Volume 129 — Maryland Reports

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

<p>Torts: unauthorized entry into house or room; trespass ah initio; damages; all direct injuries. Evidence: legal sufficiency of—; question for the court, weight—for jury.</p> <p>The legal sufficiency of evidence is a question of law for the court, but the comparative weight and value of the testimony is a question that is for the jury exclusively, under proper instructions from the court.</p> <p>Every unauthorized entry upon the property of another is a trespass, which entitles the owner to a verdict for some damages.</p> <p>Entry in a house, by permission, with subsequent entry by force in some or any of the rooms, constitutes a trespass ah initio.</p> <p>In actions of tort, the wrongdoer is liable for all direct injury resulting from Ms wrongful act, although the extent or special nature of the resulting injury could not, with certainty, have been foreseen as the probable result of the act done.</p> <p>Where there was evidence in the case that the agent of a loan company, while the plaintiff was ill and suffering in bed from the after-effects of an operation she had just undergone, forced himself in her room against the protests of the nurse, and by loud talk and threats frightened the plaintiff, and made her so nervous that her condition was much aggravated, etc., the case should be allowed to go to the jury.</p>

<p>Court of Appeals: former decisionsj effect of-—,• all points in record as presented supposed to be covered. Streets: Commissioners for Opening; awards. Appeal: burden of proof. Jury: papers a?id calculations for same; discretion of the court.</p> <p>The Court of Appeals is presumed in every case to have considered all questions properly presented by the record, and raised on the appeal, which are found necessary for the determination of the rights of the parties to the suit.</p> <p>When an appeal is taken, all the questions which may be properly raised in the Court of Appeals on the then state of the record, as it exists in the court of original jurisdiction, must be considered as embraced by the first appeal, ■ and if not then raised and presented they must be considered as waived,</p> <p>Under section 1750 of Chapter 125 of the Acts of 1914, the rule for the burden of proof on appeal from the awards of the Commissioners for Opening Streets, carries no arbitrary discrimination between appeals by the city and those by the property owners, and does not render the Act unconstitutional,</p> <p>In the assessment for benefits for the opening of streets, leasehold property which has been leased from the city should be assessed as only on the leasehold interests.</p> <p>In the absence of consent of counsel, or of statutory enactment, it is in the discretion of the court what papers may be given to the jury.</p>

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

<p>Appeal from the Superior Court of Baltimore City. (Soper, 0. 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>

<p> Written instruments: parol evidence; agreement for sale of landj vague and indefinite. </p> <p>Parol evidence is inadmissible to contradict, add to, or vary the terms of a written instrument.</p> <p>Where a written contract authorizing a real estate agent to sell the farm of the owner at a certain price had expired, by its own limitations, it was: Held, not to have been revived by a mere desultory conversation, in which no terms' were fixed, no price agreed upon, and no agreement made about commissions.</p>

), where a judgment was entered upon a verdict in favor of the plaintiff for $16,000.00. The facts are stated in the opinion of the Court.

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

<p>Elective franchise: male citizens’ right to vote in ward or district of residence; effect of precinct limitations. Election laws: Code, Article 33, section 12; polling places; should he within precinct. Duly of Supervisors: directory and mandatory provisions of law. Clerics and Judges of Elections: should be sworn; effect of omission to swear them.</p> <p>Under the State Constitution, every male citizen of the United 'States, having the prescribed qualifications of age and residence, is entitled to vote in the election district in which he resides.</p> <p>The right to vote is not further restricted by the organic law limiting it to the precinct of his domicile, should the district be so subdivided.</p> <p>While it is the intent of the Election Law, section 12 of Article 33 of the Code, that the voting place for a precinct shall be located within its own territory, such provisions are, in form, directions to the supervisors, and do not affect the voting qualifications of voters.</p> <p>While the act of supervisors in locating a polling place for a precinct beyond the division lines of the precinct is a violation of the Election Law, it does not affect the right of the legal voters of the precinct to there cast their votes.</p> <p>Eor unsworn persons to act in the places of election clerks or judges, during their temporary absence, is irregular, but does not invalidate the votes cast, in the absence of proof of miseon■duct, or that such persons failed in their duties.</p> <p>The laws relating to the conduct of elections are directory; and a failure on the part of officials to observe the provisions will not invalidate the election, when no doubt is thereby cast upon the result and no rights have been prejudiced.</p>

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

<p> Building contracts: agreement to arbitrate; waiver; estoppel. </p> <p>In a suit on a building contract, if the defendant has waived bis right to arbitration, he can not afterwards reassert the right or rely as a defense upon the refusal of the plaintiff to submit</p> <p>the question to arbitration.</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>Appeal from the Circuit Court of Baltimore City. (Hawkins, J.)</p> <p>The cause was submitted to Boyd, C. ,T., Briscoe, Burke, Thomas, Patti son, Urner, Stockbrtdge and Constable, JJ.</p>

<p>Mandamus-. Stale officials; discretionary matters. Constitution, Article 3, section 33: refunding money paid to State; discretion of Governor and Stale’s financial officers; not reviewable.</p> <p>A mandamus will lie to compel State officials to perform purely ministerial acts; but where the act to be performed requires discretion the writ will not issue, except to compel them to act, and the courts will not review the exercise of their discretion.</p> <p>By “ministerial” in this sense is meant that the officers are entrusted with the performance of an absolute and imperative duty, the discharge of which requires neither official discretion nor judgment.</p> <p>Section 33 of Article 3 of the State Constitution, in declaring that the General Assembly shall pass no law refunding money paid into the State Treasury * * * unless recommended by the Governor or officers of the Treasury Department, did not impose upon such officers the mere ministerial duties of certifying to the correctness of accounts, etc., but commits to them, as the financial officers of the State, familiar with its affairs, the discretion as to what action should be taken,</p> <p>The writ of mandamus should not issue to compel the Governor, Comptroller and Treasurer to recommend the refunding to certain oyster packers of the taxes that had been paid by them under Acts since declared by the Supreme Court of the United States to have been unconstitutional.</p>

<p>Appeal from the Circuit Court of Baltimore City. (Dawrors, J.)</p> <p>The facts ar-e stated in the opinion of the Court.</p> <p>The cause was argued. before Boyd, C. J., Bbisooe, Bubke, Ti-iomas, Pattjsow, Ubneb, Stockbkidge and OohSTABDE, JJ.</p>

<p> Negligence'-, digging below foundations; notice. </p> <p>In an action for damages to the plaintiff caused by the defendant by digging down his lot below the foundation of the plaintiff’s house and immediately adjacent thereto, “without notice and in an unskillful and unworkmanlike manner,” the ■defendant has a right to introduce in evidence the blue prints of his building plans, showing the depth of the excavation proposed, etc., and all details, which the defendant had testified he had duly exhibited to the husband, who was the business agent ■cf the plaintiff.</p>

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

<p> Wills: intention of testator. Testing of estates. </p> <p>The intention of the testator, as gathered from the four corners of his will, must be gratified, unless in conflict with some unbending principle of law, or rule of property.</p> <p>In applying this rule, every effort must be made to give effect to all the provisions of the will, so as to make it a harmonious and consistent document.</p> <p>A testator by his will directed that after the death of his wife the estate he had devised to her should be divided equally among his children; the child, etc., of any child who might be deceased at his wife’s death to take its parent’s share, etc.; by a subsequent clause of the will it was provided that on the death of any child unmarried and without issue, its share should go to the survivors absolutely: Held, that this clause operated to defeat the estates only of such children as had died without issue in the lifetime of the testator.</p>

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

<p>Tenancy by the entireties: not abolished by Code, Article 45, sections 1 and 2. Insurance on property: joint interest; rights of husband and wife thereunder; receiver therefor.</p> <p>Sections 1 and 2 of Article 45 of the Code, authorizing a married woman to acquire and hold property, as there provided, to her sole and separate use, does not affect the nature of the estate conveyed to a husband and wife by deed to them jointly. '</p> <p>A deed to a husband and wife jointly constitutes them tenants by the entireties, and the survivor takes the whole,</p> <p>But while the estate by entireties continues as at common law, the husband has not the same rights to the rents and profits; such rights were not the ineidents of the estate, but were in virtue of a husband’s rights at common law.</p> <p>A husband and wife, under a deed for a leasehold estate in a house and lot, were tenants of the same by the entireties; the husband had left the wife; while the wife was residing there the house was injured by fire so that she was compelled to change her residence; the house was insured (presumably for the benefit of both tenants by the entireties) ; the house could be repaired and saved by the insurance money if it were promptly so applied and closed against the weather; the wife filed a bill alleging such facts, together with the refusal to so apply his share of the insurance, alleging the damage and total loss to the house if repairs were not promptly made, and praying for the appointment of a receiver so as to apply the insurance money, and make the repairs: Held, that the bill stated facts which, if sustained by proof, justified a court of equity in assuming jurisdiction and requiring the defendant to answer, and if need be to appoint a receiver as prayed.</p>

<p> Marketable title: title by adverse possession. </p> <p>Ratification of a sale of real estate is not to be refused merely because tbe title is not merchantable, when the only objection is that the vendor’s title rests in adverse possession.</p> <p>The Statute of Limitations runs in favor of a mortgagor from the time that the mortgagee’s right of action accrues— that is, from the time the condition of the mortgage is broken.</p>

<p> Witnesses: cross-examination; needless repetition of questions. Criminal Law. Abortion. Examination of Witnesses. Experts. Hypothetical questions. </p> <p>Although a question allowed to be asked a witness may have been objectionable, it can not present a case of reversible error if it appears that no injury was caused thereby to the exceptant.</p> <p>Where a witness, on cross-examination, had already and repeatedly answered a question, it is not error for the court to refuse to allow him to be asked the same question a sixth time.</p> <p>Where a witness had repeatedly and fully answered a question, it is well within the trial court’s discretion to have cautioned the examining attorney not to repeat his questions so often.</p> <p>Upon a trial for manslaughter alleged to have been committed through a criminal operation performed for the purpose of producing an abortion, a witness had testified that he had only-seen the accused use one instrument; to allow the witness to answer why he did not see any other, by explaining that he was not watching the accused, but was otherwise engaged, was: Held, under the facts of the case, not to have been error.</p> <p>In a criminal prosecution for manslaughter through having attempted to produce an abortion, to refuse to allow a witness to be asked to describe what other instrument he saw used, when he has repeatedly testified he saw no other instrument used, is not error.</p> <p>In Maryland, instead of being examined aa to their opinion 'based upon a hypothetical question, experts may be examined .as to their opinion based upon the evidence in the case which the proposed witness has heard.</p> <p>For the trial court itself to question and examine the accused while he is on the witness stand is a proper exercise of judicial discretion, provided he manifests no opinion adverse to the Iraverser or to his defense.</p>

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

<p> Wills: construction; intention; vesting of estates. </p> <p>Tt is the absolute right of a testator to fix, as he sees fit within the period allowed by law, the time for the vesting of the different estates created by his will.</p> <p>But unless a testator indicates with reasonable certainty his desire that the time for vesting be deferred, the law will presume that he intended the earliest period.</p> <p>The law favors the early vesting of estates.</p> <p>A testator provided by will that his estate should go to throe devisees for life; “and after all three of their deaths the property to he sold and equally divided between the children of John and Elizabeth Martin”: Held, that the words as to the remaindermen were words of futurity merely, and upon the termination of all three life estates the estate should be divided among all the children living at the time of the testator’s death (and their descendants), and not limited to those only who were living when the life estates terminated.</p>

(Ambler, J.) The facts are stated in the opinion of the Court. The cause was argued, before Boyd, C. J., Briscoe, Burke., Thomas, Patttsoy, TTrher, Stockbrtdgb and Coy-stable, ,TJ.

<p>Railroads: Perishable freight; duty as to—.</p> <p>Even without any special agreement to transport perishable freight in time for any particular market, it is the duty of railroads to use reasonable dispatch in their delivery to the consignee.</p> <p>Whether such dispatch was used in a particular case is, in general, a question of fact for the jury, under proper instructions from the Court.</p>

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

<p> Workmens Compensation Act: when employers exempt; burden. of proof. </p> <p>In a suit under the Workmen’s Compensation Act (Chapter 800 of the Acts of 1914), the burden of proof is on the defendant to show that he has complied with the law, so as to be entitled to the exceptions contained in the Act.</p> <p>Por the employer to take for defence the fact that he has complied with all the provisions of the law which operate as an exemption from its application, he must raise the defence by pleas to that effect.</p>

<p>Statutes.: constitutionality of—; rules; duty of courts. Amendment to Constitution: when not self-executing; effect on existing laws; Art. 15 of Declaration of Rights as amende ed by Chap. 390 of Acts of 1914; not repealed by Chapter 841 of Acts of 1914. State Tax Commission: authority of; general reassessment; formulation of plan and rules; effect on County Commissioners, etc.</p> <p>In providing for a general reassessment of real estate by Chapter 629 of the Acts of 1916, throughout the State, the Legislature was not bound by the Constitution to include Baltimore City, and put the city to the expense of reassessment,, when it was known that real property in that city is periodically reassessed and assessed according to its real value,</p> <p>Eeither under that statute nor under the Constitution, is it' necessary in providing for the reassessment of Baltimore City and the counties of the State, for the reassessment to be at one- and the same time.</p> <p>In the absence of an intention expressed in a constitutional' amendment that it shall be retroactive, such amendment has-only a prospective effect.</p> <p>1 In case of such reassessment no notice need be given other-than notice of time and place given by the Act itself.</p> <p>Chapter 390 of the Acts of 1914, adopted by the people in. November, 1915, as an amendment to Article 15 of the Declaration of Eights, has no retrospective effect.</p> <p>The provision in this amendment declaring that all taxes hereafter to he levied by the State for the support of the general government and by the counties and the City of Baltimore for these respective purposes, shall be uniform as to land, within the taxing districts, refers to future levies of taxes and not to assessments.</p> <p>Where an amendment to the Constitution' is not self-executing, but requires the Legislature to discharge a duty, such amendment leaves the existing laws that are not in conflict with it in full force and effect until the required legislative action is taken.</p> <p>Where an Act of the Legislature is assailed as repugnant to some provision of the State or Federal Constitution, the repugnancy must be clear in order to justify a court in striking it down as being unconstitutional; a mere doubt as to the power of the Legislature is not sufficient.</p> <p>Legislation passed subsequent to an amendment to the Constitution, which is not in conflict therewith, or in conflict with some provision of the State or Federal Constitution, can not be set aside by the courts.</p> <p>A conflict between a statute and the Constitution is not to be implied, and where the meaning of the Constitution is clear, the court must, if possible, give the statute such a construction as will enable it to have effect.</p> <p>The power given to the State Tax Commission by the Act of 19.16, Chapter 629, to formulate a “uniform plan for the assessment of property,” did not constitute an illegal delegation bj the General Assembly of the duty imposed upon it by the amendment to Article 15 of the Declaration of Bights “by uniform rules (to) provide for separate assessment of land and classification and sub-classifications of improvements on land and personal praperty.”</p> <p>The power to order a reassessment of property having been granted the State Tax Commission by Chapter 841 of the Acts of 1914, the power to formulate the “uniform plan,” mentioned in the Act of 1916, “is to be referred to such administrative methods or procedure as the Commission might adopt for making the assessment in accordance with, and in conformity to, existing laws on the subject.”</p> <p>An entire Act ought not to be declared unconstitutional merely because one or more of its provisions are void, unless these are so connected in subject-matter, meaning and purpose that it can not be supposed that the Legislature would have passed the Act without such particular provisions.</p>

<p>Injunctions: public nuisances; private or' municipal complainants; must show special injury; fishing in Susquehanna River. Havre de Grace: no special or exclusive right. Navigable waters-, what are? Susquehanna Dam: Chapter 268 of Acts of 1908; no ground for injunction. Legislative charters: easements; ratification or repeal. Compensation.</p> <p>Neither an individual nor a municipal corporation may enjoin that which is done under the authority of express legislative grant.</p> <p>In order to obtain an injunction against the erection of what is anticipated may become a public nuisance, it must appear that some injury will be sustained, or reasonably be anticipated, on the part of the complainant other and different in hind from that to which the public at large is or will be subjected.</p> <p>Chapter 268 of the Acts of 1908, giving the right to build a dam across the Susquehanna River, contravenes no express principle of the Constitution.</p> <p>The fact that many inhabitants of Havre de Grace had for many years been engaged in the occupation of catching fish in the Susquehanna River gave neither to the inhabitants of the municipality, nor to the municipality itself, any special interest in such fisheries different from that of others who might be so engaged; and gives them no such interest as to sustain the issuance of an injunction to prevent interference with such catching of fish.</p> <p>The navigability of one part of a stream does not of itself render the entire stream navigable throughout its full length.</p> <p>A navigable stream may, from a variety of causes, become non-navigable, and conversely.</p> <p>At common law, navigable waters were held to be those affected by the ebb and flow of the tide.</p> <p>A mere declaration, even by statutory authority, that a stream is navigable does not make it so.</p> <p>In the United States, to constitute a navigable stream, the navigability need not be perennial.</p> <p>A stream, even above tidewater, is deemed navigable if of sufficient capacity to float to market the products of the mine, th'e forests, or the tillage of the country through which it flows.</p> <p>A dam built across the Susquehanna River under the authority of Chapter 268 of the Acts of 1908, is not such an obstruction to the navigable character of the river as to warrant the issuing of an injunction to prevent its construction.</p> <p>Whether the plans filed by the defendant did or did not show provision for chutes or locks as required by the Act of 1908, was, Held, that there was no sufficient cause shown to authorize the Court to retain the bill, so as to have jurisdiction over the defendant, since the power remained with the Legislature to compel compliance at any time.</p> <p>While Chapter 268 of the Acts of 1908, granting to the Susquehanna Power Company, its successors and assigns, the right to construct a dam across the Susquehanna River, is an easement granted, not in perpetuity, but during the pleasure of the Legislature in the exercise of its discretion-, but if the right be annulled or materially altered, it is to be compensated for, to the extent that the grantee of the easement has, in good faith and reliance thereon, made expenditures upon the same.</p>

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

<p>Appeal from the Baltimore City Court. (Gorter, J.)</p> <p>The facts are stated in the opinion of the Court.</p> <p>The cause was argued before Boyd, C. J., Briscoe, Burke, Thomas, Pattisok, Urker, Stockbridge and Oohstabee, JJ.</p>

<p> Statutes: construction; intention, how to he sought; occasion of the passing of an Act; “adjacent to.” Public improvements: discretion of municipal authorities. </p> <p>Where a statute authorizing public improvements leaves the detail of the plans to the discretion of the municipal officials, its exercise will not be interfered with by the courts, except in cases of fraud or bad faith.</p> <p>Chapter 485 of the Acts of 1910, authorizing Baltimore City to issue bonds for “a plan of comprehensive improvement of the water front adjacent to the Patapsco River,” did not have the effect of restricting the use of the funds to make improvement of docks and piers, or the dredging of channels; it was: Held, that under this Act it was within the discretion of the municipal authorities to use part of the fund in improving the streets leading to the water front, even including the widening of certain streets and the establishing of squares or open spaces; and even though such squares should be at a distance of a mile or more from the water.</p> <p>In construing statutes the cardinal rule is that the intention of the Legislature is to be carried out; such intention is to be sought not only from the words in every part of the statute, but also it is to be looked for in the causes or necessities for the making of the Act.</p> <p>The words “adjacent to” do not mean “next to” or “adjoining”; the expression has been held to apply to a distance of three and even of fifteen miles.</p>

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

<p> Contracts: construction. Sales: discount for cash; not vendor's option. </p> <p>In a contract of sale, “Terms, cash, less 1%%, 10 days,” means that payment within ten days from delivery should he treated as cash, and that such payment entitled the buyer to the discount mentioned.</p> <p>Such provision in the contract does not authorize the vendors to draw on the vendee before delivery, for the price of the goods less the discount, with the bill of lading attached; and refusal to accept such a draft does not constitute a breach by the vendee.</p> <p>Under such facts, when the vendors wired the railroad not to deliver the goods, and notified the vendee that they refused to make delivery, it amounted to a breach of the whole contract by them.</p>

<p>Common carriers: electric carsj duty to passengersj negligence, proof of—; speculation not sufficient. Pleadings and evidence. Judicial knowledge.</p> <p>A carrier of passengers is not an insurer of their safety.</p> <p>Such carrier is only bound to employ the utmost care and diligence that human foresight can use.</p> <p>Failure or omission to discharge this duty is an act of negligence, and if injury results therefrom an action by or on behalf of the injured passenger will lie.</p> <p>But in such a case there must be sufficient evidence legally to prove negligence, and to connect it with the injury, before the Court is justified in allowing a case to go to the jury; speculation and conjecture are not sufficient.</p> <p>The defendant has the right to have the jury confined to the issue made by the pleadings.</p> <p>Judges can not denude themselves of the knowledge of the incidents of railway travel which are common to all.</p> <p>A passenger on an electric car who leaves a place of safety and voluntarily assumes a position of risk on the platform can not recover for injuries thence sustained, unless he can show special negligence.</p>

<p>Oommon carriers: electric cars; injury to passengersj unusual jerhs.</p> <p>Where a passenger (while in a place of safety) is injured by an unusually sudden start or stop, or by a jerk or jolt of unusual severity, of the public carrier’s vehicle, there is a presumption of negligence on the part of the carrier.</p> <p>In such cases, where a prima facie case is presented, it is a question of fact for the jury.</p>

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

<p> Negligence-, employer and employeej children. VJlevators: used without authority. </p> <p>The duties upon the part of an employer become more imperative towards minors in his employ.</p> <p>But for an employer to be held responsible for injuries to an employee, there must be, proved negligence by the one, and the injury to the other; and between these facts there must exist the relation of cause and effect.</p> <p>A boy in a department store, in spite of the fact that the rules of the establishment forbade Mm from running the elevators, attempted to run one of them, and in so doing disregarded the specific warnings given him; he was killed through his improper management of the elevator: Held, that since there was no evidence of negligence on the part of the employer, and since the hoy put himself, without direction or permission, in a position of peril which must have been apparent to 1dm, recovery against the employer was barred.</p>

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

<p>Trusts: perpetuities; bequests to religious or eleemosynary corporations for purposes covered by charter; “salary” for minister of church.</p> <p>In general, where a legacy or devise is given to a corporation for the express purpose of carrying out any of its corporate functions, it will not be regarded as creating a trust, unless the intention to create a trust be clear; but it will be considered as a gift to the corporation itself, upon the condition that it be applied to the particular corporate use.</p> <p>A testator, by the provisions of his will, gave to the “Trinity .Reformed Church of Boonsborough” certain improved real property, in trust, to apply the net annual income therefrom to the support of the minister, who might from time to time be in charge of said church: Weld, that there was no intention to create a trust, and that the corporation took the legal and beneficial title to the property by an estate in fee simple.</p> <p>The word “support,” as here used, is to be taken as synonymous with “salary.”</p>

<p>Appeal from the Court of Common Pleas of 'Baltimore City. (Dawkins, J.)</p>

<p>Deeds: consideration; presumption as to bona fides of—. Husband and wife: property rights; husband’s right to dispose of personal property. Parent and child,: voluntary conveyances.</p> <p>The presumption of law is that a deed made for a valid consideration, however small, is valid and bona fide.</p> <p>A husband has the power to dispose of his personal property during his life, by sale or gift, although the transfer was made to defeat the claim of his wife, and such a deed will prevail against her.</p> <p>In the absence of fraud, incapacity or undue influence practiced upon the grantor, and where the rights of creditors are not involved, a voluntary conveyance between parent and child is valid.</p> <p>In such cases the burden of proof is upon those attaching the deed.</p>

(Stantox, A boy 14 years old was employed for general work aben I a packing factory; he was set to work placing buckets of fruit in vats of boiling water; he fell in, and was seriously hurt; in a suit brought in his behalf there was a; verdict for $1,000 for the plaintiff; from the judgment thereon this appeal was taken.

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

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

<p>Court doclcet: correction of—power of judge. Open court: what is—; recess. Appeals: premature; dismissal.</p> <p>Ail appeal in an action at law that is taken before final judgment is premature, and a motion to dismiss should prevail.</p> <p>To make the record speak the truth and conform, to the facts of the case is a common law power, and is incident to all courts of record, and is essential to their efficient existence; this power may be exercised at any time, even after the record has been transmitted on appeal to a superior court and while the appeal is pending.</p> <p>But in the exercise of such power the court is authorized to make only such corrections as will make the record conform to the actual facts that occurred in the progress of the cause.</p> <p>It can not so change the record as to make it inconsistent with the facts or make it state what is not true.</p> <p>An open court contemplates the presence of a Judge, and the clerk of the court or a duly qualified deputy; the regular opening and closing of the court and the presence of the clerk’s docket, upon which should be entered, under the eye of the court, the successive steps taken in open court in each case.</p> <p>Such steps as the statutes or established practice may. allow to be taken in recess should be evidenced by written orders of the court upon the docket by an appropriate entry at the time.</p> <p>By the docket entries in the record it appeared on appeal that a motion for a new trial had been made by the defendant on the 12th day of April; the defendant had entered an appeal to the Court of Appeals on tho 27th of the same month; that the judgment on verdict was made absolute in favor of tho plaintiff on May 2nd; on the 24th of April the Judge who had heard the case, while sitting in another court engaged in the trial of another case, without the presence of the clerk or deputy clerk of the court in which the ease was tried, and without that court’s docket, without notifying the chirk until several days subsequent thereto, and without any written order or verbal order in open court, overruled tho motion for a new trial: 7Teld) that the certificate of the court stating such facts was not sufficient justification for altering the docket entries so as to have it appear that tho motion for a new trial was overruled on the said 24th day of April.</p>

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

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

<p> Insurance policy: security for debt; lapse; fault of borrower. </p> <p>A borrower, as additional security for a mortgage loan, delivered to tbe lender a. life insurance policy on his (the borrower’s) life, and covenanted to pay the premiums thereon, when and as they became due, until principal and interest of the said loan were paid: to insure the payment of interest and premiums he directed his trustees out of certain trust income which they collected for him, to pay to the lender a sum sufficient for the payment of such interest and premiums as they accrued, and the lender requested the trustee to thenceforth pay such sum to him; the lender having neglected and failed to pay the life insurance premiums, and the policy having lapsed, it was: Held, that the lapse of the policy was attributable to the negligence of the lender, and not to that of the borrower. ■</p>

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

<p>Cross-Appeals from' the Circuit Court of Baltimore City. (Hawkins, J.)</p> <p>The facts are1 stated in the opinion of the Court.</p>

<p> Spendthrift trusts: legacies and bequests; money and income. </p> <p>A clause in a will providing that all legacies and bequests thereunder were to be paid in person to those entitled to receive them and in no way to be subject to attachment for any debt or obligation whatsoever, or subject to any order of any kind, establishes an effective spendthrift trust, with complete immunity from attachment as to all “legacies and bequests” to which it was intended to apply.</p> <p>The words legacy and bequest, as thus used, are to be treated as synonymous, and no discrimination is to be made between legacies of designated sums of money and bequests of income.</p>

<p>Covenant: action in—; declaration; contract under seal. As- ■ sump sit: general issue; defenses under.</p> <p>A declaration in covenant must contain the averment that the contract was under seal, or it must make the allegation in language of similar import.</p> <p>In a short-note case, where the defendant filed general issue pleas in assumpsit and a plea of non est factum, the sustaining of the plaintiff’s demurrer thereto, although erroneously made, does not involve injury to the plaintiff of such a nature as 1o allow the defendant to raise the question on appeal.</p> <p>Under the general issue plea in assumpsit, practically all defenses are open to the defendant, other than those of arbitrament and award, limitations and, possibly, alien enemy.</p>

<p>Sales of goods: refusal to accept; loss by -fire; when vendor responsible.</p> <p>Where under the provisions of section 41 of the Uniform Sales Act (Code, Art. 83), the form of the bill of lading is not the only evidence of the intent ion of the seller to reserve property in the goods, the form of the bill of lading can not be interpreted as intended only for the purpose of securing the performance of the contract.</p> <p>Where a vendee declines to accept the property sold and pay for it, the vendor may, (1) store or retain the property for the vendee and sue for the contract price; (2) he may retain the goods as his own and recover the excess of the contract price of the goods at the time and place of the delivery; or, (3) he may sell them at the vendee’s risk and sue the vendee for the difference between the contract price and the price obtained at said sale.</p> <p>A seller, while retaining the possession and property of the goods sold, tendered them through his banker to the sello^ by a tender of the bill of lading in the name of the purchaser'to be surrendered upon the payment of cash for the goods; the purchaser declined to pay the amount of the bill of lading without deducting therefrom a payment he had made for a former order of goods which, not being satisfactory, had not been accepted; the seller left the goods with the carrier without instructions; the carrier, after leaving them on the dock for some days, finally stored them in a U. S. warehouse, where they were consumed by a fire; Held: that, as the vendor resorted to none of his rights, the purchaser should not be held responsible for the loss, of which his refusal to accept the goods was not the proximate cause.</p> <p>A “cash” payment in ordinary parlance is understood to be in contradistinction to a credit payment, and there is no more reason for supposing that the first is to be made in money than that a deferred or credit payment is to be so made when due.</p>

<p> Landlord and tenant: saloon property; refusal of state licenses; liability for rent. Subletting: provisions against—; tvaiver. </p> <p>Certain property was rented for a term of years solely for saloon and restaurant purposes; the Liquor License Commissioners subsequently refused to renew the license for a saloon on the premises. There was no allegation or evidence that the landlord procured or instigated the refusal of the license: Held, that this did not amount to a constructive eviction, and that such refusal could furnish no defense to an action by the landlord for the rent,</p> <p>The continued disregard by the landlord of the tenant’s breach of a provision against subletting amounts to a waiver.</p>

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

<p>Property in name of party not the purchaser: resulting trust. Appeals: record; time for printing; rule 34; no penalty.</p> <p>Where the purchase price is paid by one person and the title is taken in the name of another, a resulting trust arises in favor of the person paying the purchase money, and the holder of the legal title becomes a trustee for him.</p> <p>The taking of testimony in open court before the Chancellor is to be commended, as it affords the most favorable opportunity to pass upon the credibility of witnesses and the value and weight of their testimony.</p> <p>There is no provision in Rule 34 of the Court of Appeals that an appeal shall be dismissed for non-compliance with the rule, and there is no penalty of any character for non-compliance; and when the record is in fact printed and before the court when the case is called for argument and no delay in the hearing of the case is caused by the failure of the appellant to comply with the rule, the Court of Appeals may deny the motion to dismiss.</p>

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

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

<p> Municipal corporations-, building contracts; retention of funds; rights of sub-contractors, etc.; what amounts to an equitable assignment. </p> <p>Where municipal contracts provide for the withholding of payments, under certain conditions, until satisfactory evidence is given that all persons who have done work or furnished materials thereunder have been fully paid, or satisfactorily provided for, such provisions do not give sub-contractors any lien upon the funds so retained, nor does it operate as an equitable assignment of the fund.</p> <p>No suit can be maintained by sub-contractors in such a case against the municipality, for the money so retained.</p> <p>Assignees for the benefit of creditors are not bona fide purchasers for value.</p> <p>An assignment for the benefit of creditors c-f the contractor gives his general creditors no x’ight to claim or share in funds so retained by the city.</p> <p>But where the city, in a final settlement with the contractor, gave him a warrant check for a balance, after retaining a certain sum for specific claims that had been filed, and that were set out upon the warrant; and where the check had printed upon it that the endorsement of the check constituted a receipt and release from the items and amounts stated in the body of the warrant, it was: Held, to amount to an equitable assignment of such sum retained for the payment of the particular items named..</p>

<p> Surety companies: charter powers; guaranteeing performance of contracts; includes guarantee of payment of notes. </p> <p>Where the charter of a surety company empowers it to issue bonds “guaranteeing the performance of contracts, other than insurance contracts,” it has authority to guarantee the payment of promissory notes.</p> <p>While special authority must be conferred upon a corporation before it can become a surety on a bond, yet no narrower meaning is to be attached to words covering a grant of power in a charter than the words used necessarily imply.</p>

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

(Dawkws, J.) By an agreement between a property owner, the City of Baltimore and the contractor, the City agreed, to put in a sewerage connection for the property, at the contractor's price of $100 and an extra $5.00 for the supervision, etc.; under the terms of the ordinance and laws in such ease made and provided, the same was a lien upon the property until paid; the City also agreed to advance the money, according1 to the contractor’s estimate, for installing a bathtub…

<p> Marriage: Religious ceremony necessary; license; failure to procure, does not invalidate. </p> <p>In Maryland, some religious ceremony must be superadded to the civil contract in order that a marriage may be valid.</p> <p>But the law does not prescribe the form, nor according to the rite of what church, the marriage shall be celebrated.</p> <p>Failure to procure a marriage license does not have the effect of rendering the marriage void.</p> <p>A Catholic priest (a duly ordained minister, in the formal exercise of his sacred office) and a man and woman before liim, understood that he was officiating there in order that they might live together again in lawful wedlock, they being a husband and wife who had been divorced. The words and emblems he employed were strictly appropriate to that object. The sole purpose of his presence and ministration was to give religious sanction to their reunion: Held, that the result was effectually accomplished, and the validity of the re-marriage was not open to question on the ground that it was not solemnized by a religious ceremony, although no license was obtained.</p>

<p> Electric cars-, injury to passenger; negligence; ordinary movement of cars. </p> <p>In an action of damages for injuries received, by a passenger on an electric car, the mere ordinary movements to which such cars are subject, and the fact that they do not run with perfect smoothness, do not justify the inference of negligence or carelessness on the part of those in charge.</p>

<p>Wills: construction; lapsing of legacies; statute against—; {Code, sec. 326, Art. 93) ; devises to wife; presumption as to barring dower; devises of all of property; after-acquired property. Decedent’s estate: Orphans’ Court and Equity; jurisdiction; when administration m< Orphans’ Court protects administrator.</p> <p>Under the settled rule in Maryland, a devise or bequest of all the testator’s real or personal property will pass all the property which he could dispose of by will at the time of his death,</p> <p>Such a devise or bequest is broad enough to include after-acquired property.</p> <p>A testator, who left no children, by the terms of his will left all his property of every kind and description to his wife absolutely; it was held, that (he will was made in view of the provisions of the statute,* and that his intention was that if she did not survive him, his estate should go to those who were her next of kin at the time of his death; it was further held, that directions in his will that his debts should first be paid did not indicate any different intention.</p> <p>To a legacy to a wife, in such terms as these, the provisions of the Code (section 30, Article 93), relating to legacies in lieu of dower, do not apply.</p> <p>The Orphans’ Court has authority to “hear and determine the question of who are next of kin, to decide between parties claiming adversely to each other, and to determine which of them are next of kin, entitled to distribution”—and what is to be distributed, and who are legatees.</p> <p>By Chapter 255 of the Acts of 1896 (section 143 of Article 93 of Code), it is provided that compliance with its provisions will protect an executor or administrator making distribution under the order of the Orphans’ Court.</p>

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

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

<p>Appeal from the Court of Common Pleas of Baltimore City. (Stump, J.)</p> <p>The facts are stated in the opinion of the Court.</p> <p>The cause was submitted to Boyd, C. J., Beiscoe, Bubice, Thomas, P!attison, IIbneb, Stockbeidgke and Constable, JJ.</p>

<p> Roads: right of way; prescriptive right; burden of proof. Injunction : ansiver and proof; burden on plaintiff; luhen bill not retained. </p> <p>Where a bill for an injunction is heard on bill, answer and proof, the burden is on the plaintiff to establish the right by a clear preponderance of proof.</p> <p>Permissive user of a road by neighbors does not make it a public road; user by license or permission is not adverse.</p> <p>In order to establish a public way by prescription, the user must be adverse.</p> <p>When an injunction asked for is not ancillary, but is the primary and principal relief prayed for, there is no reason for retaining the bill if, upon hearing, upon bill and answer, it appears to the Court there is no ground for issuing the injunction on its merits.</p>

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

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

<p>Mortgages: sales under a power; Code, Article 66, section 9. Jurisdiction of court: private sale; subject to ratification. Deeds: building restrictions; covenants; when may be waived.</p> <p>Where the trustee or attorney named in a mortgage, which contains a power of sale, offers the property at public sale, in accordance with the terms of the mortgage, if he receives no adequate bid he may withdraw the property, and afterwards sell it at private sale, subject to the approval and ratification of the Court.</p> <p>The object of section 9 of Article 66 of the Code, relating to powers of sale contained in mortgages, was to confer upon courts the same jurisdiction, and to direct that the same proceedings should be had under such powers, as if made under a decree of Court.</p> <p>Where a deed contains a covenant as to building restrictions, but the covenant does not bind the assigns of the corporate grantor, and there is no covenant that the grantor will exact similar covenants from other purchasers, and there is no evidence that the covenant forms part of any general plan or scheme for the improvement of any tract of land according to such restrictions in the deed, by which similar covenants were to be exacted of each purchaser for the benefit of all, then the covenant in the deed of the purchaser can not be enforced against other purchasers of such land whose deeds are free from *ueh covenants.</p> <p>In such ease, the corporation grantor may waive or release its right to enforce the covenant, as was done in this instance by a. confirmatory deed, in which it united.</p>

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

<p>Appeal from the Baltimore City Court. (Duffy, I.)</p> <p>The facts are stated, in the opinion of the Court.</p> <p>The cause was argued before Boyd, O. I., Briscoe, Burke, Thomas, Pattison, Hrner, Stockbktdge and Constable, JJ.</p>

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

<p>Appeal from Circuit Court No. 2 of Baltimore City. (Heuisleb, J.)</p>