Volume 135 — Maryland Reports

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

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

<p>Condemnation Proceedings — Opening Streets in Baltimore City — Assessments Exceeding Damages and Expenses.</p> <p>The City of Baltimore, in condemning land for the purpose of a street, has no power to assess benefits in excess of damages and expenses. p. 50</p> <p>-The duty of the Commissioners for Opening Streets to reduce the benefit assessments to the amount of damages awarded and expenses does not arise until all the appeals from the return of the Commissioners have been disposed of, and there is no right of appeal in such cases until the Commissioners have failed or refused to discharge that duty, and hence the rights of owners assessed for benefits to have their proportion of the excess of benefits deducted from their assessments cannot be made to depend on whether they appealed from the original return of the Commissioners, nor does the fact that a property owner has paid the assessment deprive him of the right to such deduction.</p> <p>p. 52</p> <p>Section 179 of the Baltimore City Charter, providing for appeals to the Baltimore City Court from the action of the Commissioners for Opening Streets, and authorizing that Court, upon appeals to it, to “amend or supply all such defects” in the record of the proceedings of the Commissioners, and to “increase or reduce the amount of damages and benefits assessed, and alter, modify and correct said return of proceedings in all or any of its parts, as the Court shall deem just and proper,” confers on the City Court jurisdiction merely to review the action of the Commissioners, and consequently such court has no jurisdiction to pass an order requiring proportionate amounts to be deducted from all benefit assessments, so as to eliminate the excess of such assessments over the total amount of damages and expenses, it not appearing that the Commissioners had failed or refused to make such reduction after it had become possible for them to do so by reason of all the appeals from their findings as to this improvement having been disposed of. p. 51</p> <p>The Baltimore City Court having no jurisdiction to grant the petition of a property owner for the reduction of its benefit assessment to such a proportionate extent as to eliminate the total excess of such assessments over the amount of damages and expenses, evidence offered by the City to prove the value of lots, supposed to belong to the City, for which it was awarded merely nominal damages, and the cost of certain operations necessitated by the character of the location, as a prerequisite to the construction of the street, was inadmissible. p. 53</p> <p>Where there is no appeal from the order of the Baltimore City Court striking out items of expenses allowed by the Commissioners for Opening Streets in the list of expenses returned by them, its action cannot be reviewed. p. 52</p>

<p> Motion to Dismiss Appeal. </p> <p>Where the court below properly refused to grant the relief prayed by the appellant, held its order to that extent should be affirmed, and a motion to dismiss the appeal overruled, without determining whether there was a right of appeal. p. 55</p>

<p>Injunction to Restrain Nuisance — Jurisdiction—Garbage Reduction Plant — Allegations of Bill.</p> <p>The circuit court of a county has jurisdiction to entertain a bill to restrain a nuisance directly affecting property in that ‘cotmty, although the defendants are non-residents. p. 61</p> <p>The delegation by the Legislature to a municipality of power to do an act, while conferring full authority to perform the act itself, does not, without more, essentially and without exception carry the right so to do it as to inflict loss or injury upon an Innocent individual. p. 62</p> <p>A plant for the disposal of the garbage of a city being, like ■one for the disposal of sewage, essential to the health and comfort of the people at large, an injunction will not issue to restrain Its operation unless under very extraordinary circumstances, but the party complaining should be left to his or her remedy at law. p. 62</p> <p>One should not be absolutely restrained from carrying on a lawful business, unless it appears that carrying it on will necessarily produce the injury complained of; and it should be permitted to be continued in such a way as not to cause a nuisance, If this can be done. p. 63</p> <p>In a suit against the Mayor and City Council of Baltimore, a prayer asking not only that defendants be enjoined from hauling garbage to, dumping it upon, or reducing it on, a farm '■owned by the City, but also from proceeding with the erection of r& temporary reduction plant on the farm for the purpose of reducing the garbage of the City, and from conveying to this farm all or any portion of the garbage from the Oity for the purpose of being so reduced, is too broad and general, and the injunction should be at once refused. p. 63</p> <p>If the disposal of the garbage by the City, or the operation of the reduction plant, involves the creation of a nuisance,, whereby plaintiffs’ property is injuriously or seriously affected,, the City can be made to respond in damages. p. 63</p> <p>The mere allegation in a bill that irreparable damage will ensue is not sufficient unless facts be stated which satisfy the court that the apprehension is well founded. p. 64</p> <p>In a suit to restrain a city from proceeding with its plans, for the establishment on certain land of a garbage reduction plant, and a “piggery” for the purpose of consuming garbage, held that the bill should be dismissed as not showing conditions to be such in their present effect as to justify an injunction, but without prejudice to any future application for proper redress, if the use of the property as proposed results in injury or material damage to the plaintiffs’ property rights, sufficient to justify an injunction or an action at law for damages, p. 64</p>

<p>Condemnation Proceedings — Structural and Reproduction Value —Buildings and Fixtures.</p> <p>In condemnation proceedings, structural or reproduction valué of the buildings involved, with due allowance for depreciation, is admissible in evidence to show market value, provided the buildings are well adapted to the land and its surroundings, and their structural value represents a fairly proportionate enhancement of the market value of the land. p. 70</p> <p>Buildings and fixtures are parts of the realty and as such must be considered and allowed for, in condemnation proceedings, to the extent that they enhance the value of the land. p. 71</p> <p>Where fixtures become part of the realty, if the land on which the building stands is taken as a whole or in part for public use, the owner is entitled to have the fixtures considered in determining the amount of his* compensation. p. 71</p> <p>An instruction that, in arriving at the fair market value of the property condemned, the jury might consider the present structural value of the buildings on the land, with a due allowance for depreciation, provided they find -that the buildings are well adapted to the land and surroundings and enhance the market value of the land in an amount fairly proportionate to the structural value of the buildings, held erroneous, as failing to state that the jury should award the fair market value of the land at the time of condemnation as enhanced by the buildings thereon. p. 73</p> <p>An instruction that articles found to be fixtures may be considered as part of the land and buildings in estimating the damages was defective in failing to state that the jury should award to the owners the present fair market value of the land taken, as enhanced by the buildings and fixtures thereon, p. 74</p> <p>Machinery, shafting, engines, boilers, and other articles and appliances, actually annexed to the buildings or land, with the intention that they remain permanently for use in connection with such buildings and land, and essential to the purposes for which the buildings and land are being used, are fixtures, and are to be considered as part of the land in determining its value in a condemnation proceeding. pp. 73, 74</p> <p>In a proceeding by a city to condemn land, a city official, who. testified that he had made a study of reál estate for four years, and that in connection with his official duties it became necessary for him to acquaint himself with its value, that he had studied its value carefully, and had consulted the largest real estate people, was.competent to testify as to the market value of property condemned, though he would not have been competent had his knowledge been based solely upon sales made with a view to obviating condemnation proceedings. p. 74</p> <p>•The assessment of property, made by public authorities for purposes of taxation, is not admissible in condemnation proceedings. pp. 75, 76</p> <p>A statement made by a property owner to the assessor of taxes, in regard to the value of the property, for the purpose of taxation, whether or not under oath, is admissible in a proceeding to condemn the property, both to impeach the owner and as independent evidence of value. p. 7 6</p>

<p>Appeal from the Circuit Court- for Talbot County (Adkins, C. J., and Wickes, J.).</p>

<p>Petition for change of venue.</p>

<p>Workmen’s Compensation — Board as Part Wages.</p> <p>The Workmen’s Compensation Act, chapter 800 of the Acts of 1914, as amended by chapter 597 of the Acts of 1916, does not entitle the employee of a hotel, who was by his contract ■given free board in addition to his pay, to include the money value of the board as part of his wages in computing the amount ■of compensation, if such value was not fixed between his employer and himself at the time of hiring. p. 94</p>

<p>Prayers — Necessity of Reference to Pleadings — Court Sitting as Jury — Appeal—Contract for Sale of (food Will.</p> <p>Unless prayers máke special reference to the pleadings, they will be held to relate exclusively to the evidence, and their correctness will be determined entirely by a consideration of the evidence. p. 99</p> <p>When a case is tried by the court without a jury, the same rule is applicable as if tried before a jury. p. 99</p> <p>In passing on prayers to take a case from the jury for want of evidence, the court cannot consider the weight of the evidence, but only whether there was any legally sufficient evidence to be submitted. p. 99</p> <p>On appeals from judgments in cases tried by the court sitting as a jury, it is immaterial whether the Court of Appeals agrees with the conclusion reached by the lower court in passing on the facts submitted to it; the only question being whether the evidence was legally sufficient to be submitted. p. 100</p> <p>While goodwill will not be protected from the competition of a rival, and the mere fact that a brother of the seller is interfering does not necessarily mean that there has been a violation of a contract not to re-engage in the same business, yet if the business is carried on under another name, or by another person, or the name of such other is used as a mere cover oi-blind to conceal the interest of the seller, relief will be granted, provided it clearly appears that the seller is connected with the competing concern and aggressively acting with it or for it to the injury of the purchaser. p. 104</p>

<p>Witness as to Value — Qualifications—Contract for Clearing Land — Damages for Breach — Notice to Surety — Waiver.</p> <p>On an issue as to the value of posts of a certain size, to be cut on particular land, under a contract which was only partially performed, a general contractor and builder, who was raised on a farm and had done considerable work in clearing timber land, had examined this land and the timber thereon both before and after it was partially cleared, and purchased posts of that size in a city within thirteen miles of the land, at the time of operations under the contract, held qualified to express an opinion as to the value of such posts. p. 108</p> <p>An architect, who planned and superintended the work under a contract for the clearing of certain land, and who testified that he had been an architect and engineer for about forty years, and that he was familiar with the values which he was asked to estimate, held qualified to express an opinion as to the value of posts of designated sizes to be cut on the land. ' p. 109</p> <p>Where á contract for the clearing of land provided that the contractor should have all the timber cut, but that he should furnish to the landowner therefrom a certain number of fence posts of a designated size, and the contractor abandoned the work when less than half completed, without furnishing any posts, held that, although the landowner did not have the work completed, and although the required number of posts could have been supplied from the trees still standing, the landowner was entitled to damages by reason of the contractor’s appropriation of the timber on the part of the land which was cleared, without furnishing any posts therefrom. pp. 109-111</p> <p>As to the measure of damages, it was held that, under the special circumstances of the case, the proper mode of adjustment was to charge the contractor with the value of such a proportion of the total number of posts to be furnished as might be estimated in the ratio which the acreage of the timber removed bore to the total area to be cleared, and to credit him with a due proportion of the monetary compensation provided by the contract, in consideration of the work actually done, less such amount as may have been paid. - p. Ill</p> <p>That the landowner acquiesced in the removal of timber by the contractor did not involve a waiver of his right to have the fence posts furnished as stipulated. p. Ill</p> <p>That the surety on a contractor’s bond, when notified by the plaintiff of a default under the contract, made no point that notice of default was not given, as provided by the bond, by registered mail and within ten days, the surety merely stating that the matter would be investigated, held to furnish legally sufficient evidence of a waiver of that requirement. p. 113</p>

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

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

<p>Demurrer in Equity — -Production of Receipt — Undue influence.</p> <p>Whore a bill seeking the production and surrender of a certain receipt on the ground that its possession by the defendant and the endorsements thereon constitute a cloud on the complainants’ title, a demurrer does not admit the legal construction placed by the bill on the endorsements as involving merely a conditional donation, to take effect only on the donor’s death. p. 133</p> <p>An allegation in the bill, charging that a certain receipt was obtained by defendant from plaintiffs’ decedent, a man seventy-five years of age, without any consideration, and solely as the result of the influence which she had acquired over said decedent, with whom she maintained illicit relations, held sufficient to give a court of equity jurisdiction. p. 134</p>

<p>Appeal from tbe Superior Court of Baltimore City (EQeuisT-.ER, J'.j.</p>

<p>Promissory Note — Plea of Usury — Bona Vide Purchase— Examination of Witness.</p> <p>In an action on certain notes, that plaintiff testified that he is the holder of the notes, and offers the notes in evidence, does not justify defendant in cross-examining him as to what he paid for the notes, this not being a matter referred to in the direct examination. p. 155</p> <p>Where the important question in the case was whether the transaction, by which the plaintiff obtained the notes from another person, was a loan of money or a purchase of the notes, a question asked by defendant of such person, on direct examination, for whom he was “borrowing” from the plaintiff, was objectionable as leading. p. 155</p> <p>The refusal to permit a certain question to be asked is not ground for reversal if the evidence sought is otherwise obtained.</p> <p>p. 155</p> <p>In an action on a note, the burden is on the defendant to sustain the plea of usury, and where he fails to meet that burden and there is no evidence legally sufficient to support the plea, the court should not submit the question of usury to the jury. p. 156</p> <p>One who purchased a negotiable promissory note before maturity, without notice of any infirmity therein or defect in the title of the seller, is entitled to recover thereon against the maker. p. 156</p> <p>The Negotiable Instruments Act (Code, Art. 13, sec. 27) expressly provides that a note may be made payable to the order of the maker. p. 157</p> <p>In an action on a promissory note, held that there was no evidence legally sufficient to show that the transaction by which plaintiff acquired the note from a previous holder involved a usurious loan. p. 157</p>

<p>Appeal — Harmless Efror — Guaranty on Note — Bona Fide Purchase.</p> <p>That an objectionable question was permitted, on cross-examination is not ground for reversal when the same evidence was admitted without objection. p. 159-</p> <p>Where one purchases a negotiable note before maturity in good faith and for value, without notice of any defect in the title of the seller, a guaranty endorsed on the note passes'therewith and partakes of the quality of the instrument on which it is written, and the purchaser takes it free from any defenses against it in the hands of the seller. p. 160</p>

<p>Appeal from the Circuit Court for Howard County, in Equity (Forsythe, J.).</p>

). The stipulation referred to in the opinion was as follows: “It is hereby agreed and stipulated by and between the parties to the above entitled cause through their respective attorneys, that the following facts are pertinent to the issues in said cause, are susceptible of legal proof, and shall be taken as true for the purposes of this cause, and for the purpose of any appeal in this case: “1.

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

). 'Defendant’s second prayer was as follows: “The defendant prays the Court to instruct the jury that it is further necessary for the plaintiff to prove that the defendant acted with malice; and if the jury find that the defendant did not act maliciously in the premises, but all that he did, tending towards the arrest and prosecution of the plaintiff, was done under the advice and direction of the State’s Attorney for Frederick County, and without malice on his part, then…

<p>Orphans’ Court — Time for Appeal — Presumption in Favor of Order.</p> <p>If an appeal from an order of the Orphans’ Court is not taken within thirty days after the date of said order, the time prescribed by Article 5, section 62 of the Code, for an appeal from an order of such court, the action of the court cannot be reviewed by the Court of Appeals. p. 197</p> <p>Where the record does not contain the facts or the evidence heard by the Orphans’ Court upon which it passed an order refusing to rescind or annul a previous order admitting a paper writing to probate, the Court of Appeals cannot determine the correctness of such action, but, as the facts were before that court and were considered by it in reaching its decision, there is a presumption in favor of the correctness of the court’s finding thereon. p. 198</p>

<p>Fraternal Orders — Death Benefit Association — Standing of Member.</p> <p>Where a fraternal order arranged with a death benefit association that the latter should pay the former a certain sum upon the death of each member of the fraternal order who was in good standing at the time of his death, held that if the fraternal order erroneously stated to the benefit association that the insured was not in good standing as a member, and thus by its own act prevented its receipt of such benefit money, it cannot rely upon the fact that it did not receive the same as a ground of exemption from liability to the heirs of the deceased member.</p> <p>p. 201</p> <p>In an action against a fraternal order to recover a funeral benefit fund on account of the death of a member, held that there was evidence to justify the inference that the beneficial standing of such member was preserved, and recognized by the order, till the time of his death. p. 202</p>

<p>Appeal from the Circuit Court for Annei Arundel County, In Equity (Moss, J.).</p>

<p>Negligence — Defective Post on Pier — Expert Evidence — Reopening Case — New Evidence — Inevitable Accident.</p> <p>In an action against an engineering company, engaged in rebuilding a pier, for injuries caused by the giving way of a post around which the plaintiff had to pass while walking on a stringer, it was improper to ask an expert in pier construction whether, he having heard the testimony as to how this and other posts were secured, would consider the posts sufficiently secured to make it reasonably, safe for one to walk on the stringers and .pa'ss around the posts, there being evidence that the numerous other posts around which plaintiff had to,.pass were securely .fastened, and that this post was possibly left unfastened by mistake, an expert not being required to prove that a post left unfastened was not sufficiently secured to make it reasonably safe. pp. 211, 213</p> <p>The. exclusion of the opinion- of a witness as to the proper method of fastening a post, such as that which gave way to plaintiff’s injury, was not cause for reversal, when there was evidence that this post had not been fastened at all, while other posts around which plaintiff had to pass were, fastened securely.</p> <p>p. 213'</p> <p>That after the taking of testimony was concluded, and after argument on the prayers, defendant’s counsel, in the hearing of the jury, stated that he had discovered two eyewitnesses of the accident, and asked that he be given two or three hours in which to produce these witnesses, is not cause for reversal, there being nothing to indicate bad faith in the proffer of such testimony, and there being no requirement that an offer of evidence be made out of the presence of the jury. pp. 214-216</p> <p>It is in the discretion of the trial court to grant or refuse a motion to reopen the case for the purpose of introducing newly discovered testimony.</p> <p>To the lower court is left a great deal of discretion which can be exercised for the protection of litigants by granting new trials, and that jurisdiction must be clearly abused to justify the interference of the Court of Appeals. p. 216</p> <p>An instruction that the verdict must be for defendant if the jury find that tlie injury to the plaintiff resulted either from unavoidable accident or was occasioned in any way by the want of due care on the part of plaintiff is liable to mislead, as merely stating the proposition of law that one is not liable for injuries caused by unavoidable accident, without informing the jury what the law regards as an unavoidable accident, or qualifying the prayer by telling the jury that defendant might be guilty if the jury found that it had been negligent, pp. 217-219</p> <p>An accident, which furnishes no cause of action, is an inevitable occurrence, not to he foreseen and prevented by vigilance, care and attention, and not occasioned or contributed to, in any manner, by the act or omission of the defendant, its agents, employees or servants. p. 217</p> <p>That plaintiff, invited by defendant out upon a pier in course of construction, to test a certain machine, did not remain at a particular place on the pier as instructed, did not justify the direction of a verdict for defendant on the ground of contributory negligence, where there was evidence that the post around which he sought to pass gave way because not properly fastened, while tlie numerous other posts on the pier around which he had passed were well secured. p. 219</p>

<p>Divorce — Faults of Temper — Abandonment.</p> <p>The right to a divorce exists only by legislative grant, the marriage contract in this respect being regulated and controlled by the sovereign power and not being, like ordinary contracts, subject to dissolution by the mutual consent of the contracting parties. p. 223</p> <p>Mere turbulence of temper, petulance of manners, infirmity of body or mind, are not causes for which a separation may be lawfully decreed. p. 223</p> <p>When parties enter into the marriage relation they accept each other with all their imperfections, and the law will not ■dissolve the relation except upon the clearest and most satisfactory proof of the necessity for the dissolution. p. 224</p> <p>That the wife constantly displayed a quarrelsome disposition does not justify the husband in leaving her, so as to preclude the grant of a divorce in her favor on the ground of abandonment.</p> <p>p. 225</p>

<p>Appeal from the Circuit Court of Baltimore City (Gor-Tlii'R, J,).</p>

<p>Municipal Corporations — Power to Exempt from Taxation— Article XV of the Declaration of Rights.</p> <p>The power to tax, when conferred upon a municipal corporation, does not include the power to exempt and classify property for the purpose of taxation, such power existing only when expressly conferred or necessarily to be inferred. p. 240</p> <p>The Legislature having itself selected the objects of taxation for State, county and municipal purposes, authority to exempt property from taxation cannot be inferred from the provision of the Baltimore City Charter conferring power to levy annual taxes. p. 242</p> <p>The amendment to the Fifteenth Article of the Declaration of Bights, adopted November 2, 1915 (see Acts 1914, Oh. 390), providing that the General Assembly shall by uniform rules provide for separate assessment of land and classification and sub-classifications of improvements on land and personal property as it may deem proper, is not self-executing, and does not enable the City of Baltimore, in advance of action by the Legislature, to exempt entirely from taxation merchandise held for sale, and partially to exempt all buildings. p. 242</p>

<p>Appeal from the Superior Court of Baltimore City (H'euisleb, J.).</p>

). Tho following prayers were among those offered: Plaintiff’s Sixth Prayer — The jury is instructed that the measure of damages in this, ease shall be the value of the suits, dresses, shoes and other contents of the trunks at the time the goods were stolen including the damage to- said trunk with interest in their discretion from November 17th, 1915.

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

<p>Appeal from, the Circuit Court for Howard County. Tit Equity (Forsythe, J.).</p>

). The following prayers were among those submitted: Defendant’s Second Prayer — The Court instructs the jury that there can be no recovery in this action unless the jury find from the evidence, that the plaintiff has affirmatively shown by a fair preponderance of testimony, fhat the accident was caused through the negligence of the defendant, and the jury are instructed, in determining whether or not the defendant was guilty of negligence, that the law makes- no…

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

<p>Fraternal Society — Death Benefits — Effect of Divorce.</p> <p>Since Code 1904, Art. 23, Sec. 210, as amended by Act 1912, Oh. 824, Sec. 6A, and Act 1916, Oh. 343 (Code, Vol. 4, Art. 23, Sec. 234), provides that the payment of death benefits by a fraternal beneficial association shall be confined to wife, husband, persons in certain other relations to the member, and to persons dependent on him, one who, though named as beneficiary in the certificate issued by such an association, as being the wife of a member at the time of its issue, was not his wife at the time of his death, by reason of a divorce a vinculo, and who made no claim as being dependent on him, is not entitled to any such benefits.</p>

<p>Osteopathic Practitioners — Filing of Birth and Death Certificates — Constitutionality of Statute.</p> <p>Code, Vol. 3, Art. 43, Sec. 301, expressly providing that neither birth nor death certificates shall he accepted from osteopathic practitioners, is not invalid as involving a denial to such, practitioners of the equal protection of the laws, within the Fourteenth Amendment of the Federal Constitution, and is a proper exercise of the police power of the State. pp. 322, 324</p> <p>The Legislature has power to determine the methods to be employed in collecting vital statistics, and its designation of' medical and surgical practitioners as agencies for this purpose, and exclusion of osteopaths, does not involve such an obvious abuse of its discretion as to call for interference by the-courts. p. 323</p> <p>The separate classification, for licensing purposes, of practitioners of medicine and surgery, and those practicing by manipulation only, cannot be held to be unreasonable. p. 322</p>

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

<p>Contract of Sale — Construction—Nominal Damages.</p> <p>That a contract for the sale of merchandise in .carload lots contained a clause, “weights guaranteed at destination,” held to show that payments were not to be made until the arrival of the merchandise at its destination. p. 34-1</p> <p>In case there was a breach of contract by defendants, that no substantial damage is shown does not justify an instruction that plaintiffs have offered no evidence legally sufficient to entitle them to recover, they being entitled to nominal damages, p. 342</p>

<p>Workmen’s Compensation Act — Who Entitled — Mistress and Bastard Children.</p> <p>A woman living with, an employee as his wife, but not legally married to him, is not, although dependent on him, entitled to compensation under the Workmen’s Compensation Act, upon his death as the result of an injury. pp. 344-348</p> <p>The words “child or children,” as used in the Workmen’s Compensation Act, mean legitimate child or legitimate children of the employee. pp. 348, 354</p> <p>The Workmen’s Compensation Act does not entitle a person to compensation simply because such person is a member of the family of the employee and was dependent upon him for support. p- 346</p> <p>The statute states who shall be entitled to compensation in specific terms, and courts have no right to go beyond those terms because the parties before them seem to he deserving. p. 347</p>

<p>Note Under Seal — Non Est Factum, — Consideration.</p> <p>The plea of non est factum in a suit on a promissory note under' seal imposes upon the plaintiff the onus of proving the signing, sealing and delivery of the note. p. 360</p> <p>The plaintiff’s possession and production of the note, in the absence of testimony to the contrary, is prima facie evidence of the delivery thereof. p. 361</p> <p>The seal upon a promissory note, considered as a specialty, imports a consideration, and in the absence of proof on the part} of the obligor of a want of consideration would, upon such a defense, entitle the obligee to a verdict; and should the note, under the Negotiable Instruments Act of this State, be regarded as a negotiable instrument, to be treated as such in respect to the question of consideration, the burden of proof is on the defendant to show t|iat there was a failure or want of consideration. ' " pp. 362, 363</p>

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

<p>Contributory Negligence — Railroad Crossing — Duty to Stop — ■ Automobile Truck.</p> <p>Contributory negligence is simply negligence, and is, like primary negligence, relative and not absolute, and being relative it is dependent on the peculiar circumstances of each particular case. p. 373</p> <p>In an action by one struck by a train at a crossing on defendant’s electric railroad, it appearing that plaintiff was well acquainted with the crossing and its dangerous character, and that while he stopped the automobile truck which he was driving more than one hundred feet from the crossing, he failed to stop on nearing the track or to send one of his companions ahead to look for trains, although his view of the tracks in the direction whence the train came was obstructed until within four feet of the tracks, held that he was guilty of contributory negligence precluding recovery. pp. 373, 378</p> <p>One about to drive across a railroad track is not free from contributory negligence because he stops and looks, at the last place from which he can see an approaching train while in his vehicle, it being his duty to stop and listen immediately before driving on the track, even though he cannot then see, by reason of obstructions. p. 374</p> <p>One who, when about to drive his automobile across a railroad, receives warning of danger in time to stop on the nearer track, of which there is a clear view for a long distance in the direction whence trains run on that track, and fails to do so, is guilty of contributory negligence precluding recovery for injuries caused by a train running in the opposite direction on the farther track. pp. 375, 376</p>

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

<p>Appeal from the Circuit Court'of Baltimore City (Gorxer, L).</p>

<p>Appeal from the Circuit Court Wo. 2 of Baltimore City (Dobler, J.).</p>

<p>Testamentary Capacity — Undue Influence — Evidence—Declarations by Testator — Expert Witnesses.</p> <p>On an issue as to undue influence and mental incapacity in connection with the making of a will, the caveator, a son of 1 estator, was entitled to testify as to declarations by the latter as to what part of his property he intended to give the caveator, he having the right to show, if he could, that the terms of the will were contrary to the settled convictions of testator as to a just disposition of his estate. p. 403</p> <p>While the issue as to testator’s mental capacity is concerned exclusively with his capacity at the time of the testamentary act, evidence of his prior and subsequent conduct, including business transactions in which he participated, is admissible as reflecting on his mental capacity at that time. p. 404</p> <p>When a qualified witness is asked for his opinion of testator’s mental condition, for the purpose of proving incapacity rather than capacity, the interrogatory must be specifically directed to the time of the testamentary act. p. 404</p> <p>On an issue as to undue influence and testator’s mental capacity at the time of executing the will, evidence as to his physical condition for over a year before the time of executing the will was admissible. p. 405</p> <p>Testimony on behalf of the caveatees, that the portion of land allotted by the will to the caveator, one of testator’s sons, was more valuable than that allotted to another son, was admissible as tending to refute the caveator’s contention that the division made by the will was unjust to him and was procured by unduo influence. p. 405</p> <p>Evidence as to a conversation -with testator in which he spoke of his relations with the caveator as affected by the division which he had made of his property, and incorporated in his will, was properly admitted. p. 405</p> <p>Hypothetical questions need not include all the facts in evidence, it being sufficient that they contain a fair presentation of the case as proven. p. 405</p>

<p>Appeal front the Orphans’ (Anri, of Baltimore City.</p>

<p>Workmen's Compensation — Partial Dependency — Children of Divorced Employee.</p> <p>The Workmen's Compensation Act (Code, Art. 101), Sec. 36, •does not create any presumption of total dependency of children on their father in case they are living apart from him.</p> <p>pp. 414,415</p> <p>Children who are living with and practically supported by their mother, though they occasionally receive small money presents from their father, who is divorced from their mother, are to be regarded as in a state of partial rather than total dependency on the father. pp. 414-4.16</p> <p>The question of total dependency is not to be determined solely from the legal obligation to support, but such legal obligation must be coupled with a reasonable probability that it will be fulfilled. p. 416</p>

<p>Specific Performance — Sale of Land — Mistake by Vendor’s Agent.</p> <p>The right to the specific performance of a contract is not absolute, and if the contract was made under such circumstances that enforcement would be unjust, inequitable and harsh, it maybe refused, although the defense is not such as would warrant the rescission of the contract. p. 419</p> <p>Where defendants’ agent made a contract for the sale of a house bearing a named number on a certain street, under the mistaken impression that this was the number of a,n inside house of less value, while as a matter of fact it was the number of a more valuable corner house, held that a court of equity would refuse specific performance as against defendants, there being such a material difference in the value of the two houses that to enforce the contract would inflict substantial loss upon the defendants. pp. 422-426</p> <p>The mistake of defendants’ agent in inserting in the contract of sale the number of the more valuable house instead of that of the less valuable, held not the result of such inexcusable negligence as to estop the defendants from relying on it as a defense to a suit for specific performance. p. 426</p>

<p>Appeal from the Circuit Court for Montgomery County (Urner and Peter, JL).</p>

<p>Second Mortgage — Exercise of Power of Sale — Usury.</p> <p>That a first mortgage is overdue and might he foreclosed does' not preclude the second mortgagee from exercising the power of sale in his mortgage, the first mortgagee not desiring to foreclose. p. 441</p> <p>That the Court of Appeals, in reversing a decree which ratified a sale under a first mortgage because a simultaneous sale was made under a third mortgage, stated that a resale should be made only under the first mortgage, so that the title might be sold clear of all liens and under favorable conditions, was not. to be regarded as precluding a subsequent sale under the second mortgage, the first mortgagee having in the meanwhile relinquished the idea of immediate foreclosure. Explaining Boynton v. Remson, 133 Md. 101. p. 442</p> <p>That a portion of the first mortgage is disputed on the ground of usury is no reason for refusing to ratify a sale under the second mortgage. p. 442</p> <p>Since Code, Art. 66, Secs. 6, 11, 12, clearly define the extent, of the title to be sold under the power of sale in a mortgage,, and fully protect the rights of subsequent lienors, a second mortgagee may properly proceed under such a power, without any necessity of resorting to a bill for foreclosure to which the first and third mortgagees might be made parties. p. 443-</p>

<p>Covenant Against Incumbrances — Personal Character- — -Right of Way.</p> <p>A covenant against incumbrances is not a covenant running with the land, but is in the nature of ,a personal covenant.</p> <p>p. 447</p> <p>A declaration on a covenant by the grantors in a conveyance, that “they have not done or suffered to be done any act, matter •or thing whatsoever to encumber the property,” and alleging a, breach thereof by reason of the existence of a right of way, is bad on demurrer if it fails to show when the right of way came into existence. pp. 446, 447</p>

<p>Adverse Possession — As Between Co-Tenants.</p> <p>An apparent, adverse, exclusive, open.and notorious possession by a father, his daughter and the daughter’s devisee, extending over sixty-nine years, is sufficient to confer a marketable title. p. 450</p> <p>Where there is a partition in fact between tenants in common, and a part performance, a court of equity will have regard to and enforce such partition agreed to by the parties.</p> <p>p. 451</p> <p>A direction in a will for a sale of land and the division of the-proceeds among testator’s children constitutes them tenants in common. p. 451</p> <p>The possession of one tenant in common is ordinarily regarded as the possession of all. p. 451</p> <p>One co-tenant may oust the others and set up an exclusive-right of ownership in himself, and an open, notorious and hostile possession of this character for the statutory period will ripen into title, as against the co-tenants who were ousted. •</p> <p>p. 452'</p>

<p>Appeal from the Circuit Court for Erederiok County, In Equity (Urner, L).</p>

<p>Non-Delivery of Merchandise Sold — Secondhand Lumber— Damages — Instructions—Evidence—Qualification of Witness — Leading Questions.</p> <p>A witness who stated that he was not familiar with the price of lumber of a particular kind at a certain time was not competent to testify as to its value at that time. p. 466</p> <p>A witness who said that he had, bought very little secondhand lumber and that he could tell its value only “for his purposes” was not competent to testify as to the value of a particular lot of secondhand lumber. p. 466</p> <p>The refusal to allow plaintiff to testify as to the condition of such part of. lumber contracted for as was delivered by defendant, as compared with that not delivered, held not cause for reversal, this matter having been previously covered by plain! tiff’s testimony. ... P- 466</p> <p>The circumstances under which leading questions may he asked are matters largely in the discretion of the trial court, and the allowance of such, questions to he asked of defendant’s witnesses was not cause for reversal when the answers thereto simply contradicted plaintiff’s testimony as to certain features of the contract in suit, in support of defendant’s previous testimony as to the terms thereof. p. 467</p> <p>In an action for breach of a contract for the sale of lumber constituting part of the structure of a building belonging to defendant, the wrongful admission of an advertisement for the sale or lease of the building was not cause for reversal at the instance of plaintiff, when he himself had testified that defendant told him that he had been trying to sell the building, p. 467</p> <p>Defendant’s version of his contract with plaintiff being that he had thereby sold only such of the lumber on his premises as he could not use himself in the erection of some houses which he proposed to build, evidence that such lumber as defendant did not allow plaintiff to take was used by the former in the erection of houses was admissible for the purpose of showing that defendant complied with the contract according to his version thereof. p. 468</p> <p>In an action for the breach of a contract by which defendant agreed to sell to plaintiff the secondhand lumber on the former’s premises, wherein plaintiff alleged that he had to purchase new lumber of a different kind in partial substitution for the part of defendant’s lumber which was not delivered as agreed, it was proper to refuse an instruction that plaintiff was entitled to recover the difference between the balance of undelivered lumber and the price plaintiff was compelled to pay in the open market to replace said balance, it failing to submit to the jury the question whether lumber such as was contracted for could have been obtained by plaintiff “on the market.” and whether the lumber purchased by him was the best substitute, pp. 469-470</p> <p>The lumber purchased by plaintiff on the market being less in quantity than the balance undelivered, the requested instruction was misleading in stating that plaintiff was entitled to recover the difference between the balance of undelivered lumber and the price he was compelled to pay in the open market. p. 470</p> <p>That lumber was sold plaintiff by defendant at a named price per one thousand feet; that defendant delivered only part of that sold, and that plaintiff claimed such part to be inferior to the average of the lumber sold, did not justify an instruction that the jury should allow plaintiff such damages as would fairly compensate him for such inferior lumber, since this either meant that plaintiff might, while retaining the lumber delivered, recover the amount paid by him therefor, or it failed to furnish any guide in determining damages. p. 471</p> <p>There being no evidence as to the value of the part of the lumber delivered, other than the price per thousand feet named in the° contract, nor any evidence as to the value of lumber of the average quality of the entire quantity sold, it was proper to refuse an instruction that plaintiff could recover the difference between such values, and to grant an instruction that there was no evidence legally sufficient to entitle plaintiff to recover under a count alleging plaintiff’s loss by reason of the inferiority of the lumber delivered to the average quality of that sold.</p> <p>pp. 471,472</p> <p>That plaintiff accepted and paid for the lumber delivered by defendant under his contract could not have involved a waiver of his right to claim on account of the inferior quality thereof, had there been any evidence by which to determine the resulting loss. p. 473</p>

<p>Appeal from the Circuit Court for Washington County, in Equity (Poeeenberge®, J\).</p>

<p>Uncertainty of Verdict — Amount of Interest — -Harmless Error.</p> <p>A verdict for plaintiff in a specified sum “with interest” is not, by reason of the failure to state the sums on which or the date from which interest is to be computed, so vague and uncertain as to call for a reversal, on appeal by defendant, of the judgment entered thereon, such judgment being only for the specified sum, with interest, as required by statute, from the date of the verdict. p. 484</p>

<p>Appeal from the Circuit Court iSFo. 2 of Baltimore City (Dobeeb, J.).</p>

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

<p>Appeal from the Court of Common Pleas of Baltimore City (Staktost, L).</p> <p>The prayers for instructions were as follows:</p> <p>Plaintiff's First Prayer — If the jury find that the plat offered in, evidence was recorded in or about the year 1875 by the receivers named thereon and lots sold by reference thereto, and. that the object of the streets shown on said plat was tó enable the purchasers from said receivers and their successors in title to have access to the lots bounding on such streets, then if the jury further find that the plaintiff and her predecessors in title has owned lots bounding on Highland (or Mondawmin) avenue and Twelfth (or Dennison) street, two of the streets shown on said plat for more than 20 years prior to the grading complained of in this case, and that the beds of said streets in front of said lots remained grass-grown, fields and were not used or maintained by the authorities of Baltimore County or (after the annexation) of Baltimore City until the grading complained of in this suit, and that the defendant the City of Baltimore without any leg’al proceedings for the condemnation and opening of said streets proceeded to enter upon and grade said Twelfth (or Dennison) street and said Highland (now Mondawmin) avenue to a gpade very much below the level of the abutting land, and if the jury further find that such grade deprives the plaintiff of reasonable access from said streets to her abutting property, then the verdict of the jury should be for the plaintiff. (Refused.)</p> <p>Plaintiff’s 1% Prayer — The Court instructs the jury that the recording of the plat of Highland P'ark by the receivers as mentioned in the evidence, and the sale of lots with reference to said plat, if the jury shall find such sale, amounted to a dedication of the streets shown on said plat, including Highland avenue and Twelfth street in front of the plaintiff’s property, provided, the grade established for such streets be such as to afford the abutting" property owners reasonable access to such streets; and said facts did not authorize the city to accept said streets by the establishment and construction of a grade which the jury may find to be destructive of such reasonable access. (Refused.)</p> <p>Plaintiff’s Second Prayer — If the jury find that the plaintiff was the owner of the lots at the northeast corner of Mondawmin (or Highland) avenue and Dbnnison (or Twelfth) Street as shown on the plat of Highland Park which is in evidence, and that for more than twenty years prior to the grading complained of in this suit the plaintiff and her predecessors in title was in possession of said lots, and that neither the City of Baltimore nor Baltimore Oounty ever maintained said streets as public streets and permitted the plaintiff so to use a private way in the bed of said 'Dennison street and to improve and adapt her abutting' property to the existing grade of the land in the bed of said street, and that the interest of right and justice require that the city should not now he permitted to accept any dedication of said streets and so to grade them as to deprive the plaintiff of reasonable access from them to her abutting property without, making just compensation, then the defendant at the time of the grading complained of in this snit was estopped to accept any dedication of said streets), and the verdict of the jury must be for the plaintiff. (Refused.)</p> <p>Plaintiff’s Third Prayer — If the jury find that the plaintiff and her predecessors in title for more than twenty years prior to the grading complained of in this suit had held open, notorious and undisputed possession of parts of the hods, of Highland (or Mondawmin) avenue and Twelfth (or Dennison) street adverse to that of all persons whatsoever, and used and cultivated the same freely without, interruption as her and, their own property, and if the jury further find that Baltimore Oounty or Baltimore Oity prior to the grading complained of in this case never improved, lighted, sewered or maintained the same as streets, and that the city entered upon and tore down the surface of said parts of said streets, them the verdict of the jury must he for the plaintiff. (Refused.)</p> <p>Plaintiff’s Fourth. Prayer (Alternative to Plaintiff’s Prayers No. 1, 1%, 2 and 3) — If the jury find that the plaintiff was in possession of the property at the northeast corner of Mondawmin (or Highland) avenue and Dennison (or Twelfth) street, and the city in grading Twelfth street and Highland avenue did not confine its operations, within the lines of the streets as laid down on the plat of Highland Parle which is in evidence, hut in spite of her protests entered upon abutting property belonging to the plaintiff and dug up- the surface thereof, then the plaintiff is entitled to recover, even though the city may have had the right to g-rade the beds of said streets; and the case is the same as if the city had had from the beginning no right at all to enter upon even the beds of said streets. (Refused.)</p> <p>Plaintiff’s Fifth Prayer (Alternative to J/.th) — If the jury find that the city in grading Twelfth (or Dennison) street and Highland (or Mondawmin) -avenue did not confine its operations within the lines of said streets as laid down on the plat of Highland Park which is in evidence, but entered, upon abutting property belonging to the plaintiff and dug up the surface of such abutting property, then the verdict of the jury should be for the plaintiff. (Refused.)</p> <p>Plaintiff’s Sixth Prayer — There is no evidence legally suifi- • cient to prove such a dedication of Highland (or Mondawmin) avenue and Twelfth (or Dennison) street as the city at the time of the grading complained of in this case could accept by grading said streets in the manner shown by the evidence, and therefore if the jury find that the plaintiff is the owner of the property at the said northeast corner of said Higjhland avenue and Twelfth streets, and that the defendants did such grading, their verdict must be for the plaintiff. (Refused.)</p> <p>Plaintiff’s Seventh Prayer — If the jury find that the grading done by the city through Beasman in the bed of Mondawmin (or Highland) avenue between Eleventh (or Hilton) and Twelfth (or Dennison) streets was not for the purpose of conforming to the established grade of said Mondawmin avenue but for the purpose of obtaining earth to use in grading another street, then such grading of said Mondawmin avenue was unlawful, and the plaintiff is entitled to recover such damages as the jury may find she has sustained therefrom. (Refused.)</p> <p>Defendant’s First Prayer — The Court instructs the jury that no evidence has been offered in this case legally sufficient, under the pleadings, to. entitle the plaintiff to recover and the verdict of the jury must, therefore, be for the defendant. {Refused.)</p> <p>Defendant’s 1% Prayer A — The Court instructs the jury that it appears from the uncontradicted testimony in this case that Mondawmin avenue between Eleventh and Twelfth streets, for a width of 66 feet, and Twelfth street between Mondawmin and Piedmont avenues, for a width of 66 feet,, were dedicated to the public for its use as public highways and streets prior to the acts of the defendant complained of in the plaintiff’s declaration; and the Court further instructs the jury that there is no evidence in this case legally sufficient to show that the Mayor and City Council of Baltimore ever abandoned its. right to accept the dedication of said avenue and street; and the Court further instructs the jury that it , appears from the uneontradicted testimony in this ease that said avenue and street have been legally accepted by the Mayor and City Council of Baltimore as and for public highways; and if the jury believe from the evidence that in making the excavations in the beds of Mondawmin avenue and Twelfth street, the defendant or its agents confined their operations within the limits of said avenue and street as delineated on the plat offered in evidence, then the verdict of the jury must be for the defendant, even though the jury may believe that as a, consequence of such excavating portions of the plaintiff’s land adj aeent to the lines of the said avenue and street, was deprived of its natural support and fell into the beds of said avenue and street; unless the jury believe from the evidence that the defendant or its agents in making* said excavations extended their operations beyond the lines of said street and avenue as delineated on the plat offered in evidence and actually encroached upon and physically invaded the plaintiff’s property, and even if the jury so find then their verdict should be for nominal damages only. (Granted.)</p> <p>Defendant’s Second Prayer — The Court instructs the jury that no evidence has been offered in this case legally 'sufficient to entitle the plaintiff to recover under the first count of the declaration and the verdict of the jury mtust, therefore, be for the defendant under the first count of the declaration. (Granted.)</p> <p>Defendant’s Third Prayer — The Court instructs the jury that no evidence has been offered in this case legally sufficient to entitle the plaintiff to recover under the amended count of the declaration and the verdict of the jury must, therefore, be for the defendant under the amended count of the declaration. (Refused.)</p>

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

<p>Appeal from the Circuit Court for Somerset County (Pattison, C. J., Bailey and Duee, JJ.).</p>

<p>Review on Appeal — Variance—Stairway in Office Building— Injury to Visitor — Contributory Negligence.</p> <p>Under Act of 1914, Oh. 110 (Code, Yol. 3, Art. 5, Sec. 9A), the question of variance between the pleadings and evidence cannot be considered as having been raised by any prayer or instruction below which does not specifically state the points wherein it is claimed that such variance exists. p. 544</p> <p>An owner of an office or other building, in which he rents rooms to various tenants, keeping control of the hallway, stairway and elevators, while under an obligation to use reasonable diligence to keep the portions so under his control in a safe condition and free from improper obstructions, is not liable for dangers that are obvious, or are as well known to the person injured as to himself. p. 544</p> <p>In an action against the owner of an office building for injuries caused by plaintiff’s hand becoming impaled, while he was descending a stairway, upon one of a series of spikes fastened on the top of an iron meshwork located above the railing of the stairway, held that the spike being perfectly visible to plaintiff, had he looked, and there being no necessity that he should have placed his hand in proximity thereto, recovery was barred by his negligence. pp. 545-549</p> <p>One of ordinary intelligence, with unimpaired sight, cannot avoid the defense of contributory negligence by saying that he did not see an object which, if he had used his senses, he in the nature of things must have seen. p. 549'</p>

<p>Appeal from the Circuit Court for Howard County (Eorsythe, J.).</p>

<p>Injunction — Sufficiency of Bill — Laches and Acquiescence— Connection with Plaintiffs Sevjer.</p> <p>A bill which sought to enjoin defendant city from draining surface water into plaintiff’s sewer by means of drainage wells constructed by the city and connected by it with the sewer, but which failed to show either that the right was in any way questioned by plaintiff, or that the connection was made without plaintiff’s knowledge or without a belief on defendant’s part that it had the right to make it, and also failed to show the time at which the connection was made, was demurrable as being too vague and indefinite. p. 568</p> <p>To justify the grant of an injunction, the court must be fully informed as to all the material facts and circumstances, p. 569</p> <p>One who, while fully cognizant of his rights, permits a municipality to expend large sums in improvements in contravention of such rights, making no complaint, or any attempt to interrupt the work, is not entitled to relief by injunction.</p> <p>pp. 569, 570</p> <p>A bill to enjoin defendant city from maintaining surface-water connections with plaintiff’s sewer, which showed that plaintiff company was organized fourteen years previously in order to construct the sewer, and which failed to show at what time the connections were made by the city, whether plaintiff at the time objected to their construction, a,nd whether defendant then claimed the right to make the connections, held demurrable as failing to show such absence of laches and acquiescence as to entitle plaintiff to the relief sought pp. 570, 571</p> <p>An injunction will not be granted against an injury which is merely anticipated, unless the court is satisfied, from all the circumstances of the case before it, as to the illegality of the acts complained of and that irreparable injury will ensue. p. 572</p> <p>A bill seeking to enjoin defendant from maintaining surface-water connections with plaintiff’s sewer, which alleged that the franchise to build and maintain the sewer was granted to persons named, and was by them assigned to plaintiff, without indicating whether the assignment was in writing or giving its date, and alleging only that the connections were made “without the plaintiff’s authority,” was demurrable, since the original holders of the franchise might, before parting with the franchise, have made some arrangement, or done some act, by which defendant was authorized to make such connections. p. 572</p> <p>An instrument under which one claims the right to relief by injunction, or a copy thereof, must be filed, or its absence accounted for, and its unexplained absence may be taken advantage of by demurrer. pp. 572, 573</p> <p>The mere allegation that plaintiff will suffer irreparable damage is not sufficient, but facts must be stated which will satisfy the court that the apprehension is well founded. p. 573</p>

). Of the prayers referred to in the opinion, defendant’s first prayer asked an instruction that there was no evidence sufficient to entitle plaintiff to recover against defendant railroad company, while defendant’s tenth, as well as his. third, fourth and eleventh prayers, were concerned with the question of the negligence of the driver of the truck belonging to defendant Bransby.

<p>Appeal from the Orphans’ Court for Harford County. For former appeals, see 132 Md. 406; 134 Md. 572.</p>

<p>Appeal from the Circuit Court for Frederick County ( Worth ihgtoh, J.).</p>

<p>Negligence — Res Ipsa Loquitur — Lumber Piled■ on Sidewalk— Evidence — Review of Instructions — Assumption of Facts.</p> <p>That one passing on the sidewalk was injured by the fall of pieces from a pile of lumber on the sidewalk in front of a defendant’s mill, placed there by defendant’s orders, imposed on the latter the burden of showing the absence of negligence, under the doctrine of res ipsa loquitur. pp. 604-607</p> <p>That one of the defendants, employed by the mill owner, testified that he did the piling of the lumber and that it was properly done, was not in itself sufficient to prevent the inference of negligence, under the doctrine of res ipsa loquitur, from going to the jury to be considered by it. p. 608</p> <p>Testimony by the driver of a lumber truck that on approaching defendant’s mill he pulled alongside the pile of lumber on the sidewalk, but about four or five feet therefrom, and that he did not take any lumber off his truck until after the accident, was not sufficient to show that the pieces of lumber which fell from the pile and injured plaintiff were caused to fall by the truck backing up against the lumber. pp. 606, 607</p> <p>Under Code, Art. 5, Sec. 9, that an instruction was defective in assuming that plaintiff was caused suffering by the accident is not available on appeal if no objection for such defect was taken on the trial. p. 608</p> <p>Possible error in admitting a hospital record to show the nature of plaintiff’s injuries, held harmless in view of the consideration that the facts stated therein were either unimportant or were shown by other witnesses. p. 609</p>

<p>Discharge of Receivers — Appeal—Accounting.</p> <p>An order discharging receivers does not so affect the rights of the parties to the proceeding that an appeal therefrom will lie.</p> <p>p. 617</p> <p>Receivers appointed for the real estate of a decedent with the concurrence of all the heirs, on the assumption that decedent died intestate, were properly discharged when the highest court of another State, in which any contest as to the validity of decedent’s will was properly cognizable, decided in favor of the validity of such a will. . p. 617</p> <p>The lower Court, in ordering the receivers to turn over to the devisees under decedent’s will any balance of monies in their hands, merely followed the judgment of the foreign court upholding the will, which was in effect that those claiming as heirs, at whose instance the receivers were appointed, had no right or title in decedent’s real estate, and hence such order cannot be regarded as an adjudication as to the title to the real estate, and as such not within the lower court’s jurisdiction, as a court of equity. p. 618</p>

<p>Lapse of Legacy — Statute to Prevent — Testator’s Insanity Before Death — Statute Applicable to Pre-existing Will— Evidence as to Insanity — Burden of Proof— Retroactive Laws.</p> <p>In Act 1910, Ch. 37 (Code, Art. 93, Sec. 326), which prevents the lapse of a devise or legacy, the proviso that it shall not apply to the will of one dying after the passage of the Act, if the testator, after its execution and before the death of the devisee or legatee named, shall become insane or otherwise incompetent, applies to wills made before the passage of the Act, when the testator became insane or incompetent after its passage, but before the death of the devisee or legatee, and then survived the latter. pp. 623-626</p> <p>Wills of personal property speak and take effect as if executed on the day of testator’s death. p. 62-6</p> <p>As a testator may change his will at any time before his death, if competent, those named as beneficiaries have no vested rights thereunder, and hence there is no constitutional objection to the passage of a law which may affect what they would, but for such statute, have taken. p. 626</p> <p>Laws are not unconstitutional because they are made retrospective, or are made applicable to pre-existing cases, unless they impair the obligation of contracts or are ex post facto within the United States Constitution or the Maryland Declaration of Rights. . p. 626</p> <p>The policy of the courts is not to declare laws retroactive, if they can fairly be construed to have been intended to be prospective. p. 626</p> <p>It is to be presumed that testatrix made her will in view of the law as it stood when she made it, but with the knowledge that the Legislature could change or repeal it, and hence could have made provision in her will for that contingency. p. 627</p> <p>Courts must be governed by the intention of the Legislature if that can be ascertained from the statute, and cannot legislate for it simply because they may think it ought to have said something else, in order to do full justiée. p. 627</p> <p>One asserting that a legacy lapsed -by reason of the proviso, in Act 1910, Ch. 37 (Code, Art. 93, Sec. 326), that the statute should not apply to the will of one dying after its passage who, after the execution of the will and before the death of the legatee named, shall become insane or otherwise incompetent, has the burden in the first place of showing that the case comes within the words of the proviso, but when testator’s insanity, after the date of the will and before the death of the legatee, is shown by an inquisition finding him a lunatic without lucid intervals, the burden is on one asserting that he recovered his sanity sufficiently to be able to revoke or alter the will.</p> <p>pp. 630, 631</p> <p>The mere fact that an old woman, who had been adjudged, on inquisition by a jury, a lunatic without lucid intervals, remembered that she owned certain stock, this stock having been owned by her for many years and constituting the bulk of her estate, does not show that she had recovered her sanity sufficiently to be able to revoke or alter her will. p. 632</p> <p>The case of Hemsley v. Hollingsworth, 119 Md. 431, discussed, and certain errors in the opinion as published referred to.</p> <p>pp. 628-630</p>

<p>Appeal from the Circuit Court for Frederick County (Freer, C. <T., and Worthington, J.).</p>

<p>Appeal from the Baltimore City Court (Duffy, J.).</p>

<p>Appeal from the Circuit Court for Carroll County (Forsythe, J.).</p>

<p>Appeal from the Circuit Court for Harford County (Harlah, J.).</p>

<p>Appeal from the Circuit Court for Harford. County, in Equity (Hablan, J.).</p>

<p>Counsel Fees — Payment from Estate — Construction of Will.</p> <p>When the judicial construction of a will is reasonably necessary, the estate is properly chargeable with the payment of a fee to the counsel by .whom the proceeding is instituted, particularly where such action is taken by executors or other fiduciaries desiring and needing direction as to the performance of testamentary duties. p. 686</p> <p>Whether and to what extent an estate should be charged with counsel fees, for services rendered in litigation involving the construction of a will, must depend on the circumstances of the particular case, such as the necessity for the proceeding, the amount involved, and the legal capacity of the parties to employ counsel for themselves. p. 687</p> <p>Counsel for the unsuccessful parties to a proceeding involving the construction of a will, who took an appeal from the decree, which was affirmed, held not entitled to payment of their fees from the fund in controversy, except as regards services rendered by them in the lower court to one of such parties who was, as being an infant, incapable of employing counsel, p. 689</p>

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