortion. Evidence: answers; admissible in part. Experts: hypothetical questions; opinion founded on testimony of some of the witnesses only; physicians.</p> <p>It is error to rule out the whole of an answer, if any part of it was admissible. p. 671</p> <p>An erroneous ruling as to the admission of evidence does not present reversible error, when the same fact, sought to be proved is proved without objection by other evidence in the case. p. 669</p> <p>When the testimony of an expert is to be based on the evidence in the case, it is generally preferable either to submit hypothetical questions to him, or to have him hear the evidence. p. 673</p> <p>In certain cases, as for instance that of a physician, it may, in the discretion of the trial court, be sufficient if the expert’s opinion be based on the evidence of some of the physicians who testified, without the necessity of basing it upon the evidence of all the physicians who testified, in cases where there is no contradiction between them. p. 674</p>

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