Volume 131 — Maryland Reports

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

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

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

<p>Mandamus: discretionary writ. Legislature and municipal corporations : delegation of powers; to boards or public officers. Water Board of Baltimore City: care and protection of newly paved streets. Police powers.</p> <p>Mandamus is an extraordinary process, and if the relator’s right be doubtful or the duty discretionary, or of a nature to require the exercise of judgment, the writ will not be granted.</p> <p>p. 40</p> <p>The writ is not one to be accorded ex debito justiiiae. p. 40 The discretion will not be exercised in favor of applicants unless some just and useful purpose may be answered by the writ. p. 40</p> <p>The Mayor and City Council of Baltimore have full and complete control over the streets and highways of the city; this power is a trust for the benefit of the public. p. 41</p> <p>The Mayor and Gity Council of Baltimore have the power to create the Water Board, to operate and maintain a system of water supply for Baltimore City, with power to make all reasonable rules for the management of the same.* pp. 41-42</p> <p>In delegating these powers to the Water Board, the city does not violate the principle, “delegatus non potest delegare.” The corporation in such matters may act through its officers and agents. p. 46</p> <p>The rule of the City of Baltimore and of the Water Board, that newly improved streets shall not be torn up, in order to make connections with the water supply, unless a permit has first been obtained from the Highways Engineer, and approved by the Mayor, is a reasonable and constitutional exercise of implied police power, and of the express powers given by the Oily Charter. p. 46</p> <p>"While the Legislature xnay not delegate its power to. make laws, yet it may, expressly or by implication, delegate the police power to municipalities, to subordinate boards or commissions.</p> <p>p.4-6</p> <p>But the police power so delegated can never he exclusive, as the Legislature has no authority to divest itself of any of its ¡sovereign functions or powers. p. 44</p>

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

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

(Stanton, J.) The facts are stated in the opinion of the Court. The cause was argued before Boyd, C. J., Briscoe, Burke, Ti-iomas, Pattison, Urner, Stockbridge and Constable, JJ.

(TIbttisler, J.) The appellee was injured in a revolving door in the department store of the appellants: judgment having been entered up on a verdict for $15,000 in favor of the plaintiff, this appeal was taken.

<p> Condemnation of land: compensation to owner. Prayers. MarIcet value: special uses or value; sales of similar lands in vicinityj sales to avoid condemnation; not evidence. </p> <p>Commissioners for Opening Streets: effect of return.</p> <p>Where property is condemned for public improvements, the measure of compensation to which the owner is entitled, is the actual market value of the property; any special utility which may tend to enhance the value in the market is a proper claim to be considered.</p> <p>A building was condemned for the widening of a street; it had already been prepared for use as an apartment house, the use for which it was best fitted, although at the time it was not being so used; the owner offered a prayer to the effect that, in estimating the value of the property and the amount to be awarded the jury must consider all the uses to which the said property could have been applied had no such public improvement as that for which it is taken been determined upon by the Mayor and City Council, and must award the appellant what they believe would have been its value under the circumstances, mentioned, if employed for the most profitable use for which they may find it could have been applied, whether it has in fact been applied to such use or not: Held, that the owner had the right to have clearly presented to the jury an instruction based on that theory, and, as none of the granted prayers covered it, its refusal was reversible error. pp. 82-84</p> <p>Valuation of property for condemnation purposes must disregard the effect of the public project for which the property is required, but must take into consideartion all the uses to ■which, it is capable of being applied at tbe time of tbe appropriation and which affects its marketability. p. 83</p> <p>In an investigation as to tbe market value of land, the prices realized from voluntary sales of similar lands in the vicinity may be proven either on direct or cross examination of witnesses conversant with the facts. p. 85</p> <p>But a sale made in order to avoid condemnation proceedings is not a voluntary sale within tbe meaning of this rule. p. 85</p> <p>Sect, 175-0 of the Charter of Baltimore City, as enacted by Chapter 125 of the Acts of 1914, to the effect that in condemnation proceedings the return of the Commissioners for Opening Streets shall be prima facie evidence of the correctness of tbe amount of damages awarded, does not violate tbe owner’s right to prove, or tbe duty of the jury to determine, the true amount of the just compensation to he awarded. p. 86</p>

<p> Divorce: crueltyj plaintiff's testimony must be corroborated; adultery; offenses after dismissal of former bill. </p> <p>A decree of divorce will not be granted based upon the testimony of the plaintiff alone, without any corroboration, p. 88</p> <p>It is not necessary to establish the charge of adultery by direct proof; the offense may be proven, for the purposes of sustaining the allegations in a bill for divorce on that ground, by the proof of circumstances which justify the inference of guilt. ■" " ■' ' " ‘ p. 89</p> <p>The dismissal of a bill for divorce which was sought on the ground of adultery can not be pleaded as a defense to a subsequent bill in which offenses subsequent to the former bill are alleged. p. 90</p> <p>A wife without adequate means should be awarded alimony pendente Hie, regardless of the merits of the litigation. p. 90</p> <p>Application for an order to require the defendant to pay the plaintiff a sufficient sum for her costs and counsel fees for the prosecution of an appeal should be presented to the trial court.</p> <p>p. 90</p>

<p> W ater companies: disputed bills j no right to cut water off pending settlement of controversy. Injunction. Public Service Commission: no poiver to hear and determine correctness of bills rendered by such companies. </p> <p> Equity: original jurisdiction not ousted by statutory powers given to law courts. </p> <p>A water company may adopt, as a reasonable rule, that the supply to any customer may be shut off for non-payment thereof.</p> <p>p. 93</p> <p>But when the consumer claims that the bill rendered is incorrect, and offers to adjust and pay the amount for which he is liable, the company cannot, in general, arbitrarily cut off the consumer’s supply. p. 91</p> <p>In such a case, an injunction is a proper remedy for relief.</p> <p>p. 95</p> <p>The Public Service Commission is not invested with the power to hear and determine controversies between consumers and water companies as to the correctness of bills rendered consumers. p. 95</p> <p>Where a court of equity has original jurisdiction, and a statute confers upon a law court similar powers, the jurisdiction of equity is not thereby ousted. p. 95</p>

<p> Telegraph lines: post roads under Act of Congress; State sovereignty. Taxation: corporations; gross receipts—; not property tax; poles, wires and easements of telegraph companies. Tax assessments: appeals; functions of Court of Appeals. State Tax Commission: proceedings before—; preparation of record. </p> <p>While under the Act of Congress, approved July 24, 1866, telegraph companies may use the post roads of the county, the Act was not intended to interfere with State sovereignty, p. 97</p> <p>The gross receipts taxes imposed on corporations by section 167 of Article 81 of the Code are not taxes upon property.</p> <p>p. 103</p> <p>The fact that a telegraph company is taxed upon its gross receipts does not render unconstitutional a tax upon its poles, wires, etc., and easements. p. 104</p> <p>On appeals involving tax assessments, the Court of Appeals can not be required to sit as a board of review, to revise the amount of the valuation placed upon property by tax officials for purposes of taxation. , p. 101</p> <p>The Court of Appeals, in such cases, is confined to an examination of the legal principles upon which the assessing body acted, and if there be found no error of law applied by it to the injury of the complaining taxpayers, it is without power to disturb the assessment. pp. 101-102:</p> <p>On an appeal in sucli a case, it is not the duty of the State Tax Commission, any more than it is the duty of a court of record, to cause to be prepared and filed, as part of its record, a copy of the evidence taken at the hearing. pp. .102-103</p>

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

<p> Lease: sale of reversion; effect of payment of part of rent as part of consideration; no badge of fraud. </p> <p>After the execution of a lease for a term of 21 years for $7,500 per annum to a corporation, the lessors conveyed the reversion for the sum of $8,500 to a grantee, who in consideration thereof further bound himself to pay to the grantors the annual sum of $1,000 out of the rent reserved under the lease. The grantors of the reversion had, at the time of the lease, been the president and director respectively of the lessee corporation; some years after this conveyance of the reversion, the lessees filed a bill of complaint, alleging that they had just learned of the conveyance of the reversion and the agreement therein in reference to the payment by the grantee to the original lessors of a portion of the rent reserved in the lease, and charged in the bill that the rent which the lessees were required to pay had been fixed at an excessive amount by the lessors while acting in their dual capacity of owners of the leased property and president and director of the lessee company, and charged that in thus securing personal profit and advantage for themselves, at the expense of the lessee corporation, they had practiced a fraud upon its rights, which rendered the lease void, at least to the extent of the rent which they had reserved for themselves, etc., etc., and praying for proper relief. On appeal from an order dismissing the bill, it was held that neither by argument or by evidence had there been adduced any sufficient ground upon which to invalidate the lease. p. 115</p>

<p>Appeal from the Superior Court of Baltimore City. (Gobteb, J.)</p> <p>The faets are stated in the opinion of the Court.</p> <p>The cause was argued before Boy», C. J.. Bbjscoe, B»tb.ke, Thomas, Patttson, Ubneb, Stockbbidoe and Constable, JJ.</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>

<p>Licenses: regulating occupations; need not be uniform for whole Statej Article 15 of Bill of Bights. Local Laws: exempting certain counties. Statutes: construction of—. Junk dealers.</p> <p>Chapter 704, section 172, of the Acts of 1916, providing for the licensing of junk dealers, imposes a tax upon an occupa-' tion, and is not a tax upon property, as to which the equality provision of Article 15 of the Bill of Rights applies. p. 172</p> <p>It belongs to the class of taxes which that Article permits to be laid, with a' political view for the good government and benefit of the community. p. 171</p> <p>The Legislature is under no constitutional obligations, either Federal or State, to observe a definite rule of uniformity in the enactment of its license laws. p. 171</p> <p>It is not required to establish the same license system and regulations for all the interests and political divisions over which its authority extends. ' p. 171</p> <p>The Legislature has the right to make separate and definite license provisions for distinct classes and areas. p. 171</p> <p>The exercise of such power does not conflict with the constitutional right to the equal protection of the laws or to due process of law, if the prescribed regulations operate equally and uniformly upon the classes, within the area affected, and their limitations are not clearly unreasonable. p. 171</p> <p>To regulate license fees for occupations according to the population of the county or city where the business is to be conducted is an accepted theory of classification for license purposes. p. 172</p> <p>Such classification must be presumed to be reasonable in the absence of clear and conclusive indications to the contrary.</p> <p>p. 172</p> <p>The policy of the State to enact local laws affecting only certain counties, or to exempt particular counties or localities from the operation of general laws, is one that is not prohibited by any provision of the Constitution of the State or of the United States. p. 173</p> <p>In construing a statute, every presumption is to be made in support of the theory that the General Assembly has validly and properly exercised its powers. p. 173</p> <p>The decision of the Legislature as to the proper amount for a license fee for an occupation will be upheld by the courts, in the absence of clear and convincing proof that the charge is in fact exorbitant and oppressive. p. 174</p> <p>Dealing in junk is a distinct and recognized branch of commercial enterprise, the nature and incidents of which are commonly known and may be judicially noticed. p. 174</p> <p>A junk dealer is one who is engaged in the business of buying and selling junk, which is defined to be “old iron, or other metal, glass, paper, cordage, or other waste or discarded material, which may be treated or prepared so as to be used again in some form.” p. 174</p>

<p>Appeal from the Circuit Court for Charles County. (Briscoe, C. J., Beall and Oamalier, JJ.)</p> <p>The facts are stated in the opinion of the Court.</p>

<p> Re-insurance agreements between surety companies; insolvency; accounting. </p> <p>Directions given for the accounting and the allowance of certain costs and expenses, growing out of a re-insurance contract between the surety companies, when one. of them has become insolvent. pp. 184-188</p>

<p> Bonding companies: re-insurance agreement; limitations of risk, and conditions. Construction. </p> <p> Misrepresentation. </p> <p>A re-insurance agreement between two bonding companies by which one agreed to re-insure the other, or to pay to it one-eighth of any sums which the re-insurer should become liable to pay, and pay, under a certain bond on which the re-insured had become liable, contained the following provision: “provided the amount deposited in said bank, as such depository, at any one time, shall not exceed the sum of four hundred thousand dollars.” In construing this re-insurance agreement, it was held to be the intention of the parties that this clause was to be a limitation, and not a condition, of liability. p. 201</p> <p>Under an application for re-insurance, the applicants based their stand as to the condition of a bank, the principal of the bond, upon the publications in the current number of the Bankers’ Register and the Bankers’ Directory; there was no evidence that the information as given was incorrect, and no evidence in the record to sustain a defense of misrepresentation, except that the bank failed within three months after such representations were made: held, that such evidence was insufficient to sustain the defense of alleged misrepresentation. p. 202</p> <p>In construing written instruments, the intention of the parties is to be gathered from the entire agreement and from all its provisions considered together, and not from specific or fragmentary parts of the instrument. p. 203</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>Appeal from Circuit Court Do. 2 of Baltimore City. (Duffy, J.)</p> <p>The facts are stated in the opinion of the Court.</p>

<p> Scire facias: proceeding in remj terre tenants; judgment not personal. Judgments: limitations; not suspended by death of debtor, or failure to administer. </p> <p>Where a judgment debtor dies leaving leasehold property, if the judgment is revived by a scire facias against his next of kin as terre tenants, without making the administrator a party, the scire facias is a proceeding in rem, and the judgment obtained is not a personal judgment against them, but one subjecting the property in their possession which belongs to the debtor to the payment of the debt; and proceedings to enforce the judgment must contain a specific description of the property. p. 226</p> <p>The statute of limitations begins to run as to judgments from the date of the judgment, and is not suspended by the death of the judgment debtor, or the neglect of those entitled to obtain administration on his estate. p. 227</p>

<p> Building permits: mandamus; unauthorized 'and wrongful use of building when erected; garage and public automobile service station; injunction. </p> <p>Where, under mandamus proceedings, a. permit was issued by the Building. Inspector of. Baltimore for the erection of a building for general business purposes and for the exposing and sale of automobiles and accessories, the petitioner can not, after the building is erected, use it for another purpose—a garage and public service station, for which a permit had been previously refused, and for which a permit can be given only with the approval of the Mayor first had and obtained. ■ p. 231</p>

<p>Mortgages: future advances.</p> <p>R. J. loaned money to a realty company for the purpose of aiding it in the building of a number of houses of a certain style and cost upon land being developed by the realty company, upon which land a mortgage was given to secure the loan; checks for the money loaned were drawn by R. J. to the order of the realty company; by it the checks were endorsed for “deposit to the account of A. J. S.,” trustee in the matter of the realty company for R. J.; it had been agreed that the payment should be so made and that the trustee A. J. S. should make payment on account of the houses as the work progressed to different stages, according to plans and specifications of the same left with the trustee; there was no provision for any future loans or advances from R. J. to the realty company, and no evidence that any such were ever made or contemplated: Held,, that such a mortgage was not a mortgage for future advances in violation of the provision of section 2 of Article 66 of the Code. p. 253</p>

<p> Witnesses: examination of—; impressions. Sale of goods: delivery. </p> <p>In- general, witnesses should not he questioned as to their impressions, hut only as'to facts and circumstances as to which they are competent to speak. p. 255</p> <p>Under the Uniform Sales Act, section 25 of Article 83 of the Code, in order to sustain an action upon a contract for the sale of goods, there must be an acceptance as well as delivery.</p> <p>p. 256</p>

<p> Wills: restraints on- alienation of property. </p> <p>A testator devised one-third of his farm to his son Frank, with the provision that “in case Frank should not marry and die” before the testator’s son Henry, then the said Henry to inherit one-half of Frank’s said property: Held, that it was only in case' the son Frank shall die unmarried before Henry that the latter was to inherit part of the estate. pp. 263-4</p> <p>Restraints on the alienation of property are not favored, and are generally held to he contrary to public policy. p. 264</p> <p>Where land is devised in fee, subsequent conditions restraining alienation are void. p. 264</p>

<p> Workingmen’s Compensation Act: the law of the land. Jury trials; police power. </p> <p>The phrase “law of the land,” as it occurs in the Constitution of Maryland, and the phrase “due process of law” in the Constitution of the United States, have the same purport, p. 270</p> <p>Eo person has a vested interest in any rule of law entitling him to insist that it shall remain unchanged for his benefit.</p> <p>p. 271</p> <p>The common law bases an employer’s liability for injuries to the employee on the ground of negligence; but negligence is merely disregard of some duty imposed by law, and the nature and extent of that duty may be modified by legislation, with corresponding change in the test of negligence, citing Me. Justice Pitktey in N. Y. C. B. B. v. White, 243 U. S. 188. p. 271</p> <p>“Particular rules of the common law affecting negligence are not placed by the Fourteenth Amendment of the Constitution of the United States beyond the reach of the law-making power of the State.” Ibid. p. 274</p> <p>Employers’ liability acts, providing for the compensation of employees, while they “limit the freedom of employer and employee to agree respectively to the terms of employment” * * * “can not be supported except on the ground that it is a reasonable exercise of the police power of the State.” Ibid. p. 278</p> <p>The Act of 1914, Chapter 800, provides for a jury trial on appeal from the Industrial Accident Commission, and therefore the law is not in violation of section 40 of Article 3, or of section 6 of Article 15 of the Constitution of the State, prohibiting the taking of property without just compensation agreed upon between the parties, or awarded by a jury, and providing for the preservation of trial by jury of all issues of fact in civil proceedings. p. 281</p> <p>Where a law secures a trial by jury upon an appeal, it is no violation of the Constitution regarding that right, although such law may provide for a primary trial without the intervention of a jury. " p. 281</p> <p>■The Workmen’s Compensation Law (Acts of 1914, Chapter 800), which was passed in the exercise of the police power of this State, creates a commission known as the Stafe Industrial Accident Commission to administer the provisions of the Act. In the discharge of its duties and the exertion-of its powers it is required to exercise judgment and discretion, and to apply the.law to the facts in each particular case, but it is clear that the Legislature never intended to constitute the Commission a court, or to' confer upon it the judicial power of the State, within the meaning of the constitutional provisions referred to; and the Act is constitutional. p. 283</p>

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

<p> Husband and wife: wife’s right to support; alimony. </p> <p>A wife has the right to look to her husband for support and to maintain a bill in equity therefor, where, through no fault of hers, they are not living together. p. 294</p> <p>The mere fact that a wife has her husband arrested for nonsupport, and has asked for police protection against him, does not justify him in failing to make provision for her support.</p> <p>p. 294</p> <p>An allowance for alimony is subject to be increased or diminished, by the Court making it, according to the altered conditions of the parties as they may from time to time exist.</p> <p>p. 295</p>

<p>Trustees: title by adversary possession.</p> <p>By adversary possession trustees may acquire title to trust property sufficient to bar recovery by the heirs at law and residuary, legatees of the founder of the trust.. p. 299</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>

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

<p> Members of the police force of Baltimore City: pensions; special laws. </p> <p>Where there is no general law providing for or regulating pensioning members of the police force who may resign or be dismissed from the force, and no provision for the pensioning of police matrons, special laws providing for the paying of such pensions are within the discretion of the Legislature, and not in violation of Article 5, section 33 of the State Constitution, which prohibits the passage of special laws upon subjects covered by the general laws. pp. 320, 329</p> <p>Where the general law provides for a pension to widows of such members of the Baltimore police force who may have been killed while engaged in the actual performance of duty, or who died in consequence of such injuries, a special law giving the Police Board authority to pay a pension to the widow of a member of the police force who succumbed to an attack of paralysis or of heart failure, while engaged in the performance of his duty, is valid. p. 327</p> <p>The Code provisions conferring upon the Police Board of Baltimore City the discretion to pension members of the police force refer to the Board existing at the time, and there is no authority in succeeding Boards to determine whether they shall be continued. p. 324</p> <p>In applying the provisions of the general law to cases of death while on duty, the Board of Police Commissioners should not be bound by purely technical rules. p. 328</p>

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

<p>Appeals: province of court; questions of fact. Burning brush: responsibility for—. Counsel: duty at trial; comments on ' ■ evidence; discretion of trial court. Experts: who are.</p> <p>It is not the province of the Court of Appeals to decide any question of fact, on appeal from the decision of a court of law.</p> <p>p. 344</p> <p>A man may lawfully hum rubbish or brush on his own land, if he exercises that prudence in the starting of the fire and the management- after he has started it which the rules of ordinary care demand. p. 348</p> <p>But where there is much inflammable materials on the ground and the wind is strong in the direction of his neighbor’s land, he may well he charged with negligence if he starts a fire, or, having started one, does not exercise that care to keep it under control which ordinary prudence dictates. p. 348</p> <p>Where a fire has not been directly communicated to the plaintiff’s property by sparks or other burning matter from an engine, hut has been communicated across other property, the question to he submitted to the jury, to determine from all the facts of the case, is whether the injury complained of was the natural consequence of the defendant’s negligence, or whether it was occasioned by some intervening cause. p. 349</p> <p>It is the duty of counsel in the trial of a cause to confine himself in argument to the evidence, and he should not he permitted by the court, over proper objection, to state and comment upon facts not in evidence, or to state what he could have proved; persistence in this course of conduct may justify a new trial. p. 349</p> <p>The conduct of a trial rests largely in the discretion of the presiding judge, and the appellate court should in no case interfere with its judgment, unless such discretion has been abused to the prejudice of the party complaining. p. 349</p> <p>How much knowledge a witness must possess before being permitted to testify as an expert lies largely in the discretion of the trial court, and its decision thereon will not be disturbed unless clearly erroneous. p. 350</p>

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

<p> Speedy Judgment Act: Baltimore County; insufficient account fled. </p> <p>Where an account is filed, in a case, it does not meet the requirements of Chapter 631, section 18G- of the Acts of 1894, “The Speedy Judgment Act of Baltimore County,” unless it gives a statement of the particulars of the defendant’s indebtedness. p. 361</p> <p>Where suit is brought under the Speedy Judgment Act of Baltimore County, if the account filed therewith is insufficient, neither under the Act nor under the general rules of court is the plaintiff entitled to a judgment by default because of the failure of the defendant to file a plea. pp. 361-362</p> <p>In such a case, the plaintiff can not be entitled to a judgment by default, the court is without jurisdiction to enter a judgment, and the irregular entry of such judgment is ineffective.</p> <p>p. 361</p>

<p> Municipal corporations: negligence of agent; burden of proof; taking case from jury. </p> <p>In actions for damages for injuries caused by tbe alleged negligence of an agent of tbe defendant, it was Held, that in the absence of any evidence of any act or omission on the part of such agent of a character to constitute actionable negligence prayers taking the case from the jury ought to be granted.</p> <p>p. 367</p> <p>Objections can not be heard in the Court of Appeals to the granting of a prayer submitting to the jury the question of contributory negligence on the. ground of insufficiency of evidence to sustain such a prayer, unless such objections are first raised in the trial Court. p. 365</p>

<p> Streets: dedication; acceptance necessary; need not be express; abandonment; mere non-user not sufficient; question for jury. Opening streets: and grading; different proceedings; assessment for receipts; benefits. </p> <p>The mere dedication of a street to public uses, by means of deeds and plats, does not make the street a public highway,— finally and irrevocably. p. 372</p> <p>In order to effect the dedication of a street there must be acceptance of it by the municipal authorities. p. 372</p> <p>But such acceptance may be proved or inferred by acts in pais,—such as repairs knowingly made and paid for by the authority which has the legal power to adopt a highway,-—or from a long use by the public. p. 372</p> <p>Acceptance of a street must be proved by the party asserting its dedication. p. 372</p> <p>The mere non-user of an easement for even more than twenty years, does not afford conclusiye evidence of its abandonment.</p> <p>p. 379</p> <p>But non-user, for a prescriptive period, united with an adverse user of the servient estate, inconsistent with the easement, will extinguish it. p. 379</p> <p>The question of the extinguishment of an easement is one that should be submitted to the jury, under proper instructions, if there is any'evidence legally sufficient from which they might find that it had been extinguished. p. 382</p> <p>The opening of a street is an essentially different system from that of grading and paving streets. p. 383</p> <p>Under an ordinance providing for the condemning and opening of a street, the Commissioners for Opening Streets in Baltimore have no power to assess benefits for grading. p. 384</p> <p>Chapter 125 of the Acts of 1914 does not authorize the Commissioners for Opening of Streets in opening Linwood avenue, to grade the same and assess for benefits. p. 384</p>

<p>Set off: plea of—,' defendants’ right to dismiss.</p> <p>Under the Code, sec. 193 of Art. 75, the plaintiff’s right to dismiss is limited to a time before the argument upon the facts is begun before the jury, or the Court sitting as a jury. p. 388</p> <p>The same right, with practically the same limitations, is accorded the defendant who has pleaded a set off. p. 388</p> <p>But if the plaintiff properly exercises his right of dismissal, the defendant will not be allowed to proceed with the trial of his claim of set off. p. 389</p>

<p>Municipal corporations: obstructions on sidewallcs; liability for—; evidence; presumptive.</p> <p>A plaintiff was injured by falling at night over some boards placed against a pile of conduits that were on a sidewalk in Baltimore City; the boards were of a character exactly similar to those that were used as sheathing in digging trenches for such conduits a few squares distant from the place of injury: It was proved that it was customary, in constructing such work, for materials to be deposited in advance of the work along the line it was to follow: Held, this justified the inference that the sheathing boards, as well as the conduits, were the property of the City, placed there by the City or its employees, and that on such testimony the refusal of the Court to direct a verdict in favor of the City was correct. p. 392</p>

<p> Gas companies: failure of consumers to pay; cutting off supply. </p> <p>Where a consumer brings suit against a gas company for damages for an alleged wrongful shutting off of the supply of gas, and the defense is that the supply was shut off only after due and repeated notice, and because of the failure of the consumer to pay for the gas consumed by him, it was held, that the burden of proof was upon the plaintiff to sustain the allegations of the declaration that the shutting off of the supply was wrongful and without just cause. pp. 395-396</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>Letters testamentary, form of—. Wills: form of—; probate; judgments; notice to relatives; sufficiency; time for objections. Register of wills: power of—; taking depositions; certificates. Wills: caveats, adverse findings; effect on Acts by executors; sales and payment of legacies. Administrators: debts and taxes, proof of—. Trustees: commissions; employment of agents. Executors: duty to defend will; powers of sale.</p> <p>The mere fact that letters testamentary are not precisely in the form provided by sec. 51 of Art. 93 of the Code, does not invalidate the proceedings of the executors. pp. 412-413</p> <p>The notice of the probate of a will required by secs. 343-4 of Art. 93 to be given the near relatives of the testator, is not such a formal notice as that for a summons or for an order of publication. p. 413</p> <p>On objections raised in the Court of Appeals to the probate of a will on the ground of want of sufficient notice, it will be presumed that the action of the Orphans’ Court, in admitting the will to probate, was correct unless it appears by the record that there was such insufficiency of notice. p. 415</p> <p>Under sec. 350 of Art. 93 the Register of Wills, or his deputy, is authorized to take the depositions of witnesses to a will, within or without the State, who can not conveniently attend at the Office of the Register, when directed so to do by the Orphans’ Court; and the proof as taken is as valid as if all the witnesses had appeared before, and been examined by the Orphans’ Court for the Register. p. 414</p> <p>Objections to a will on the ground that proper notice of probate was not given must be made within a reasonable time after knowledge of such want of notice was acquired, and by analogy with the time for appeals from orders of Orphans’ Courts, they should be made within thirty days. p. 415</p> <p>Where the certificate of the Register of Wills declared that the two subscribing witnesses to a will had appeared before him and “in the presence of Almighty God,” etc., “declared that they were present and did see the testator sign and seal this last will and that they heard him publish and declare the same to be his last will, etc.,” and that at the time of his so doing “he was to the best of their apprehension of sound and disposing mind,” etc., and that they respectively subscribed their names as witnesses in the presence of the testator and at his request and in the presence of each other, it is a sufficient compliance with sec. 350 of Art. 93 of the Code. p. 412</p> <p>There is no particular form in which a judgment of probate must be expressed. It is sufficient if it appears from the minutes of the Court that the will was proved and allowed, and no final decree is necessary. p. 413</p> <p>In general, the mere fact that on issues sent from an Orphans’ Court, the finding of the jury is against the validity of the will, is not sufficient to justify treating the executors as convicted of fraud and bad faith in having procured the probate of the will. p. 416</p> <p>And such finding of the jury is not of itself sufficient grounds for refusing the executors the expenses of the probate. p. 416</p> <p>Where a will is admitted to probate before caveat, it is the right and duty of the executors to defend it; and they are allowed for attorney’s fees, costs, etc.; and their right to such allowance does not depend upon the result of the caveat.</p> <p>p. 417</p> <p>The mere fact of a mistake in the name of a legatee in a will is not evidence that the will was not read to the testator after its execution, especially when the jury finds that the testator was not men1 ally capable of making a will. p. 418</p> <p>tinder sec. 36 of Art. 93 of the Code, acts done by an executor or administrator, according to law, before any actual or implied revocation of the letters, are valid and effectual. p. 418</p> <p>Taxes are not required to be passed by the Orphans’ Court or proven as ordinary debts, as required by statute to be passed.</p> <p>p. 419</p> <p>But executors or administrators have no right to pay other claims against the decedent unless proved according to law, even though they are themselves satisfied as to their correctness.</p> <p>p. 420</p> <p>Where a will constituted the executors trustees for certain trusts, with power to sell the real estate thereby devised, sales made by them as such trustees before the will was declared invalid, before any caveat was filed and before the letters are revoked, are not to be held as invalidated by a successful caveat to the will. pp. 419-420</p> <p>Where a Court of Equity had not assumed jurisdiction of the trust, and the executors were also the trustees under the will, it was held that there was no objection to the executors and trustees settling their accounts in the Orphans’ Court. p. 420</p> <p>In such a case if the trustee had authority to make the sale (even though the will was afterwards found invalid) they are entitled to their commissions. p. 421</p> <p>The executors in such a case are to be allowed for annuities as they have paid according to the direction of the will, before the same had been found invalid and set aside. p. 421</p> <p>Where a will provided for the payment to trustees of a commission of 5% for the administration of the trust, they can not be allowed such commission on the net rents after they have allowed a commission to the agent who actually made the collections for them. p. 422</p> <p>While the Orphans’ Court are courts of limited jurisdiction, they have, under sec. 235 of Art. 93 full power to direct the conduct and accounting of estates of intestate, secure the rights of orphans and legatees, and administer justice in all matters relating to the affairs of -deceased persons. p. 423</p> <p>Where executors are also trustees, under the will, with power to sell the real estate,—sec. 287 of Art. 93 of the Code, referring to sale by executors, and the necessity for the authority of the Orphans’ Court, do not apply. p. 420</p>

<p> Co?idemnaiion proceedings: passage of title; injury by trespasses pending—judgment against—; gives no equitable right to intercept award. </p> <p>A contractor, in operating a steam shovel, while grading a street, had injured the property of the plaintiff, before the title to the nroperty passed under the condemnation proceedings, and a judgment was rendered against him in favor of the plaintiff; subsequently the award in the condemnation proceedings was accepted by the owner, the plaintiff in the damage suit, and a deed given by him for the property. The contractor, by proceedings in equity, attempted to intercept enough of the award to pay the amount of said judgment, on the theory that the amount of the damages to the property had been considered and allowed for in the award for damages in the condemnation case; Held, that the bill was demurrable. p. 428</p>

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

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

<p> Town Charters and Public General Laws-. Public Service Commission Law. </p> <p>In general, a public local law is valid although opposed to a public general law. p. 446</p> <p>Yet where by the charter of a town it was attempted to grant the municipálity power to regulate the charges of a public service corporation (C. & P. Telephone Co.), it was held that the power was invalid, because full and general powers to regulate such corporations for the whole state had already been given to the Public Service Corporation by Chap. 180 of the Acts of 1910,* and the attempt to bestow such power on the town or city was in violation of sec. 33 of Art. 3 of the Constitution prohibiting the passage of a special law for any ease for which provision had been made by an existing general law.</p> <p>p. 447</p>

<p>Accident and Health Insurance: “wholly prevented from performing duties of occupation</p> <p>By a paragraph of a policy of life insurance, it was provided that “if the illness * * * shall wholly prevent the insured from performing any and every right of duty pertaining to his occupation, for not less than one week, the company will pay him the weekly indemnity for the period of continuous disability during which he shall be necessarily confined to the house, not exceeding twenty-six weeks:” Held, that while a visit by the insured to the doctor’s office might not avoid the policy, the conditions could not be stretched so as to allow the insured to visit his office almost daily for an hour or so to attend to business and give directions concerning the same. p. 454</p>

<p> Equitable estoppel: intent of parties; fraud or inequitable conductj mere forgetfulness not sufficient. </p> <p>Equitable estoppel is the effect of the voluntary conduct of a party whereby he is absolutely precluded, both at law and in equity, from asserting rights which might perhaps have existed —as against another—who has in good faith relied upon such conduct, and who has been led thereby to change his position for the worse, and who on his part acquires some corresponding-right,—in property, contract or remedy. p. 462</p> <p>Whatever may be the real intention of the party making the representation, it is absolutely essential that the representation, whether consisting of words, acts or silence, shall be believed and relied upon as the inducement for action by the party claiming benefit of the estoppel and that so relying, and being so induced by it, took action. p. 462</p> <p>Whether or not the doctrine applies depends upon the particular facts of each case. p. 462</p> <p>But unless the party against whom the doctrine is invoked has been guilty of some uneonscientious, inequitable, or fraudulent, act of commission or omission, upon which another has relied, and been misled, to his injury—the doctrine will not be applied. p. 462</p> <p>A lessee had the lease sent to the lessor’s attorney for approval and execution; the lease had heen drawn as though the lessor were the owner of the property, while in fact he had but a life estate in it, as many years before he had executed a deed of trust of the property to his attorney as trustee, reserving only-a life estate, in himself, as owner; upon the death of the lessor, his lessee claimed that the trustee was estopped from setting up title on behalf of the reversioners under the deed of trust on the ground that the trustee had allowed the deed to be signed as though the lessor owned the property in' fee. Held, that equitable estoppel could not be invoked against the trustee as there was no 'evidence that any representation had misled the lessee, and as it appeared that the trustee’s silence in regard to the title came not from any fraudulent intent, but at most only from forgetfulness that the legal title had ever been conveyed to himself. p. 463</p> <p>The recording of a deed in the Land Records of the City or County where the land lies is constructive notice of its contents.</p> <p>p. 463</p>

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

<p>Insurance: lapsing; payment of premium by agent; without authority.</p> <p>Where the agent of an insurance company without the request, knowledge or subsequent ratification of the insured pays to the insurance company its proportion of the premium to which the company would he entitled should the policy be renewed and makes such payment in due course and in settlement of his (the agent’s) account with the company, with the understanding that should the policy not he renewed the payment so made to the company would he returned to the agent, such payment does not create an obligation to the insured on the part of the insurer or agent, p. 477</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>Register of wills: power during recess of Court. Wills: caveat; executors; discretion of Court; largest creditors. Probate: notice to relatives.</p> <p>Under sec. 440 of Ch. 680 of the Acts of 1916, the Register of Wills for Harford County, during the recess of the Orphans’ Court, has full power and jurisdiction to do all matters and things whatsoever which the said Orphans’ Court could do at its regular sessions. P- 492</p> <p>In all cases where the validity of a will is contested, letters of administration, pending such contest, may, in the discretion of the Orphans’ Court, he granted to the person named executor, or to the person to whom the largest portion of the personal estate may be bequeathed by such will or to the person who would be entitled to letters of administration by law in cases of intestacy. p. 492</p> <p>It is only where none of the near relations of a decedent are present when the will is exhibited for probate, that the provisions in the Code apply which require that notice of the probate of a will must be given. pp. 492-493</p> <p>It is competent and within the power of the Orphans’ Court upon charges of incompetency, neglect of duty or unfaithful conduct injurious to the interest of the estate, to remove administrators and appoint others in their places as administrators pendente lite under the control of the Orphans’ Court, provided such allegations upon hearing are sustained by proof. p. 493</p>

<p>Equitable jurisdiction: relief at law; failure to take advantage of—. Justices of the peace: void judgments.</p> <p>Where a party has a good defense at law and neglects to avail himself of it in a proper way and time, or if he suffers judgment against him by neglect, he can have no relief in equity, unless the Court where the judgment was rendered had jurisdiction of the subject-matter or of the parties. p. 498</p> <p>In actions ex contractu it is not the amount claimed, but the amount for which judgment is rendered, that is the test of jurisdiction. pp. 498-499</p> <p>Interest is recoverable as of right upon contracts in writing to pay money upon a day certain. p. 499</p> <p>A justice of the peace has ho jurisdiction in a suit on a promissory note with interest where the principal of the note and interest exceeds $100. p. 499</p> <p>Where the amount of a note with interest would exceed the justice’s jurisdiction, it is not cured by entering up judgment for the amount of the note with interest from date. p.499</p> <p>Where a judgment is a mere nullity, because of a total want of jurisdiction in the Court where it was rendered, it confers no right on the party who obtained it, and may! be enjoined in equity. p. 500</p>

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

<p>Witnesses: examinations; improper answers; striking out. Evidence laws: caveatees and caveators. Rulings on prayers: now-reversible errors.</p> <p>Where a question proper in form is propounded to a witness and he answers it, and on cross-examination it develops that his answer was inadmissible, a motion to strike out the answer should be granted. 2>. 510</p> <p>The laws as to evidence do not prevent caveatees or caveators from testifying at the trial as to issues framed on the caveat to the will. pp. 510-511</p> <p>Proceedings to try issues on a caveat to a will are not proceedings in which judgment or decrees may be rendered for or against the caveators or caveatees. p. 510</p> <p>An exception to be correct should not contain two or more distinct questions. p. 511</p> <p>A ruling’ that could not have injured the appellant does not present any grounds for reversible error. p. 510</p>

(Hettjst.ee, J.) The facts are stated in the opinion of the Court, The following are the 'prayers that the Court directed should be published with the report of the case: Deft’s 1st Prayer.—The defendant prays the Court to instruct the jury that the mere fact of the agent having intruduced the purchaser to the seller, or disclosed the names by which they came together to treat will not entitle him to compensation, but if it appears that such. introduction or disclosure was…

<p> Municipal corporations: neglect of officers. Baltimore City: police powers; removal of ashes; apartment houses. </p> <p>Municipal corporations are liable for neglect of their officers in respect to the enforcement of municipal ordinances passed in the exercise of police powers conferred upon them, except where the power to enforce such ordinances is given to an independent board or' officer. p. 528</p> <p>Since, under Chapter 367 of the Acts of 1867, the Police, Department of Baltimore City is independent of the municipality, the latter can not be held liable for damages resulting from the violation of city ordinances by third parties, as distinguished from its liability for damages occasioned by neglect of the city’s employees or its own failure to perform the duty imposed upon it. p. 528</p> <p>The principle that where a statute confers a power upon a municipal corporation to be exercised for the public good, its exercise is not merely discretionary, but is imperative, relates only to powers and duties imposed on the municipality in its corporate capacity and not to those imposed on it as a public agency of the state. p. 532</p> <p>In an action of damages against the Mayor and City Council of Baltimore and the Street Commissioners for failure to remove ashes from an apartment house, it was held that as against the Street Commissioners the action was ineffective in that it failed to aver that the Street Commissioners had funds available wherewith to remove ashes. p. 538</p> <p>The power and duty of the City of Baltimore to remove ashes rests upon the city’s private or corporate capacity and not' upon its governmental capacity. p. 538</p>

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

<p> Mortgages: extinguishment; benefit of third parties. Deeds: consideration; husband and wife; in lieu of alimony. </p> <p>In general, the payment of an incumbrance by a party whose duty it is to pay it extinguishes the debt. p. 551</p> <p>Where a grantee conveys property to the assignee of a mortgage, that he had previously given of the whole of the estate conveyed, and by the deed agrees that all liens upon the estate were to be paid off out of the purchase price, and the balance to be paid grantee as in full settlement of the purchase price, the acceptance of the deed extinguishes the mortgage. p. 551</p> <p>Such payment would also inure to the benefit of a third party to whom previously to the execution of the mortgage of the whole estate, the grantor had contracted for a valuable consideration to convey one-third of the estate. p. 551</p> <p>Where a husband against whom his wife had instituted divorce proceedings agreed with her by deed that should she gain her decree he would in lieu of alimony assign to her a one-third interest in a certain estate of his it constituted a valid consideration. p. 550</p>

Two appeals in one record from the Baltimore City Court. (IlliUISLEK, J.) The facts are stated in the opinion of the Court. The causes were submitted to Boyd, O. J., Brisooic, Burke, Thomas, Pattison, Urn Eat, Stookbridge and Constable, JJ.

<p>■Enrolled decrees', review of—j mistake of counsel, no ground for—.</p> <p>A decree or decretal order, after enrollment can be revised or annulled only by a bill of review or original bill and not by petition merely. p. 560</p> <p>The exceptions to the rule are where the case was not heard upon its merits, where the circumstances are such that the Court is satisfied the decree should be set aside, and where the decree was entered by mistake or surprise. p. 561</p> <p>Where the plaintiff’s counsel in preparing the decree to enforce a mechanics’ lien, allowed interest only from the date of the decree, instead of from the date of filing his claim, as would have been allowed by law, no such case of mistake is presented as to make an exception to the general rule against opening decrees after enrollment on petition merely. p. 561</p>

<p> Stocks: purchase on margin; title; equity. </p> <p>When a stock broker purchases stock for a customer, upon his order—and, by means of a loan effected from a banker, upon the customer’s collateral, although the legal title to the Stock may be taken in the broker’s name—yet in equity, the broker is not regarded as the sole owner; and upon payment of the amount due upon the stock by the customer, the latter has the right to have the stock transferred to his own name, subject to whatever may be the equities of the party for whom such loan was made. p. 571</p> <p>In such a case equity has jurisdiction to compel an accounting by the banker, to ascertain the relation between the parties and state of the account. . p. 572</p>

<p> Stocks and certificates of deposit: endorsed in blank, with blank power of attorney; delivery; right of innocent holder who accepts as collateral—without notice. </p> <p>Where the owner of a certificate of deposit for certain bonds, by a blank endorsement for value received, sold, assigned and transferred to * * * all right, title and interest in and to the certificate and property therein described', etc., with blank power of attorney to transfer the same on the books of the depository, with the power of substitution, and delivered or left the same with another; and the latter borrowed money from a bank (which had no knowledge that the borrower was not the transferee or owner of the certificate) with the said certificate as collateral, it was held that the true owner of the certificate as against the bank was not entitled to it until he paid to the hank the value of the loan that had been secured upon the collateral.</p> <p>p. 581</p>

<p> Contracts: mutuality j forfeiture and liquidated damages. </p> <p>On a bill to have declared null and to set aside an agreement because it contained provisions claimed not to be in the nature of liquidated damages, but to be in the nature of a forfeiture to enforce penalties, it was held that as there had been no default under the agreement and no evidence of any intention of declaring the forfeiture complained of, the relief should not be granted. p. 587</p> <p>A saloon keeper had been refused a loan by a building association, but subsequently upon the endorsement and guarantee of a brewing company a loan was effected greater than what had been originally applied for, and in excess of the value of the property mortgaged to secure the loan; the agreement of the brewing company contained a condition that for a term of years the saloon keeper should sell no beer but that bought of the brewing company, he, however, being free to sell whatever wines or liquors he chose: Held that, under the circumstances, the agreement was not void for want of mutuality, although the brewing company had not bound itself to furnish whatever beer the saloon keeper might require. pp. 587-588</p>

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

Ten appeals in one record from Circuit Court Eo. 2 of Baltimore City. (Dueey, J.) The facts are stated in the opinion of the Court. The ten causes were argued before Boyd, C. J., Briscoe,. Burke, Thomas, Pattisow, Urwer, 'Stookbridge and Cow-stable, JJ.

Three appeals, from the Circuit Court for. Anne Arundel County (Beashea.es, J.), from the Court of Common Pleas of Baltimore City (Sopee, C. J.) and from the Superior Court of Baltimore City (Sopee, O. J.) The facts are stated in the opinion of the Court.

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

In Equity. (Peter, J.) The facts are stated in the opinion of the Court. The cause was argued before Boyi>, C. J., Briscoe, B-urice, Thomas, Patttson, Urneu, Stookbrtdge and Constable, JJ.

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

<p>Constitution: construction. Statutes: presumptions; Chapter 13 of Acts of 1917, prohibiting liquor in Prince George’s County; emergency measure. Referendum: Art. XVI of Constitution; ch. 673 of Acts of 1914.</p> <p>Chapter 13 of the Acts of 1917, prohibiting the sale of liquor in certain districts of Prince George’s County adjacent to the District of Columbia, is valid under section 31 of Art. Ill of the Constitution, regulating the time after their passage when statutes shall take effect. pp. 675, 679</p> <p>This section of the Constitution is not repealed or superseded by Art. XVI of the Constitution, the amendment, Chapter 673 of the Acts of 1914, providing for a Referendum. p. 674</p> <p>In construing the Constitution, the construction should be on the whole instrument, and effect given to every part of it, if that be possible; and unless there be some reason to the contrary, no part of the fundamental law should be disregarded or regarded as inoperative. p. 676</p> <p>In investigating the constitutionality of a law, the presumption is that it is valid. p. 679</p> <p>It is a principle in the construction of a constitution that construction should be given to every part of it if possible, and that, unless there is some reason to the contrary, no part of the fundamental law should be disregarded or rejected as inoperative.</p> <p>p. 676</p>

<p> Fraternal and benevolent orders: appeals from rulings of society. </p> <p>Before a member of a benevolent or fraternal association can obtain redress through the courts from the action of the association, he must take an appeal to its governing or superior body according to the rules and regulations of the society. p. 682</p>

A motion to remand the case to the Circuit Court for Allegany County for a new trial and the amendment of the declaration was filed by Whiting & Eppler and Albert A. Doub.

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