Volume 130 — Maryland Reports

<p> ■Contract for Sale of Land: Time,—when not of essence. Statute of Frauds: Signature of vendee not necessary. Commissions to Brokers. </p> <p>Unless it appears by the facts of the case, or the contract itself that time was of the essence of a contract for the sale of land, a mere delay, that is not unreasonable, in compliance with the terms of the contract is not ground for refusing a decree for specific performance. p. 3</p> <p>In such cases where performance is delayed, the allowance of interest is sufficient compensation. p. 4</p> <p>In Equity the allowance of interest is usually a matter of ■discretion for the Court, except in cases where interest is recoverable as a matter of right. p. I</p> <p>Under the Statute of Frauds, a contract for the sale of land need not be signed by the vendee, in order for it to be binding ■on the vendor; and the absence of such signature is not a defense against a bill for specific performance. p. 5</p> <p>There was an agreement between the complainant and defendants by which the latter were to sell to the former a half interest in a certain farm; on a bill brought by the complainant for a decree for the specific performance of the agreement, it was: Held, that it was no defense to the bill that it appeared that the complainant had acted as agent in the sale of the property to the defendant, and had received a commission as such.</p> <p>p. 6</p>

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

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

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

<p>Municipal Corporations: 8ewers, construction of—; damages to property; evidence of former condition; official records of condemnation. Witnesses’ examination: Illustration on blackboard: discretion of Court. Experts: •’ Who are—; when not admissible. Appeals: Immaterial errors.</p> <p>Immaterial errors in the rulings of the .court below are no ground for reversal on appeal when it does not appear that any injury to the appellant resulted thereby. p. 49</p> <p>Whether a witness should be allowed to go to a blackboard and illustrate his testimony, for the instruction of the jury, is a matter within the discretion of the trial court. p. 43</p> <p>Where a municipal corporation has the right to construct a sewer, it is not responsible for injuries to adjacent property, unless the work is done improperly or negligently. p. 45</p> <p>When the owner of a house built insecurely on filled ground, believes that a sewer is to be constructed near it, and is warned to take steps to protect the building, it is his duty so to do.</p> <p>pp. 42-43</p> <p>The sufficiency of a witness’ knowledge to qualify him as an expert is usually to be left to the discretion of the trial Court, and its rulings should be final, unless clearly erroneous. p. 45</p> <p>But the rules for the admission of expert witnesses should not be relaxed. p. 45</p> <p>In an action for damages brought against the City of Baltimore by a property owner, who claimed that his house had been injured by the faulty manner in which a public sewer had been constructed in made ground near the plaintiff’s house, a book kept by the city, properly authenticated by the clerk whose duty it was to keep the book, in which copies of notices as to property condemned because of its dangerous condition were contained, was: IIeld, admissible in evidence, to show the condition of the house before the sewer was constructed.</p> <p>pp. 46-47</p> <p>The testimony of experts should not be- admitted as to matters which are within common knowledge and on which a jury is competent to pass. p. 45</p>

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

<p> Injunctions and suits for specific performance: equitable considerations; great cost to defendant for trifling injury. </p> <p>The specific enforcement of an agreement will not be decreed when the injury to the defendant would be far greater than the benefit which the plaintiff-.might derive from the result; and where the loss, if any, could easily be compensated for by damages. p. 67</p> <p>In a suit for an injunction which seeks to accomplish all the purposes of a decree for specific performance, such.suit is subject to the principles that apply to the latter remedy. p. 67</p>

<p> Acts of Legislature that are to be subject to ratification by popular vote: form of ballots; clerical errors; when unimportant. </p> <p>Tlie mistake of a mere clerical officer will not be permitted to render void an action which had been legally taken. p. 73</p> <p>If an Act of the Legislature is to be effective only if ratified by the voters at a sjieeial election, provided for by the Act, is approved by such majority, it should not be set aside merely because the form of ballot used at such election was not in exact accordance with the form prescribed in the Act. p. 74</p>

<p> Negotiable Instruments Act: accommodation maker; when liable as principal; discharge. Equitable defenses. </p> <p>Under the Negotiable Instruments Law (Acts of 1898, ch. 119), an accommodation maker or acceptor is primarily liable, and is not discharged by any extension of time to the endorser, drawer or co-maker, for whose benefit he became a party to the instrument, and this without regard to whether the party suing on the note is the payee, and had knowledge of the relations subsisting between the accommodation maker and the principal debtor. p. 82</p> <p>The Negotiable Instruments Act covers cases of suit between the original parties, in so far as its provisions are applicable.</p> <p>pp. 83-84</p> <p>An equitable defense is not good (under section 86 of Article 75 of the Code) in a suit at law, unless the facts so set up would entitle the defendant to relief in equity against a judgment at law. p. 86</p> <p>Under the Negotiable Instruments Act, in order for a party on a note to have the privilege of a surety, it is not sufficient that the payee had knowledge of the relation; but it is necessary that the holder or payee should have agreed in substance to treat him as such; the mere receipt, however, of the note with such knowledge is not necessarily to be taken as such a recognition and acceptance. p. 87</p> <p>Under this Act, one who signs a negotiable instrument, so as to render himself primarily liable as defined by the Act, can be discharged only in one of the ways therein set forth, p. 85</p>

<p> Specific execution of contracts: not a matter of right; equitable considerations; proof of contract. </p> <p>Specific execution of contracts by courts of equity is not a matter of absolute right in the party applying, but of sound discretion in the court, to be exercised upon consideration of all the circumstances of each particular case. p. 94</p> <p>It does not follow, as a matter of course, that because the legal obligation under a contract ma,y be perfect that, therefore, the equitable power of a court will be exercised to compel or</p> <p>effect its execution. p. 95</p> <p>In every case the question is, whether the exercise of the power is called for to subserve the ends of justice; for, unless the court is satisfied that the application is fair, just and reasonable, it will not interfere. p. 95</p> <p>Where the defendants, to defeat the bill, set up another and different contract with the complainants, the burden of proof is upon the defendants to establish such contract by clear and satisfactory evidence. p. 98</p>

<p> Former appeals: effect of decision on the parties. </p> <p>Where a cause is remanded for a new trial, and is again appealed, the adjudication on the former appeal is the law of the case, so far as the facts then presented are concerned, p. 102</p> <p>On a prior appeal in the case of a caveat to a will, rulings were reversed because of the insufficiency of evidence to sustain the issues, and the cause was remanded; on appeal from the rulings at the second trial, it was: Held, that the new evidence offered was insufficient to sustain the burden of proof, and that the action of the court in withdrawing the case from the consideration of the jury was proper. p. 105</p>

<p>When erroneous rulings of lower court no ground for reversal. Exceptions: must not embrace several distinct rulings in one exception. Motion for new trial: not appealable; not affected by section 22 of Article 5 of the Code. Interstate Commerce Act: notice . of claim under; waiver of time for—.</p> <p>On appeal, the rulings of the lower court, although erroneous, present no cause for reversal unless it appears the appellant was injured thereby. p. 112</p> <p>Each ruling of the trial court that is to be excepted to should be embraced in a single exception. p. 112</p> <p>The action of the trial court in overruling a motion for a new trial is not subject to review on appeal. p. 113</p> <p>This principle is not affected by section 22 of Article 5 of the Code, which authorizes the Court of Appeals, upon reversing or affirming a judgment, to award a new trial where it appears that a new trial ought to be had. p.113</p> <p>In suits under the Interstate Commerce Act and the amendments thereto, the defense of the common carrier, that notice of the claim was not filed within the prescribed time, may be waived, and is considered as waived if the common carrier makes defense' or resists the claim on another ground. p. Ill</p>

<p> Pleading in equity: pleas; pendency of another suit. Mechanics' lien: mistakes in claim as filed. Notice: dates; completion of building; connecting water to plumbing and heating system. </p> <p>Pleas may be filed in equity suits, if they plead facts which without going into the full merits show a good and complete defense to the whole or to a part of the bill;—as the pendency of another suit in the same jurisdiction between the same parties and involving the same subject-matter. p. 116</p> <p>The pendency of a former action between the same parties is pleaded in abatement to the second action, the latter being regarded as vexatious; the rule in equity is analogous to the rule at law. ■ ' pp. 116-117</p> <p>Under the Code, Article 63, section 11, where a contract for building or materials is not made with the owner but with an architect or other person, the recording of a notice of intention to claim the benefit of the Mechanics’ Lien Law is a necessary preliminary, and must be filed within 60 days after the work has been done or materials furnished. • p. 117</p> <p>Query: Whether mistakes in the claim appended to the notice of a mechanics’ lien may be corrected? p. 118</p> <p>In the claim appended to a notice of a mechanics’ lien, the dates should be given un which the materials were furnished or labor performed. pp. 118-119</p> <p>Where the work of building a house is otherwise complete, the time for filing the mechanics’ lien can not be extended by merely connecting up the water to the plumbing and heating boiler. p. 120</p> <p>If the claim appended to a notice of a mechanics’ lien gives no dates of the delivery of materials or performance of labor, and makes no other claim for interest, interest can only be allowed for no more than from the date of the claim. p. 120</p>

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

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

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

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

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

<p> Mortgages: vendor’s lien; defective execution. </p> <p>Where it is attempted to reserve a vendor’s lien by a mortgage, if the mortgage lien falls because of neglect to comply with positive statutory requirements, the vendor’s lien falls also.</p> <p>p. 169</p> <p>The provisions in the Code for the time within which deeds and mortgages are to be recorded, and the provision and limited effect for deeds and mortgages recorded after the specified time, are for the protection of creditors becoming such after the date of a mortgage unrecorded or defectively executed.</p> <p>p. 169</p>

<p> Master and servants: warning of hidden dangers; when unnecessary. Negligence: evidence; when too inconclusive. </p> <p>When a person applying for work states that he is being employed at a similar establishment in operating electric hoists and other machinery, it is not negligence in the employer to fail to point out to him the danger in touching the hoist at the part that becomes charged with electricity. pp. 176-177</p> <p>Whenever the evidence offered in a ease is so inconclusive, or of such a character that no rational mind could infer the fact sought thereby to be established, it is the duty of the court, upon application, to instruct the jury that there is no evidence before them legally sufficient to warrant their finding the facts so attempted to be proved. p. 178</p>

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

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

<p>Real estate brokers: commissions; securing leases; assumpsit for—. Pleading: declaration; amendment to; amounting to new cause of action; limitations. Interest: when question for jury. Statute of Limitations: when begins to run; when a mixed question of law and fact.</p> <p>In an action of assumpsit for services rendered, a non-expert witness should testify only as to the facts that he knows, and should not give an opinion estimate of the yalue of such services; it is the province of the jury to weigh the evidence and value the services. p. 211</p> <p>Except in cases wdiere interest is allowable as of right, the question of such allowance is in the discretion of the jury.</p> <p>p. 203</p> <p>Where interest is not a matter of right, an instruction is erroneous which directs the jury to allow interest “from such time as the jury may find from the evidence that such services were completed, to the date of their verdict.” p. 203</p> <p>Where an amended declaration introduces a new or different cause of action, and makes a different claim and demand, it is equivalent to a new suit upon a new cause of action, and opens the case to the bar of the Statute of Limitations; such a plea is then proper and available, and the rule applies though the two causes of action arose out of the same transaction, p. 204</p> <p>Limitations begin to run against a claim or right as soon as the cause of action accrues, whether it be a trust or not, or whether it be a claim at law or in equity. p. 204</p> <p>When the facts upon which the time of the accruing of the right or claim depend are in dispute, the question of' limitations becomes a mixed one of law and fact, to be left to the jury, under proper instructions from the court as to what, in law, is sufficient to constitute a bar or take the case out of the statute.</p> <p>p. 207</p> <p>Where a suit is brought in assumpsit to recover for services rendered in securing a lease for the defendant and in surrendering the plaintiff’s own lease, damages can not be recovered to reimburse the plaintiff for business losses he incurred by giving up his lease. p. 207</p> <p>In a suit in assumpsit to recover compensation for services rendered in obtaining property for the defendant, the question is not the value and advantage of the property to the defendant, but the reasonable value of the services rendered by the plaintiff. p. 209</p>

<p>Recoupment: unliquidated damages. Equity: affirmative relief by defendant; .when cross-bill necessary. Landlord and tenant: liability for repairs; breach of covenant; damages.</p> <p>' Where a landlord allows a tenant to remain in possession after the expiration of the term, the law presumes the holding to be on the same terms as the original demise, subject to the same rent and to all the original covenants. p. 215</p> <p>In such a case the fact that the rent had been changed by agreement does not alter the rule, except in that particular.</p> <p>p. 215</p> <p>Unless a landlord so binds himself, the tenant can not compel him to repair. P-215</p> <p>But where a landlord has expressly covenanted to repair, the obligation will be enforced; and if he sues for rent, the tenant may recoup for any damage he has sustained through the landlord’s breach of the agreement. • . p. 217</p> <p>Under the Act of 1914, Chapter 393 (Code, Article 75, sections 12 and 13), in suits ex contractu, the plea of recoupment may be availed of as against unliquidated, as well as against liquidated, damages. p. 217</p> <p>Where the landlord covenants to repair, the tenant upon breach is entitled to remuneration for all his expenditures of time, labor or money in making the repairs, for loss of the use of the promises while being placed in the condition in which the landlord should have kept them, and for all direct damages resulting from the neglect of the landlord to make the repairs, which it was not in the power of the tenant easily to have avoided. pp. 217-218</p> <p>Where the landlord, in such a case, resorts to a court of equity to claim his rent, the tenant can not be allowed, by way of recoupment, any sum greater than the rent claimed, even though the sum for which he seeks recoupment includes sums laid out by him in making repairs which, under his covenant, the landlord should have made. p. 219</p> <p>In equity, where a defendant seeks affirmative relief for anything beyond defense, he must file a cross-bill; without the aid of a cross-bill, a court of equity is not authorized to decree against a complainant the opposite of the relief which he seeks in his bill. ' p. 219</p>

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

<p> Contracts: duress; equitable relief. In pari delicto: when principle not applied. </p> <p>Where the assent of one to a contract is constrained and involuntary, he will not be held obligated or bound by it. p. 230</p> <p>But, as a general rule, an agreement can not be avoided because of duress upon a third person. p. 231</p> <p>Exception is made, however, where such other person threatened is husband or wife, parent or child, of the person who, under such duress, enters into a contract in that other’s behalf.</p> <p>pp. 230-231</p> <p>While in general there is no relief in a court of equity for parties in pari delicto, yet if conditions exist showing that the parties were not dealing at arm’s length, and there was no equality of situation, and the judgment of one was overborne by sickness and apprehension of disaster and disgrace, the maxim does not apply. p. 231</p>

<p> Pleading in equity: multifarioiisness. Laches. </p> <p>The question of multifariousness must be determined from the facts of each case, ánd in such determination the court has-a certain sound discretion. ' p. 243</p> <p>When a bill is bad for multifariousness, it is so because of a misjoinder of parties, complainants or defendants, or a misjoinder of distinct and separate matters of equitable cognizance-between the same parties of so dissimlar a character as to render it unfit that they should be litigated in the same suit.</p> <p>p. 243-</p> <p>Conscience, good faith and reasonable diligence are always, required in order to justify the interposition of a court of equity.</p> <p>p. 244</p> <p>Where the allegations of the bill disclose that the complainant was guilty of laches, and the delay (over 20 years) in asserting her rights is not explained, the bill should be dismissed, if it is objected to on that ground. p. 244</p>

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

<p> Justices of the peace: appeals to Circuit Court; jurisdiction; motion to quash; appeals to Court of Appeals; certification of evidence. </p> <p>The Court of Appeals cannot review the action of a Circuit Court in proceedings held before it, on an appeal from a judgment of a Justice of the Peace, excepting where the Justice of the Peace acted without jurisdiction in the case from which the appeal to the Circuit Court was taken. 'p.252</p> <p>In the latter case, the proper way to raise the question of the right of the Circuit Court to entertain such an appeal, and the right to an appeal from its action, is by a motion to quash.</p> <p>p. 252</p> <p>While bills of exceptions are not allowed in trials of cases on appeal from judgments of Justices of the Peace, yet the evidence taken in the Circuit Court upon the motion to quash should, on appeal, be properly certified to the Court of Appeals. p. 253</p> <p>The rule that a party cannot have a review of a judgment entered on a plea of guilty applies only where the plea was made freely, voluntarily and with full understanding of its nature and effect, and of the facts upon which it is founded.</p> <p>p. 254</p> <p>A Circuit Court overruled a motion to dismiss an appeal from a judgment of a Justice of the Peace; on appeal to the Court of Appeals, the record failed to show on what facts the court based its determination; the appeal was dismissed, p. 254</p>

<p>A rbitration and award: considered with favor by courtsj im,peachment for partiality or bias of arbitrator; evidence; mere suspicion not sufficient; no mere error of judgment; award need not be unanimous.</p> <p>As arbitrators are intended to compose disputes in a simple and inexpensive manner, whenever the parties to an arbitration agreement have had a full and fair hearing, the award of the arbitrators will be expounded favorably, and every reasonable intendment made in its support. p. 260</p> <p>In such cases a court will not look to the merits of the matter and review the findings of law or fact made by the arbitrators, nor substitute its opinion for theirs, but will require the parties to submit to the judgment of the tribunal of their own selection and abide by the award. p. 260</p> <p>This favorable consideration given by the courts to the findings of arbitrators assumes that the award is their honest decision, and involves no mistake so gross as to work manifest injustice or furnish evidence of misconduct on their part. p. 260</p> <p>Mere suspicion of misconduct will not authorize the setting aside of an award. p. 264</p> <p>In this case it was held that the evidence was insufficient to sustain the exceptions, including the allegation that one of the arbitrators had failed to exercise judicial and impartial consideration of the issues. p. 263</p> <p>An award can not be impeached for mere erroneous judgment on the facts. , p. 262</p> <p>Where a controversy is submitted by the parties to arbitrators, each one of the parties naming one, who in turn elect a third in case of disagreement, the failure of any one of the arbitrators to sign the award does not invalidate the same.</p> <p>p.259</p>

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

<p> Interpleader-, money paid into court; effect of decree; discharge of complainant. </p> <p>A plea, of interpleader should he allowed where it is proper that the disinterested custodian of a fund should be relieved of the annoyance and burden of litigation to determine its proper application; and in such a case the various claimants should be directed to join issue among themselves in a proceeding where all their asserted rights may he considered and the question of priority of interest determined. p. 279</p> <p>In general, in interpleader proceedings, where the fund is paid into court, the effect of the decree is to discharge the complainant from the case, and to provide a proceeding in which the defendant may litigate his adverse claim. p. 280</p> <p>In general, in interpleader proceedings the litigation should be confined to the proceeding in which the relative rights of the parties can he simultaneously considered and fully determined by one adjudication p. 281</p>

<p>Municipal corporations: Baltimore City; discretionary measures; when courts will not interfere. City pavements: general ordinances affecting—; particular footways; condition of—; a ministerial question. Ordinances No. 102 of 1912 and No. 7 of 1915, requiring repavement with cement, etc.; right of city to do the work and assess cost to property as taxes; failure to provide notice or hearing as to cost and assessment unconstitutional.</p> <p>Not every difference of opinion between a private citizen and' a municipal corporation is justifiable in tbe courts; and where a municipal official, in the performance of his duty, must exercise judgment and discretion, the courts will not review the-manner of its exercise, where neither fraud nor bad faith is alleged. p. 285-</p> <p>Whether a particular footway is or is not out of repair, or is so worn as to require it to be relaid in part or in whole, is a matter too vast in detail, in a large city, to be passed on by a separate ordinance in each case. p. 285'</p> <p>To pass upon the condition of the sidewalks of a large city is a ministerial function rather than a legislative one, and is; properly committed to a municipal official such as city or highways engineer, or an appropriate department. p. 285</p> <p>In considering the constitutionality of a municipal ordinance, the test is to bo found, not by what has been, but by what might be done, by its authority. p. 286</p> <p>Article 35 of the Baltimore City Code of 1906, sections 21 and 22, as amended by ordinances of the Mayor and City Council, Nos. 102 and 7 of 1912 and 1915, respectively, authorized the City Engineer to repave with cement, stone or brick the pavement of any property owner who shall have failed to pave the same in the manner and within the time prescribed in a notice given as provided for fey the ordinance; the cost of such repaving by the City Engineer (including the cost of advertising and the addition of 3% for the cost of collection) is made a lien upon the property, to be recovered as are other taxes on real estate; Held, that these ordinances were unconstitutional, in that they made no provision for notice to the owner of the amount of the tax so to be imposed upon him or any provision for a hearing with regard thereto, or for any appeal from the amount so levied and assessed against his property. p. 288</p>

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

<p> Streets: dedication; revocation; acceptance; acts in pais; calls in deeds; payment of taxes; mayor, no power to waive—; water mains; not new easement in streets. Public improvements: notice and hearing; sufficiency of—; Montgomery County. </p> <p>Where a party sells property within the limits of a city, and in the conveyance bounds such property by streets, designated as such, in the conveyance or on a map made by the city, or by the owner of the property, such a sale implies a covenant that the purchaser shall have the use of the streets. p. 306</p> <p>The use of streets for supplying the inhabitants of a town with water is not an additional servitude, and the abutting owner, although he holds the fee to the center of the street, is not entitled to compensation for the laying of such mains, as though for a new servitude. p. 307</p> <p>The mere fact that the owner of a tract of land pays taxes thereon by the acre, regardless of the fact that the tract is marked out in streets and lots, is no evidence that the streets are not dedicated, or that the town has not accepted them as public streets. p. 308</p> <p>Acceptance of streets by municipalities may be either express, and appear of record, or it may be implied from repairs knowingly made or paid for by the authority which has the legal power to accept the street or highway, or it may be inferred from long use by the public. • p. 309</p> <p>If acts, amounting to a dedication of a street, have already been done, the Mayor, in the absence of some special authority, has no power to relinquish any of the municipality’s rights therein. pp. 307-308</p> <p>A town is not required to accept a dedication at once, or ordinarily within any particular time. pp. 308-309</p> <p>Where no rights of third parties have accrued, or, if accrued, have been extinguished by acquisition by the owner of the land, a dedication may be revoked. p. 309</p> <p>Section 614 of Article 16 (Public Local Laws), as modified by Chapter 790 of the Acts of 1912, providing for the opening of streets, etc., in Montgomery County, applies only to cases where it becomes necessary to take private property for such public uses as are therein provided. p. 309</p> <p>Article 16 of the Public Local Laws, relating to Montgomery County, is codified by Chapter 790 of the Acts of 1912; and, before entering upon any public work in said county, compliance with the character and amount of notice required by the Act of 1912 is necessary and sufficient. p. 310</p> <p>Certain public improvements were undertaken in Takoma Park, a town of Montgomery County and practically a suburb of Washington; notice was given in a Washington paper having a large circulation in the town; notice by mail was also given; under the circumstances, especially as the complainants interested did not allege want of knowledge in their bill, nor offer any evidence to show it, it was: Held, to he fair to assume that they suffered no injury by reason of the character of the notice given and such notice was held to present no ground for holding the proceedings void. . p. 310</p> <p>Tbe question of the sufficiency of notice to render valid the .acts of a municipality, in entering upon public improvements in Montgomery County, undertaken under Article 16 of the Public Local Code, as codified by Chapter 790 of the Acts of 1912, is considered and decided. p. 310</p>

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

<p> Equity: witnessesj recalling of—; new evidence not to be brought out for first time, after cross-examination. </p> <p>Specific performance: frivolous niceties, no ground for refusal.</p> <p>In an equity proceeding, after a witness for the defendant has been examined and cross:examined and intervening witnesses have been examined, such witnesses should not be allowed to be recalled to give, for the first time, evidence with regard to new matters of defense which were not set up in the answer, nor brought out in the witness’s original testimony. p. 335</p> <p>In order to justify a court of equity in refusing to issue a decree for the specific performance of a contract of sale, because of objections to title, incumbrances, etc., the doubt must be considerable and rational, such as would and ought to induce a prudent man to pause and hesitate; objections based on captious, frivolous and astute niceties merely are not sufficient.</p> <p>p. 333</p>

<p>Partition: section 137 of Article 16; none between life tenant and remainderman.</p> <p>Under section 137 of Article 16, there can be no partition between a tenant for life and a remainderman, as the statute does not apply to such a case. p. 341</p> <p>But the owner of an undivided half interest is entitled to relief under this section, even though the other undivided interest is owned by another for life, with remainder over.</p> <p>pp. 344, 345</p> <p>In such a case, the court may direct the investment of the proceeds of the one-half interest due the defendant, for the benefit of the life tenant during his life, with direction for its payment to the remaindermen on the termination of the life estate; or the life tenant and remaindermen may enter into an agreement as to the payment of the proceeds of such half interest.</p> <p>p. 345</p>

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

<p>Appeal from the Circuit Court for Baltimore County. In Equity. (McLane, ,T.)</p>

<p>Appeal from the Circuit Court for Carroll County. (Forsythe, Jr., J.)</p> <p>The facts are stated in the opinion of the1 Court.</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>Appeal from the 001111; of Common Pleas of Baltimore Oity. (Stump, J.)</p> <p>The facts are stated in the opinion of the Court.</p>

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

<p>Executors and administrators: payments to distributees; notice to creditors unnecessary. Checks: how far a payment; postdated checks.</p> <p>There is no duty cast upon administrators or executors to ascertain whether there are any creditors of the distributees, or to notify them of their intention to distribute the estate; and the administrators or executors assume no risk, so far as creditors of distributees or legatees are concerned, in paying out to them their distributive shares before the passing or ratification of the account. p. 393</p> <p>A check is so far payment, until dishonored, that after its delivery the drawer can not be garnished as debtor of the payee in respect to the debt for which the check is given. p. 394</p> <p>A postdated check is a legal and proper instrument, and, like any other check, is payable immediately upon the day of its date. , p. 396</p> <p>An administrator drew his check payable to the order of one of the distributees, dating it as of the following day (on which day the account was to be ratified), and delivered the check to the attorney for the payee in payment for the payee’s distributive share when the account should be ratified; after such check had been drawn and delivered, but before the account was passed or the check presented for payment, an attachment was laid in the hands of the administrator by a creditor of the distributee; there was no charge of any fraud or collusion between the administrator and the distributee, and it was: Held, that the attachment did not bind the administrator so as to render him liable to the judgment creditor for the distributee’s share for which the check had been drawn and delivered.</p> <p>p. 396</p>

<p> Injunctions: motion to dissolve; appeals. </p> <p>From the action of a court, in refusing to hear a motion to dissolve an injunction on a particular day, or from its action in refusing to hear the motion pending the complainant’s appeal, no appeal lies. p. 406</p> <p>While every delay in the hearing of a motion to dissolve an injunction operates to continue the injunction for the time being, yet it is not every such postponement that amounts to a refusal to dissolve the injunction as to constitute the basis for an appeal, either under section 27 of Article 5 of the Code, or under section 200 of Article 16 of the Code. p. 406</p> <p>An appeal will not lie from an order or decree passed in the undoubted discretion of the lower court. p. 407</p> <p>Whether in any particular case the execution of a decree or order appealed from shall be stayed by an appeal, is left by the Code within the discretion of the lower court. p. 407</p>

<p> Wills: construction; intention; repugnancy between prior and subsequent claxtses; latter to prevail. </p> <p>The first and principal object in the construction of a will is to ascertain the intention of the testator, which is to be found from the language of the whole will, and is then to be carried out, provided it be consistent with the settled canons of construction and does not conflict with the well established rules of law and property. pp. 410-411</p> <p>If a testator in one part of his will gives to a person an estate of inheritance in land or an absolute interest in personalty, and in subsequent passages shows unequivocally that he means the devisee or legatee to take a life interest only, the prior gift should be restricted accordingly. p. 411</p> <p>In cases of repugnancy, where the clauses of a will can not stand together and have effect, the rule is that the gift which is posterior in, local position shall prevail, the subsequent words being construed as denoting a subsequent change of intention.</p> <p>p. 411</p> <p>Where it is.clear that a testator by the disposition of his will intends to create a life estate only, the mere fact that such a construction will result in an intestacy as to the residue of the estate is no reason for holding the devise to be in fee. p. 412</p>

<p>Trusts: who may question validity of-—; agreements as to—; who may invoice equity to assume jurisdiction, and to appoint neiv trustees.</p> <p>In general, the validity of a trust may be questioned only by one who will be entitled to some interest in the property in case the trust is declared invalid, and then only when not estopped by limitations or laches. p. 426</p> <p>Parties who agree for a good and valid consideration to cooperate with other parties in having the validity of a certain devise legally sustained and confirmed, and who have received the consideration accordingly, have no standing in equity to repudiate the obligation and attack the validity of such devise and bequest. p. 426</p> <p>In this case, the court construes an agreement of certain parties concerning their carrying out the provisions of a will, and decides as to what property the agreement applies, pp. 424-427</p> <p>Parlies who did not create the trust, are not the beneficiaries under it, and are not charged with its execution and have no interest in the trust property, have no ground upon which they can ask a court of equity to assume jurisdiction of the trust, or invoke the jurisdiction of the court for the appointment of a trustee in the place and stead of one of the trustees appointed by the will. p. 427</p> <p>Section 245 of Article 16 of the Code provides the method .as to how a trustee who has accepted a trust may be released and discharged from its further execution. p. 427</p>

<p> Legislative bodies: judges of qualification of members; court’s jurisdiction; mandamus as to ministerial duties; certificatipn of election; administration of oath to member. Public office: property qualification; minimum of tax assessment and taxes paid. </p> <p>In general, a legislative body is the sole judge of questions relating to the election and qualification of its members, p. 431</p> <p>But in a mandamus proceeding to require the Mayor of a municipal corporation to perform the merely ministerial duty (under the Charter) of administering the oath of office to one claiming to have been elected to the Town Council, it was: Meld, that the Circuit Court had full jurisdiction to consider and decide the petition. pp. 431-432</p> <p>The action of the Court thereon would not, however, interfere with any rights of the Council based upon the question of the admission of the complainant as a member. p. 431</p> <p>Where the charter of a municipal corporation fixed at 21 years the minimum age qualification for membership in the Town Council, the date for determining the qualification is the date of the election. p. 433</p> <p>Where there is a property qualification for eligibility to office, prescribing a minimum amount of property with which a candidate must be assessed on the tax books and upon which he must have paid taxes for two years preceding the election, property in which the candidate has merely a reversionary interest is not to be considered; and such tax qualification is not gratified by the fact that someone else paid the taxes upon the property which he owns if the property was not assessed on the books in his name. pp. 434-435</p> <p>Where the qualification for public office prescribed by the Charter of a municipal corporation declares what official shall certify to the election of a candidate, the certification by any other official is of no avail. p. 436</p>

<p> Wills: construction; vesting of estates favored. </p> <p>In a clause of her will a testatrix devised part of a farm to each of her two grandnieces; in the event of the death of either of them, without leaving issue, the part devised to her was to go to the survivor; but in a later clause the testatrix declared that such devise so made should vest in her grandnieces, “respectively, a fee simple estate and possession shall be had by them at their arrival at full age”; the will further provided that, when and as soon as ihe two grandnieces, or either of them, should attain the age of 18 years, that either one of them should have the power and right to dispose of her part of the farm by will, to whomsoever she should see fit; by a still later clause it was provided that neither of the nieces should be entitled to come into possession of the land or the proceeds thereof until they, or either one of them, respectively, should attain the ago of 21 years; until then the land was to be under the control and management of their father; it was: Held, that by these provisions the testatrix intended that when the devisees arrived at the age of 21 years their estate should become absolute and indefeasible. p. 442</p> <p>The devise of the farm as a whole was intended to depend solely upon the death of one of the devisees without leaving issue, and was not meant also to depend upon the fact of one of them dying without disposing of her portion of the land.</p> <p>p. 441</p> <p>It is not the purpose of the will that the death of one of the devisees without leaving issue should at some later period than the time fixed for the vesting of the estate in remainder, defeat the fee simple title expressly devised. p. 441</p>

<p>Pleading in equity: plea; effect of—; appeal from order overruling—/ equity jurisdiction; defendants in different counties; section 88 of Article 16.</p> <p>In equity pleading a plea rests entirely upon the point by which it is intended to prevent further proceedings. p. 444</p> <p>Where an appeal is only from the order of the lower court overruling the plea, defects in the bill itself will not be considered. p. 444</p> <p>Section 88 of Article 16, providing for chancery jurisdiction where the defendants reside in different counties, or in a county and the City of Baltimore, is applicable to all such cases in equity, except where some special provision is made, as in section 87, providing for the partition of real estate. p. 445</p>

<p>Appeal from Circuit Court No. 2 of Baltimore City. ‘(Bonn, I.)</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> Equitable estoppel. Leases: part performance; specific performance. </p> <p>Where one has acted under the terms of a proffered agreement to the extent of securing the benefits which it affords, he should be estopped to deny the existence and mutuality of the contract. pp. 471-472</p> <p>Where a lessee of property has expended large sums of money in improving it, upon the faith of the owner’s promise to extend the lease for a specified term and rental, and, after the improvements are made, the owner refuses to make the extension, equity has jurisdiction to require the agreement to be specifically performed. p. 472</p> <p>A binding acceptance of an offer may be signified by deeds as well as by words. p. 471</p>

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

<p>Indictments: sufficiency of—; statutory offenses. Legislature: delegation of authority; regulation of motor vehicles; , ’ power of municipalities or State hoards; transportation of passengers for hire; variation of route; jitneys.</p> <p>- An indictment for a statutory offense is sufficient if it lays the charge in the words of the statute; this holds true even although the statute itself be not well expressed. p. 484</p> <p>The Legislature has the power to delegate to a municipality, to an official or to a board, the classification of motor vehicles and common carriers for the purpose of administering the Law of 1916 relating to motor vehicles using the public highways.</p> <p>p. 487</p> <p>The fact that the owner of a motor vehicle, who regularly transports passengers for hire between given termini for a fixed compensation, varies his route from time to time does not exempt him from the obligation of complying with section 141, class F of Chapter 687 of the Acts of 1916. p. 486</p>

<p> Constitutional law: Legislature j no judicial functions. </p> <p>Exercise by tbe Legislature of judicial power, in tbe passage of a law, is repugnant to, and in violation of, the Constitution of tbe State. p. 491</p> <p>Chapter 466 of tbe Acts of 1916 directed tbe County Commissioners of Allegany County to levy a certain sum by taxation, wbieb sum was directed to be divided up and paid to tbe sureties - on tbe bond of a tax collector on tbe ground tbat tbe said- sureties bad paid in tbat amount of taxes which tbe tax collector bad failed to collect, although against such claim for taxes tbe collector bad a right to credit for over-assessments, insolvencies, etc., sufficient to cover tbe amount of tbe alleged default, it was: Held, tbat tbe Act was unconstitutional, because such an enactment by tbe Legislature was an assumption of judicial functions. p. 493</p> <p>Where tbe facts, out of which a legal or moral obligation is claimed to arise, are disputed, the contention is one tbat falls within tbe judicial province under tbe distribution of governmental powers as prescribed by Article 8 of tbe Declaration of Rights. p. 494</p>

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

<p> Basements: none in own land. </p> <p>A party can not have an easement on his own land; all the uses of an easement are fully comprehended and embraced in the general right of ownership. p. 504</p> <p>The mere fact that title to adjacent lands was once in the common grantor is not of itself evidence that one lot has a dominant right of drainage over the other. p. 504</p>

<p>Streets: title of public by adverse possession; Baltimore City,</p> <p>Under Chapter 9, section 10 of the Acts of 1745,.if a riparian owner had not made improvements in front of his property,, the State could intercept his rights to make them by a grant of the land covered by water. p. 510</p> <p>A riparian owner, under that Act, had no vested title to the land covered by water immediately in front of his property,, nor to improvements built out of the water, until the improvements were actually completed. p. 510</p> <p>The Mayor and City Council of Baltimore may acquire title to streets through adverse possession. pp. 511-512</p> <p>By an ordinance of the Mayor and City Council passed March 25th, 1814, certain plans of the Port Wardens for building-docks and opening and extending-streets thereto, were approved; the ordinance provided that as a condition precedent for making the improvement, the adjoining owners should give their assent thereto; this assent could be verbal as well as written; the city constructed the docks, filled out and extended the streets as planned; paved the streets, lighted and maintained them; there was evidence showing that the city claimed an adverse right to the streets; there were some further ordinances passed and action taken to -widen one of the streets; it was r Held, that after 40 years of such use and maintenance of the street as a public street, it was to be assumed that the city had acquired title to the street in fee simple. . p.-513</p> <p>Prescriptive rights will not run against a municipal corporation or the public to defeat its claim of right to a public street.</p> <p>p. 513</p>

<p> Attachment: garnishee’s defenses; prior transfer of property; good faith; burden of proof. Fraud: evidence; wide latitude; admission of improper evidence; when no cause for reversal. </p> <p>The admission of immaterial evidence that was not harmful to the exceptant does not constitute reversible error. p. 520</p> <p>In order to defeat an attachment, by the defense that the property had been previously transferred by the debtor, it is necessary' to show that the transfer was made in good faith, even though it had been for full consideration. p. 521</p> <p>The law will not permit any man to assist in cheating another. ( p. 521</p> <p>Where fraud is set up, a wide latitude is allowed in the admission of testimony throwing light upon the question of intent. p. 521</p> <p>Upon an attachment being laid upon a stock of merchandise in a store, the defense was made that the stock had been sold and transferred to another party for its full value; the question of the bona fides of the transfer was raised, and it was held that much of the evidence which was admitted might have been inadmissible if standing alone, but was admissible when considered and weighed in connection with other facts, as tending to assert the truthfulness and bona fides of the transfer.</p> <p>pp. 521-522</p>

<p> Corporations: minority stockholders; rights of—; excessive salaries; jurisdiction of court. </p> <p>Tbe directors and officers of a corporation, while owning or controlling a large majority of the stock, allowed the President and the one, who was the Vice-President, Secretary and Treasurer of the company, salaries that were claimed to be excessive, and one year’s extra compensation. One of the officers, who was also a director, afterwards sold a majority of the stock, and a bill in equity was filed in the name of the corporation against the former officers and directors to recover the alleged excessive and unauthorized payments. On appeal from an order overruling a demurrer to the bill, the order was sustained, and it was: Held, that the bill could be maintained in the name of the corporation for the benefit of minority stockholders not barred by limitations, laches, acquiescence or in other maimer; but relief could be granted only to the extent of the proportions of such excessive and unauthorized payments, if any, due such minority stockholders. pp. 537-538</p> <p>In general, a corporation may proceed in equity to obtain redress for the illegal, fraudulent, ultra vires or grossly negligent acts of its directors and officers. p. 528</p> <p>But ordinarily á purchaser of stock can not complain of the prior acts and management of the corporation. p. 532</p> <p>A purchaser of stocks acquires no greater rights than his vendor; he holds by the same title and subject to the same liability. p. 533</p> <p>The purchaser or transferee of stock can not maintain a shareholder’s bill on account of any transaction in which the transferer has acquiesced. p. 534</p> <p>The allowance of excessive salaries by directors of a corporation, who are owners of, or controlled by the owners of, the majority of the stock, may entitle minority stockholder’s to relief; but, in general, courts can not substitute their judgment for that of the directors, where the Tatter have acted in good faith, within their powers, and the salaries paid by them are not clearly excessive. p. 535</p> <p>In proceedings to have salaries paid by the directors declared void on the ground that they were excessive, the corporation is primarily the party to bring suit. _ p. 536</p> <p>But when the corporation is under the control of the very parties against whom the complaint is made, and they will not act, or, if they would act, could not be relied on to do justice to the other stockholders, then the latter are permitted to sue in their own names. p. 536</p> <p>In such a suit any defense that could have been made against the minority stockholders, if they had brought suit in their own name, should be allowed, notwithstanding the fact that the suit is brought in the name of the corporation. p. 537</p> <p>When those who hold a majority of the stock of a corporation, as directors, voted and paid certain salaries that were complained of as being excessive, they can not obtain redress in equity as stockholders against their own act done in their official capacity. p. 535</p>

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

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

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

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

<p> Workmen's Compensation Act: constructionj "dependency"j as of time of injury; marriage of dependent child; no ground for modification of award. </p> <p>Under the Workman’s Compensation Act, Chapter 800 of the Acts of 1914, the question of the dependency of those who seek the benefit of the statute is to be determined in accordance with the facts existing at the time of the injury that resulted in the death of the employee. p. 578</p> <p>Section 49 of the Act, in authorizing the Commission to apportion the benefits among the dependents in such manner as they may deem just and equitable, has no reference to the ■amount of benefits to be paid by the employer. p. 580</p> <p>Any modification or change by the commission of its former finding in a case must be based upon the facts existing at the time of the injury, and can not be made to rest upon or conform to conditions arising and existing subsequent to the date of the injury, provided the award is to those living at the time ■of the death of the injured employee. p. 578</p> <p>The right of a dependent sister of an employee, whose death was the result of an accident, to receive compensation under the Act, is not conditioned upon her remaining unmarried, p. 577</p> <p>Section 53 of the Act, providing that the power and jurisdie1 tion of the commission * * * shall be continuing, and that it may from time to time make such modifications or changes with respect to former findings as in its opinion may be justified, does not authorize the commission to abate or modify an award made to a dependent sister, merely because she subsequently marries. p. 580</p>

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

<p>Administrators pendente lite: duties and, functions of—. Specific performance: parties; petition to rescind order making administrators parties. Appeals: when premature; final orders and decrees only.</p> <p>While not specially defined by statute, the intention of the law is that an administrator pendente lite is subject to the same general rules as control general administrators. p. 592</p> <p>But if his letters be revoked before the expiration of the twelve months from the date of his letters, he must then exhibit his account without delay, and deliver to the executor or new administrator all the property of the decedent in his hands.</p> <p>p. 592</p> <p>In case of specific performance, the general rule is that only those persons are proper parties who are parties to the contract, or those who have been substituted in their places as executors or heirs or personal representatives. pp. 592-593</p> <p>To a bill for specific performance an administrator pendente lite, appointed pending the caveat to the will of the vendor in a contract of sale, is a proper party, not because authorized to convey the real estate, but because he would be entitled to receive the money. p. 594</p> <p>A bill for specific performance was filed by tbe vendee against tbe vendor in a contract of sale; the purchaser of the property under another contract of sale was joined as party defendant, be having acquired tbe property, as was alleged in tbe bill, for tbe purpose of defrauding tbe plaintiff; as ancillary relief, tbe bill prayed injunction, etc., against tbe defendants; pending tbe proceedings, tbe defendant vendor died; a caveat to bis will was filed, administrators pendente lite were appointed, and an order passed making them parties; tbe plaintiff then applied for tbe appointment of a receiver to take charge of tbe property, pending determination of tbe question of its ownership; no objection was made to tbe appointment; later tbe plaintiff, by petition, prayed that tbe order making tbe administrators parties might be rescinded, but before tbe court bad acted upon his petition he, in effect, abandoned it, and entered an appeal for tbe purpose of having tbe order reviewed by tbe Court of Appeals: Held, that such a course was not in accord with tbe usual practice, and should not receive tbe approval of tbe Court of Appeals. ' pp. 595-596</p> <p>As tbe plaintiff bad notice of tbe order complained of, and as tbe lower court, because of tbe appeal, bad not passed upon bis objections to tbe petition of tbe administrators pendente lite, and tbe order thereon, it was: Held, that tbe appeal was premature. p. 596</p> <p>An order setting down for bearing a motion to dissolve an injunction is not such a final decree from which an appeal can be taken, under section 26 of Art. 5 of the Code. p. 596</p>

<p> Nuisances: prospective; moving picture theatres; howling alleys; injunction. </p> <p>In general, an injunction will be issued to restrain only an actual, existing nuisance; but where it can be plainly seen that acts about to be done will, when completed, certainly constitute a grievous nuisance, equity will interfere, without waiting- for tlie actual commission of the nuisance, provided the circumstances enable the court to form an opinion as to the illegality of the acts complained of and that irreparable injury will thence issue. p. 601</p> <p>Bowling alleys and moving picture theatres, conducted for the public, are not nuisances per se; they may become such in localities where they create a disturbance, to the serious annoyance and physical discomfort of persons of ordinary sensibility living in the neighborhood. p. 601</p> <p>The object of the writ of injunction is preventive, and is to ward off injury. • p. 601</p> <p>A bill for an injunction to restrain the erection of a moving picture theatre and bowling alley in an exclusively residential neighborhood, if it contain proper averments, is not demurrable.' pp. 601-602</p>

<p>Railway tracks: right of wayj exclusive property of railway; trespassers; injuries to—; passengers; ejectment of intoxicated—. Negligence: proximate cause; question for jury.</p> <p>In general,- what is the proximate cause of an injury, is a question of fact for the jury. p. 612</p> <p>Whoever does an illegal act is answerable for all the conser quences that ensue in the ordinary and natural course of events, though these consequences be immediately and directly brought about by the intervening agencies of others, provided such agencies were set in motion by the primary wrongdoer, or provided their acts causing the damage were the necessary or legal and natural consequences of the original wrongful act. p. 612</p> <p>But in order to warrant the finding that negligence, or an act of wanton wrong, was the proximate cause of an injury, it must appear that the injury was the natural and probable consequence of the negligence or wrongful act, and that it ought to have been foreseen, in the light of all the attendant circumstances. pp. 612-613</p> <p>The mere fact that a passenger under the influence of liquor was ejected from a car when he had proved to be a nuisance and had refused to pay his fare, does not render the company liable for his subsequent injury received on the company’s tracks a mile or two further on from where he was ejected, when it apjreared that the passenger had considerable strength, where there was no evidence of any mental unsoundness and when he seemed thoroughly able to take care of himself. pp. 615-616</p> <p>Tbe death of the passenger so ejected in broad daylight on tracks, with which he was perfectly familiar, was: Held, not to be the natural and probable consequences of his ejectment.</p> <p>p. 616</p> <p>A right of way of a railroad company is its exclusive property, persons undertaking to use a railway as a footway do so at their own risk; and the mere acquiescence of the railroad company in such user does not give or create any obligation for special protection. p. 614</p> <p>No wrongdoer ought to be allowed to apportion or qualify his own wrong. p. 611</p>

<p> Negotiable instruments: consideration; as between parties. Equitable defenses. </p> <p>As between the immediate parties to a negotiable instrument, the question of consideration is always open, and in a suit between them it is competent, under the general issue plea, to show that the consideration had failed. p. 621</p> <p>A defense which is good at law can not be pleaded on equitable grounds. . p. 621</p> <p>It is only such a defense as formerly could not be pleaded at law that is now let in on equitable grounds. p. 621</p>

<p> Life insurance : false statem.ents in application; province of jury. </p> <p>Ordinarily it is the province of the jury to determine the falsity and materiality of the representations made in an application for an insurance policy, and the burden is upon the defendant to satisfy the jury of the validity of these defenses; but where the falsity and materiality of the representations are shown by clear, convincing and uncontradicted evidence, the Court should so rule as a matter of law. p. 625</p>

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

Three appeals in one record from the Commissioner of the Land Office. (Jas. S. Sherheru.) The facts are stated in the opinion of the Court.

<p> Stock: subscription to—; fraud; mere expression of opinion or expectation, not—; bonus stock, not issued by corporation, but contributed by third parties; underwriting agreement; reservation of right to pay for and take up his stock. Interest: when question for jury. Appeals: severable errors in verdict; correction. </p> <p>Where common stock, which by a subscription agreement is given to each subscriber to the preferred stock of the corpora-ion, is not the unissued stock of the corporation, given by it as a bonus to the preferred stockholders, but is stock owned and contributed by the directors of the corporation, the subscription is valid, even in States where the laws prohibit the issue of bonus stock by the corporation itself. pp. 638-639</p> <p>Where one of the underwriters to an agreement for subscriptions to stock reserves the right to pay for and take up the stock he subscribed for at any time before, a certain date, before the underwriting syndicate was to be dissolved, it was: 71 eld, that it did not increase the responsibility of the other subscribers and did not invalidate the contract of the others, p. 640</p> <p>The statement by the secretary of a baseball club, that the gate receipts would be sufficient to relieve from liability any subscriber to an underwriting agreement for the taking of the stock, is to be taken as only an expression of opinion or expectation, and is insufficient to form the basis of a charge of fraud and deception, so as to invalidate the subscriptions, pp. 641-642</p> <p>Excepting in cases where interest is recoverable as of right, such as on bonds, contracts in writing to pay money on a day certain, etc., the question of interest should be left to the jury.</p> <p>pp. 643-644</p> <p>In a suit for the payment of a subscription to stock, it should be left to the jury as to whether interest should be added to the principal sum claimed. p. 644</p> <p>Where an instruction directed the allowance of interest, where it should properly have been left for the jury, and from the amount of the verdict it is clear that the jury allowed the principal claimed with interest from the time the claim was payable to the time of trial, the judgment, under section 22A of Article 5 of the Code, was reversed, to the extent that it included interest, and affirmed as to the remaining amount.</p> <p>p. 644</p>

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

<p>Judgments-. attachment in another county; sections 19 and 20 of Article 26 of the Code; docleet entries; copies to another court; not basis for attachment in third county.</p> <p>Under a judgment rendered in the Superior Court of Baltimore City, a writ of attachment was issued to the Circuit Court for Anne Arundel County, with a copy of the docket entries of the proceedings and judgment in Baltimore City. Subsequently an attachment was issued from the Circuit Court for Anne Arundel County to Howard County, as if the copy of the said docket entries and judgment, so transmitted, had the full force and effect of an original judgment; it was: Held, that the Clerk of the Circuit Court for Anne Arundel County could not certify to the proceedings from Baltimore City, so as to support the attachment in Howard County, under sections 19 and 20 of Article 26 of the Code, and a motion to quash the attachment should have been sustained. p. 665</p> <p>Only the clerk of the court in which a judgment was originally rendered can certify to its correctness. p. 668</p>

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

<p> Railways: nuisances from careless operation j disturbance to rest. Justices of the peace: title to land. </p> <p>In order to defeat the jurisdiction of a justice of the peace and of the Circuit Court to which appeal is taken, on the ground that the suit is one where the title to land is involved, it must appear from the very nature of the action itself that it is one in which title to land is necessarily and directly in issue.</p> <p>p. 680</p> <p>An action for damages because of the injuries sustained by the way in which the defendant railroad operates its freight trains on a switch before the plaintiff property, is not one where it affirmatively appears that title to land is involved so as to oust jurisdiction of a justice of the peace. p. 682</p>

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