Volume 61 — Maryland Reports

Cross-Appeals from the Circuit Court for Anne Arundel County, in Equity. The case is stated in the opinion of the Court.

This was an application hy the State on the relation of George Wells and James A. Hardesty for a mandamus to compel the Governor of Maryland to deposit in the office of the Court of Appeals a certain bill alleged by the relators to be a law under the provisions of section IT of Article 2, of the Constitution, and improperly withheld.

The case is stated in the opinion of the Court. Exception. — At the trial the plaintiff offered the two following prayers; 1.

The case is stated in the opinion of the Court. First Exception.- — Abandoned. Second Exception. — Stated in the opinion of the Court.

This was an action instituted in the Court of Common Pleas on the 26th of July, 1880, hy the appellant against the appellees to recover damages for the killing of an infant child of the equitable plaintiff on the 23rd of July, 1880, through the alleged negligence of a servant of the defendants in driving a wagon of the said defendants over the child whereby she was instantly killed.

This was an action brought by the appellee to recover damages from the appellant for injuries he sustained through its negligence, while stepping from one of its cars at Green Castle, a station on its road.

Appeals from the Court of Common Pleas. The case is stated in the opinion of the Court. First Exception. — This exception was taken to the-granting of the plaintiff’s prayer, and the rejection of the first, second, third, fourth, and fifth prayers of the defendants. The third prayer of the defendants, which alone need be inserted, is as follows : 3.

Tlie caso is stated in the opinion of the Court. Exception. — At the trial the plaintiffs offered the following prayer: That if the jury shall find a verdict for the plaintiffs, in. estimating the damages, they are to consider the health and condition of the plaintiff, Adaline Kemp, before the injury complained of, as compared with her present condition, in consequence of said injury, and whether the said injury is iu its nature permanent, and how far it is calculated to…

<p>Assault and battery — Pleading—Special damage — Evidence— Pecuniary circumstances — Exemplary or Punitive damages— Credibility of witness — Character—General reputation — Impeachment of witness — Mental pain or Suffering as an Element of Damage — Measure of Damages.</p> <p>In an action in damages for an assault and battery, it is comj)etent for the plaintiff to offer in evidence, and for the jury to consider the fact, t-liat as a result of the battery alleged the plaintiff had become subject to convulsions or fits, although such fact was not specially alleged in the declaration as a ground of special damage.</p> <p>Whatever injurious consequences result naturally from the wrongful act done, become elements of damage; and it is not necessary that the particular form or nature of the results should have been contemplated or foreseen by the wrong-doer.</p> <p>'The pecuniary circumstances of the plaintiff, and the extent and dependent condition of his family, may be considered by the jury in estimating the damages to be awarded the plaintiff, for the injury suffered by him.</p> <p>In cases of personal wrongs, if the injury has been inflicted maliciously or wantonly, and with circumstances of contumely or indignity, the jury are not restricted to actual or compensatory damages, but may give, in addition thereto, such exemplary or punitive damages as the circumstances of the case will warrant. And, in such cases, the pecuniary circumstances of the defendant are proper to be considered.</p> <p>But the testimony of a witness as to the pecuniary condition of the defendant should not be allowed to go to the jury, when it does not appear that he spoke from personal knowledge of his own, or that his information was derived from any competent or proper source ; nor when the answer of the witness conveyed no definite idea of the extent of the defendant’s means.</p> <p>It is incompetent for a witness called to support the credibility of another, to testify that he would believe him on his oath, having previously testified that he had lived in the same neighborhood with him for some years and had never heard his character for truth discussed ol’ talked about except by one person.</p> <p>A witness called to prove character, either good or bad, should be interrogated as to his means of knowledge of the general reputation of the person in question among his neighbors,'and what that reputation is. And the evidence must be confined to general reputation.</p> <p>Where a witness is impeached by proof of a general bad reputation for truth, the fact of the existence of such general reputation may be negatived, by a witness having equal means and opportunity of knowledge as the impeaching witness.</p> <p>A witness cannot be cross-examined as to any fact, which, if admitted, would be wholly collateral, and irrelevant to the matters in issue, for the purpose of contradicting Mm by other evidence, and in this manner to discredit his testimony. And if the witness answer such an irrelevant question without objection, evidence cannot afterwards be admitted to contradict his testimony on the collateral matter.</p> <p>A witness, however, may be asked any question on cross-examination which, if answered in the affirmative, would qualify or contradict some previous part of his testimony relevant to the issue on trial; and if such question be put and answered in the negative, the witness may then be contradicted as to such matter. But if a witness has simply testified to a fact, his previous opinion as to the merits of the cause, cannot be regarded as relevant to the issue.</p> <p>In an action for assault and battery the jury may consider the malice of the defendant, the insulting character of his conduct, the rank and position in life of the several parties, and all the circumstances of the wrong, and thereupon award such damages as the circumstances of the case require.</p> <p>"Where mental pain or suffering is connected with, and follows as a natural consequence of, a material wrong or injury, it is a legitimate element of damage.</p> <p>In an action for an assault and battery the jury are not confined in the assessment of damages to the consideration of the consequences of the injury that have ensued to the time of the trial, but they may award damages for the natural injurious consequences that may continue or ensue after the trial.</p>

The case is stated in the opinion of the Court. Exception. — At the trial the plaintiff offered the following prayers numbered one, two, and four, and another numbered three, which was withdrawn: 1.

Appeals from the Circuit Court for Kent County, in Equity. These appeals were taken from an order of the Circuit Court sustaining exceptions to the several reports of the auditor, and referring the case hack to the auditor to state an account in accordance with the instructions accompanying the order. The case is stated in the opinion of this Court.

<p>Equity jurisdiction — Eorged single Mil — Overruling of Demurrer — Privilege of party to decline Answering any question that may Criminate himself — Demurrer to Bill — Pine and Costs under sec. 102, of Art. 16, of the Code.</p> <p>A Court of equity will vacate a forged paper, or direct its surrender for destruction, when the forgery, or fraudulent character of the paper is established by proof. A demurrer, therefore, which denies the right to an injunction restraining the defendant from selling, assigning or otherwise disposing of a certain single bill, purporting to be the single bill of the complainant, and alleged by him to be a forgery, is too broad and cannot be sustained.</p> <p>Where a bill calls upon the defendant to answer charges which impute to him a punishable offence against the law, he may assert his privilege to be protected from being compelled to answer anything that may criminate himself, by a demurrer to the bill.</p> <p>Where upon the overruling of a demurrer to a' bill in equity, the Court, in strict conformity with section 102, of Article 16, of the Code, imposes upon the defendant a fine of ten dollars, and requires him to pay the costs, such costs are confined to those accruing on the demurrer.</p>

<p>Appeals from the Circuit Court for Carroll County, in Equity.</p> <p>The nature of the case is stated in the opinion of the Court.</p>

Appeals from the Circuit Court for Baltimore County, in Equity.

<p>Construction of a Will— Vesting of an estate— Vested remainder.</p> <p>In the absence of plain expressions, or an’ intent plainly inferrible from the terms of the will, the earliest time for the vesting of property will be adopted, where there is more than one period mentioned In the will.</p> <p>A testator by Ms will gave his farm in A. A. County to his wife and brother in trust, for his wife A. E. C., to use and enjoy said farm and premises, and receive the income therefrom “ until such time as they shall have an oifer of one hundred thousand dollars, (§100,000,) and shall invest fifty thousand dollars of the proceeds of such sale in good and safe securities under the direction of the Court, and pay the interest received from the said fifty thousand dollars so invested unto my wife A. E. C. during her natural life, and at her death said fifty thousand dollars, or the securities in which the same may be invested, shall go to and become the property and estate of such person or persons as would, by the now existing laws of the State of Maryland, be entitled to take an estate in fee simple in lands by descent from me, and the heirs, executors and administrators of such person or persons, per stirpes, and not per capita.” Held :</p> <p>That the remainder in said fifty thousand dollars vested in the persons who were the heirs of the testator at the time of his death.</p>

This action was originally instituted in the Circuit Court for Allegany County, and was thence removed, at the suggestión of the defendant, to the Circuit Court for Frederick County, where it was tried.

<p>Involuntary Insolvency — Article 48, section 24, of the Code, (Act of 1880, ch. 172) — Corporation as a Creditor — Evidence — Practice.</p> <p>Under a proceeding in involuntary insolvency under section 34, of Article 48, of the Code, as enacted by the Act of 1880, ch. 173, it was Held:</p> <p>1st. That all that is required by the statute, in prescribing the allegations of the petition, is a statement of the facts with sufficient certainty and directness to show the acts of insolvency upon which the petitioning creditor relies for the adjudication.</p> <p>3nd. That it was not necessary as a matter of pleading, that the petitioning creditor, representing itself as a foreign corporation, should have alleged and exhibited with the petition proof of the fact that it was a legally incorporated body. But to entitle the petitioner to an adjudication against the debtor it would doubtless be necessary that proper proof be exhibited of its existence as a corporation.</p> <p>'The petition was signed by the B. M. Co., by E. T. B., treasurer, and it was also signed by the attorney filing the same; and it was sworn to by the treasurer, with a certificate of the oath by a notary public, under seal. Held :</p> <p>1st. That this was all that should be required in the first instance in authentication of the act of the corporation.</p> <p>'3nd. That if the authority from the corporation to institute the proceedings should be questioned, then, before adjudication should be had, it would be necessary to establish the existence of such authority from the corporation; or upon failure so to do, the proceedings would be liable to be dismissed.</p> <p>The jurisdiction of the Circuit Courts of this State ove,r proceedings in insolvency is of a limited nature, and the mode of procedure, being prescribed by statute, must be pursued in the manner prescribed and not otherwise.</p> <p>Only one mode of notification to the alleged insolvent debtor of the institution of the proceedings against him, is provided by the-statute (1880, ch. 172,) and that is by the service of a summons, upon him. By that process he is to be warned to appear and show cause against the proposed adjudication against himself and his property. It was alleged in the petition in this case that the debtor had departed from the jurisdiction and was beyond the reach of the only process provided for by the statute. The summons that issued against him was returned without service, and not even a copy, as was directed by the preliminary order of the Court, was left at his last place of abode within the jurisdiction. On appeal from the order of adjudication, it was Held :</p> <p>1st. That in such state of case it was not within the power or jurisdiction of the Court below, to proceed on an ex pwrte hearing to-adjudicate the party an insolvent, and appoint a trustee whereby all the property of the debtor was divested out of him and transferred to such trustee.</p>

<p>Action of Covenant for Breach of Contract — Construction of the Contract — Measure of damages.</p> <p>By contract under seal, dated 13th Nov.,-1879, A. F. F. agreed to sell all the wood on his farms in Back River Neck to L. F., for seventy-five cents’per cord standing, to mark out such grounds and on such farms as he wanted the wood cut from, and to give L. F. full coal privileges; and L. F. on his part agreed to take all kinds of wood that will do for charcoal, and to leave no wood standing at all that can be made into charcoal; to pay for it as soon as taken from the choppers, or as soon as it is corded and measured, and to receive and haul away from said farms all the wood as above specified, within two years from the date of this agreement. In an action of covenant brought by A. F. F. against L. F. for a breach of this contract, it was Held :</p> <p>1st. That the contract constituted a sale by the owner of the land, of the growing wood or timber upon it, at a certain sum per cord, the purchaser agreeing to cut and haul away all of it that was suitable for charcoal, and to pay the stipulated price therefor; the same to be done within two years.</p> <p>2nd. That it did not follow because of the failure of the purchaser to cut down and carry away all such wood, or because he left some of the wood standing, that the land itself was thereby permanently injured or deteriorated in value.</p> <p>Srd. That if the plaintiff immediately after default made, had proceeded as he might have done, to cut, haul and sell this wood in the market at the defendant’s risk, he would have been entitled to recover the difference, if any, between what he would have realized from such sale, after deducting the cost of cutting and hauling, and the contract price.</p> <p>4th. That having failed to do this, and the wood remaining standing on the land, he could only reeover the difference in value of the wood thus left on the land, between the rate of seventy-five cents per cord, and its market value as it thus stood, and if it were of equal or greater value in the whole than seventy-five cents per cord, then he could recover no damages whatever on this account.</p> <p>5th. That as one of the inducements on the part of the plaintiff to enter into the contract, and one of the objects in the contemplation of both parties to it, was to have the land cleared for cultivation within two years, and a failure to clear it was to deprive the plaintiff of the use of it, for a time at least, as arable or tillable land, he was entitled for this deprivation, to such damages, if any, as the jury upon proper evidence should find he actually sustained thereby.</p> <p>' Oth. That damages on this account, however, could only be recovered for such reasonable time after the expiration of the two years as would have enabled the plaintiff to clear up his land by cutting and hauling away the wood thus left uncut by the defendant.</p>

Appeals from the Court of Common Pleas. These cases were before this Court on the former appeals of Curtis vs. Gibney, 59 Md., 131, and the nature of the cases, and the facts as then presented, are fully stated in that case. The additional features of the cases as now presented, are stated in the opinion of the Court.

<p>Appeal from the Baltimore City Court.</p> <p>The case is stated in the opinion of the Court.</p>

<p>Caveat to a Will — Essentials to the Validity of a Will — Animus testandi — Parol Evidence — See. 303, of Art. 93, of the Code.</p> <p>It is not necessary to the validity of a will that it should contain the appointment of an executor, or that it should dispose of all the testator’s estate, real or personal; nor does the omission to make such appointment, or the failure to dispose of the entire estate afford any evidence whatever of the absence of the animus testandi, where the instrument is complete on its face, and professes in direct and explicit terms to dispose of only a part of the testator’s property.</p> <p>If a paper be perfect on its face and validly executed, and if by its terms it discloses that it was written o.nvmo testandi, it must, if voluntarily made by a competent testator, stand as bis will unless superseded by a later one, or revoked in the mode pointed out by the statute.</p> <p>In such case parol declarations of the deceased can never he received for the purpose of revoking or altering, or in any way preventing the instrument from operating as a will.</p> <p>A decedent during his life-time wrote on the back of a business letter written by him to John Q. Byers and Eliza Ann Byers his wife, and mailed to the said John &. Byers as follows: “ Ann don’t worry yourself about this matter, as you see you are almost cut out on every side by your father, and your mother, hut you have been a faithful daughter to me, and have obeyed me, and you have seen a great deal of trouble; don’t worry yourself but take things easy and do the best you can for the present. I have prospered and have accumulated a great-of money together, and I intend to do what I please with it, and Ann, after my death you are to have forty thousand dollars; this you are to have will or no will; take care of this until my death ; Ann keep this to yourself.</p> <p>,T. Hiskry Hoppe.”</p> <p>“ To Eliza Ann Byers."</p> <p>On a caveat to said paper, it was Held :</p> <p>1st. That the concluding sentences, “ and Ann, after my death you are to hare forty thousand dollars; this you are to have, will, or no will, take care of this until my death," accompanied with the direction, “ To Eliza Ann Byers," evince just as effectually, in legal contemplation, that the writer wrote them animo testandi, as il' he had said in terms, “ I hereby will and bequeath to Eliza Ann Byers forty thousand dollars, to be paid to her at my death out of my personal estate.”</p> <p>2nd. That it was an instrument complete on its face, and being written and signed by the testator, it possessed all the requisites of a valid will of personal jn-operty.</p> <p>3rd. That parol evidence was not admissible before either a Court or a jury in order io determine whether it was written as and fora last will or testament, and with the intention that it should operate and take effect as such.</p> <p>4th. That parol declarations of the testator, (if he ever made them,) that he never intended it should operate as a will, or that he intended to make a will giving all his property to other parties, could not be availed of by the caveators, because the law declares that “ no will in writing concerning any goods or chattels or personal estate shall be repealed, nor shall any clause,'devise or bequest therein be altered or changed, except the same be in the life-time of the testator committed to writing, and after the writing thereof read unto the testator and allowed by him, and proved to. be so done by three witnesses at least.” (Art. 93, sec. 303, of the Code.)</p> <p>The case of Mason vs. Poulson, 40 Md. 355, explained, and shown not-to be in conflict with the views expressed in this case.</p>

<p>Partners — Dissolution—Bill for an Account, and a Receiver— Boopenscs of winding up Partnership — Reimbursement— limitations — Interest—Balance after Settlement of Accounts between Partners.</p> <p>After the dissolution of a partnership disputes arose between the two partners, and a bill in equity was filed by one of them against the other for an account, and for a receiver, to take charge of the undistributed assets of the firm. Receivers were appointed, and a decree for an account was passed. Aippng the partnership property there were two farms, and during the partnership B. had charge of one of them and D. of the other. After the dissolution one partner ordered B. and D. to remove from the farms, and discharged them from his service, and the other ordered them to remain and continue their care of the farms. The Court below passed an order authorizing the receivers to pay all expenses incurred or to be incurred for Hie wages of the employés on the farms; and the receivers for some time afterwards continued the employment of B. and D. Held :</p> <p>1st. That although the partnership was dissolved these farms were still partnership property, and either partner had a right to incur reasonable expense in protecting them from injury.</p> <p>2nd. That the receivers had authority under said order of Court to employ B. and D. and to pay them for their services, past as well as future.</p> <p>8rd. That under the bill to settle the affairs of the partnership the partners had a right to insist that the partnership creditors should be paid. .</p> <p>4th. That B. and D. had a right to file their claims for their services in this case, and it was not necessary for them to resort to actions at law to enforce their payment.</p> <p>After the dissolution one of the partners continued to employ the book-keeper of the firm for the purpose of keeping the books while the liquidation of the business was in progress. Held :</p> <p>'That it was necessary that some one should keep the books, and no reason having been shown why the former book-keeper should not be employed for this purpose, his claim for his services thus rendered, was properly allowed by the auditor.</p> <p>After the dissolution of the partnership, one of the partners, H. placed in the G-. A. Bank for collection notes belonging to the firm. The proceeds of these notes when collected remained on deposit in the Bank. Ho portion of it was used for his own personal benefit, ft was set apart as the money of the firm, and was capable at any moment of complete and ready identification. Held :</p> <p>That it was perfectly right that H. should hold this money until a proper settlement could be made with his partner. And as he was not responsible for the delay which took place in the accounting, and had kept the money intact, and entirely separate from his own individual funds, and had made no profit out of it, it would not be just to charge him interest upon it.</p> <p>The firm was composed of T. and H. The son of T. rendered services to the firm as a clerk from April, 1866, up to the time of its dissolution in March, 1878. There was no agreement as to the salary he was to receive. Although H. was displeased at the son’s connection with the business, he did not make known his objections to T. He himself gave orders to him which were obeyed. Held:</p> <p>1st. That there was no evidence in the record from which it could rationally be inferred that the son’s services were to be rendered without compensation; and he ought to be paid for them.</p> <p>'2nd. That having been paid by his father, the latter was entitled to be reimbursed to the full extent of the value of the services.</p> <p>3rd. That the plea of limitations could not avail against this claim of one partner for money paid in behalf of the firm.</p> <p>4th. That as T. had all the money which was drawn by his son charged to himself year after year, and never made a demand for a settlement, which he could have obtained at any time, he was not entitled to interest.</p> <p>After an account is settled between partners, and a balance ascertained, a right to sue arises, and from that time the Statute of Limitations begins to run. But when a decree for an account between partners has been passed, all the claims existing between them arising out of the partnership affairs must be brought into the account for adjustment.</p>

<p>Liability for Tax for Paving streets — Construction of Act of 1874, ch. 218, and Ordinances of the Mayor and City Council of Baltimore relating to Paving streets — Front foot rule— Cross streets — Right of Property holders to elect as to Materials used in Paving streets — Interest—^-Limitations—Demurrer — Practice in Bguity.</p> <p>By the Act of 1874, ch. 018, the Mayor and City Council of Baltimore was empowered to provide by ordinance for the paving, grading, and curbing of the streets in the city, without application therefor by the owners of the property binding on such streets, and to assess “the cost of any such work in whole or in part,pro rata, upon the property binding on such street, lane or alley, or part thereof, and for collecting such assessments as other city‘taxes are collected.” Under the power thus conferred the Mayor and City Council passed in 1874, ordinances Nos. 68 and 88, for the paving of Hanover street. The first section of ordinance No. 88, which was a re-enactment of ordinance No. 68, for the correction of an error therein, provides: “ That the City Commissioner be and he is hereby authorized and directed to have Hanover street from Clement street to the shore of the middle branch of the Patapsco River, graded, paved and curbed, and to assess upon the owners of property on said street between the streets named, their proportionate part of the expenses of said paving, grading and curbing, in accordance with existing ordinances and Act of Assembly.” The second section of ordinance No. 68, which was not repealed, provides that “the collector of the city be and he is hereby directed to collect said expenses when so assessed, from said property owners as other city taxes are collected.” On a bill for an injunction brought by owners of property on Hanover street against the city, to restrain the collection of the tax for paving said street, it was Held :</p> <p>1st. That while it is true the Act of 1874, directs that the assessment be made pro rata on the property fronting on the street paved, that was only intended to indicate the proportion in which the owners of property on tlie street were to be called on to contribute to the expenses, and the above ordinances were not rendered void by providing for the assessment of the expenses upon, and their collection from, the owners.</p> <p>2nd. That the tax was intended to be, and -was a lien on the property ; and the owner to that extent was answerable for its payment as for a personal debt of any other kind.</p> <p>8rd. That there was no such delegation of power by the Mayor and City Council to the City Commissioner as rendered the ordinance invalid.</p> <p>The bill alleged that of the part of the complainants’ property fronting on the east side of the street, which was in all six hundred and twenty feet, nine inches, one hundred and twenty feet thereof consisted of a strip forming a triangle near the intersection of McComas street with Ilanover street and was very narrow, being on one side only twelve feet deep; and that this had been assessed by the front foot rule as much as the rest which was from one to two hundred feet deep. Held :</p> <p>1st. That this did not present a case in which, by the application of the front foot rule of apportionment, a portion of the property fronting on the street paved had been taxed beyond its value, resulting in the destruction of the property. If it did it would raise a very grave question whether the owner could be forced to jsay the assessment in excess of such value, or be compelled to submit to a rule which in effect took his whole property from him.</p> <p>2nd. That by the showing of the bill it was one continuous lot and frontage, and the assessment must be treated as made upon the whole lot with full respect to its full situation.</p> <p>3rd. That it was the whole lot which was bound for the assessment on it as a whole, and part of it could not be excepted and exempted from the burden. Nor could the larger part of it be released from any part of the tax because a part of the lot, if assessed by itself, would present a case of extreme hardship, if not fatal to the rule in such case.</p> <p>The complainants were the heirs of R. H. M., who died in 1804. The assessment was made in 1875, and was stated to bo made to “ the estate of R. II. M.” Held :</p> <p>1st. That as the bill did not allege there had been a partition of the property, and the suit was joint, it might be assumed that the property was still enjoyed in common. But however that might be, it was too narrow a point and too refined and technical, for a Court of equity to declare that the city should lose the tax, and the complainants enjoy the benefits of the improvement without paying anything therefor, by reason of such imperfect designation of the person or property taxed.</p> <p>2nd. That the language used was manifestly adopted, not only to designate the property, but also that the former owner was dead,, and that there were successors in title whom it was more convenient to designate in mass, without separately naming them.</p> <p>3rd. That as the assessment, after charging “ the estate of R. H. M.”' as debtor, proceeded to describe the property particularly by metes and bounds, the requirements of the Act of Assembly, strictly considered, had not been violated by the ordinance, and whether the person or the property was to be assessed, in this ease it was sufficiently done on both.</p> <p>At the time the ordinance was passed under which the paving in question -was done, Ordinance No. 65 of 1867, was in force, and provided that “whenever application shall be made to the City Commissioner to have paved or repaved any street, lane or alley of the City of Baltimore, or whenever said paving shall be done by virtue of any ordinance of the Mayor and City Council of Baltimore, it shall be optional with the owners of a majority of the front feet of ground binding upon said street, &c.; whether the said paving or repaving shall be with stone or what is known as the Nicholson or other improved pavement.” Held :</p> <p>1st. That it was intended by this ordinance to secure to the owners of a majority of the front feet on the street to be paved, the option of the materials with which the paving should' be done. But as no mode of giving them notice was provided, and no method was prescribed for getting an exercise of their right in the matter, there was no duty resting on the City Commissioner of taking any step towards securing their election.</p> <p>2nd. That it was for the property holders, within a reasonable time to have taken the initiative in expressing their choice, if they had any, and communicating it to the City Commissioner, who would then have been bound by it.</p> <p>3rd. That in the absence of such action and choice the City Commissioner was justified in assuming it waived, and in proceeding to' use such material as the general ordinance applicable to the case required him to use.</p> <p>By Ordinance 44, of 1874, sec. 16, which also was in force when the ordinances for the paving of Hanover street were passed, it is provided “that whenever any street, lane or alley has been graded, gravelled, shelled, curbed or paved in pursuance of this ordinance, the Gity Register shall pay the expense of the cross streets, on the order of the City Commissioner.” And by sec. 8 of the same ordinance, provision is made for collecting from the property owners a commission of throe per cent, of the whole cost, exclusive of cross streets, for collecting the assessment or tax. It was alleged in the MU of complaint, that that part of Hanover street on which the paving in question was done, was intersected by several streets, the cost of paving which, and the tax of three per cent, thereon for collection, was erroneously charged against the complainants and included in the sum sought to be collected from them. Held :</p> <p>1st. That the provisions of said Ordinance No. 44, were applicable to the paving of Hanover street, and was not confined to the cases of streets paved on the application of the property owners.</p> <p>2nd. That the complainants were chargeable with interest, but the same was only to be computed oil the amount properly chargeable against them or their property.</p> <p>3rd. That the Statute of Limitations interposed no bar to the defendants' claim.</p> <p>The defendants filed a gener.al demurrer to the bill, which was ruled good by the Court below, and a decree was passed dismissing the bill. Held :</p> <p>That the demurrer was too general and ought to have been overruled; and the defendants required to answer the allegations respecting the cross streets and the assessments for paving them, that issue might be taken and the question decided according to the fact.</p>

Appeal, from the Circuit Court of Baltimore City. Tins appeal was taken from an order finally ratifying the auditor’s account 1), and report, and sustaining the exceptions to the auditor’s account E. Account D showed that the sum of $2755.94 was due the trust estate by tbe trustee John G. Mitchell.

On the 23rd of July, 1883, a petition was filed by Romulus R. Griffith and Alverda, his wife, in the Orphans’ ■Court of Baltimore City, asking that letters of administration he granted them upon the estate of Mrs. Sarah A. Griffith, who died in April, ISYT.

Appeals from the Baltimore City Court. On the Tth day of September, 18^8, the Citizens National Bank of Baltimore brought two suits on a promissory note, the first against Jared Parkhurst, Jr., trading as Parkhurst & Co., the endorser of the note; and the second against Andrew R. Parkhurst and A. D. Patrick, trading as Parkhurst & Patrick, the makers of the note.

<p>Appeal from the Baltimore City Court.</p> <p>The case is stated in the opinion of the Court.</p>

The case is stated in the opinion of the Court. Exception. At the trial the plaintiff offered the two following prayers: 1.

<p>Injunction — Trade-marlc—Misrepresentations.</p> <p>A Court of equity will not interpose by injunction to protect'a claim» to a trade-mark or label where either contains a misrepresentation.</p> <p>The complainants claiming to be the manufacturers and exclusive-proprietors of certain cordial or aromatic bitters, popularly known as “ Angostura Bittersand claiming as its trade-mark this designation, sought to enjoin the defendants who were engaged in the-manufacture of an article styled “ Angostura Aromatic Bitters,” from manufacturing or selling any preparation or article under the-name of “ Angostura Bitters,” and from imitating the complainants’ labels in which the bottles containing their bitters were-wrapped. The label of the complainants used when their bill was filed, stated that the bitters is prepared by Dr. S. — that it was prepared at Angostura, but is now prepared at Port of Spain. Dr. S.. ■ died some years before the bill was filed by his successors in the-business, and he never lived at Port of Spain. The label also stated that the bottles bore the signature of the complainants, when in fact they bore the signature of the original inventor. Held :</p> <p>That the complainants in consequence of the misrepresentations contained in their label, were not entitled to relief against the defendants.</p>

The case is stated in the opinion of the Court. Exception. — At the trial the plaintiffs offered the following prayer: That there is no evidence in this case, legally sufficient to sustain the defendant’s pleas of set-off, as to the several items of §600.00, $400.00 and $358.10, or either of them. And the defendant offered the two following prayers: 1.

<p>Municipal Corporations — Nuisance—Lime Mins.</p> <p>Whatever power can be properly exercised by the municipal authorities of the City oí Baltimore over the rights and property of the citizen, under the denomination of police regulations, must be derived from the Legislature of the State, by express grant or by fair and reasonable intendment.</p> <p>Within the power granted, the degree of necessity or propriety of its. exercise rests exclusively with the proper corporate authorities ; but in all cases the power exercised, or attempted to be exercised, must depend upon the nature and extent of the power granted; and whenever the question of the existence or limit of power is raised, it becomes the plain duty of the Courts to see that the corporate authorities do not transcend the authority delegated to them.</p> <p>Under its charter, (Code of Public Local Laws, Art. 4, sec. 797,) the Mayor and City Council of Baltimore have power “to pass ordinances to preserve the health of the city, to prevent and remove-nuisances, and to prevent the introduction of contagious diseases ‘ within the city and within three miles of the same, and may regulate the places for manufacturing soap and candles, and the erecting of slaughter houses and distilleries, and where every other offensive trade is carried on.” Under the power thus granted, ordinance No. 118, of 1882, was passed, to be added as sec. 48i, to Art. 23, of the City Code. That ordinance provides, “that from and after May 1st, 1888, it shall not be lawful for any person or persons, or body corporate, to work, operate, or continue in use, for the purpose of burning oyster shells or stone lime, any kiln situated or erected within the limits of the City of Baltimore under a penalty,” &c. An indictment was found under the Act of 1880, ch. 211r against M. for the alleged violation of this ordinance. The indictment, after reciting the ordinance verbatim, charged, that from the 1st to the 18th of May, 1883, the defendant “ did unlawfully work, operate, and continue in use a certain kiln, situate within the-limits of the City of Baltimore, for the purpose of burning oyster shells and stone lime, contrary to the ordinance in such case made and provided.” On demurrer to the indictment, it was ITuld :</p> <p>1st. That the burning of lime is not an unlawful business or trade, and is not a nuisance in its nature per se, irrespective of the location.</p> <p>'2nd. That neither in the ordinance, nor in the indictment founded thereon, was there anything apparent that justified the conclusion that all the lime kilns within the limits of the city, and which had been prohibited operation, were in fact nuisances.</p> <p>:3rd. That not being nuisances in their nature, irrespective of their local surroundings, there had been no authority conferred upon the Mayor and City Council to make them nuisances, either to health, comfort, or property, by simply declaring them so.</p> <p>4th. That a particular use of property declared a nuisance by an ordinance of a municipal corporation, did not make such use a nuisance, unless it be so in fact, according to the common law or statutory definition of a nuisance. ’</p> <p>■5th. That the provision of the charter only conferred the authority “ to prevent and remove nuisancesand the mere possibility that all the lime kilns within the limits of the city might, in the future, become nuisances, did not justify the city in prohibiting the business entirely in anticipation.</p> <p>'6th. That an indictment for maintaining such kiln as a nuisance, should charge the facts necessary to bring it within the definition of a nuisance, or at least within the power conferred by the statute to suppress it.</p> <p>7th. That the power conferred by the statute, and attempted to be executed by the general prohibitory ordinance could not be taken to authorize the extra-judicial condemnation and destruction of that as a nuisance, which in its nature, situation, or use, was not or might not be such.</p> <p>8th. That the ordinance could not be sustained under that clause in the section of the charter, which authorizes the city to “ regulate the places for manufacturing soap and candles,” &c.; “ and where every other offensive trade is carried on.” ' The power so delegated being simj)ly to regulate the places where they are carried on, and not to forbid their being carried on, or to destroy them altogether.</p> <p>9th. That the ordinance was void, and consequently the indictment founded upon it could not be maintained.</p>

<p>Indictment for Forgery — Current funds — Check—Bill of Exchange — Negotiable instrument — Effect of failure to affix Revenue stamp to a Forged check.</p> <p>When one is tried upon an indictment the Court must look to it and not to the presentment to ascertain the nature and character of the offence charged. By the finding of the indictment the grand jury has the right to correct, change, or modify the presentment.</p> <p>An instrument, described as a bill of exchange in an indictment for forgery, was in the following form: — .“Staunton, Va., Sept. 4th, 1883. Augusta National Bank, pay to J. Edwin Laird or bearer, the sum of seventy-five dollars, ($75,) current funds.” Hbld :</p> <p>1st. That the words “current funds” as used in the paper meant nothing more nor less than “ current money,” and, so construed, the instrument was negotiable.</p> <p>2nd. That in the absence of proof showing the law of the State of Virginia, where the instrument was drawn, to be different from that of Maryland, the character of the instrument was settled by the case of Bcmthorn vs. The State, 56 M3., 580, which holds that a check drawn on a bank is a bill of exchange.</p> <p>3rd. That the fact that the check or instrument described in the indictment, was unstamped, constituted no ground of defence.</p>

Appeals from the Court of Common Pleas. In this case an attachment on original process was issued at the instance of Luckemeyer and Schefer, claiming to be creditors of John M. Keeler, and laid in the hands of Erancis P. Stevens, trustee, under a deed of assignment, dated the 14th of August, 1882, from the said Keeler for the benefit of his creditors, and also in the hands of Seitz and Mertz, copartners, makers of certain notes delivered by them to said Keeler.

The case is stated in the opinion of the Court. By agreement a fro forma judgment was entered hy the Court helow in favor of the plaintiff. The defendant appealed.

This is an appeal from an order dismissing the bill of the complainants. The case is stated in the opinion of the Court.

The case is stated in the opinion of the Court. Exception. — At the trial the plaintiff asked the two following instructions: 1.

Ai>peal from tlio Court of Common Pleas. The case is stated in the opinion of the Court. jException. — At the trial, which was had before the-Court, the plaintiff offered the three following prayers : 1.

4th. That in determining as to the motion in arrest, the Court was. confined strictly to the record proper of the case itself, and could take no notice of the docket entries or instructions to the jury-contained in the diminution record. This case distinguished from that of Stirling, et ad. vs. Gm'Htee, 18 Md.,. 468. Appeal from the Superior Court of Baltimore City. The case is stated in the opinion of the Court.

This is an action of ejectment brought by the appellants, against the appellees. The appellee, Kate «Kerns, was the purchaser of the property sued for, under a decree of a. Court of equity, the same having been sold at the instance of the mortgagee thereof, the Border State Perpetual Building Association of Baltimore City, the other appellee. She subsequently mortgaged the property to the said Building Association.

Appeals from the Circuit Court of Baltimore City. Doctor G-. A. Moore on or about the second day of October, 1872, took out two policies of insurance upon his life, each for the sum of five thousand dollars, one in the New York Life Insurance Company, and the other in the Manhattan Life Insurance Company of New York. On the second day of December in the same year these policies were assigned to August Vogeler.

<p>Appeals from the Circuit Court of Baltimore City.</p> <p>The cases are stated in the opinion of the Court. •</p>

The case is stated in the opinion of the Court. Exception. — At the trial which was had before the Court without the intervention of a jury, the plaintiff offered the following prayer : 1.

This suit was brought by the appellant, a National Bank in the State of Illinois, against the appellee, a commission merchant in the City of Baltimore, to recover the amount of damages alleged to have been sustained because of the failure or refusal of the appellee to pay a ■draft dated the 26th of September, 1882, drawn on him by a certain D. N. Ulm & Go., a firm dealing in grain and ■stock in the State of Illinois, for $150, payable at sight to the order of the appellant,…

<p>License to dig ore — Trespasser—Injunction.</p> <p>R. the owuer in fee of a tract of land, verbally agreed to rent the-same to S. under a monthly tenancy, with the right or license to dig ore from ore-banks on the land, and S. agreed to pay a rent of thirty dollars a month, and a royalty of fifty cents a ton for each ton of ore raised. The agreement was to be terminated at any time upon thirty days’ notice by either party. After keeping possession of the property for some months, and paying the rent and royalty according to the agreement, S. gave notice to R. that after a time specified, lie would not occupy the farm, and would not pay the monthly rent, and offered to surrender the key of the dwelling-house on the farm, but stated that he intended to continue to dig the ore. R. refused to accept the surrender of the farm without, the ore banks. On a bill by R. for an injunction to prevent S. from trespassing upon the premises, and digging and removing the ore therefrom to the great injury of the complainant, it was Held :</p> <p>That the digging and removing the ore from the ore beds, was a trespass which operated a permanent injury to the property, and the complainant was entitled to have the same enjoined.</p>

This action was brought by the appellee to recover ■damages from the appellant for refusing to receive certain iron in accordance with the terms and conditions of the written agreement set out in the opinion of the Court.

<p>Practice — Execution—Scire Pacías — Act of 1874, eh. 320.</p> <p>Notwithstanding a judgment creditor is entitled to have his execution at any time within twelve years after the date of the judgment, or expiration or removal of a stay thereon, where there has been no change of parties to such judgment by death-or marriage, he may resort to a writ of scire facias within the twelve years, as the safer and more effective mode of keeping his judgment alive.</p>

<p>Practice — Jurisdiction—Appearance—Simmons.</p> <p>Where the subject-matter of the suit is one over which the Court has jurisdiction, the appearance of the defendant by attorney, waives the objection to the jurisdiction.</p> <p>After an appearance it is too late to object to any infirmity in respect to the service of the writ or summons, except where the appearance is made for the special purpose of raising the objection.</p>

'Appeals from the Circuit Court of Baltimore City. These are appeals from a decree of the Court below requiring the administrators, &c., of James McCurley, deceased, to pay to the appellee the sum of six thousand dollars as compensation, and in lieu of the dwelling-house which she was to have out of the estate of the said James McCurley, her late husband, by virtue of the covenants and considerations contained in their ante-nuptial marriage contract, proved in the cause ;…

This is an appeal from a decree of the Court below (Syester, J.,) dismissing the bill of complaint, and requiring each party to pay his own costs. The case is stated in the opinion of this Court.

Cross-Appeals from tlie Circuit Court of Baltimore City. These appeals were taken from a pro forma decree, passed by consent of counsel, requiring the complainants to bring into Court such funds as they might have belonging to the estate of their testator, and to make report of such personal property as might be in their possession, in order that the same might be distributed in accordance-with the provisions of the will, and said decree.

Under Ordinance No. 119 of 1814 of the Mayor and City Council of Baltimore, Liberty street, between Lexington and Camden streets, was regraded, repaved and recurbed.

The case is stated in the opinion of this Court. The action was tried, before the Court without the intervention of a jury. All errors in pleading were waived.

This was a suit instituted in the name of the State, for the use of Joseph N. Tosh, guardian of James Ellsworth Barnett, against Nicholas H. Barnett (who was returned non est hy the sheriff) and Robert N. Hindman, on the-guardian bond of the said Nicholas, upon which the said Robert was one of the securities. First and Second Exceptions, taken to the admission of' certain evidence, need not be stated.

Appeals .from the Circuit Court of Baltimore City. The bill of complaint in this case was filed by Elizabeth H. Collins, and Bichard Bernard, administrators with the will annexed, and trustees under the will of John Eschbach, late of Baltimore City, deceased, for the purpose of obtaining a judicial construction of said will.

William H. Keister purchased a lot of ground with the. improvements thereon, situate on Pratt street in the City of Baltimore, from Leanna L. Scott, she being authorized and empowered by the will of her deceased husband, James W. Scott, to sell and convey the same. The purchaser entered into possession of the premises, having paid a small sum on account of the purchase money.

This action was brought by the appellee against the appellant to recover damages for obstructing a way which the former was entitled to use, and also for obstructing a highway over which he was accustomed to travel. Both roads lay wholly in Baltimore County. The defendant demurred to the declaration.

Two sisters, Eleanor E. and Louisa Victoria Torrance, by the will of their aunt, Louisa Torrance, who died on the 5th of May, 1878, acquired certain property, including a leasehold lot and improvements on north Calvert street. The two sisters, made each a deed of trust to the other, in contemplation of their respective marriages, and. each shortly after her deed was executed, married; the former marrying James A. Conner, and the latter John S. Moody.

The bill of complaint in this case was filed by the appellee as purchaser to obtain from the appellant, as vendor, the specific performance of a written contract for the sale of a tract of land.

<p>Renewal of lease — Specific performance — Equity pleadings— Injunction — Landlord and Tenant — Reversioner—Assignment of the Unexpired term — Non-residents—Art. 16, secs. 67 and 135, of the Code — Equity jurisdiction — Decree in Personam — Decree for Specific performance.</p> <p>Wherever the specific execution of a contract or covenant respecting lands would have been decreed as between the original parties, it will be decreed as between all persons claiming under them in privity of estate, or of representation, or of title, unless other controlling equities have intervened. And this without regard to the form or technical character of the contract.</p> <p>In order to obtain the relief sought, it is necessary that the allegations of the bill should fully and exactly disclose the nature and extent of the legal rights and interests of those against whom the restraining and coercive power of a Court of equity is invoked.</p> <p>To entitle the plaintiff to the aid of the Court by way of injunction to restrain proceedings at law, the substance of the ground of relief must not only be fully alleged, but the bill must show grounds upon which the action at law may be sustained ; or otherwise the Bill is demurrable. In other words, the bill must show a real necessity for coming to the Court for the injnnction.</p> <p>When the relation of landlord and tenant is once established, it attaches to all who may succeed the tenant, immediately, or remotely ; and the succeeding tenant is as much affected by the acts and solemn acknowledgments of his predecessor, in regard to the ■estate or title, as if they were his own.</p> <p>But if a party purchase what is in reality but a leasehold estate, and take of the lessee, or his assignee, a transfer or conveyance, in form an absolute conveyance in fee; yet, in judgment of law, such party is only assignee of the term, and tenant of the lessor.</p> <p>The mere form of the deed, though professing to pass a fee simple estate, will'not operate a disseisin of the superior landlord’s estate, but only as an assignment of the unexpired term.</p> <p>And the mere recital in the deed that the rent reserved in the original lease has “ become lapsed and barred by limitations, because not demanded,” has no effect, and can in no way prejudice the right of the reversioner.</p> <p>The owner of the leasehold interest under a renewable lease, for ninety-nine years, made an absolute conveyance of the property as • in fee, it being recited in the deed that the rent reserved in the lease had “ become lapsed and barred by limitations, because not demanded.” The parties interested in the reversion were numerous, and in fact unknown to the purchaser. They were scattered over several States of the Union, and never interested themselves to come forward to assert their claim. The rights and title, both of the reversioners and termor, wore allowed to remain in a state of dormancy, until after the lease had expired. On a bill subsequently filed by the purchaser, for a specific performance of the covenant for renewal and for an injunction to restrain an action oí ejectment for the recovery of the premises, it appeared that the plaintiff had not done anything knowingly in hostility to the title of the reversioners; but on the contrary as soon as a claim to the property was made, she acknowledged her relation to it, and offered to pay the arrearages of rent. Held :</p> <p>'That the case stood upon its own special circumstances, and under those circumstances relief should be granted.</p> <p>The defendants were some eighty odd, or ninety in number, many of them made defendants in a very informal way. Of this number a considerable portion were non-residents, and not personally subject to the jurisdiction or control of the Court. Some of them appeared by attorney and pleaded to the power and jurisdiction of the Court, to grant the relief prayed. While others, non-residents, and only served by publication, did not appear at all, and as. against them interlocutory decrees were entered in default of appearance and answer. Held :</p> <p>1st. That the fact that the property, the subject-matter of the covenant, was situate within the jurisdiction of the Court, did not relieve the case of the difficulty presented by the question, how a decree for specific performance and injunction could be made-effective as against the parties to the bill.</p> <p>2nd. That the provisions of the Code, Art. 16, secs. 67, 135, did not apply in a case like the present, where the object of the decree was to secure to the plaintiff the specific execution of the covenant whereby she was entitled to obtain a renewed lease, with important and valuable personal covenants of the lessors, and without which it would not be an instrument of the character contemplated by the covenant decreed to be performed.</p> <p>3rd. That the Court could direct a lease for ninety-nine years to be made by a trustee, but not with covenant for renewal, and other personal covenants, to bind personally the owners of the reversion, their heirs and assigns.</p> <p>4th. That the Court did not possess inherently, and the statute did not confer the power to. direct, through the instrumentality of a trustee, the making of personal covenants, in the absence of th& parties, to bind them personally, and those who might stand in privity with them.</p> <p>5th. That the decree for specific performance being in personam and not in rem, to have effect beyond the jurisdiction of the State where it is rendered, it must be founded either upon personal service of process, or upon a voluntary appearance of the party.</p> <p>6th. That so far as the parties were within the jurisdiction of the • Court, or were bound by the decree, they might be restrained from taking any action at law in the Courts of this State for the recovery of the property; but as to those parties residing in other States, they could not be restrained by injunction from the State Court from suing in the Circuit Court of the United States. Their right so to sue must be determined by the United States Court.</p> <p>7th. That upon the bringing into Court by the plaintiff, to be paid to the parties shown to be entitled, the amount of rent due such parties, to the date of the decree, together with the sum as fixed by the original lease as a renewal fine, she would be entitled to a decree for specific performance against such of the parties as might be shown to have title; and as to all such parties as were within the jurisdiction and reach of the Court, they might bo required to execute to her a renewal of the lease. But as to such of the parties as might be beyond the jurisdiction and control of the Court, the decree could only stand as an adjudication upon the subject-matter.</p>

<p>Levy and collection of Taxes — Powers of County Commissioners — Equity jurisdiction — Irregularities—Injunction—Estoppel — Construction of the Acts of 1876, ch. 260, and 1878. ch. 378, relating to the Assessment of Beal estate — Coal lands— Corporation — Notice—Tender.</p> <p>The County Commissioners have the exclusive power to levy and collect taxes, and in some cases to value and assess property in the manner pointed out by law.</p> <p>While they constitute a tribunal with special and limited statutory powers, yet acting within the scope of such powers their action is conclusive and cannot be reviewed by a Court of equity.</p> <p>The collection of taxes will not be interfered with or restrained by a Court of equity for mere irregularities in their proceedings, or for any hardship that may result from their collection.</p> <p>It is only when the tax itself is clearly illegal or the tribunal imposing it has clearly exceeded its powers, or the rights of the tax-payers have been violated, that the interposition of the special remedy by injunction can be successfully invoked, and only then when no appellate tribunal has been created with power to remedy the wrong.</p> <p>With the value put upon lands by the Commissioners no Court can interfere, as that is a matter confided to their discretion.</p> <p>An objection that the whole tax bill due by any person is placed in the hands of ono collector, instead of several, is at most a mere irregularity and cannot be inquired into by another Court.</p> <p>Nor is it a valid objection that land was assessed, and then the value of the coal underlying it, or that the land was assessed and then the improvements upon it; the latter being the very method pointed out in the general assessment law, and the former being based upon the same -principle.</p> <p>The Act of 1878, ch. 178, provides, that the president or other proper officer of any corporation that might own real property, should furnish to the County Commissioners a “true statement of such real property situate or located in such county; and such real property shall be valued and assessed by said County Commissioners to the incorporated institution so owning the same.” In . a case where the real estate of a corporation consisting of several separate and distinct tracts of land, each having a well known name, and lying in different parts of the county, and having different values, was assessed as 4245 acres at §10 per acre, it was Held :</p> <p>That if the president of the corporation, in the statement furnished to the County Commissioners, merely described the lands as 4245 acres, then the corporation was estopped from saying that the assessment was improper and void. But if the president furnished in detail a proper statement, showing the names, number of acres, and location of the several tracts, then it was manifest error in the Commissioners to change it and make the assessment that they did.</p> <p>The Act of 1878, ch. 178, is in pari materia with the general assessment law of 1876, ch. 260, and the County Commissioners in assessing the real estate of corporations under the Act of 1878, should conform to the requirements of sec. 17, of the said Act of 1876, which provides that “ In valuing real estate in any county in this State, except in a city in such county, the assessors shall specify, as far as may be practicable, the name or names of the tracts or parcels of land so valued, and the number of acres oi' quantity of land in each, and the value per acre.”</p> <p>The power of annually correcting assessments, conferred by sec. 150, of thes aid Act of 1878, gives the Commissioners the power to alter the assessment, as made by the assessors, if in their judgment the property had largely increased or diminished in value. It does not authorize them to change the mode and manner in which the property was required by law to be assessed.</p> <p>But the Commissioners have no power to increase the assessment without notice to the party to be affected by the change. And where such increase is made without proper notice, the levy and collection of the tax on the increase is illegal and void.</p> <p>The assessment upon the real estate of a corporation was increased by the County Commissioners without notice to the owner, who filed a bill for an injunction to restrain the collection of the tax. On appeal from an order of the Court below granting a preliminary injunction as prayed, it was Held :</p> <p>1st. That although the action of the Commissioners was illegal and void, the complainant was not entitled to the injunction to the extent that it was granted.</p> <p>2nd. That the taxes on the original amount of the assessment were due and ought to have been paid, or tendered unconditionally, and the fact have been so averred in the bill; a professed willingness to pay an uncertain sum was insufficient.</p> <p>3rd. That the injunction should be dissolved as to the taxes due on the original amount of the assessment, but allowed to stand as to the balance of the taxes claimed to be- due.</p>

The case is stated in the opinion of the Court. First and Second Exceptions, stated in the opinion of the Court. Third Exception. — -At the trial the plaintiffs offered the three following prayers: 1.

<p>Construction of a Devise — Trustees—Discretionary powers— Liability of the Income of a Trust fund held under discretionary powers, for Medical services rendered a minor cestui que trust, and for his Support and maintenance — Enforce- ' ment of such Claim in Equity.</p> <p>A testator gave his estate to his widow and son-in-law in trujjtJhr his children by a former-marriage: the income to be invested until the youngest of them should come of age, and then said estate to be equally divided among such of his said children as should then be living, and the descendants of any deceased child, per stirpes. He further directed._£he. Jrustees_io-allow-Jfxom--time--to- -time, so much of-ther-income as-thny-in^.theijudiseretdon, should think proper, for- the education-md-support-^-his^mgrjMldren My■sshd-foxw.ei'</p> <p>. marriage. One of said children died before arriving at age. On a bill filed against the trustees by a physician, to compel the payment by them of his bill for medical services rendered said child, during his sickness, it was Held :</p> <p>1st. That in the exercise of the discretionary power conferred on the trustees, a Court of equity had no right to interfere, provided it was honestly and reasonably exercised.</p> <p>2nd. That they must however act in good faith, having a proper regard to the wishes of the testator, and the nature and character of the trust reposed in them.</p> <p>3rd. That the proof in the case showed that the discretion reposed in the trustees by the testator had not been fairly and reasonably exercised; and a Court of equity on application would have directed part of the income from the trust estate to have been . applied to the support of the said minor child; and have direeted further that he should be furnished with proper medical treatment during his sickness.</p> <p>4th. That as the proof showed that the services of the complainant were rendered in good faith, and his charges appeared to be fair and moderate, his claim should be paid out of the income, or the accumulated income in the hands of the trustees, if sufficient for that purpose.</p>

<p>Construction of Will — Income—Trustees’ Commissions — Annuitant.</p> <p>E. W. T. having property in his own right, and a power of appointment or disposition by will in respect of certain property held in trust for him under the will of his father, died leaving a will. By the first clause of this will he gave to trustees, to hold during the life of his widow, all the property held by him in his own right, “ in trust to permit my said wife to possess, use, occupy, and enjoy the same, and to receive the rents, issues and profits thereof for and during her natural life; and from and after her death, then to all my children and their descendants then living to be equally divided between them per stirpes, and not per capital By the next clause he directed all the property over which he had the power of appointment under his father’s will, to be paid over an'd delivered to the same trustees, upon the following trusts: “ First, in case</p> <p>the estate and property hereinbefore devised and bequeathed to the same trustees for the benefit of my wife shall, at the time of my death, fail or be insufficient to yield and produce her the dean' yeo/rly revenue or sum of six thousand dollars, (which I desire to ensure as a, mininum income to her,) then to set apart and hold in like manner as aforesaid, in trust for her use, enjoyment, and benefit, such an amount of property as may be requisite to make up the deficiency of revenue to said yearly sum of six thousand dollars for her during her natural life; and from and after her death, I will, devise, and bequeath the said amount so set apart as aforesaid, unto all my children and their descendants then living, to be equally divided between them per stirpes and not per capita. Secondly ; after having made up such deficiency, or there being no such deficiency to be made up, to hold and invest the said estate or balance thereof, (as the case may be,) and apply the income thereof to properly supporting, maintaining, and educating my children, according to the views, wishes and directions of my wife aforesaid, to whom I give the fullest authority therein; ” and he then directed . how the property should be divided among his children. From the year 1873 to 1881 the income from the entire property embraced in both said clauses of the will, except for the years 1875 and 1881, in which years there was a surplus, was insufficient to produce the requisite amount of clear minimum income intended for the widow. The aggregate amount of the deficiency during the same period, assuming that she was entitled to receive annually at least $6000, if the net income from the entire estate amounted to that much, was $7146.79. On appeal from an order of the Court below allowing the widow on account of said deficiency, a balance of cash income amounting to $3329.55, shown by an auditor’s account to be in the hands of the trustees, it was Held :</p> <p>1st. That looking to the clear intention of the testator, which must control in the construction of the will, the minimum income for the widow must be secured to her', if the clear income of the estate be sufficient to produce that amount, during her life; and to fulfil the intention of-the testator, the deficiency of one year must be made up by the application of the surplus of succeeding years.</p> <p>2nd. That until this minimum amount, which the widow was entitled 'to receive, be made good to her, year by year during her life, the children who would take in remainder, had no interest in the estate.</p> <p>3rd. That this income to the widow, by the terms of the will, was confined to the income from the estate during her life; as by the terms of the will the estate intact was to be turned over to the children immediately upon her death.</p> <p>4th. That with respect, however, to future income, the Court was not to be understood as deciding that the trustees, after making good the existing deficiencies in the yearly income to -the widow, would be required to withhold from the children of the testator the surplus income, if any, over and above the $6000, to supply any mere possible deficiency that might occur in future years in the income payable to the widow.</p> <p>It is the general practice to charge the commissions to be allowed to trustees, in cases like the one at bar, upon the entire income that may be in their hands for distribution, and then distribute the net balance to the parties entitled according to the precedence of their rights or claims.</p> <p>If a party be entitled to be paid a certain amount in full, and the fund for distribution be sufficient to make that payment, after deduction of commissions and other proper expenses, he is entitled to receive his claim without reduction or abatement, unless it be under very special circumstances. Upon no other principle could an annuitant, or a party entitled to a. specific sum as a charge upon the proceeds of property, ever get the measure of his claim in full.</p>

<p>Appeal from the Superior Court of Baltimore City.</p> <p>The case is stated in the opinion of 'the Court.</p>

The case is stated in the opinion of the Court. By an agreement filed in the cause, it appears that some of the mechanics’ liens allowed in “ Audit C,” were for work and materials furnished subsequently to the 16th of December, 1881, the day on which the lease and the mortgage to Rosenthal and Myers were recorded.

The hill in this case was filed in the year 1888, by the appellee against the appellant, alleging the making by the former to the latter of two mortgages, both on the same property, the second of which was merely for the balance due on the first, and a renewal thereof; and claiming that the whole transaction was usurious.

<p>Appeals from the Circuit Court for Allegany County, in Equity.</p> <p>The case is stated in the opinion of the Conrt.</p>

<p>Negligence — Injury—Cancer resulting from Injury — Liability-Initial cause — Question for the Jury — Duty of Common carrier of Passengers — Nature of Action for personal Injury to Passenger, caused by Negligence of Carrier.</p> <p>If the injury received by the plaintiff, through the negligence of the defendant, superinduced and contributed to the production or development of a cancer, the defendant is responsible therefor; and the cancer is not to be treated as an independent cause of injury or suffering. The wrong-doer cannot be allowed to apportion the measure of his responsibility to the initial cause.</p> <p>Whether the direct causal connections exist, is a question, in all cases, for the jury, upon the facts in proof.</p> <p>A common carrier of passengers, who accepts a party to be carried, owes to that party a duty to be careful, irrespective of contract; and the gravamen of an action by husband and wife to recover for personal injuries to the wife while a passenger, caused by the alleged negligent wrong of the railway company, is the negligence of the defendant. The right to maintain the action does not depend upon contract, but the action is founded upon the common law duty to carry safely; and the negligent violation of that duty to the damage of the plaintiff is a tort or wrong which gives rise to the right of action.</p> <p>A passenger may declare for a breach of contract, where there is one: but it is at his election to proceed as for a tort where there has been personal injury suffered by the negligence or wrongful act of the carrier, or the agents of the company ; and in such action the plaintiff is entitled to recover according to the principles pertaining to that class of actions, as distinguished from actions on contract.</p>