Volume 72 — Maryland Reports

<p>Attachment — Inchoate lien — Proceedings in Insolvency.</p> <p>On the 13th of January, 1888, an attachment on original process under the Act of 1861, ch. 306, was sued out by a creditor of a partnership, and laid in the hands of S. a conventional trustee under a deed of assignment for the benefit of creditors, made by one of the members of the partnership, to whom his co-partner had assigned his interest. Three days after the issuing of the writ of attachment, proceedings in insolvency were instituted against the members of the partnership, under which two persons were appointed permanent trustees of the insolvent firm. Said insolvent trustees then intervened in the attachment suit, and moved to quash the attachment, mainly on the ground that the assignment to S. was not fraudulent, within the meaning of the insolvent law, and at the same time they filed a petition claiming the property attached. The motion to quash was overruled, and the assignment to S. was held to be void as to the creditors of the partnership. The case then proceeded to trial, and in the attachment case judgment was rendered in favor of the trustees in insolvency, as claimants of the property attached. On appeal from this judgment it was Held :</p> <p>1st. That the setting aside'the fraudulent deed did not entitle the plaintiff in the attachment to prosecute the suit to final judgment in order to perfect the inchoate lien acquired by the attachment proceedings.</p> <p>2nd. That the adjudication in insolvency stopped all further proceedings against the property of the insolvents, and the same, upon their appointment and qualification, became vested in the trustees in insolvency, in whose favor the judgment of the Court below was properly rendered.</p> <p>3rd. That said judgment, however, in no manner affected or impaired the inchoate lien acquired by said creditor under his attachment proceedings, but said lien followed the fund, or the proceeds arising from the sale of the property attached, into the insolvent Court.</p> <p>4th. That if the attaching creditor would have been entitled to final judgment but for the intervention of the trustees in insolvency as claimants, the inchoate lien under the attachment would be recognized, and its priority allowed by thp insolvent Court.</p> <p>5th. That as there were assets in the hands of S., assignee, at the time the attachment was laid, said inchoate lien attached to and followed those assets in the insolvent Court as fully as if the attachment had been levied upon specific property.</p> <p>The case of Thomas vs. Brown fy Lowndes, 67 Md., 512, explained.</p>

<p>Equity pleadings — Multifariousness—Art. 16, see. 72, of the, Code, relating to Proceedings for the Sale or Partition of Lands lying Partly in one Jurisdiction and Partly in Another — Jurisdiction—Lis pendens.</p> <p>On the 30th of April, 1885, Y. M. mortgaged to L. his undivided interest in real estate situate partly in Baltimore City and partly in Baltimore County. Upon the 10th of June following he filed a bill in the Circuit Court of Baltimore City against the owners of the other undivided interest, and L. as mortgagee of his interest, alleging the indivisibility of the property, and asking for a decree for its sale. Under this bill a decree for a sale of all the property was passed on the 6th of July, 1885, and under it. the city property was sold, but not that situate in the county. Subsequently under ex parte proceedings in Baltimore County had under said mortgage, the undivided interest of Y. M. in the county property was sold and conveyed to H. The property thus sold to H. became under the Act of 1888, ch. 98, a part of Baltimore City, and IT. filed in the Circuit Court of Baltimore City a bill for its partition, and asking also that the decree of the 6th July, 1885, might be declared null and void as to the county property,'and might be stayed, rescinded and annulled. Upon demurrer to this bill it was IIkld :</p> <p>1st. That said latter.bill was not multifarious.</p> <p>2nd. Tha.t the right of H. to file said bill was not affected by the decree passed on the 6th of July, 1885, by the Circuit Court of Baltimore City, as the provisions of the Code, Art. 16, sec. 72, requiring copies of the bill, decree and trustee’s report of sale, in that case to be filed in the Circuit Court for Baltimore County, had not been complied with.</p> <p>3rd. That a certified copy of each proceeding required by the statute to be sent to the Circuit Court of the county where the land to be affected was located, should be so sent as soon as it was filed; and it was not meant by the statute that nothing was to be sent until the case was finished.</p> <p>4th. That no jurisdiction over the land in Baltimore County was acquired under the proceedings in Baltimore City until the provisions of the statute conferring such jurisdiction had been complied with, and therefore the doctrine of Its pendens did not apply.</p> <p>5th. That as jurisdiction over the county property had not been acquired by the Circuit Court of Baltimore City at the time when H. bought, it could not be subsequently acquired to his prejudice.</p> <p>6th. That a compliance with the statute at any time before the rights of third parties had supervened would'be sufficient to.confer jurisdiction upon the Court.</p>

On the petition of the appellees, it was ordered on the lYth of August, 1889, by the Court of Common Pleas, that a summons be issued against the Search Soap Company of Baltimore County, a body corporate, requiring it to appear and show cause why it should not be adjudicated an insolvent; and at the same time an order, in the nature of an injunction, was issued restraining the appellants and others from proceeding to enforce a mortgage made to them by said corporation less…

Certain property was sold by the appellant as treasurer of Anne Arundel County, for overdue taxes, and the appellee became the purchaser.

<p>Construction of Contract — Pleadings—Demurrer—Non pros.</p> <p>In January, 1888, R. & Bro. agreed to furnish McA. & Bros, in payment for merchandise, certain canned sugar corn of the pack of 1888, at 95 cents per dozen. The contract was in writing and contained the following clause: “95c. price of corn guaranteed, i. e., should any of said pack of 1888 he sold for less, said McA. Bros, to have the advantage of such abatement, and at same rate. ’ ’ Held :</p> <p>That this guaranty was not violated by the sale to McA. Bros, by R. & Bro. in October, 1888, of the same brand of corn at 75 cents per dozen, for a special consideration, no other sale of said corn at that price having been made by them.</p> <p>Where issue has been joined on two pleas, and a replication to a third plea is ruled bad on demurrer, with leave to the plaintiff on his motion to plead over, a judgment of nonpros, is sustainable on the failure to file a new replication; although a final judgment for the defendant on the demurrer, while there were outstanding issues of fact on the first and second pleas and replications thereto, would be a fatal error.</p> <p>But if the ruling upon the demurrer is reversed on appeal, and the replication thereby sustained, the judgment of nonpros, for want of a replication must also be reversed.</p>

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

The case is stated in the opinion of the Court. The verdict and judgment were in favor of the plaintiff for $8000, and the amount was awarded proportionately among the equitable plaintiffs.

A bill was filed by Thomas Keaney and others, against Patrick Keaney and others, to obtain a construction of the will of Michael Keaney, deceased. The will is as follows: Pin the name of God. Amen! 1, Michael Keaney of the City of Baltimore and State of Maryland, of sound mind, but fearing death, do make this my last will and testament: First, I bequeath to my son Thomas Keaney, the house on the rear of 380 South Charles street, and on Goodman’s alley.

To the statement of the case, as contained in the opinion of the Court, the following agreement of counsel taken from the record, is added: “It is agreed in this case that William Walsh, and Frederick Minke contracted with A. M. Hedían to buy from him the property mentioned in these proceedings, and to pay therefor fourteen hundred dollars in cash on the delivery of the deed for the same, of which said Walsh was to pay one-half and said Minke one-half.

Tbe appeal in this case was taken from a decree of the Court below, passed by Judge Dennis. The case will be found sufficiently stated in the opinion of this Court.

<p>Appeal from the Circuit Court for Anne Arundel County.</p> <p>The case is stated in the opinion of the Court.</p>

<p>Sufficiency of Notice — Pleadings—Demurrer—Art. 3, sec. 228, of the Code of Public Local Latos — Opening streets in Baltimore County — Agreement of Counsel to Amend reeord— Art. 3, sec. 226, of the Code of Public Local Laws — Examiner— County Commissioners— Their powers — Mandamus.</p> <p>Where a law requires “at least ten days notice, by publication in one or more newspapers’" of an application to open a street, such requirement is gratified by a single publication in the newspaper or newspapers selected for that'purpose.</p> <p>Where a plea alleges the presentation of a certain petition, setting the same forth at length, and that certain action was had thereon, a demurrer to the plea does not admit the truth of the statements made in the petition. The most that it admits is that said petition was filed, and action was had thereon, as stated in the ' plea.</p> <p>By sec. 228, Art. 3 of the Code of Public Local Laws, relating to the opening of streets in Baltimore County, it is provided that “after such ratification and confirmation” (that is after the examiner’s statement, plat, &*c., have been fully ratified by’the County Commissioners,) “the said examiner or examiners shall proceed forthwith to notify the owner of the property assessed for benefits, by means of bills specifying the sum so assessed, and warning him that if the same is not paid within sixty days from the date of said bill, the said examiner or examiners will either proceed to sell the * * * property * * * or sue him in assumpsit.” In an action brought under this law by an examiner, it was stated in the declaration that “after the final ratification of said statement by the said commissioners, the plaintiff made due demand for the difference between the amount so assessed for benefits on the defendant and the amount allowed him for damages, and that the defendant refused to pay the same.” Upon demurrer it was Held:</p> <p>1st. That the declaration was fatally defective for failing to allege that the examiner had, as the law directed, notified the defendant, by means of a bill for the amount of the assessment, and warned him that if said bill was not paid in sixty days from the date thereof his property would be sold, or he would be sued.</p> <p>2nd. That in the absence of an allegation to that effect, the Court could not infer that the examiner had given such notice and warning.</p> <p>While agreements to amend the record so as to present the same case on appeal which was heard below are always permitted, counsel will not be allowed to make agreements to amend .the record so as to present to this Court a case which was not before the Court from which the appeal was taken.</p> <p>Under sec. 226 of said Article 3, Public Local Laws, the County Commissioners in Baltimore County have no power as to the opening, grading and construction of streets after they have been duly located.</p> <p>The award of damages and benefits made by the examiner is required to be filed by him with the County Commissioners; and if no appeal' be taken within the time limited, it is the duty of the Commissioners to confirm the award as so returned; and mandamus will lie to compel them to do so.</p> <p>Having no power to decide whether they will or will not make a final order of ratification, they have no power to revoke such order after it has been made.</p>

<p>Criminal law — Striking out Judgment — Appeal—See. 286 of Art. 27 of the Code of Public General Laws.</p> <p>To an indictment for selling liquor to a minor in violation of a local law, the accused pleaded not guilty, and issue being joined, the case was tried before the Court without a jury. The Court found the traverser guilty, and sentenced him to pay a fine and the costs, and to stand committed until the same should be paid. On default in the payment of the fine, the traverser was committed to the custody of the sheriff, in whose keeping he remained for four days, when, during the term at which he was convicted and sentenced he was brought into Court, and by order of the Judge the judgment was stricken out. Thereupon, on the same day, a demurrer to the indictment was allowed to be filed, and judgment was given on the demurrer in favor of the traverser, and he was discharged. On writ of error it was Held:</p> <p>1st. That the action of the Court in striking out its judgment was a valid exercise of power, and being wholly discretionary, no appeal would lie therefrom.</p> <p>2nd. That the judgment having been stricken out, the traverser was at liberty to proceed anew, either by pleading and going to trial on the facts, or by demurring to the indictment.</p> <p>Section 286 of Article 27 of the Code of Public General taws, providing that no “judgment upon any indictment for any felony or misdemeanor * * * shall be stayed or reversed * * * for any matter or cause which might have been a subject of demurrer to the indictment,” in no way modifies or limits the power of the Court to set aside or change its judgments during the term at which they are entered.</p>

The bill of complaint in this case was filed by Joseph M. Cone, a creditor of Robert Cross, to set aside a deed from said Cross to his sister Mary Jane Cross, upon the ground that it was without consideration and was made for the purpose of defrauding creditors. The case was heard upon the plaintiff's testimony, the defendants having offered none.

The appeal in this case was taken from an order of the Court below (Dennis, J.,) granting an injunction restraining the Mayor, Comptroller, and General Superintendent of Lamps, &c. from contracting in the name of the Mayor and City Council of Baltimore, with the Brush Electric Light Company of Baltimore City, or with any other person or corporation, for the lighting with electric arc lights, in whole or in part, the streets, lanes, alleys, parks and public buildings, and…

<p>Appeal from the Circuit Court No. 2, of Baltimore City.</p> <p>The case is stated in the opinion of the Court.</p>

<p>Appeal from tbe Orphans’ Court of Frederick County*</p> <p>The case is stated in the opinion of the Court.</p>

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

<p>Appeal from tlie Circuit Court for Cecil County.</p> <p>The case is stated in the opinion of the Court.</p>

The facts of this case are stated in 70 Md., 69, and further stated in the opinion of the Court in this case. Exception. —At the trial the plaintiff offered five prayers, which were granted by the Court, and excepted to by the defendants, but are omitted here!, as ' they were not adverted to by this Court. The defendants offered four prayers, the third of which will be found in full in the opinion of the Court, the others are as follows: 1.

<p>Will — Trusts—Liability for Debts.</p> <p>Where a testatrix devised all her property, real and personal, after the payment of her funeral expenses, debts, and costs of administration, to her sons, in trust for the support, maintenance, and education of their respective families, to be held by them, and the rents and profits thereof, and the same to he applied during their several lives, to and for such uses and purposes, and also declared that no part of the land, should, in any event, he made liable for their debts or contracts, the crops growing thereon are likewise exempted from liability.</p>

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

5th. That the damages recoverable for the breach of said contract was the difference between the contract price of the phosphate, and its market price at the place of delivery, after the 9th of May, 1888, that being the day on which, under the contract as extended, deliveries were to begin. Appeal from the Superior Court of Baltimore City. The case is stated in the opinion of the Court.

<p>Release and Discharge — Bond by Married woman, toithout the Joinder of her Husband.</p> <p>A father devised to his daughter M. E. a house and lot, as a residence, the same being subject to a mortgage held by the testator’s brother, on which a balance was due. This brother and his wife, who had' no children, by joint deed conveyed a large amount of property to Gr. by whom it was immediately re-conveyed to the grantors as joint tenants. The husband wishing to make some provision for his nieces, children of his brothers, required of his wife, simultaneously with the execution of the deed to and from G-., and in consideration thereof, the execution of a bond in favor of his nieces, for the payment of the amounts therein specified, in case she should survive him. By this bond, which the wife alone executed, she was required to pay to her husband’s niece, M. E. $2000, and the balance due on the mortgage payable to her husband. Thereafter, her husband having deceased, she executed a full release of the mortgage, M. E. being ignorant at the time of the existence of the bond. The uncle of M. E. never sought to collect the mortgage. After the death of his wife her administrators paid the $2000, to M. E. but declined to pay the balance due on the mortgage. In an action on the bond against her administrators, by M. E. and her husband to recover the balance due on the mortgage, it was Held:</p> <p>1st. That the release of the mortgage was a satisfaction of the obligation to pay the balance due thereon, and was in accordance with the purpose of the uncle.</p> <p>2nd. That as the bond was executed by a feme covert alone, without the joinder of her husband, it was void as against her in her life-time, and equally so as against her administrators.</p>

This was an equity proceeding for the enforcement of a mechanics’ lien against three houses in Baltimore City, and the lots upon which .they were built. The case is stated in the opinion of the Court.

The appeal iu this case was taken from a decree of the Court helow (Dennis J.,) refusing the injunction asked for, sustaining the plea and dismissing the bill. The case is stated in the opinion of this Court.

The case is stated ih the opinion of the Court. The following admission of facts was filed in the case: “It is agreed in this case, that the stock transfer books of the Baltimore Eire Insurance Company, would show the following minutes of stock transfers,' viz., “January 11, 1865.- — 416 shares in name of John H. Ehlen, transferred by John E. Ehlen, andBenj.

The case is stated in the opinion of the Court. Henry Loveridge was the only defendant under the original bill, but other parties were made defendants during the progress of the case. The bill of complaint in this case was dismissed by a divided Court, Judge Hoeeman being of opinion that the complainant had no standing in Court, and Judge Syester. not concurring in such conclusion.

Appeals from the Circuit Court for Anne Arundel County, in Equity. Held: that extrinsic evidence was admissible to show the location of the land, but not to show what was the intention of the testator in the use of the words 1 Beaver Dam Branch. ’ ‘ The rule, ’ says the Court, is this : ‘ Where the language of the testator is plain and unambiguous, such language must govern, and, therefore, extrinsic…

This appeal was taken from a decree of the Court below (Dennis, J.,) dismissing the bill of tbe complainants. The case is stated in the opinion of this Court.

The case is stated in the opinion of the Court. First Exception. — This exception was taken to the exclusion of certain testimony offered by the defendant, which need not be stated. Second Exception. — Set out in the opinion of the Court. Third Exception. — This exception was taken to the rejection of certain evidence offered by the defendant, which it is unnecessary to report. Fourth Exception.- — -The plaintiffs offered two prayers as follows : 1.

The case is stated in the opinion of the Court. First Exception. — Stated in the opinion. Second Exception. — Unnecessary to be set out.

Tbe case is stated in the opinion of the Court. First Exception. — Stated in the opinion of the Court. Second Exception. — At the trial the defendant offered the ten prayers following : 1. That if the jury find that this cause was not commenced until more than six months after the death of Mrs. Dempsey, then such fact under the terms of the contract of insurance sued on is conclusive evidence against the plaintiff’s claim, and their verdict must be for the defendant. 2.

Appeals as upon Writ of Error, from the Circuit Court for Talbot County. The State of Maryland filed, through the State’s attorney for Talbot' County, a petition in each of these cases, for the forfeiture of the charter of the defendant corporation, because of the abuse, nonuse and misuse of its franchises and corporate powers. The proceeding was taken under the provisions of section 255 of Article 28 of the Code of Public General Laws.

<p>Will— Undue influence.</p> <p>Undue influence is that degree of importunity which deprives a testator of his free agency, which is such as he is too weak to resist, and will render the instrument not his free and unconstrained act.</p> <p>The charge of undue influence in the procurement of a will, was established in this case.</p>

The case is stated in the opinion of the Court. The verdict and judgment were in favor of the plaintiff for one cent damages and costs. The defendant appealed.

<p>Liability of Corporation for False imprisonment — Special policeman under Sections 280-293 of the Code.</p> <p>In order to make a corporation answerable for the acts of its superintendent, the acts must appear to have been done within the scope and limits of his authority. The term superintendent does not of itself import that such officer has authority to order an arrest.</p> <p>An action was brought against a corporation for a false imprisonment. The arrest was made off the premises of the defendant; and the order to make the arrest was given by the defendant’s superintendent, who was not shown to have been clothed with authority for that, purpose, and at the time of giving the order was not upon the premises of the defendant. The officer making the arrest was a special policeman commissioned by the Governor of the State upon the application of the defendant, under the provisions of Article 23, sections 280-293, of the Code, “for the protection of the property of the corporation, and for the preservation of peace and good order on the premises,” and his compensation under the law was payable by the defendant. Held:</p> <p>1st. That the defendant was not hound for the policeman’s acts simply because he was appointed by the Governor at its nomination, or request, and because it paid his salary.</p> <p>2nd. That the act of the policeman was that of a State officer in the exercise of his common law powers as such officer, and not executing the orders of the defendant.</p> <p>3rd. That the act of arrest, to be effectually ratified by the defendant, must have been the act of its agent authorized to commit it.</p>

This suit was brought under section 7 of Article 45 of the Code, which provides “that any married woman, who, by her skill, industry, or personal labor, shall earn any money, or other property, real, personal, or mixed, shall hold the same, and the fruits, increase, and profits thereof, to her sole and separate use.” The case is stated in the opinion of the Court. First, Second and Third Exceptions were not passed on by the Court.

<p>Appeal from the Circuit Court for Washington County.</p> <p>The case is stated in the opinion of the Court.</p>

By agreement this cause was tried before the Court below (Dueey, J.,) without a jury. The Court gave its verdict for the plaintiff for $13,694.58 and entered judgment thereon. The defendants appealed. The case is stated in the opinion of the Court.

The case is stated in the opinion of the Court. The jury gave a verdict for the plaintiff for $9479.40, and the Court (Durey, J.) rendered judgment therefor. The defendants appealed.

<p>Scire faeias — Coverture—Demurrer.</p> <p>The plea of coverture to a scire facias to revive a judgment by confession against a married woman, on her promissory note made in the year 1877, is had on demurrer, the judgment being valid on its face, and there being nothing in the original proceedings, or in the writ itself to disclose the fact of coverture.</p>

<p>Life Insurance — Misstatement in the Application — Agent— Estoppel.</p> <p>Where an applicant for a life insurance, who could neither read nor write, stated to the agent of the insurance company who inquired his age, that he did not know it, and could not come anywhere near it, and the agent said he would take him to be about forty-three years old, and further, “I will put you in, anyhow, for forty-three years old, and make you younger than you are,” the insurance company is estopped by the act^ of its agent from relying on a misstatement in the application of the insured as to his age, to defeat a recovery on the policy.</p>

Cross-Appeals from the Superior Court of Baltimore City. The case is stated in the opinion of the Court. First Exception of Defendant. — The defendant offered in evidence the printed copy of the record of the case of Burroios, use of Bainbridge vs. Flunk, transmitted to the Court of Appeals, duly certified, under the seal of Baltimore City Court, to be a full, true and entire transcript, taken from the records and proceedings of said Court in said cause.

<p>Street passenger Railway — Personal injury — Contributory negligence.</p> <p>In an action against a street railway company to recover damages for a personal injury, it appeared that the plaintiff, while riding on the front platform of one of the company’s cars, fell or slipped off, and his foot was crushed hy the rear wheel. The car was in good repair, and neither the conductor nor the driver was negligent or careless in any particular. There was no unusual or extraordinary'motion of the car at the time of the injury. In the car in which the plaintiff was riding, as in the other cars of the company, there was a printed notice in large type, forbidding passengers to stand or sit on the front platform. The plaintiff, who used the cars frequently, and was able to read, testified that he had never read the notice. There was ample standing room inside the car when the accident happened. Held:</p> <p>That the conduct of the plaintiff, in being on the front platform of the car, a perilous position, in violation of a reasonable regulation of the company, directly contributed to the injury that he sustained, and he was not entitled to recover.</p>

<p>Evidence Act — Sec. 2 of Art. 35 of the Code — Mechanics’ lien — Art. 63, sec. 19, of the Code — Bill of Particulars— Evidence.</p> <p>Section 2 of Article 35, of the Code which provides that “when an original party to a contract * * * * is dead * * * either party may be called as a witness by his opponent, but shall not be admitted to testify on his own offer,” applies to a proceeding for the enforcement of a mechanics’ lien.</p> <p>The party seeking to enforce such lien, must prove the contract on which the lien is based, and the performance of it, and where the evidence offered for this purpose is not clear and definite, the contract cannot be enforced.</p> <p>Where there is a contract to do the work and furnish the materials for a certain consideration, the bill of particulars required by section 19 of Article 63 of the Code, to be filed with the lien claim, need not set forth the amount of the materials furnished, but will be sufficient if it sets out the contract price.</p> <p>Evidence offered by the defendants to prove the contents of a lost paper, the existence of which is not altogether certain, and which is not shown to have been signed by the plaintiffs, and the non-production of which is not satisfactorily accounted for, is inadmissible.</p>

<p> Constitutionality of the Oleomargarine law. </p> <p>The Act of 1888, ch. 312,- entitled, “An Act to prevent deception in the sale or use of butter and cheese, and to preserve the public health,” is a lawful exercise of the police power by the State* and is constitutional.</p>

<p>Ejectment — Legal estate — Executors authorized to Sell real. estate.</p> <p>The plaintiffs in an action of ejectment, claimed as executors under a will which devised all the estate, both real and personal, of the testator, to his wife, for her life, with remainder over to his children; and which authorized the executors to sell such portions of the “real estate as they may think it advantageous to dispose of, and to execute all such legal instruments as may he necessary to give perfect title to the purchaser.” Held:</p> <p>That the will gave a legal estate for life to the widow, with legal estates in remainder to the children; and that the executors not having a legal title, could not maintain the action.</p>

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

The case is stated in the opinion of the Court. Exception. — At the trial the defendant offered the fourteen following prayers : 1.

The case is stated in the opinion of the Court. First Exception. — The defendant proved by plaintiff’s testimony, that on other occasions, before the night of the accident which occurred to the horses sued for, he had sometimes made use of messengers of the defendant, and had signed on their faces at the bottom, the tickets brought by them when parcels were delivered to him, but never signed any ticket when sending messengers, and on this occasion signed none.

<p>Constitutional law — Police powers — Plumbers—Act of 1886, oh. 439, relating to Plumbers in the City of Baltimore.</p> <p>The Act of 1886, oh. 439, provides that no person shall engage in the business of plumbing in ihe City of Baltimore, unless such person shall have received from “The State Board of Commissioners of Practical Plumbing” a certificaté as to his competency and qualification. Upon an indictment under this' Act for refusal to comply with its requirements it was Held :</p> <p>That the Act was hut the ordinary exercise of the police power of the State, and did not violate the constitutional rights of the traverser under section one ¡of the fourteenth Amendment of the Constitution of the United States, or under Article twenty-three of the Bill of Bights of the Constitution of the State.</p>

The case is stated in the opinion of the Court. First Exception. — The traverser’s counsel, on cross-examination of the mother of the prosecutrix, asked the following question : “ Did you not tell Mrs. Brown that you had tried to get a service place for your daughter in Boonsboro’, but could not do so on account of her bad character?” The State objected to the asking of the question, and the Court (McSherry, C. J., and Lynch and Vinson, A. J.) sustained the objection.

Five exceptions were taken in the Court below, by the traverser’s counsel, being to the admissibility of evidence. The fifth exception was taken to the refusal of the Court to allow the traverser’s counsel to ask a witness, “Do you know her (the prosecutrix) general bad character; if yea, state what it is? ” The other exceptions are stated in the opinion of this Court.

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

<p>Deed to Hinder and, Delay creditors — Equity — In pari delicto.</p> <p>In a bill seeking to have a deed declared null and void as being fraudulent, the complainant alleged that it was understood and agreed between the parties that it should only operate as a mortgage, and that upon the payment to the defendants of the debt intended to be secured, the property should be reconveyed to the complainant. The complainant testified that he gave a deed in preference to a mortgage, because the former would keep off his creditors better; and that the consideration was falsely stated to make it appear a legal transaction. Held:</p> <p>That if the version of the transaction given by the complainant he accepted as true, the parties were in equal fault, and a Court of equity will decree no relief to either, but will leave them where they have placed themselves.</p>

<p>Voluntary relief Association— Corporation — Dissolution— Receivers — Court of Equity.</p> <p>A voluntary relief association formed by the employes of the Baltimore and Ohio Bailroad Company, was afterwards incorporated by the Act of 1882, ch. 358; the Act declaring the object of the association to be to extend relief in case of sickness, injury, old age, and death, to the employes of the Baltimore and Ohio Bailroad Company and their families, to receive deposits on interest from said employes and their wives, and to loan them money at lawful rates of interest, and generally to promote their welfare. In accordance with a provision of the Act of incorporation, the railroad company adopted a resolution guaranteeing all the obligations of the association. In 1889, when the association had about twenty-one thousand members, the Legislature passed an Act repealing the charter of the Association, , and providing that the Act should take eft’ect on the 1st of April, 1889. A few days before the charter was to expire, the association transferred all the assets, credits, and securities of its relief feature to the railroad company, and the latter covenanted to hold and apply the same to the liabilities of the association in connection with the business of its relief feature, and thereafter for the benefit and advantage of the new association, which was to take the place of the old, and to pay to such of the members of the old association as should refuse to become members of the new association, the value of their respective memberships a-nd interests. The new association was formed, and comprised about ninety-five per cent, of the members of the old association. On a bill filed by a member of the old association who had refused to join the new, asking the appointment of receivers to take possession of all the assets of the former association, and wind up its affairs, it was Held :</p> <p>That inasmuch as the persons who had joined the new association, depended upon it for the continuance of their life assurance, and the payment of sick benefits, a Court of equity should not appoint receivers as prayed, as it would in effect destroy the new association, and was not necessary for the protection of the interests of the complainant, which were abundantly secured by the covenant of the railroad company,</p> <p>In the settlement of the affairs of a corporation that has been dissolved, a minority of the stockholders are not always entitled to have receivers appointed and the assets sold, as there may be circumstances presented to a Court of equity that will justify a decree ascertaining the value of the assets in some fair and equitable manner without a sale, and making a distribution to shareholders on that basis.</p>

<p>Principal and Surety — Release of Surety.</p> <p>To secure a loan a mortgage on eleven lots of ground and certain buildings in tbe course of erection, was executed to the lender, who required as a condition precedent to the making of the loan that she should be protected against loss in the premises by the execution of a bond of indemnity. The condition of the bond, of like date with the mortgage, was that the mortgagor should complete the buildings and improvements by a certain day, pay the ground rent which should fall due on said lots respectively, until such completion, and indemnify the lender against all mechanics’ liens on said buildings. The mortgage contained a clause requiring the houses to be insured, and the insurance money, in the event of fire, to be paid to the mortgagee. The mortgage provided for foreclosure in default of the payment of the money loaned, or the interest thereon, or the ground rents, taxes or assessments. The buildings were not completed by the time specified in the bond, and shortly thereafter three of the houses included in the mortgage, being still unfinished, were burned, the mortgagor being at the time in default in the payment of the ground rents. A certain person entered into a contract with, and gave security to, the mortgagor and mortgagee to restore the property to the same condition in which it was before the fire, in consideration of the insurance money being paid to him. I-Ield:</p> <p>That as the securities had guaranteed the completion of the houses by a certain day, and their principal had failed to keep his engagement, and was in default, their liability for damages had accrued, and the application by the mortgagee of the insurance money to the restoration of the burnt buildings and giving a certain time in which to do the work, did not release them from their obligation upon their bond.</p>

The declaration in this case was as follows: William H. Souder, by his attorneys, John Y. L. Find-lay and Thomas Mackenzie, sues the Home Friendly Society of Baltimore, Maryland, a body corporate, duly organized and established under the laws of this State: For that the said society issued its three several certificates, commonly called “Policies of Insurance,” on the life of one Samuel Herman, for the proceeds of an assessment upon the surviving members of the society not…

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

The case is stated in the opinion of the Court. The appellee was incorporated by the Act of 1882, ch. 495, by the name of The National Trust and Guarantee Company, and by the Act of 1890, ch. 11, its name was .changed to that of The Baltimore Trust and Guarantee Company. The decree from which this appeal was taken was passed by Judge Dennis.

<p>Lessor and Lessee — Misdescription of Property — Correction of Mistake in Written instrument — Evidence—Assignor and Assignee — Action for Rent — Covenant—.Debt.</p> <p>When possession of land is delivered to a lessee by the lessor, the mere act of delivery is equivalent to an assertion both, by lessor and lessee, that the lot is the one described in the lease, although the lot so delivered does not exactly coincide by metes and bounds with the description in the lease.</p> <p>A lessee of land cannot defeat an action for unpaid rent by showing that his lessor did not have title to all the ground described in the lease, and that he did not enter into the portion of the property so described to which the lessor had no title.</p> <p>A written assignment of rent in arrear, containing in the description of the lease by which the rent was created, an error in the .Christian name of the lessor, hut correctly giving the name of the lessee, the date of the lease, and the book and folio of the land records of the place where it was recorded, may, after delivery, and suit brought upon it, he corrected by the assignor with the assent of the assignee so as to give the right name of the lessor, and is admissible in evidence in an action brought to recover such rent in arrear.</p> <p>The assignee of a reversion may combine in an action against the lessee, a claim for rent accrued after the assignment, and rent accrued prior to the assignment, and specifically assigned to him; and he may at his election sue therefor either in debt or covenant.</p> <p>As either covenant or debt will lie for a definite sum of money contracted to he paid by an instrument under seal, the differences between the actions in such case are entirely formal, and not substantial.</p>

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

<p>Municipal Corporation — Market—License—Taxation.</p> <p>By section 671 of Article 4 of the Public Local Laws, (Code of 1888) power is conferred upon the Mayor and City Council of Baltimore to erect and regulate markets; and by section 678 of the same Article it is enacted that the same authorities “may lease, sell, or dispose of the stalls and stands in any market in any manner, and for any term they may think proper.” Held;</p> <p>That where an ordinance setting apart a certain portion of a market for the sale of fresh and frozen fish and crabs, by a section thereof requires an annual license of a hundred dollars to be paid by every one before engaging in the fish and crab business in that market, such section is void, as being an effort to raise revenue under the guise of exercising the police power.</p>

The case is stated in the opinion of the Court. The verdict and judgment were for the plaintiffs, and the defendant appealed.

By a pro forma decree passed on the 5th of April, 1890, by Judge Wright, it was directed that a partition be made among the devisees under the will of Philip Hiss, in accordance with their respective interests thereunder, of all the real estate in the City of Baltimore undisposed of, whereof the said Philip Hiss died seized and possessed, and also all the balance of the proceeds of real estate in the hands of the trustees, to be ascertained by the auditor's account, directed…

<p>Dedication of Streets — Servitude—Sale of Lots by Plat.</p> <p>Where an owner lays off land in lots, and sells them as bounding on certain streets, which are sufficiently designated, the streets so called for are held as dedicated to the public, and the vendor is hound by an implied covenant to the purchaser, to keep them open; and the purchaser takes the lot he buys, subject to the servitude upon so much of the bed of the street as goes to him under his purchase, in fee.</p> <p>But to impose such a servitude upon a purchaser, for the benefit of the other lots of the vendor, where such servitude will be injurious to the purchaser, it ought to appear that the reservation was unequivocally and unambiguously made, and that the purchaser who resists it ought not to have heen mistaken as to what he was buying.</p> <p>It is not enough that the vendor intended by his plat to say that such and such lines on the plat indicate streets which he designs shall remain open for common use. He must do that with respect to it which will make his vendees understand his purpose, and leave them without excuse if they do not.</p> <p>There must be mutual understanding to effect an enforceable contract, or the terms and conditions of a sale must be so clear that a purchaser is estopped from sajfing he did not understand them.</p> <p>Where the servitude is a burdensome one, only strict necessity will raise the implication of its reservation. Great convenience is not enough.</p> <p>Trustees for the sale of a tract of land, divided it up into lots, and made a plat thereof, and sold by the plat. The plat contained dotted lines which the trustees contend indicated streets or avenues. The advertisement of the sale, in its heading said “by plat.” Ho reference was made to any streets or avenues laid out for the use of the lots. At the sale the auctioneer exhibited the plat,'and copies of it were distributed; but he made no announcement of any streets or avenues being opened for the common benefit of purchasers, and said nothing about the marks on the plat indicating street-ways. At the time of the sale there were no visible marks indicating where any proposed street was to be laid out. Each lot was offered and struck off where it was located, but there was nothing to indicate its situation, except the plat on which it was drawn. The trustees with their report of sale filed the plat as part of it, but made no mention of streets or avenues laid off and dedicated; and gave no courses and distances for the lots, which could only be ascertained by applying instruments to’the plat. Some of the lots remained unsold, and on a bill for the use and benefit of said lots, filed by the trustees against a purchaser at said sale, seeking to have the streets or avenues dotted on the plat declared dedicated to general use, and to restrain said purchaser from erecting a fence in the middle of one of them, it was Held:</p> <p>That the facts were insufficient to establish a case of dedication.</p>

<p>Will — Testamentary power — Advancement.</p> <p>A testator gave the residuum of his estate to his wife for life, with power to dispose of the same by will to their children,'and their descendants in loco parentis, if any of them should die in her lifetime, and with power to discriminate between them, and in her discretion, to advance any of them; but if the wife deceased without having made such disposition of his estate, then it was to be divided equally among the children living; the descendants of one djdng to stand in loco parentis. Held:</p> <p>That under this clause the wife had power to convey by deed to • one of her children by way of advancement, certain real estate included in said residuum.</p>

The case is stated in the opinion of this Court. The Court below (Irving, C. J., and Holland, A. J.,) to whom the case was submitted, found for the defendants on the issue of fraud.

<p>Municipal corporation — Constitutional law — Due process of Law — Taxation for Street improvements.</p> <p>The Act of 1874, ch. 218, authorizes the Mayor and City Council of Baltimore to provide by ordinance for the grading, paving, and curbing of any street in the City of Baltimore, and for assessing the cost of any such work, in whole or in part,piro rata, upon the property binding on such street, and for collecting such assessment as other city taxes are collected. By ordinance Ho. 100 of 1886, the-City Commissioner was directed to have Horth Avenue, between Pennsylvania Avenue and the western limits of the City, graded, paved, and curbed, in pursuance of the foregoing Act of 1874, ch. 218, and according to the provisions of Article 47 of the Baltimore City Code, so far as the same may be applicable, the expenses thereof to be assessed, as provided in section 34 of said Article 47, upon the owners of property bound- . ing on said avenue in proportion to the number of front feet owned by them, respectively. Section 34 of said Article 47, provides that the City Commissioner shall impose a tax upon the owner or owners of property bounding on such street, lane or alley, or part thereof, to pay for.the whole expense of the work, and for collecting the same, in proportion to the number of front feet, owned by them, respectively, and that such tax shall be-a lien on the property. Neither the Act of 1874, ch. 218, nor Ordinance Ho. 100 of 1886, nor section 34 of Article 47 of the City Code, makes any provision for giving notice to the parties who may be charged with the cost of paving Horth Avenue, that the work will be done, or that they will be assessed therefor. Held:</p> <p>That an assessment levied under the Ordinance was null and void, as it was the taking of property without due process of law, in violation of both the Federal and the State Constitution.</p> <p>The right to have notice to appear and be heard before such tax is • imposed, is an absolute right, not to be invaded under any pretext whatever, and the fact that the tax would have been the same if the property owner had appeared and been heard, does ' not make it legal.</p>

The Act of 1890, ch. 183, entitled “An Act to create a Treasurer for Calvert County, and to provide for the collection of taxes therein,” created the office of treasurer for said county, to be appointed by the Governor and authorized such treasurer to appoint a deputy, who should also be clerk to the County Commissioners.' Under this Act George H. Jones was appointed by the Governor during the session of 1890, to be treasurer of said county, and the appointment was confirmed…

<p>Municipal Corporation — Assessments for Street improvements — Due process of Law.</p> <p>Under the Act of 1874, ch. 218, the Mayor and City Council of Baltimore, may provide by ordinance for making assessments to pay the expense of paving and repaving the streets, lanes, and alleys of the City, and for collecting those assessments from the parties charged therewith, by appropriate proceedings in the Courts of Baltimore City, where, after summons, or by public notice given through the newspapers, the parties assessed may have a trial by jury, and a full judicial investigation according to the course of these tribunals. When this is all provided for by ordinance, the assessments made under such an ordinance will not be open to the objection that they have been imposed without due process of law.</p>