Volume 132 — Maryland Reports

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

<p>Payment: less than whole sumj "burden of proof. Fraudulent presumption against grantee who does not testify: plaintiff’s claim must be proved.</p> <p>One not a creditor of the grantee has no standing to assail Ids deed as being fraudulent because intended to hinder and delay creditors.</p> <p>In cases of fraudulent conveyances, where suspicious circumstances are shown which implicate the grantee of a deed assailed as void, because intended to hinder and delay creditors, if the grantee fails to appear and testify an unfavorable presumption is raised against him.</p> <p>Where a defendant claims that the whole account sued on had been settled by the acceptance of the payment of a sum of money, the burden of proof is upon him fully to support such defense.</p>

<p> Public Service Commission: powers of—j accounts of corporationsj fixing ratesj legislative functionj review by courts; Havre de Grace Bridge Co. </p> <p>Extensive ás are the powers conferred upon the Public Service Commission by the Act creating it, that Act does not take away from corporations subject thereto their power of control upon questions of financial policy.</p> <p>On an appeal from the order of the Public Service Commission fixing the tolls for the Havre de Grace Bridge Company, it was: Held, that that portion of the order which required the Bridge Company to set up and maintain a depreciation reserve-account and deposit to the credit of it a fixed annual amount was without warrant of law and void.</p> <p>The power of the Commission to direct how accounts for-such companies should be kept does not include the power to prescribe a fixed sum to be charged or credited a particular account annually.</p> <p>The power of the Public Service Commission to fix reasonable rates is legislative; the functions of a court in reviewing the actions of the Commission are distinctly judicial, and are to be exercised only for the purpose of determining whether such action of the Commission is unreasonable or unlawful.</p> <p>Tlie burden of proof in such cases is imposed upon the parties adverse to the Commission to show by clear and satisfactory evidence that the determination, requirements, direction or order of the Commission complained of are unreasonable or unlawful.</p> <p>Upon an application to the court for an injunction restraining the execution of an order of the Commission, the court has no authority to determine what would he a reasonable rate for the services required, or to establish rates, but its power is limited to the determination of the question whether the rates fixed by the Commission are unreasonable and unlawful, and until it is made to appear by clear and satisfactory evidence that the action of the Commission is unreasonable or unlawful, the Court is without power to impose any restriction upon the execution of ilie Commission’s order.</p> <p>In determining what should be the charges for the Havre de Grace Bridge Company, and in assessing the value of the bridge for such a purpose, it was: Held, that the real point to he ascertained was, not what it had cost either the Railroad Company to build 1he bridge or the incorporators of the Bridge Company to acquire it, but what was its fair value at the time of the investigation by the Commission.</p> <p>In making the allowance for the maintenance and upkeep of the Havre de Grace Bridge, it was: Held, that the action taken by the Commission was unreasonable or in contradiction of its own estimate of expenses.</p> <p>On appeal from the order of the Public Service Commission fixing the rates to be charged for the use of the Havre de Grace Bridge, it was: Held, that the rates promulgated by such order were unreasonable and unfair.</p>

<p>Cross-appeals from the Circuit Court of Baltimore City. (I)oblek, J.)</p> <p>The facts are stated in the opinion of the Court.</p>

<p> Demurrer: not a plea,. Pleading and practice: Baltimore Rule Day Act; judgment by default for want of plea; extension of time for filing; filing a demurrer not a compliance; assessment of dagames by court. </p> <p>A demurrer may in a sense be a pleading, but it is not a plea.</p> <p>Where suit is brought under the Baltimore City Buie Day Act, and judgment by default is obtained for want of pleas filed within the prescribed time, if the judgment is stricken out and the time extended for the defendant to file pleas, this does not include the right to file a demurrer to the declaration.</p> <p>The court, in striking out a judgment by default for want of pleas filed within the proper time, has the right to limit the defenses to be interposed by the defendant to such as may be presented by pleas.</p> <p>Under the Baltimore City Buie Day Act, where the defendant on a judgment by default fails to file a motion for a jury trial under section 314 (of the city charter), the court may assess the damages and extend the judgment by default,</p> <p>A case was brought under the Baltimore City Buie Day Act, and a judgment by default obtained for lack of the filing of proper pleas; judgment was stricken out and the time for filing pleas extended for five days; the defendant demurred to the declaration and resisted the plaintiff’s motion for a judgment by default and an execution upon the same; E’eld, that this was a trial of the case within the meaning of section 315 of the Baltimore City Charter, and the court was authorized to allow the plaintiff a reasonable counsel fee, as provided in that section.</p>

<p>Appeal from the Circuit. Court for Prince George’s ■ County. (Beall, L)</p> <p>The facts are stated in the opinion of the Court.</p> <p>The cause was, submitted to Boyd, G. J., .Buiscoji, Bcrick, Thomas, Pattisoy, TTrybr, Stocicbridge and Coy-stable, JJ.</p>

<p>Appeal from the Circuit Court for Prince George’s County. (Beall, <T.)</p> <p>The facts aro stated in the opinion of the Court.</p> <p>The cause was submitted to Boyd, C. J., Briscoe, Burke, Tiiouas, Pattison, Urner, Stock-bridge and Constable, JJ.</p>

<p>Tenants by the entireties: rights of husband. Judgment against husband and wife jointly: effect of National Bankrupt Act.</p> <p>Tenants by the entireties are, in contemplation of the common law, but one person, and hence they take not moities but the entireties; they each are seized of the entirety, and the survivor takes the whole.</p> <p>The nature of this estate forbids and prevents the sale or disposal of it or any part of it by the husband or wife, without the assent of both; the whole must remain to the survivor.</p> <p>The husband can not convey, encumber or at all prejudice such estate to any greater extent than if it rested in the wife exclusively in her own right.</p> <p>Where a judgment is recovered against the husband and wife jointly it becomes a lien ,upon interests of them both in property held by them as tenants by the entireties, subject to be defeated as an entirety by the provision of the Pederal statutes, upon the filing, within the four months’ period, of the petition in bankruptcy against either the husband or wife, followed by an adjudication by him or her as bankrupt.</p> <p>Upon the filing of such a petition within four months from the date of the judgment, the lien of the judgment, so far at least as the right of the husband in the estate is concerned, is stricken down by the Pederal statute, with the effect that it is practically the same as though the judgment had been recovered against the wife alone.</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 for Montgomery County. (Peter and Worthington, JJ.)</p> <p>The facts are stated in the opinion of the Court.</p>

<p>Lumber companies: private railroad. Negligence: injury to workmen returning home on hand-car; not fellow-servants with engineer. State Industrial Accident Commission: dismissal of complaint no defense to action at law. Appeals: agreements as to—.</p> <p>Where counsel for parties litigant have, agreed that the decision of the Court of Appeals in a named case shall control the disposition of kindred ones, then a motion to dismiss the appeal in the first case, order for which was entered prior to formal judgment, will not be entertained because not consonant with the equities of the cause.</p> <p>The lumbermen of a lumber camp, upon the completion of their day’s work, were in the habit of riding home on a handcar of the company; the rails over which they rode formed part of a private railroad of the lumber camp used by it, not for hauling of passengers, but only for trains loaded with logs; the men knew that such trains were operated without any regular schedule, and the company knew that the men occasionally used the road; one night such a train ran into a handcar, and one of the men was killed: Held, that if the engineer discovered the car in time or by the exercise of reasonable and ordinary care might have discovered the handcar in time to have stopped the train before the collision, the company should be held responsible.</p> <p>In such a case, the man who was killed is not to be considered as having been a fellow-servant with the engineer of the train.</p> <p>Dismissal by tbe State Industrial Accident Commission of a petition for compensation for injuries received is no defense to an action at law because of the injury thereby complained of.</p>

The facts are stated in the opinion of the Court. The cause was argued before Boyd, C. L. Brtscoe Burke, Thomas, Pattisow, IJrwer, StockbridctE and Cow-stable, JU.

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

<p> Nuisances: smolcej damages; other factories, when no defense; ma/rket value before and after injury; undeveloped property. </p> <p>In an action against the owners of a factory for damages caused by the smoke, fumes and dusts emitted by the plant-, the fact that there are other factories or plants nearby does not excuse the defendants if they cause or contribute to the trouble complained of.</p> <p>Where the suit is to recover damages for a permanent injury, the plaintiff may prove the market value of the property before and after the injury complained of.</p> <p>If business is carried on in such a manner as to interfere with the reasonable and comfortable enjoyment by another of his property, or to occasion material injury to the property itself, a wrong is done for which damages may be recovered, without regard to the location where such business is carried on.</p> <p>The defendant may show evidence of whatever other causes there were that may have had a depreciative effect upon the property.</p> <p>Where the nuisance complained of consists of noxious fumes and smoke, the evidence of a chemist who made an analysis of deposits on the roof and from the rain spouts of houses of the plaintiff’s property and of deposits from the chimneys of the defendant’s plant, is admissible.</p>

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

<p>Recognizance: need not be signed; read and entered by clerk in docket; transcript of record and docket entries; form of judgment with fi. fa. upon forfeiture of recognizance.</p> <p>A recognizance is a short memorandum on the record made by the court, judge or magistrate having authority, which need not be signed by the party to be bound.</p> <p>It need not be written out in full on the records of the court, nor filed therein in the precise language used when the parties entered into it.</p> <p>The practice is for the clerk to read or repeat in the presence of the court a recognizance in the form substantially as that given in Evans’ practice; the clerk then makes the entries on the docket, the minutes or both, as is necessary to show the material parts of the recognizance, such as the amount, the charge, the time for appearance of the accused, etc., when that is the purpose of the recognizance.</p> <p>And a transcript of the record made from such docket entries is sufficient evidence of the recognizance under the issue of nul iiel record.</p> <p>A recognizance is an obligation of record, and when a forfeiture is declared and entered by the court it becomes a judgment; it is then, like any ordinary judgment, enforceable by execution.</p> <p>The form of judgment in fieri facias upon a forfeited recognizance should be that the execution for the fine and costs be continued in effect, and there should not be a personal judgment entered against the eognisor.</p>

<p>Appeal from the Superior Court of Baltimore City. (Dobleb, J.)</p> <p>The facts are stated in the opinion of the Court.</p> <p>The cause was argued before Boyd, O. J., Briscoe, Burke, Thomas, Pattisoe, Creer, Stockbrihge and CosSTABEE, J J.</p>

In Equity. (F'obsythe, Jb., J., whoi signed the decree in conformity with the opinion of Bbasheabs, J., since deceased.) The facts aro stated in the opinion of the Court.

<p>. Bastardy law: jurisdiction j criminal law. Appeals: thirty days ' from, judgment or sentence.</p> <p>Under the broad provisions of the bastardy law, the jurisdiction of the father’s residence and that of the child’s domicile, within the limits of the State, are equally available for purposes of prosecution.</p> <p>Under Rule 23 of the Court of Appeals, appeals in criminal cases are to be taken within 30 days from the date of the judgment or sentence.</p>

<p> State Industrial Accident Commission: appeals; presumptions. Prayers: appeals; duty of court. </p> <p>On appeals from decisions of the State Industrial Accident ■Commission, the decision of the commission is to be treated as prima facie correct, and the burden of proof is on the party attacking the same.</p> <p>The questions of fact presented by the appeal to the court is for the jury to determine upon proper instructions, and the court is not authorized to say that the appellant has met the burden imposed upon him, or to assume that a fact has been found by the jury.</p> <p>On an appeal from a decision of the State Industrial Accident Commission, a burden of proof is on the appellant to show that the decision is incorrect; it is for the jury to determine the questions of fact presented by the appeal and, among them, the question whether the injury sustained was received by the plaintiff while in the course of his employment by the defendant.</p> <p>On appeal from the decisions of the Commission, the instructions should be confined to the issues of facts to be decided by the jury.</p> <p>The court has no power to assume any facts when the onus of proving the same rests upon the party asking the instruction, no matter how strong and convincing his proof may be.</p>

<p>Appeal from the Circuit Court for Frederick County. In Equity. (Washiegtoe and Petes, JJ; Usees, C. J., dissenting.)</p> <p>The facts are stated in the opinion of the Court.</p>

<p> State Roads Commission: no right to charge telephone company for using state roads. </p> <p>A charge made by the State, or under its authority, for the erection or maintenance of telegraph or telephone poles, on the public highways, is not an additional tax upon the company, but is in the nature of a rental for the proportion of a part of the public streets or highways.</p> <p>The general provisions in the incorporation laws, accorded telegraph or telephone lines, to construct their lines on public highways, does not place the State under any obligation to permit an individual company, availing itself of such privilege, to occupy and use the highways without making compensation therefor.</p> <p>Where a telephone company, in its bill for an injunction to restrain the State Roads Commission from making a charge for its permission to construct conduits and manholes, in a State highway, admits that it was offered the permission without payment of the charges to which it objected and without limit as to the duration of the privilege, a proposal by the Commission to reserve the right to make such charges in the future gives no ground for issuing the injunction.</p> <p>The State, by the Act creating the State Roads Commission, has not delegated to it the authority to charge telephone companies for using the state roads for the construction or maintenance of their wires, either above or below the ground.</p>

<p> Slate Accident Industrial Commission: appealsj prayers; province of jury; sting by an insect. </p> <p>Under the Employers’ Liability Act, on appeals from the decision of the commission, its determination is prim,a facie correct, and the burden of proof is on the party attacking the same.</p> <p>An employee of a Shipbuilding Company was removing old piling for a foundation; in raising one of the pieces his hand was stung apparently by some insect; from this wound blood poisoning ensued, and he was confined to a hospital for six weeks; he filed a claim before the State Accident Commission as for an accidental personal injury which arose out of and was received while in the course of his employment; his claim was found in his favor, with an allowance of $6 a week for the time of his disability; the defendant appealed, and the appeal was heard by the Court sitting without a jury; the defendant offered a prayer asking the Court to rule as a matter of law that the evidence showed the injury was caused by tbc sting of some insect, and such an injury was not an accidental personal injury arising out of and in the course of the plaintiff’s employment, and that the award should bo set aside: Held, that this prayer was erroneous because, on such trials, it is for the jury to determine whether the injury to the plaintiff arose out of and in the course of his employment by the defendant, and that the Court was not authorized to assume the fact to be found by the jury.</p> <p>Where a cause is tried by the court without the assistance of a jury, the same rule of law is applicable to the prayers, upon their rejection, as would be the case if the cause were tried before a jury.</p>

<p>Appeals: final judgment only; demurrers overruling; refusal of defendant to plead; inquisition of damages.</p> <p>An appeal will not lie from a ruling on a demurrer, in actions at law, before final judgment.</p> <p>In an action of tort, the defendants defaulted for want of pleas; the demurrers were overruled, and a judgment given in favor of the plaintiff for the costs; such an appeal was premature, because the judgment was not final.</p> <p>In such a case, if the defendant refuses to plead, the plaintiff should take a judgment by default and have an inquisition to fix damages.</p> <p>Without referring to the question of whether an attorney might bind his client by a waiver of the quantum of damages in such eases, such a waiver made before the Court of Appeals can not relate back and give a right of appeal.</p>

<p>Appeal from the Circuit Court for Baltimore County. Ini Equity. (Duwcaw, 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>

An appeal from the Circuit Court for Montgomery County. (Peter, J.) The fads are stated in the opinion of the Court. The cause was. argued before Boyj>, C. J., Briscoe, Burke, Thomas, Pattison, Uhner, Stoc kb ridge and Constable, JJ.

<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> Orphans’ courts: limited jurisdiction; hound hy decisions of circuit court; no power to review. Injunctions: party with notice hound, although service defective. </p> <p>Where a Circuit Court had enjoined the collection of the inheritance tax upon certain pieces of property, and the administrators had knowledge of the terms of the decree, they were bound to obey it, whether it was actually served on them or not; and while such decree remains in force the Orphans1’ Court has no authority to compel the administrators to proceed to collect the tax in defiance of the mandate of the Circuit Court.</p> <p>Where a party has actual notice of an injunction, clearly informing him from what he must abstain, he is bound by it from that time, and he will be punished for a violation thereof, although it may not have been served or may have been defectively served upon him.</p> <p>Orphans’ Courts of this State are not only limited, but are expressly prohibited, by statute, from exercising any powers not expressly granted them.</p> <p>The Orphans’ Courts are not authorized to review the decisions of the Circuit Court.</p> <p>Where the court had jurisdiction, the fact that an order of injunction is merely erroneous or was improperly granted or irregularly obtained is no excuse for violating it, and the remedy in such a case is by appeal or writ of error.</p>

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

<p>Statutes: construction-; repeal of sections of Code; sufficiency of—. Hack stands: police regulations; delegation of power to Board.</p> <p>Chapter 109 of the.Acts .of 1910 by its title declared it to repeal sections 281, 282, 283, 284, 285, 286, 288 and 289 of Article 4 of the Code of Public Local Laws, entitled “City of Baltimore,” with the sub-title “Carriages and Horses,” as amended by Chapter 123 of the Acts of 1898, and re-enact sections 281, 282, 283, 284, 285 and 286 with amendments; the enacting clause declared these sections, by number, to be re-enacted with amendments “to read as follows” in the Act; section 2 declared that laws or parts of laws inconsistent therewith were repealed: Held, that the title of the Act sufficiently stated that it was the intention of the Legislature to repeal certain sections of the Article, including section 286, with amendments, as stated in the amended section.</p> <p>In construing statutes, such a construction is to be adopted, if fairly possible, as will avoid a conclusion that it is unconstitutional, the presumption being that the Legislature does not intend to violate the Constitution.</p> <p>The designation of hack stands and the regulation of the use and occupation of the streets of the city therefor is a proper exercise of . the police power, and the Legislature is the sole judge of the reasonableness of the method exercised.</p> <p>The Legislature may delegate the police power to subordinate boards and commissions.</p> <p>Chapter 109 of the Acts of 1910, regulating the occupation and use of hack stands in Baltimore City, is constitutional.</p>

<p>Appeal from the Circuit Court for Carroll County. (Forsythe, Je., J.)</p> <p>The facts are stated in the opinion of the 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>Negligence: collision of electric omnibus with gasoline tank wagon; liability of the United Railways, the controlling corporation of the Omnibus Company.</p> <p>A trolley car of the United Railways collided with a ’bus of the Baltimore Transit Company, causing the latter to collide with an oil tank wagon; the gasoline from the tank wagon escaped and burned the ’bus, injuring a number of passengers; a prayer to the effect that if the jury should believe that the Baltimore Transit Company was controlled in its operation by the United Railways Company, then if the jury should find a verdict against the Transit Company, they should also find against the Railways Company, even though they find no negligence in the operation of the trolley car, was: Held, to be correct.</p>

<p>Appeal from the Baltimore City Court. (Heuisleb, J.)</p> <p>The facts are stated in’ the opinion of the Court.</p> <p>The cause was argued before Boyd, O. J., Briscoe, Bubke, Thomas, Pattison, Hrneb, Stockbbidge and Constable, JJ.</p>

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

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

<p>Race segregation: void ordinance; right of citizens to acquire and occupy property.</p> <p>Race segregation ordinances, to prohibit people of the colored race from living in blocks where all or a majority of the other residents are white, are in contradiction of the Fourteenth Amendment to the Federal Constitution and are void.</p> <p>The right of the individual citizen to acquire or use property can not be validly restricted by State or municipality on the ground of color.</p>

<p>Salesmen s contracts: “commission basis and drawing salary”; failure to ship orders; burden of proof; reference to auditor; repoi’t of auditor; effect of—. Prayers.</p> <p>Evidence of usage or custom may be given in a suit upon a written contract, in the absence of express stipulations, or where the meaning of the_ parties is uncertain and doubtful upon the language used, or where the usage of the trade or business lo which the contract relates may afford explanations and supply the deficiencies of the instrument.</p> <p>When a contract is made with a man about the business of his craft, it is framed on the basis of its usage, which becomes a part of the contract, except when its place is occupied by particular stipulations.</p> <p>Where a salesman is employed on commission, “on the net amount of shipments of orders, less failure,” he is not entitled to commissions on orders which his employer can not fill, either at once, or within such reasonable time as will suit the purchaser.</p> <p>Where a plaintiff’s prayer was for the Court to instruct the jury that if “they find from the uncontradicted evidence, etc.,” the action of the Court in modifying the prayer by striking out the word “uncon tradicted” is unobjectionable.</p> <p>Where a salesman is employed on a commission basis, “the net amount of shipment of orders, * * * loss failures, etc.,” in a suit on the contract it is on the part of the plaintiff to prove bad faith of his employer in rejecting orders, and not on the defendant to show good faith.</p> <p>In submitting to the jury a prayer referring to a usage or custom, it is for the Court to decide whether or not there is in the case any evidence to support the theory that there is such a usual custom of the kind referred to.</p> <p>Employing a salesman at a commission, with a “drawing” salary of so much, means that the salary is to be deducted from and to be on account of the commission.</p> <p>A suit upon a contract was referred to an auditor to state an account; the defendant prayed for an instruction to the effect that, while “the jury was not absolutely bound by the figures of the auditors’ report, they should still consider the figures as prima facie correct; and in determining whether there is anything due from the defendant to the plaintiff, the jury' should not change or deviate from such figures, unless 'they should be satisfied by a fair preponderance of evidence that some or all the figures are correct”; held, that such a prayer gave too much force and effect to the auditor’s report and that it presented reversible error.</p>

<p>Appeal from a decree of Circuit Court Ho. 2 of Baltimore City (Dtjeey, J.)</p> <p>The facts are stated in the opinion of the Court.</p> <p>The cause was heard before Boyd, C. J., Briscoe, Thomas, Urner, Stockbridge and Constable, JJ.</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 Circuit Court for Caroline County. (Aniciss and Hoppek, JJ.)</p> <p>The facts are stated in the opinion of the Court.</p>

<p> Negligence-, electric company; spikes on poles; no invitation to stranger to climb. </p> <p>The placing of spikes in the poles of an electric company, by which the employees ascend, to examine and repair the lights, is not such an implied invitation or attractive nuisance as to render the company liable to a stranger who climbs up thereby and sustains an injury.</p> <p>Such a pole was erected in the yard of the grounds of a public school in Baltimore City; one of the boys climbed up and was injured by the electric current; held, that neither the Electric Light Company nor the Mayor and City Council was liable.</p>

<p>Divorce: vile names and blows by husband; 'wife ordered to leave house; adultery; proof..</p> <p>Where a man calls his wife vile names, strikes her, and orders her to leave the house, it is an expulsion as much as if he used physical force to eject her; it constitutes such an abandonment on his part as to justify rendering her a decree of divorce a mensa et thoro. /</p> <p>On a bill for divorce on account of adultery, there must be proof of circumstances such as would convince the guarded discretion of a reasonable and just man.</p> <p>The burden of proof is upon a complainant, and the evidence must establish affirmatively that actual adultery was committed, since nothing less than the carnal act itself can lay the foundation for such a divorce.</p>

<p>Executors: power to sell real estate; preliminary order of Orphans’ Court.</p> <p>When an executor is authorized by will to sell real estate, he does not require an order of the Orphans’ Court prior to the sale to enable him to execute the power so conferred.</p> <p>Such sale must be reported and ratified by the Orphans’ Court, but no preliminary order is essential to its validity.</p>

<p>Appeal from the Circuit Court for Carroll Comity. (In Equity.) (Forsythe, Jr., J.)</p>

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

(Hettisler, I.) The facts are stated in the opinion of the Court.

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

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

<p>Appeal from the Circuit Court for Caroline County. (Adkins and IIoppek, JJ.) To which county the case had been removed from Cecil County.</p> <p>The facts are stated in the opinion of the Court.</p>

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

<p> Negligence: court and jury; province of—; prayers. Streets: defective conditions; liability of municipality; pedestrians; contributory negligence. </p> <p>Where there is any evidence at all upon which a rational inind could draw a conclusion of negligence on the part of the defendant, the weight and value of such evidence should be left for the consideration of the jury.</p> <p>Before a prayer can be granted taking a case from the jury, the Court must assume the truth of all evidence in the case tending to support the claim and all inferences of fact due from it.</p> <p>It is the duty of a municipality to keep its public streets in a reasonably safe and proper condition for public travel; and if it fails to do so, and persons acting without negligence on their part, are injured because of such negligence on the part of the city, it is liable in damages.</p> <p>A city allowed a hole from three to five feet in diameter and two to four inches in depth to remain in the macadamized streets; after a heavy rain the earth in the hole had the appearance of being solid, and a person unaware of its being there stepped into it and fell, sustaining injuries therefrom; held, that the question of negligence on the part of the city should be left to the jury.</p> <p>The question of contributory negligence vel non is a question for the jury.</p> <p>A pedestrian has rights in the streets equal to vehicles, and they are justified in assuming that they would not be subject to dangers of a nuisance; but this presumption does not authorize one to shut his eyes to open and obvious dangers, and pay no attention whatever to the condition of the highways in which defects may occur.</p>

<p> Orphans’ Courts: concealment of property by administrators; title; issues; trial of—; appeals; laches. </p> <p>Under section 244 of Article 93 of the Code, the Orphans’’ Courts have jurisdiction to determine the question of title to property alleged to be concealed by, or in the possession of, administrators, and not included in the inventory or list of debts returned by them.</p> <p>In such a case the fact that the issues present a mixed question of law and fact does not render them defective,</p> <p>After the trial of the issues the administrator is not entitled to new or other issue's, as to facts admissible in evidence under the issues already tried, and it is the duty of the Orphans’ Court to render its judgment in accordance with the verdict of the jury certified to it.</p> <p>But the administrator should be notified of the issues proposed by the petitioners, and given an opportunity to object or to propose new issues, and to exercise the right of appeal from the 'Orphans’ Court in reference thereto.</p> <p>But where the administrator participated in the trial of the issue, and for nearly a year afterward makes no petition for relief, he is guilty of laches and forfeits the right he might have had by a prompt application.</p> <p>Under such sections 243 and 244, the only appeal for the administrator is to the Circuit Courts for the counties, or to the Superior Court of Baltimore City.</p>

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

<p>Guardians: bonds and accountsj administration in Orphans’ Court; liability for bills; maintenance and education of ward; protection of guardian; errors in amount, correction of—. Surety: liability of—-.</p> <p>The condition of a guardian’s bond does not require a' guardian td pay all bills incurred for the ward out of the income received; but the statute requires that a guardian settle an account of his trust with the Orphans’ Court, and that Court should ascertain in its discretion the amount of the sum to be annually expended for the maintenance and education of the infant.</p> <p>The administration of a guardianship trúst is to be carried on under the supervision of the Orphans’ Court, and the money received by the guardian is to be expended under the direction of the Orphans’ Court.</p> <p>• A surety is not to be held beyond the terms of his contract; the claim against him is strictissime juris.</p> <p>Guardains acting under the order of the Orphans’ Court will be protected so long as the order stands and remains unreversed.</p> <p>°The Orphans’ Court has authority to correct any errors in the accounts of a guardian, even after final ratification, and to abrogate and modify their own orders when necessary to promote the ends of justice.</p> <p>It is tbe obligation of a guardian to pay for the maintenance and education of tbe ward out of tbe property under his control.</p> <p>A refusal to comply with this duty would constitute a breach of the guardianship bond, and tbe creditor could resort to a suit upon it.</p>

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

<p>Fraud: equitable relief; pleading; allegations of bill, and exhibits. Laches: facts of each case. Specific per- * ■ formance: contract must be definite.</p> <p>Where a petition claiming equitable relief makes allegations of fraud, but sets out no facts and has with it no exhibits filed to show any sufficient basis for any charge of fraud, the petition is demurrable.</p> <p>What constitutes laches in equity is not a hard and fast rule of specific length of time, but is dependent upon the particular facts of each case.</p> <p>In a petition for a relief from fraud, an unexplained delay of three years is good ground for the defense of laches,</p> <p>A decree for specific performance can be granted only for the enforcement of a definite agreement that is certain in all its parts.</p>

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

<p> Workmen’s Compensation Law: willful negligence of workman; how far a bar; crossing tracks in car-construction shed. </p> <p>In a car construction shop several ears were standing waiting the time when an engine should back in, couple them up, and remove them; there was a plank passageway across the tracks for workmen to pass from one side of the shop to the other; about the lunch hour a trainman walked down the line warning workmen that the engine was about to back in and couple them up; this was done about five minutes later; notwithstanding this warning, a workman attempted to cross between two of the cars; he might have had time to make the crossing, but he stopped a moment to talk to a companion and was crushed to death: Held, that his crossing between the cars did not constitute such “willful misconduct” as is declared to be a sufficient bar from compensation.</p> <p>The death in this case was held to appear to have been due to an erroneous impression on the employee’s part that there was sufficient time for him to pass.</p>

<p> Taxation and assessment: special utility of land; lots owned by railroads. </p> <p>In assessing real estate of individuals for the purpose of taxation, its full cash value is to be ascertained, without looking to a forced sale, and in ascertaining its value all utilities for which the property is capable and which have the effect of enhancing its value are elements to be considered.</p> <p>Under section 193 of Article 81 and section 313 of Article 23 of the Code, where lots of land have a special utility for railroad purposes, such utility may be considered in ascertaining the value of the land for taxation purposes.</p> <p>The requirement of the law being that such property shall be assessed and taxed for municipal purposes, in the same manner as the property of individuals is now assessed and taxed.</p>

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

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

Four appeals in one record from the Circuit Court of Baltimore City. (Stump, J.) The facts are stated in the opinion of the Court. The causes were argued together before Boyd, C. J., Briscoe, Pattison, Urneb., S'tockbridge and Constable, II.

<p>Railroads: agreements as to use of trades by another railroad. Federal Employers’ Liability Act.</p> <p>The agreement between the Western Maryland Railroad and the Philadelphia & Reading Railroad, by which the latter agreed that the trains of the former might use portions of its lines, does not render the crews of the Western Maryland Railroad, while taking such trains over the lines of the Philadelphia & Reading Railroad, the employees of the latter; and for the death of one of them while so employed, the P. & R. Railroad Company is not liable under the terms of the Federal Employers’ Liability Act.</p> <p>The fact that the crews of the Western Maryland Railroad, while operating its trains over the lines of the P. & R. R. Co., were to be subject to the rules of the latter does not affect the question, nor have the effect of making them its employees.</p>

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

<p>Deeds: fee simple; repugnant clauses.</p> <p>A deed of property in fee simple, by its habendum clause, contained the condition that the grantee, his heirs and assigns, should not devise or convey the property to anyone other than some person or persons of the name of Brown, within the line of consanguinity or blood relationship of the grantors, with a further provision that should the grantee, his heirs or assigns, undertake to convey or devise the said property to any other person or persons “other than those of the class named,” the grantors, their heirs or assigns, should have the right to reenter: Held, that the condition of the deed is void, because repugnant to the fee conveyed, and the grantees take an absolute fee.</p>

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

<p>Appeal from the Circuit Court of Carroll County. (Moss, J.)</p> <p>The facts ara stated in the opinion of, the Court.</p>

<p>Husband and wife: personal property; power of husband to alienate during his life; real estate, where wife a lunatic; dower rights; waiver; renunciation of provision in will; effect of wifes3 lunacy. Corporations : purchase of property; payment in stock. Code, AH. 23, sec. 35. Equity: fraud; allegations of—.</p> <p>Under section 13, Article 45 of the Code, a married man has the power to convey real estate, without his wife’s joinder, where he acquires the real estate after she has heen found, upon an inquisition, to he a lunatic.</p> <p>A man has the right to dispose of his personal property during his life, even though it he done with an intent to defraud his wife, provided he reserves for himself no interest therein.</p> <p>Where a man converted his real estate into a stock company, and then assigned the stock by deed of trust, the transaction is valid, even though his wife, a lunatic, was alive at the time, especially in the absence of any fraudulent intent; and, although the husband was a director or 'president of the stock corporation so formed, with the controlling interest in others, the transaction would not be prima facie void.</p> <p>Section 35 of Article 23 of the Code had for its object to jmevent a corporation from paying in stock an exorbitant price for property; under it no attack can he successfully maintained on account of the issuing of six hundred thousand dollars ($600,000) of preferred and common stock of the corporation for property which is admitted to he worth fourteen hundred thousand dollars ($1,400,000).</p> <p>Where a hill in equity alleges fraud, while it is not necessary to set out in the hill all the evidence of fraud of which the plaintiff has knowledge, yet there must he more than the plaintiff’s conclusion as to the purpose and intent in the matter complained of.</p> <p>Chapter 325 of the Acts of 1916, relating to the property of a surviving widow, has no effect where the husband died before the passage of the Act.</p> <p>Under section 302 of Article 93 of the Code, a widow is barred of her right of dower unless she, within six months after the first grant of administration upon her husband’s estate, shall deliver to the Court or Register of Wills where the administration has been granted a written renunciation in the form there given.</p> <p>This law applies even though the widow, upon inquisition, has been declared non compos.</p> <p>If renunciation for such a widow can be made at all through a court of equity, it must be made within the time fixed by the statute for making such renunciation.</p> <p>To grant or refuse leave to amend a bill in equity is in the discretion of the Court, and from its ruling no appeal will lie.</p>

<p>Bills of exceptions: time for signing; Baltimore City; Gh. 625 of Acts of 1918.</p> <p>Under the terms of Chapter 625 of the Acts of 1916, changing the law as to the time for the signing of bills of exceptions in the City of Baltimore, they may be signed at any time during the period within which the appeal may be taken, and upon filing the order for appeal the appellant is allowed two months longer within which to prepare exceptions.</p> <p>The jurisdiction and power of the trial judge to sign bills of exception is reviewable on appeal, as where it is a question of their not having been signed within the time provided by law, the rules of the court or the consent of the parties, etc.</p>

<p>Cross-appeals 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>The causes were argued before Boyd, C. <7., Bkiscoe, Thomas, Pattison, IJbnek, Stockbbidge and Constable, JJ.</p>

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

<p> Tax laws: ancient and long construction; not to be disregarded; money on deposit in trust companies. </p> <p>An unvarying construction of a statute applied by the courts and tax authorities for a great length of time ought not to he disregarded, except upon the most imperative grounds.</p> <p>Deposits in a safe deposit company, at interest, will not be declared taxable under Section 214 of Article 81 of the Code, when, for over twenty years, those whose duty it had been to assess and value taxable property have not construed that section so as to include such property.</p> <p>“Money” in bank is not taxable as such, even under Section 2 of Article 81, unless it is the proceeds of bonds or other property disposed of for the purpose of evading and escaping taxation.</p> <p>If such money is claimed to be a mere indebtedness, it does not fall within the meaning of Section 2 of Article 81.</p>

<p>Appeal from the Baltimore Oily Court. (Bond, J.)</p>

<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> Sales of goods: without memorandum or payment; acceptance. </p> <p>Under the “Sales Act,” Article 83, section 25 of the Code, where there is no note or memorandum given for goods purchased, and nothing is paid on account of the same, in order to make the sale binding the purchaser must have accepted at least part of the goods sold and have actually received them.</p>

Cross-appeals from the Superior Court of Baltimore City. (Doble®, J.) The facts are stated in the opinion of the Court. The causes were argued together before Boy®, O. J., Briscoe, Thomas, Pattison, Urner, Stogicbrtdge and Constable, JJ.

<p>Goal lands: trespassersj removal of coal; damages; chapter 287 of Acts of 1894; exemplary damages. Equity: questions of fact; authority of court to pass on.</p> <p>A bill in equity was filed against a coal company to enjoin it from trespassing upon tbe plaintiffs’ 'lands and from mining and carrying away tbeir coal, etc.; there were prayers to require tbe defendants to disclose bow much of said coal tbe defendants bad taken, when and to whom it was sold, and to account for tbat taken, as well as for damages to tbe plaintiffs’ remaining coal.</p> <p>Tbe defendants, by an amended answer, admitted tbat tbey bad taken and sold 3,250 tons'of coal, and stated tbat tbe company was ready to compensate tbe plaintiff for it; tbey denied tbat it was taken fraudulently, negligently or willfully, but alleged tbat it was taken by accident, without fraud and without negligence, and with tbe belief tbat it belonged to tbe defendant company.</p> <p>It was agreed tbat tbe court could pass upon tbe issues as if it were a trial at law and tbe court sitting as a jury.</p> <p>On appeal for a decree ordering such an accounting, it was held:</p> <p>First—Tbat tbe court was right in bolding the defendants guilty of negligence and, it being in equity, tbe court was authorized to pass on tbat question of fact.</p> <p>Second—Tbat prior to tbe Act of 1894, chapter 287, section 92 of Article 75 of tbe Code, tbe rule for damages for trespassing on coal lands and removing coal was the value of'the coal taken when first severed from its native "bed, without deducting the cost of severance; if it is removed by the trespasser, the value can be ascertained at the mouth of the mine, if its value could there be easily established, by deducting from such value the costs of severance and getting the coal to the mouth of the mine.</p> <p>Third—That said Act of 1894 did not change the measure of damages if fraud, negligence or willful trespass is proven.</p> <p>Fourth—That under the Act there also may be allowed exemplary damages if the coal is taken furtively and in bad faith, and if so taken there may be no deduction in respect of the labor and expense in getting the coal.</p> <p>Fifth—That no different rule of damages was applicable, because the case was in equity, and not at law.</p> <p>In .Equity, findings of the lower Court on questions of fact, are reviewable on appeal.</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>Appeal from the Superior Court of Baltimore City. (Dobler, J.)</p> <p>The facts are stated in the opinion of the Court.</p>

<p> Municipalities: sidewalhs; negligence; defects; notice; duty of pedestrians; lanterns. </p> <p>In a suit against a municipality for injury caused from the alleged negligence in allowing a sidewalk to be and remain in a dangerous condition, the fact that the plaintiff did not carry a lighted lantern in going two and a half squares early in the evening1 along one of the most frequented streets of the town, is not evidence of contributory negligence.</p> <p>Nor is it any defense to such an action that the plaintiff might have traveled along other streets that were in good repair.</p> <p>Although the plaintiff had known of the dangerous condition of the sidewalk at one time, the fact that he thought that it had been since repaired, is evidence to go to the jury to rebut the defense of contributory negligence.</p> <p>In such actions prayers of the plaintiff are erroneous, unless they submit to the jury the question of whether the defendants had real or constructive notice of the defect in the sidewalk.</p>

<p> Stock: dividends; income or corpus? </p> <p>The general rule is that dividends and income accruing prior to the death of a testator, from stock or other property which is the subject of a specific bequest made in his will, do not follow the legacy, but form part of the general estate.</p> <p>In the application of the rule no distinction can properly be made between stock and cash dividends.</p> <p>A testatrix at the time of the execution of her will was the owner of a certain number of shares of the northern Central Railroad Company; she devised this stock by a specific legacy naming number of shares she owned and intended to devise; after execution of the will, but before the testatrix’s death, the northern Central Railroad Company declared and issued a stock dividend; held that this stock dividend did not pass under the specific legacy of the number of shares she originally owned.</p>