Volume 133 — Maryland Reports

<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>Negligence: municipalities; streets; woman carrying child; question of contributory negligence; for jury; taking case from jury. Expert witnesses: physician who examined plaintiff.</p> <p>Where a woman, in crossing a street, steps into a hole between the flagstones, falls and receives injuries, the fact that she had picked up and carried in her arms a small child of eighteen months and was thereby prevented from seeing the hole, is not such evidence of contributory negligence as to justify a directed verdict for the defendant.</p> <p>Whether a plaintiff was using due care or not was proper for the consideration of the jury.</p> <p>In such cases, it is only when the conduct of the plaintiff is so manifestly reckless as to leave no opportunity for difference of opinion in the minds of ordinarily prudent men, that it is proper to withdraw the question from the consideration of the jury.</p> <p>Where, in a negligence ease, a physician examined the injuries of the plaintiff and gave testimony as to such based largely upon such examination, the fact that he was also asked a hypothetical question, based on the evidence given in Court, can not make his evidence inadmissible.</p>

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

<p>Pleading: demurrers; errors in pleading; one good count. Usury: strictly pleaded; how to he proved; not by cross-examining defendant. Discounting notes. Joint endorsers', waiver of protest; liability.</p> <p>To mount up to a first error in pleading, a demurrer must be equivalent to a general demurrer.</p> <p>A declaration -with, one good count can not be reached by a general demurrer.</p> <p>Usury is a statutory offense (Code, Article 49, section 5), and the terms of the statute must be complied with strictly.</p> <p>Usury only applies to loans, and it does not apply to a sale of negotiable paper.</p> <p>To discount paper, in banking parlance, is a mode of loaning money with the right to take out in advance the interest allowed by</p> <p>law.</p> <p>If the discount exceeds the regular rate of interest, the transaction is within the usury law.</p> <p>A plea alleged, “That on a day certain the defendant sent to the plaintiff two promissory notes of one thousand dollars each, with the understanding that the notes were to be discounted by the plaintiff; and that the plaintiff gave the defendants only thirteen hundred dollars and refused to pay more; but the defendants then tendered to the plaintiff the entire sum advanced, with interest, and demanded the return of the notes, which the plaintiff refused; and that the amount disputed in this case is usurious interest demanded on said notes and retained by the defendant from the amount of said notes.”</p> <p>While this plea may be open to criticism as to its form, it contains all of the requisites for a plea of usury as set forth in the</p> <p>Code.</p> <p>Where the maker of a promissory note to his own order endorsed it with others, who “jointly and severally guaranteed it, with waiver of demand, protest and notice,” all the parties to the note are liable, whether as endorsers or guarantors.</p> <p>A defendant can not establish usury, fraud, misrepresentation or deceit under the guise of a cross-examination of the plaintiff.</p>

<p> Negligence: railroad crossings; duly of railroads and travellers; watchman not always obligatory; “stop, look and listen." </p> <p>The law does not impose» upon a railroad company the duty ■of stationing persons at every crossing of a public road to warn travellers of approaching trains.</p> <p>In a negligence case, where one who can see and hear says he looked and listened, but did not see or hear an object which, if he had really looked and listened, he must have seen or heard, his testimony is unworthy of belief.</p>

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

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

<p>Court of Appeals: records of—; judicial notice. Res adjudicata. Justices of the peace: titles to land; jurisdiction; ousting of—; section 5 of Article 53 of the Code.</p> <p>The Court of Appeals takes judicial notice of all papers properly filed in that court.</p> <p>An existing final judgment or decree rendered upon the merits, without fraud or collusion by a court of competent jurisdiction, upon matters within its jurisdiction, is conclusive of all the rights of the parties and their privies in all other actions or suits in the same or any other judicial tribunal of concurrent jurisdiction on the points or matters in issue in the first suit.</p> <p>The method of ousting the jurisdiction of justices of the peace in the case of questions involving title to real estate is given by section 5 of Article 53 of the Code.</p>

<p> Municipal corporations: negligence; obstructions on sidewalks; proximate and remote causes of injury; taking case from jury. </p> <p>.It is a maxim that the law looks to the proximate, but not to the remote, cause of an injury.</p> <p>Unless the alleged negligence of the defendant was the proximate cause of the injury complained of, there can be no recovery.</p> <p>For consequences for which an act or omission is only a mere condition or remote cause the defendant is not liable,</p> <p>The Mayor and City Council of Hagerstown had permitted an obstruction to be and to remain for a long time on a sidewalk in violation of the city ordinances, which obstruction consisted in a stand or table for exhibition of wares before a shop window; an automobile, in being backed to make-a short turn in the street, ran over the curb upon the sidewalk and crushed the infant equitable plaintiff against the said obstructoin and caused her painful injuries: Held, that the negligence of the municipality was not the proximate cause of the accident, and the court should have so declared as a matter of law and directed the jury to find a verdict for the defendant.</p>

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

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

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

<p>Negligence: passing horse in narrow alley.</p> <p>A plaintiff was passing through an alley where there were no sidewalks and which was so narrow that there was harely room to pass a team; one of the city’s street carts was standing so close to one side of the alley that the plaintiff could not pass; on the other side was a street cleaner shoveling dirt into the cart; the driver went to move the team over, but the plaintiff stood so close to the horse’s head that when the driver attempted to move the animal one of its front feet struck and injured the plaintiff’s foot.</p> <p>Held, that the plaintiff was guilty of contributory negligence, and the city was not responsible.</p>

<p>The facts are stated in the opinion of the Court.</p>

<p>Two appeals from Circuit. Court No. 2 of Baltimore City. (Ambler, J.)</p> <p>The facts are stated in the opinion of the Court.</p> <p>The causes were argued together before Briscoe, Thomas, Pattison, Urner, Stockbridge and Constable, JJ.</p>

<p>Appeal from Circuit Court No. 2 of Baltimore City. (Ambler, J.)</p> <p>The facts are stated in the opinion of the Court.</p> <p>This cause and the preceding' were argued together.</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>Deeds in defraud of creditors: voluntary conveyances; hindering creditors; solvency of grantor; incumbrances on property; creditors’ rights; running accounts; subsisting creditors. Husband and wife: property by entireties; , request of wife to deed to daughter; parent and child; services to parent; not consideration for deed.</p> <p>A husband has no right to prejudice his creditors by giving away money that is distributed to him from the estate of his wife who dies intestate.</p> <p>"Where a deed is attacked as being in defraud of creditors, and the solvency of the grantor is being taken into account, the fact that most or part of his assets are encumbered by prior mortgages and that some of the assets consist of unfinished houses is proper to be considered.</p> <p>If there is reasonable doubt of the adequacy of the grantor’s means, or if the cireumstancés be such that delays, difficulties and expenses must be experienced before this property can be made available to his creditors, a voluntary conveyance by' him must fall, because it has the effect of delaying and hindering his creditors.</p> <p>Where a husband and wife own property by the entireties, a request by the wife that the husband convey the property to the daughter is no valid consideration for such a conveyance if the husband’s creditors would thereby be injured.</p> <p>When a child renders services to the parents without agreement or compensation, it does not constitute such a valid consideration as to make a conveyance in satisfaction thereof good as against creditors.</p> <p>Where a conveyance is attacked for being in defraud of creditors, the fact that the property thereby conveyed was acquired after the date that the debts of the attacking creditors were created is not, in general, a defense; but in such cases actual fraud is not to be presumed, and must be satisfactorily shown before such creditors can have the deed set aside.</p> <p>Where a deed is attacked as being in defraud of creditors, creditors are entitled to be considered as subsisting creditors where there was a running account, and although some of the debts may have been paid off in full when the deed was executed, yet other debts of equal or larger amount were created and remained unpaid at the time when the deed was complained of.</p> <p>Where subsequent creditors to a deed wish to attack the same as being fraudulent, the burden of proof is upon them to show that it was the intention and design of the grantor and grantee to defraud those who would thereafter become creditors,</p> <p>Where a lumber mill company was among the creditors who attacked a deed as being in defraud of creditors, and the mill company had been paid for the lumber that entered into the construction of the house that was upon the land conveyed by the deed, they may not participate in the proceeds of the sale of the house, without first deducting therefrom the value of the materials that had been furnished by them and paid for.</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>Commissioner of Land Office: compensation; fees not to be retained; Chapter 318 of Acts of 1900, unconstitutional.</p> <p>Under Sections 4 and 5 of Article 7 of the Constitution, the Commissioner of the Land Office is to make a semi-annual report of all the fees of his office, both as Commissioner of the Land Office and as Keeper of the Chancery Eecords, to the Comptroller of the Treasury; and, under those sections, fees collected are not to be retained as any part of his compensation. '</p> <p>The Legislature may place additional duties upon the Commissioner of the Land Office, but can not allow him to retain any of the fees as additional compensation; and Chapter 318 of the Acts of 1900, Section 13 of Article 54 of the Code, is unconstitutional.</p>

<p>State’s Attorneys’ fees: Somerset County; condemnation of oyster bars. Official salaries: mandamus or suit at law.</p> <p>Under Section 21 of Article 10 of the Code, the appearance fees of State’s Attorneys are to he treated like other fees or items of compensation for official services, and as such are required to be reported to the Comptroller according to Section 1 of Article 15 of the Constitution.</p> <p>By Chapter 280 of the Acts of 1906, the salary of the State’s Attorney for Somerset County is limited to $1,000 in lieu of the fees theretofore provided for; the fact that fees for condemnation of natural oyster bars were paid to him by the State officials does not confer upon him the right to retain such fees, which the Act of 1906 denies him.</p> <p>A mandamus should not be issued for the payment of officials’ salaries where the claim could have been adequately enforced by a suit at law.</p>

<p>Divorce: agreement for alimonyj subsequent remarriage of wife. Equity: hearing on petition and answer; effect of—.</p> <p>Where, upon a hill filed against him for a divorce, the husband in his answer agreed as to what should be allowed a week to his wife for alimony during her life, such a sum, when decreed by the Court, should not be considered as alimony; and the fact that subsequently the wife remarries is no ground for vacating the decree or altering the sum that the defendant</p> <p>agreed should be so paid.</p> <p>Where a case is set down to be heard on petition and answer, it admits the truth of all matters stated in the answer which were susceptible of proof by legitimate evidence.</p>

<p>Bills of particulars-, must be specific. Offers of additional evidence : opening statements of counsel. Wills: testcumentcury capacityj mental capacity; evidence, before and after.</p> <p>A bill of particulars ought to be specific, like an account filed under a’speedy judgment, act.</p> <p>A bill of particulars for “the money received by the defendants from the plaintiff’s intestate, to wit,” gives no information as to what was the nature of the claim.</p> <p>A party can not offer all of his evidence at once, and when he tenders that which is legal and material, it is the duty of the court to receive it, and it can not require him to state in advance what other proof is intended to be offered.</p> <p>Sometimes it is incumbent on a party to accompany an offer of evidence with a proffer to follow it up with other evidence; but that is only where it is not itself admissible, and in order to make it so that the other evidence has to be introduced.</p> <p>What is said in the opening statement of counsel can not of itself be taken as proffer of additional evidence.</p> <p>In will cases where the question is whether the alleged testator was capable of making a valid deed or contract at the time the will offered for probate was executed, evidence of his mental condition before and subsequent to the execution of the paper is admissible for the purpose of reflecting on the question.</p> <p>In a trial of issues of testamentary capacity, the only proof offered that the testator could not make a valid deed or contract was the record in the Orphans’ Court as to a caveat to the will; the said record threw no light upon the question of the testator’s capacity; and it was held, that a prayer taking the case from the jury presented no error.</p>

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

<p> Married women: suits for injuries to husband; loss of support and consortium. </p> <p>A wife can not recover damages on account of personal injuries to her husband whereby she sustains the loss of his support and consortium and is compelled to care for him while sick; a declaration based on such a claim is demurrable.</p>

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

<p> Contracts: constructionj surrounding circumstances; chemical companies; “acid chamber.” Obstruction of navigation: “U” boats. </p> <p>Courts, iu construing contracts, look to the language employed, the subject-matter and the surrounding circumstances; they are never shut out from the same light which the parties enjoyed when the contract was entered into.</p> <p>In the contract between the Davison Chemical Company and the Baugh Chemical Company, the term “chamber acid,” in view of all the circumstances at the time of making the contract, is to be taken as meaning acid made from iron pyrites, and not from brimstone.</p> <p>Where, owing to scarcity of tonnage owing to the “U”-boat campaign and war conditions, delivery of the raw materials to carry out a contract could not be obtained except at a prohibitive price, it was held, that the contract could not be enforced, especially where it contained a clause making it inoperative when navigation was obstructed on account of war or other uncontrolled causes rendering the buyer unable to receive or the seller unable to deliver.</p>

<p> Negligence: automobiles; collision with train j driver’s negligence not imputable to passengersj questions for jury. </p> <p>Where an automobile was run into by a railroad train, negligence of the driver can not be imputed to a passenger, unless it is shown that the passenger contributed to the accident by his own negligence; and whether there was such negligence or not is a question of fact to be submitted to the jury.</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>Constitutional law: province of courts and legislature. Extension of limits of Baltimore City: referendum; Daly v. Morgan. Decisions of Court of Appeals: on what points authoritative. Annexation Act of 1918, Chapter 82; tax provisions constitutional.</p> <p>In the absence of constitutional prohibition, it is for the Legislature to say whether or not there shall be a referendum in reference to the extension of the limits of a city or town.</p> <p>Where a statute is within the constitutional powers of the Legislature, its exercise can not be reviewed or controlled by the courts.</p> <p>The case of Morgan v. Daly, 69 Maryland, 460, is affirmed, as holding that the Legislature can extend the limits of Baltimore City with or without the consent of the majority of the voters in the districts to be annexed.</p> <p>All that is necessary to render a decision of the Court of Appeals authoritative on any point decided is to show that there was an application of the judicial mind to the precise question adjudged.</p> <p>The fact that Chapter 82 of the Acts of 1918 annexes a portion of Anne Arundel County to Baltimore City does not make the Act unconstitutional; the lines of the proposed extension include all that part of Baltimore County between Anne Arundel County and those of the city, and leave no intervening space.</p> <p>While the general rule is that land can not be annexed to a city or town unless it be contiguous thereto, it is not necessary that each tract of land, sought to be annexed, should be contiguous to the municipality; if all the tracts are contiguous to ■each other, and one of them adjoins the city, it is sufficient.</p> <p>Chapter 82 of the Acts of 1918 is not in conflict with Article 16 of the Constitution (with the referendum provisions), because of its effect on taxes levied prior to June 1st, 1918, the date when the Act went into effect, because the tax provisions of the Act attempt only to affect the proportion of taxes from January 1st, 1919, to the end of the fiscal year.</p> <p>The principle of equality in taxation required by the 15th Article of the Declaration of Rights is gratified by making local taxation equal and uniform within the limits of taxing districts.</p> <p>The same power which authorizes the Legislature to make one taxing district of an entire city, equally authorizes it to make two or more taxing districts if in its judgment public interest requires it.</p> <p>The provisions of the Act of 1918 for Baltimore City to take over the public property in the annexed districts have no reference to property that either county may have bought in at public sale.</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>Sales in bulk: secs. 19, 20 and 21 of Art. 83 of Vol. IT as amended, found in secs. 100, 101, 102 and 103 of Art. 83 of Vol. Ill; rights of creditors, not limited to merchandise accounts.</p> <p>Sections 19, 20 and 21 of Article 83 of Yol. II of the Code relating to “sales in bulk” as amended by Chapter 451 of the Acts of 1912 and Chapter 409 of the Acts of 1914 are found in sections 100, 101, 102 and 103 of Article 83 of Yol. Ill of the Code.</p> <p>The “sales in bulk” Act does not limit the rights of creditors to those only who have claims for merchandise accounts; the statement required by this Act on the part of the vendor should include all the creditors not only for merchandise accounts, but also for borrowed money, promissory notes, rent, clerk hire, printing and advertising bills, but the Act does not apply to professional services of an attorney in a suit on a note that was not a subsisting debt at the time of the sale.</p>

<p> Negligence: fire to woodlandj damages; evidence; res gestae; declarations; statement of track men that they had started the fire. </p> <p>Where an action is brought for injuries by fire to. timber land, the rule for damages is to allow for the difference in the value of the property before and after the injury by which it was diminished.</p> <p>The admissibility of res gestee declarations depends upon the facts and circumstances of the particular case and there is-no inflexible rule as to what lapse of time between a commission of an act and the making of the proffered declaration is sufficient to cause its rejection, as not part of res gestee,</p> <p>But the declarations to be admissible must be proven to have-been made under the “immediate spur” of the occasion of •which it forms a part, and not as a narrative of a completed event.</p> <p>In an action against a railroad for damages for injury caused to woodland by a fire which it was alleged, some of the railroad track hands let get away from them as they were-burning cross ties, evidence is admissible to prove that while-the fire was at its height and the track men were trying to-arrest its progress, they had stated that they had started the fire and it got away from them.</p>

<p> Trusts: termination; powers of trustees; when attached to office, and not personal merely; marriage of cestui que trust. </p> <p>A testator, by Ms will, devised to certain trustees money in trust to invest said sum, etc., and to collect the rents and profits therefrom and, after payment of the necessary expenses, to pay the net proceeds to the testator’s son during his life; he further provided that the trustees, their successors or successor were .authorized to advance to the son any part or the whole of the property so bequeathed in trust when, in their judgment and discretion, they should be of the opinion that the son’s best interests would thereby be advanced; held, that this power was one that was attached to the office of trustee, and was not a purely personal power, and that it could be exercised by them ■of their successors.</p> <p>The fact that the son had married was a fact properly to be ■considered by the trustees in determining the trust and turning the property over to him.</p>

<p>Appeal from Circuit Court Ho. 2 of Baltimore City. (Ambler, L) •</p> <p>The facts are stated in the opinion of the Court.</p>

<p>Indictments: statutory offenses; false pretenses; nature and ownership of property; Code, Sec. 123, Art. 27.</p> <p>An indictment charging a statutory offense is sufficient if it describes the offense in the words of the statute.</p> <p>This rule refers simply to the definition and characterization in regular terms of the criminal offense alleged in the indictment. It does not affect the requirement that all indictments should sufficiently identify the specific charge intended to be preferred.</p> <p>In an indictment under Section 123 of Article 27 of the Code for obtaining credits, goods and wares, etc., by false pretenses, the nature and also the ownership of the goods must be described, and an allegation that the goods, etc., were obtained from a designated person is not equivalent to an averment that such person was the owner.</p>

<p> Negligence: automobiles; rules of the road; acts and ordinances; evidence; passenger stepping from moving trolley car in front of automobile. </p> <p>In negligence eases for injuries by automobiles, where acts and ordinances relating to the rules of the road are merely declaratory of the common law, their admission in evidence can present no reversible error.</p> <p>Where a passenger in a summer trolley car leaves his seat and steps on the running board and alights just as the car is coming to rest, it is not contributory negligence, as a matter of law, but presents an issue for the determination of the jury, although the passenger injured in stepping into the street did not look back for approaching vehicles.</p>

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

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

<p> Conditional sales: title in vendorj liensj automobile repairs; temporary possession to owner no waiver of lien. </p> <p>A conditional salé of personal property, where the vendor retains title until the purchase price has been paid, is valid between the vendor and vendee, and all persons claiming under or through the latter, with notice of the lien.</p> <p>While no statute exists iu Maryland creating a lien for repairs to an automobile, the common law lien exists until the charges for labor and expenses are paid.</p> <p>An automobile was sold, the vendees to have immediate possession, but the contract of sale provided that title should remain in the vendor until the purchase price was fully paid, and, in default of payment, the vendor had the right to retake possession of the car; it was further agreed that in order to be valid as to third parties, the contract should be recorded within twenty days from its date; but the contract was never in fact recorded; the vendees took the car to a repair shop to have alterations made, and after awhile were allowed to remove it temporarily for one hour or so, for the purpose of having an upholsterer make measurements; the agreement with the repairmen was that the car should not be finally delivered until payment for the repairs had been made; the vendees kept the car some time, riding about in it, but upon meeting with the repairmen they allowed them to retake the car; held, that by allowing the vendees temporarily to take possession of the car, the repairmen did not lose their lien for the repairs nor thereby make valid the alleged lien of the vendors.</p>

<p> Negligence: motor trucksj agency; proof of—; declaration of party; drivers of vehicles; presumption. Province of Court and Jury. </p> <p>The declarations of one who claims to be an agent are not admissible to bind the principal until the agency is first clearly established. '</p> <p>While, in general, it is a reasonable presumption that a person driving the team of another is the agent or servant of the owner of the team, yet where the uncontradicted evidence clearly shows that the person in possession of the vehicle was not at the time agent or servant of the other, there can be no recovery against the owner for injuries occasioned by such person, and the case should be withdrawn from the jury.</p> <p>It is the province of the Court to determine whether there is any evidence to prove a fact, and for the jury to determine the weight of the fact.</p>

<p>Appeal from the Circuit Court, for Baltimore County. (In Equity.) (McLane, J.)</p> <p>The facts, are stated in the opinion of the Court,</p> <p>The cause was. argued before Boyd, C. J., Briscoe, Thomas, Urner, Stockbridge and Constable, JJ.</p>

<p> Equity: appeals; final orders only. Interlocutory orders: demurrers to till of complaint. </p> <p>An order in the nature of a final decree from which an appeal may be taken under Section 2&, Article 5 of the Code, must be an order which finally settles some disputed right or interest of the parties.</p> <p>An order requiring the defendant to appear in Court and be examined concerning his property and credits is not such a final order as to justify an appeal.</p> <p>Even should the defendant’s motion to vacate and set aside that order be treated as a demurrer to the petition, it would in effect be only a demurrer to a petition for an interlocutory order, and would not come under the rule allowing appeals from orders overruling demurrers to bills of complaint,</p>

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

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

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

<p> Equity: jurisdiction; fraud; cancellation of receipts and surrender of assignments; equity pleading; bill must be specific, and state facts; not mere conclusions of the pleader. Bonds: pledge of—; right to transfer or assign subject to pledge. </p> <p>In a proper case, equity has jurisdiction to order the cancellation of receipts and the surrender of assignments thereof, when the same were wrongfully executed or obtained.</p> <p>While, in a hill of equity, it is not necessary to state minutely all the facts that may he relied upon, yet all the material facts on which reliance is placed for equitable relief must he set forth.</p> <p>Averments that are merely the conclusions of the pleader are not sufficient.</p> <p>An owner of bonds in the usual form, which he has pledged as collateral with a third party, has a right to transfer the title to them by a proper assignment, subject to the lien of the pledgee.</p> <p>Delivery in such cases need not be actual, hut may he constructive or symbolical.</p>

<p> State Industrial Accident Commission: decisions prima facie correct. Appeals: prayers talcing case from jury; negligence of claimant. Lumber camps: hazardous employmentj question for juryj claimant boarding rapidly moving motor truck. </p> <p>In all Court proceedings, the decisions of the State Industrial Accident Commission are to he taken as prima facie correct, and the burden is on the party attacking the same.</p> <p>On appeal from the findings of the Commission, it is for the jury to determine the questions of fact presented, including the question whether the injury complained of arose out of and in the course of the employment of the injured man by the defendant; in such an appeal, the court is not authorized to rule that the appellant has met the burden imposed on him, or to assume a fact which was to be found by the jury.</p> <p>Where the claimant was injured at the site of a camp where he was employed and while going to work from the quarters provided by his employer, along a road made for camp purposes, and the injury was inflicted by a motor truck of the employer carrying men to their places of work on the grounds, whether the accident arose out of and in the course of employment is a fact which the defendant on an appeal from the finding of the Commission is not entitled to have withdrawn from the jury, on the theory that a defendant had met the burden of proving the contrary.</p> <p>The question of whether the employment was an extra-hazardous one, within the meaning of the statute, is an issue which on appeal must be submitted to the jury.</p> <p>Where it appeared that the claimant was injured while attempting to climb upon his employer’s rapidly moving motor truck, his action is' not such “willful misconduct” as to prevent his recovery under the statute, or to authorize a prayer for a directed verdict against him.</p>

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

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

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

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

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

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

<p> Subrogation: when remedy invoicednot against cosureties. Equity: contractual rights and obligations. </p> <p>Subrogation is a peculiar feature of equity, not founded on a contract but having its origin in natural justice.</p> <p>It is upon the theory of substituting, as against a principal debtor, the party who has intervened to protect the creditor and has paid the debt that was due.</p> <p>The doctrine is not limited in its operation to the relation of formal suretyship, but is applied to all persons upon which there is a fixed liability, whether surety, indorser, acceptor or grantor, to pay a debt which was due and which the principal debtor ought to pay.</p> <p>But this remedy is available only against the principal debtor, and can not be utilized as against co-sureties.</p> <p>The principle of subrogation can not be availed of as against the counter-security given to the surety on a bond in an attachment case, where such surety had become insolvent and never, in fact, made any payment on account of the attachment bond.</p> <p>A court of equity can not disregard the express provisions of a contract, nor can it impose upon parties a new liability that they had not contracted for.</p>

<p>FIRST MORTGAGE BOND HOMESTEAD ASSOCIATION, INCORPORATED, Trustee, to the Use of Roberta Porter and Rachel E. Robey, vs. HERMAN G. MEHLHORN and LILLIAN L. MEHLHORN, His Wife.</p> <p> Building association mortgages: judgments pro confesso; sum actually due; costs. </p> <p>The appellees executed • an application for certain shares in the appellant’s building association; they agreed to pay monthly, in advance, certain sums on said stock for taxes and expenses on the property that they were to mortgage to the association, as trustee, and also for interest on certain bonds they were to execute for a loan to be procured for them by the association from third parties, which bonds were also to be secured by mortgage to the association, as trustee; the bonds were payable in ten years from their date, or upon default in any of the monthly payments thereon; the association was authorized, in case of a default in such payments, to have an attorney named in the mortgage or any other attorney appointed by him, to confess a judgment in favor of the holders of the bonds for the face value thereof, with interest and costs of the proceedings; upon default in some of the payments, the attorney docketed a suit upon the bonds and sought to obtain a judgment by a confession for the face value, interest and costs; the court refused to enter the judgment by confession, but entered a judgment for the defendants for the costs; on appeal the court’s order refusing such judgment was sustained, the Court of Appeals holding that: Such judgment would have heen a final judgment determining the extent of the appellees’ liability as of its date for the principal of the bonds (and interest), whereas the application, mortgage and bonds showed that the appellees were entitled to credits not allowed by the judgment.</p> <p>If the judgment were intended merely as collateral security for whatever should be found due on the proper accounting with the association, as trustee, there should have been an agreement filed and a memorandum of the judgment entered to that effect.</p> <p>The court was right in refusing to have the judgment entered, when it appeared from the papers in the case that the plaintiff was not entitled to a judgment for the amount named in the order of the attorney.</p> <p>As the case was on the docket, and the plaintiff’s counsel did not order it dismissed, the defendant was entitled to the costs.</p>

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

<p> Negligence: evidence to connect with injury. Common carriers: duty td passengers; ordinarily not to assist in alighting. </p> <p>In actions of damages for injuries caused by alleged negligence, there must be evidence legally sufficient to prove negligence and to connect that negligence with the injury, before a court is justified in letting the case go to the jury.</p> <p>Ordinarily there is no duty on the part of a carrier to assist passengers in boarding or alighting from its trains or cars.</p> <p>The duty may arise, however, from special circumstances, as when there is some unusual danger or difficulty fx-om the place or means of alighting, or the condition under which the party is required to alight.</p> <p>In alighting from the right-hand side of a summer car, the plaintiff had hold of the handbar with her right hand; when she went to make a step on the running board to the street, she found that she could not reach the street with her foot, and so let go the handbar and stepped off; in doing so, she fell to the ground; held, that there was no evidence in the case to show negligence on the part of the defendant in the use of the ear, as it may have been that she was required to let go the hand-bar, because she was holding it with her wrong hand, or that she had taken hold of it too high up.</p>

<p>Appeals: unprejudicial errors. Judgments: motion tó stHhe out—,• after term; what must he proved.</p> <p>Mere error in rulings of the trial court is not sufficient to justify a reversal on appeal, and a judgment will not be disturbed,'unless it appears that the error was prejudicial,</p> <p>When a motion is made to strike out a judgment, after the term, for fraud, surprise, mistake, etc., it must appear that the party applying acted in good faith, with diligence, and that he had a meritorious defense.</p> <p>In such cases, the question of whether there was proof of fraud, etc., is a question of fact to be found as such, and when the trial court, after hearing evidence upon the motion, finds adversely to the original defendant, on the question of fact, the finding is not to be lightly disturbed.</p> <p>Where a man and his wife own a farm by the entireties, and she also owns another in her own name, and they own livestock without any. clear line of demarcation as to what is owned by either, and the husband orders grain and feed for the stock, he may be considered as her agent, and she be bound by his act.</p>

<p> Trover: bonds deposited with reorganization committee. </p> <p>Upon the insolvency of a corporation, a bondholders’ committee was formed to protect interests of depositing bondholders; the committee had full power to represent such bondholders, with the right to take and pursue any action which in their discretion they might deem expedient; after deliberating for several years, the appellee, voluntarily and without compulsion of any kind, deposited her bonds under the agreement; subsequently the committee formed a plan of reorganization, and then submitted the same to the bondholders for their ratification; at such meeting the plaintiff was represented by her husband and the proposed plan was ratified and adopted, in pursuance whereof the bonds deposited were sold by the committee; the plaintiff, more than two years after such sale, brought an action of trover against the members of the committee; held, that the facts presented no such wrongful or illegal conversion of the plaintiff’s bonds as would permit recovery in trover against the defendants.</p>

<p> Laches: express trusts. </p> <p>Where a complainant had knowledge of the matter complained of, and consulted numerous attorneys in relation thereto, and yet delayed for fourteen years before instituting any proceedings to enforce her rights, the defense of laches is a bar.</p> <p>The defense of laches is good, even as against charges of violation of an express trust.</p>

<p>Two appeals in one record from Circuit Court No. 2 of Baltimore City. (Ambler, J.)</p> <p>The facts are stated in the opinion of the Court.</p>

<p>Appeal from the Circuit Court for Dorchester County. (Pattison, C. J., and Bailey, J.)</p> <p>The facts axe stated in the opinion of the Couxt.</p>

<p>Appeal from the Circuit Court for Baltimore County. (Hablast, J.)</p> <p>The faet-s are stated in the opinion of the Court.</p>

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

<p> Life tenants: improvementsj can not charge remaindermen. </p> <p>In general, a life tenant can not charge the remaindermen with the cost of permanent improvements.</p>

Two appeals from the Superior Court of Baltimore City. (Gorter, J.) The facts are stated in the opinion of the Court. The causes were argrued before Boyd, C. J., Briscoe, Thomas, Pattison, Urner, Stockbridge and Constable, JJ.

<p>Appeal from the Circuit Court of Baltimore City. (Soper, C. J.)</p> <p>The following Exhibit “A” is directed by the Court to be inserted in the report of this case:</p> <p> Defendant’s Exhibit “A”. </p> <p>Deed in Trust from James Cortland to James Wakefield Cortland, Laura C. Horton and Alleyn Child—3rd May 1900—accepted by J. W. O. 5tb May 1900—Situate in District 18 County of Greene—State Team. James H. Rum-bough & wife Carrie F. 19th Apr. 1870—Reg. 19th Apr/79 Book 37—page 190 and noted in Book 3—9. M. J. Fagg & Wm. F. Ray-^13 Sept—1870—Book 37 page 353—noted Book 3 page 13 Uriah Matthews & wife Eliza J. 24th March 1871—Book 37—page 593—Noted Book 3—19, Equal parts to L. C. Norton, and J. W. C., sole use, until death of James O. in case of death all to survivor. 1/7 to C. W. C. after death of J. C. or sell as a whole giving C. W, C. 1/7 if deemed advisable.</p> <p>Should O. W. O. die without lawful issue, then in trust for his sisters—Claudia—Lora—Ethel in equal shares—or their children—pee stirpes and not per capita.</p> <p>$28,000—1/7 4,000</p> <p>24,000—3/8 9,000 L. C. N.</p> <p>Absolutely 3/8 9,000 J. W. C.</p> <p>3/8 6,000 others</p> <p>to be divided into four equal parts—one to S. O. C. during his natural life, after in equal parts to his daughters or to such of them as are then living, during term of natural life —sole & separate use, child or children per stirpes and not per capita. The other 3 parts of 2/8 part net income in equal shares to the before mentioned daughters of S. C. C. during term natural lives or such of them as are then living.</p> <p>All subject to the approval of Court of Legal Jurisdiction. May revoke all in case of death of L. O. N. & J. W. C.</p> <p>Trust 3rd May—1900—L. O. N. J. W. C. & A. O. Gay St., Deed from Wm. F. Porter, Trustee, to J. C. 12th July 1895—Liber J. B. No. 1569, folio 287 and Deed from JWO & others 19th Nov—96 recorded or intended to be recorded —Also—4 lots—Liber G. R. No. 706—folio 514 in Block 1289 on the Index Plate in the Office of the Clerk of Superior Court—Balto—Subject to the mortgage on 1st part to L. C. 1ST. & J. W. 0.—to L. O. U. during her natural life. Afterwards undivided half of Gay to S. C. O. during natural life—afterwards to the 4 children of S. O. 0.—natural lives, then per stirpes—Asquith—net income and profits one undivided half to children of S. O. C.</p> <p>Half of all of above to J. W. C. absolutely—</p> <p>All subject to Court of Legal Jurisdiction.</p> <p>The facts are stated in the opinion of the Court.</p>

<p> Sales in equity: perfecting title. Parties: purchaser who has assigned, not necessary. </p> <p>It is not necessary for a purchaser at public sale to be made a party to a suit to correct title, if said purchaser has assigned his interest.</p>

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

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

(McLane, J.) The second count of a criminal information by the State’s Attorney of Baltimore.County charged the traverser with procuring and placing a woman in a house of prostitution for the purpose of causing her to cohabit with certain male persons. The third count charged the traverser with receiving money, without good consideration, from the earnings of a woman engaged in prostitution.

<p>Appeal from Superior Court of Baltimore City. (Dobler, 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>Cross-appeals from the Circuit Court for Carroll County. In Equity. (Moss, J.)</p> <p>The appeals were argued together before Boyd, C. J., Briscoe, Burke, Thomas, Pattison, Urner, Stockbridge and Constable, JJ.</p>

In Equity. (Peter, J.) The facts are stated in the opinion of the Court. The cause was argued before Boyd, C. L, Briscoe, Burice, Ti-iomas, Urner and Stockbridge, JT.

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

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

<p> Industrial insurance policies: real beneficiaries j discretion of the insurance company within certain classes. </p> <p>Under industrial insurance policies, the real beneficiary by the terms of the contract may be the one designated in the policy or someone else within certain defined classes, within the exercise of the judgment and discretion of the officers of the company.</p> <p>Where, under such a policy, the company paid the funeral expenses of the deceased policy holder and paid the balance to the person in whose possession the policy was and who had paid some of the premiums on it, it was held, that under such facts and circumstances the administrator of the party named in the policy was not entitled to recover from the insurance company.</p>

<p> Appeals: time forj preparation of exceptions and record; sickness and absence of trial judge. Criminal law: province of court and jury. Evidence: rebuttal; discretion of court. Photographs: when admissible. Irreversible errors. </p> <p>Where delay in having exceptions prepared and the transcript of the record made up is not due to the fault of the appellant, or his counsel, but to the sickness and absence of the trial judge, it presents no ground for dismissing an appeal where it appears that the exceptions were prepared with reasonable promptness.</p> <p>On appeal, exceptions which are not signed hy the trial judge will not be considered.</p> <p>In criminal trials, where the traverser elects to be tried before a jury, the jury are the exclusive judges of weight and conclusiveness of the evidence, and the Court of Appeals has no power to disturb their finding, unless that court finds that during the trial the court below committed some error in its rulings.</p> <p>Where the doctor who examined the corpse and described the wounds he found upon it, photographs which he took of the wounds are admissible in evidence.</p> <p>It is within the discretion of the trial court to recall a witness that he may explain his former testimony.</p> <p>The ruling of the court upon immaterial evidence is not reversible error.</p> <p>The admission of evidence in rebuttal is in the sound discretion of the trial court, and its action will not be reviewed on appeal, unless it is clearly wrong and manifestly injurious.</p>

<p> Mortgages: subsequent judgments; do not bind interest of mortgagor; inadequacy of price; collusion of purchaser; creditors’ rights. </p> <p>Judgments against a mortgagor subsequent to the mortgage do not bind his interest, and under a foreclosure sale of the mortgage his interest passes to the purchaser clear of the judgment claim.</p> <p>Where there is a great inadequacy of price at a sale in equity, circumstances of unfairness and the conduct of the party benefited by the sale will be sufficient to justify the court in settting if. aside.</p> <p>Where a purchaser keeps bidders away and suppresses competitive bids, it is justification for setting aside a sale in case of an inadequate price.</p> <p>A creditor whose interests are prejudiced by a mortgage sale of the debtor’s mortgaged property has a right to file exceptions to the sale for inadequacy of price.</p>

<p>Taxpayers: invalid laws; injunctions; sanitary distmcts; power of Legislature to create, across county lines; Chapter 122 of the Acts of 1918. Taxation: special districts; diferent rates for agricultural lands; Chapter 122 of the Acts of 1918. Title of statutes: Section 29 of Article III of the Constitution; need not give all details or means to he adopted.</p> <p>A taxpayer, liable for assessment and taxation, is entitled to maintain a suit for an injunction to restrain the enforcement of a tax law, if it is invalid.</p> <p>Chapter 122 of the Acts of 1918, creating a sanitary district of certain portions of Prince George’s and Montgomery Counties, is not in conflict with Section 1 of Article XIII of the Constitution, relating to the changing of county lines.</p> <p>The Legislature has the power to create special sanitary districts without regard to county lines, and may charge the expense of such work against the parties to be specially benefited, and make such charge a lien against their property.</p> <p>The provisions of the Act making discriminations in favor of agricultural lands in the district, as regards assessment and taxation, are not unconstitutional where the rates are uniform as to all property within the district.</p> <p>While the title of the statute, to comply with Section 29 of Article III of the Constitution, must fully indicate the purpose of the Act, the title need not give an abstract of its contents, nor the details, means and methods by which its general purpose is to be accomplished.</p> <p>The title of Chapter 122 of the Acts of 1918, providing a sanitary district out of portions of Prince George’s and Montgomery Counties, sufficiently describes the subject-matter of the Act, and is valid.</p>

<p>Wills: construction.; vesting of estates favored; life tenants and remaindermen; deeds by—.</p> <p>The law favors the early vesting of the estates, and where possible a remainder will be declared to be vested rather than contingent.</p> <p>When a testator leaves a remainder to Ms children by his wife, children by another husband do not take.</p> <p>A properly executed deed by a life tenant and the remainder-men carries the title to the grantee.</p>

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

<p>, Life insurance: misrepresentations, when vital and clearly provenj court should take from, jury; “sound health” ; tuberculosis.</p> <p>When the insured, at the time of his application, was suffering from tuberculosis, he was not in sound health within the meaning of the policy, and in such a case, where the evidence is clear and uncontradicted, the court should withdraw the case from the consideration of the jury.</p> <p>Ordinarily, the question of the falsity of an application for insurance is a question for the jury; but where the bad faith of the applicant and falsities of representations are shown by clear and uncontradicted evidence, the court may so rule as a matter of law.</p> <p>Sound health, within the meaning of life insurance policies, means the absence of any vice in the constitution and of any disease of serious nature that has a direct tendency to shorten life.</p>

<p>Appeal from the Circuit Court No. 2 of Baltimore City. (Ambler, J.)</p> <p>The facts are stated in the opinion of the Court and in the case of Conowingo Land Company v. McGaw, 124 Md. 643.</p>

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