Volume 75 — Maryland Reports

The case is stated in the opinion of the Court. Exception. — At the trial the plaintiff offered six prayers, the second and fifth of- which were refused, and are omitted, the others are as follows: 1.

The case is stated in the opinion of the Court. Exception. — At the trial the plaintiffs offered the following prayer: That if the jury believe from all the evidence in the case that the plaintiffs on or about the 15th of February, 1890, sent an order to their agent, M. Driver, in Lynch-burg, to purchase for them twenty-live hogsheads of tobacco, of a certain kind and quality, known to the plaintiff's, said M. Driver, and the defendants, by the name of “ Oblong,” at the…

<p>Foreclosure of Mortgage — Exemption under the Act of 1861, eh. 7 — Objection to Auditor’s Account — Practice in the Court of Appeals.</p> <p>Where property is sold under a foreclosure of mortgage, the mortgagor is properly allowed out of the surplus proceeds of sale, as against judgment creditors, an exemption of one hundred dollars, as provided by the Act of 1861, ch. 7, exempting a certain amount of property from execution.</p> <p>Objection to the claim of exemption on the ground that the claimant had other property, not having been raised by exception in the Court below, will not be considered in the Appellate Court.</p>

<p>Trust deed — Construction.</p> <p>A grantor by deed conveyed all of his property, real and personal, to three of his sons on certain trusts. The deed recited that he had purchased for the sum of §10,000 a tract of land known as' “Gunning’s Delight,” and that the deed for the same was made to one of Ms daughters and her husband; and that they had mortgaged the same to the grantor for §10,000; and that it was his intention that they should convey the said tract to the trustees named in the deed; and that the trustees should release the mortgage; and that until his daughter and her husband made the conveyance, they should receive no benefit under the trust. The deed provided that the grantees should have full power over the property, as fully and absolutely, and to all intents and purposes, as if the conveyance had been made to them free from' any trust, and they should have full power to sell and dispose of the same, and said “Gunning’s Delight,” if conveyed to them, except said “Gunning’s Delight” shall not be sold until after the death of “the grantor; that the grantor should have the net profits arising from all the property, and should have full right to use and occupy the real estate during the term of his natural life, and should pay all taxes and assessments, and keep down all incumbrances.” The deed further .declared that it was the object and intention of the parties thereto that the grantor should have an interest for life in the benefits arising from the trust. The grantor wished the property to be divided after his death among his children and his grand-children, who were the children of a deceased son. Held :</p> <p>That under the deed the legal title to the realty vested in the grantor, and to the personalty in the trustees who had- no right to sell it during the life of the grantor.</p> <p>On a bill filed for the purpose of setting aside a trust deed on the ground that it did not conform to the directions given by the . grantor for the drafting of it, and that it was executed by mistake, it appeared that while some of the consequences of the deed might be displeasing to him, it accomplished, in a general way, the objects which he seemed to have desired. The specific instructions given for the drafting of the deed were not proved, and there was no evidence that the instructions received were misunderstood or disobeyed. Held :</p> <p>That the hill should he dismissed.</p>

<p>Negligence — Instruction.</p> <p>In an action to recover damages for the destruction of a mill-dam by the alleged negligence of the defendants, the declaration contained two counts. The first count alleged that the injury complained of was the result of “large obstructions' in the-shape of timber or other material” which the defendants had caused “to be placed or come and rest upon and against the plaintiff’s dam,” and which the defendants undertook to remove, “and did so unskilfully, carelessly, and negligently, that in the course of so doing, the plaintiff’s dam was injured and partially destroyed, so that 'because of said injury, which weakened the same, it was carried away by the waters flowing along Deer Creek.” The second count alleged that the defendants sounskilfully and negligently located and erected a bridge that the current, in times of high water, was made more rapid and dangerous; that in consequence of this negligence of the defendants, the water was thrown against the dam with greater force and velocity; and that thereby, during a- freshet in May, 1886, the dam was washed away and destroyed. The Court below instructed the jury that the defendants were not responsible under the first count, as' there was no evidence to show their connection with the cause therein alleged to have occasioned the-injury. There was no evidence to show that the cause assigned in the second count, operated of itself to produce the damage sued for. Held :</p> <p>That the Court below erred in refusing to instruct the jury that there was no evidence in the case legally sufficient to entitle the plaintiff to recover.</p>

<p>Construction of Will — Termination of Trust — Statute of Uses — Rights of Remainder-men.</p> <p>A testator devised and bequeathed to his three sons, and the survivor of them, and the heirs, executors, administrators, and assigns of the survivor, all the testator’s residuary estate of every kind, in trust, to value the same within a reasonable time, after his death, three-eighths thereof to devolve upon and vest in them absolutely, as tenants in common, and to hold the remaining five-eighths, the estate having been first valued, set apart, converted, and invested in mortgages, or in State or municipal bonds, and to collect the rents, issues, and profits thereof, and, after paying all necessary expenses of the management thereof, and all charges, taxes, and repairs thereon, then, in trust, to pay semi-annually, the net income accruing from the said, five-eighths parts, and of any accretions thereto, in equal parts to each of his five daughters, for the separate use of each of his said daughters for the period of her natural life, and after the death of any one of his said daughters to hold one-fifth part of the said five-eighths parts for the child, if only one. of the said daughter so dying, or for the children, if more than one. of the said daughter so dying, share and share alike. Power was given to the trustees to mortgage the whole or any part of the said live-eighths, and it was declared that such mortgage should be a lien, not only on that part of the trust estate so mortgaged, but 'in case of deficiency, upon all the property so set apart in trust for the benefit of his daughters. The trustees were also authorized to lease and to sell any portion of the trust estate. Held :</p> <p>1st. That the daughters took equitable life-estates, with remainder to their respective children, and the sons held the whole five-eighths, the trust to continue until the death of the last surviving daughter, when, under the Statute of Uses, the children, the remainder-men, would take absolute estates freed from the trust.</p> <p>2nd. That though the devise was to the sons and the survivor of them, and the heirs, personal representatives, and assigns of the survivor, yet as the trust created was not required for any practical or useful purpose beyond the lives of the daughters, the equitable life tenants, it was not the intention of the testator to exténd the trust beyond the death of his last surviving daughter.</p> <p>3rd. That the conversion of the trust estate must be made into mortgages, or into real or leasehold estate or into State or municipal bonds of the most assured standing.</p> <p>4th. That the daughters — the devisees and legatees for life — were entitled to the net income, without any deduction for the payment of costs of administration, debts, and legacies; and were properly chargeable only with the ordinary expenses and , repairs; the cost of new buildings and such permanent improvements as might be called betterments to be paid out of the corpus of the estate.</p> <p>[Counsel undertook to show that the general intention of the testator would appear by reading the will in the order in which .the events would occur after his death; and further, by reference to various clauses of the will, 'to determine when the powers and duties of the trustees were to terminate. — Rep.]</p>

<p>Setting aside Decree — JEquity jurisdiction — JSquitable interest —Judgment lien.</p> <p>Where more than, three years have elapsed since the passage of a a decree, and rights have vested thereunder, such decree will not he vacated upon the ground of want of jurisdiction, unless there was such an absolute want of jurisdiction in the Court as would render the decree void ab initio.</p> <p>The Court of Chancery being a superior Court of general jurisdiction, nothing shall be intended to be out of its jurisdiction which is not shown to be so.</p> <p>Since the Act of 1861, ch. 70 (Code, Art. 26 sec. 19) the equitable interest or estate of a judgment debtor in a term for years is not only subject to the lien of the judgment, but is also liable to seizure and sale under execution at law in like manner as equitable estates of debtors in freehold are subject to liens, and liable to be seized and sold by execution at law.</p>

<p>Contract of Renting — Agreement for Renting.</p> <p>The defendant wrote a letter to the plaintiff in which he said, my brother F. C. has some idea of renting your farm. If you and he can agree upon terms of third share as your rent, I will become the renter, and enter into contract with you; he to .work the farm. This letter was given by the defendant to his brother, and on the same day the plaintiff received it and replied to it, directing the reply to the defendant. It was received by the brother of the defendant; but there was no proof that the latter ever saw it. The plaintiff, in her letter to the defendant said, she would agree to terms of one-third rent, Mr. F. C. to cultivate her farm, and that she would be at home to negotiate with him oh' the morrow. Mr. F. C. did not come on the morrow, but late in the evening of the day following. The plaintiff testified that she bargained with him in his brother's name for a third crop rent, and handed him a contract which she had with her outgoing tenant, saying it contained her terms, and that she would make any reasonable concession; that she gave him that form of contract for the purpose of having a contract of the same form signed by the defendant. Held :</p> <p>That the letters did not constitute a contract of renting between the plaintiff and defendant, but merely an agreement, upon a named condition, to enter into such contract.</p>

<p> Construction of Will. </p> <p>A testator, after reciting-the fact that he had made a will, and had bequeathed certain legacies to three grandchildren, made a codicil, in which he stated “that in the event of loss to my estate by my being security or endorser for others, and my executors have to pay the same, then I desire that my said grandchildren * * * shall pay their proportionate share of the same, * * and shall be withheld by my executors.” Prior to the execution of this codicil the testator discharged certain indebtedness for which he had become liable as security for his brother. Held:</p> <p>That the debt thus incurred by the testator and paid in his lifetime, was not such a loss as it was intended by the codicil should be borne by the grandchildren.</p>

2 of Baltimore City. This appeal was taken from the decree of the Court helow perpetually enjoining The Baltimore Belt Railroad Company, its president, directors, and agents from instituting any proceedings for the condemnation of any of the land of the plaintiffs, mentioned in the bill of complaint and shown in plaintiffs' Exhibit C, and more especially from making any application to any justice of the peace for the issue of any warrant to the sheriff of Baltimore City, to…

<p>Verbal Agreement and Mot to be Performed within a Year— Statute of Frauds.</p> <p>The plaintiff's, in their declaration, alleged that the defendant, being the exclusive owner of Sparrow’s Point, and being there engaged in the manufacture of steel and steel products, agreed with them that if they would purchase the steamer “Olive,” the defendant would execute to them a contract for the term of three years for the exclusive carriage by said steamer of passengers and freight between Baltimore and Sparrow’s Point; and that the plaintiffs relying on said agreement, purchased the “Olive,” but the defendant refused to execute the contract. The agreement was a verbal one. Held :</p> <p>That as the agreement was not to be performed within a year, and was not in writing, it was within the Statute of Frauds, and no action could be maintained thereon.</p>

<p>Subscription to Shares of Stock — Rescission—Fraudulent misrepresentation — Insufficiency of Evidence.</p> <p>In a bill filed for the purpose of having a contract of subscription to the capital stock of the defendant corporation rescinded on the ground that it had been obtained by the false and-fraudulent misrepresentation of the agent of the corporation, the plaintiff charged that said agent had represented that three thousand five hundred shares of the capital stock of the company had been sold for not less than fifty dollars per share, and that relying entirely on such representation he had agreed to purchase a hundred shares of the stock; that contrary to such representation, he had since discovered that a portion of the said three thousand five hundred shares had been sold for less than fifty dollars a share. There was an irreconcilable conflict between the testimonj' of the plaintiff and that of the agent, and they were the only witnesses who testified to the facts of the transaction itself. It was in evidence, however, that after having had 1 two interviews in respect of the subscription, the plaintiff at a third interview, sought by himself, and after the subject had been fully talked over between the parties, requested the agent to put down in writing what he had said. This was done, and the memorandum then and there made, and furnished to the plaintiff, did not contain the statement that no part of the three thousand five hundred shares of stock had been disposed of for less than fifty dollars per share. Subsequently the plaintiff signed the subscription list in which it was stipulated that no one should be bound for his subscription until twenty-five hundred shares had been subscribed for at fifty dollars per share. Held :</p> <p>1st. That,' in such case, the onus of proof is on the plaintiff, who seeks to set aside an executed or partly executed contract, to establish the alleged fraudulent misrepresentations by clear and satisfactory proof; and that the fraudulent misrepresentations alleged actually deceived the plaintiff, and were the occasion of and brought into existence the contract.</p> <p>2nd. That in Courts of equity, and especialty on allegations of fraud, if the allegations of the bill be supported bj' the testimony of a single witness only, and his testimony is positively and pre- . cisely denied by a witness for the defendant, the bill, ordinarily, must be dismissed, unless there be corroborative evidence of the testimony of the witness for the plaintiff, supplied by letters or other documents in the case.</p>

The case is stated in the opinion of the Court. Exception. — The plaintiff offered the three following-prayers : 1. If the jury, find that the plaintiff and Fred.

2, of Baltimore City. Sylvester Keyser, a resident of the State of Pennsylvania, died seized of land lying in Baltimore City, and hy his will, which was duly proved, and an authenticated copy whereof was recorded in the office of the register of wills of Baltimore City, he directed his executors therein named, to make partition thereof, and hold the portions into which the same was divided upon the trusts therein set forth.

Mrs. Mary Ann Linthicum, the plaintiff in this case, to whom her son, William Amasa Linthicum, devised all of his property of every kind, sold to the defendant, George M. Benson, a fiirm in Baltimore County, being a part of the same property that passed to her son under his father’s will. Benson paid a part of the purchase money, and was ready and willing to pay the balance, as soon as the plaintiff could convey to him a good and valid title to the farm.

On the 14th of May, 1891, Charles Ogle and Mary J. Des Eorges, executors of Harriet A. Hayden, deceased, offered at public auction the reversions in and the rents issuing out of certain lots of ground, on the west side of' Eutaw street, in Baltimore City. Two of these ground-rents were purchased by the appellee, Patrick Reynolds, and the third was purchased by the appellee, Augustus C. E. Boehme.

The case is stated in the opinion of the Court. Exception. — At the trial of this case in the lower Court the plaintiff offered five prayers, which need not he inserted. The defendant offered the following prayers: 1. That there is no legally sufficient evidence that the accident that resulted in the death of Harvey F„ Abbott was caused by any negligence on tbe part of the defendant, and therefore the plaintiff is not entitled to-recover in this action. 2.

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

This action was brought by the appellee against the appellant to recover certain ground rents and taxes. The opinion of this Court, together with the opinion of Judge Dueey in the lower Court, furnish a sufficient statement of the facts of the case. First and Second Exceptions, relating to questions of evidence, are omitted, not having been passed upon by ■ the Court. Third Exception. The plaintiff offered the following prayers: 1.

<p>Paper writing Intended as a Will — Validity—Sec. 310 of Art. 93 of the Code.</p> <p>A decedent left a Bible, on the last leaf of which was written in her hand-writing, and signed by her, the following: $5,000 for West. Md. College; $1,000 of it to be given to the Theological Seminary; $1,000 to Ward Hall. The $3,000 to be given to the main college.” This writing was offered for probate as a testamentary paper by the trustees of the college, and a caveat was filed thereto by the administrator of the deceased. Held:</p> <p>That the paper was not entitled to be admitted to probate as a valid will of personal property, section 310 of Article 93 of the Code, requiring all bequests of personal property to be in writing, signed by the testator, or by some other person for him, and attested and subscribed in the presence of the testator by two or more credible witnesses.</p>

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

2, of Baltimore City. This appeal was taken from the'decree of the Court below, (Phelps, J.,) dismissing the hill of complaint. The case is stated in the opinion of this Court.

The case is stated in the opinion of the Court. The twenty-fifth clause of the will of Mrs. Eliza Whelan reads as follows: “It is my will that the property hereinbefore given to my daughter, Mary Reid, shall he held and enjoyed by her for and during her natural life only, and after her death shall devolve on and belong to her child or children then living.

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

<p>Street railways — Implication in Derogation of the Rights of the Public — Electricity as a Motive power — Right to Use same.</p> <p>By the Act of 1872, ch. 369, a street passenger railway company was incorporated, and it was invested with all necessary power to construct and operate its railways in the City of Baltimore, on such streets as might be designated by ordinance of the Mayor and City Council, and upon such terms, and subject to such conditions, as might be made by7 such ordinance, and to receive and take tolls. In the exercise of the power thus vested in the Mayor and City C ouncil, an ordinance was passed conferring power on the company1, to lay its tracks on certain named streets, and power was reserved to grant to any other road the right to use said tracks under such regulations, and upon the payment of such sum or sums of money to the said first mentioned company, as should he agreed upon by the Mayor and City Commissioner and the president of said company. By sections 800, 810, 814, 820, of Article 4 of the Code of Public Local Laws, the Mayor and City Council were invested with full power and authority over the streets of the city, and the streets were declared to be public highways. By the Act of 1890, ch. 370. additional authority7 was conferred on the Mayor and City Council to regulate the use of the streets by railway or other tracks. Held :</p> <p>1. That, according to a 'well settled principle of construction, no implication will be indulged in derogation of the rights of the public, in the absence of express or plain terms of grant; and therefore an intention to grant an exclusive privilege or monopoly will not be implied, nor will a grant of privileges be given scope and effect, in restriction of public right, beyond what the plain words require; and this principle of construction is no less applicable to grants of privleges by municipalities, affecting the public, than to grants of such privileges directly by the State.</p> <p>2nd. That although at the time of the passage of said ordinance, electricity was not used as a motive power for street cars, the power reserved in said ordinance was sufficiently comprehensive to enable the Mayor and City Council to grant "to another company the right to use the tracks of the first mentioned company with cars propelled by electricity.</p> <p>3rd. That the fact that some change in the structure of the railway tracks and road-bed would be necessary to adapt them to the use of cars propelled by electricity, and some disturbance- of the road and its operations might thereby be occasioned, could ' make no difference, as such change and disturbance would not be allowed without just compensation.</p>

<p>Street railways — Exclusive right of TraeJc-way — Municipal control of Streets — License of Municipality to Street railway Company to Use street for its Tracks.</p> <p>An ordinance that authorizes a street railway company to use the tracks of another company on a certain avenue, but which ¡ declares that nothing therein shall be construed to grant any right or privilege to lay any additional tracks on a bridge erected and maintained for public use by the city, and forming a part of said avenue, is not intended to secure to the company whose tracks are already on the bridge, a monopoly of the right of way over the bridge, but simply to avoid incumbering the bridge with unnecessary tracks; and from the fact that the bridge is to be torn down and reconstructed, and a temporary bridge has been erected by the city to accommodate the public until the new bridge is completed, and in the ordinance providing for the erection of such temporary bridge it is declared to be lawful for any railway company authorized to lay and maintain tracks on the old bridge, to lay and maintain its tracks on the temporary bridge, it does not follow that the company whose tracks were on the old bridge, and to whom license was given by the ordinance to lay tracks on the temporary bridge, has an exclusive right of track-way over said bridge, it being within the power of the Mayor and City Council to allow any other street railway company to place tracks upon such temporary bridge.</p> <p>The control of the streets and highways of the city must be retained in the power of the municipality, and cannot be granted away or surrendered to other agencies not authorized by the State to assume control of the streets or highways of the city,</p> <p>Under a grant or license of the municipality to a street railroad company to use the street for its tracks, it is only so much of the street as may he actually occupied that can he claimed to be exclusive of other tracks; and other parts of the street may he granted to a competing line or lines.</p>

<p>Construction of Will — Charitable bequest — Indefiniteness of Beneficiary — Poiver of Selection — Void and Lapsed legacy.</p> <p>The residuary clause of the will of a testatrix provided as follows: “I direct my trustees to pay over the whole residue and remainder of my means and estate to some Presbyterian institution in Baltimore, as they may determine, for charitable or religious purposes.” The residuum so disposed of consisted of personalty^ Both the trustees named in the will died before the estate was settled up, and neither of them designated any Presbyterian, institution to receive said legacy. Held:</p> <p>1st. That the bequest was void for indefiniteness as to the institution intended to be benefited or promoted, and the purposes to which the fund was to be applied.</p> <p>2nd. That the power of selecting a beneficiary given by the testatrix to the trustees under her will, was purely one limitpd to the persons named, and they both having died without attempting to exercise it, it devolved upon no one else.</p> <p>3rd. That as a consequence of this, even had the bequest been valid in the first instance, the legacy would have lapsed; and in either event whether void or lapsed the father of the testatrix, as her next-of-ldn, became entitled to the fund and personal property attempted to be disposed of under said residuary clause.</p> <p>Whenever a power is of a kind that indicates a personal confidence, it must prima facie be understood tobe confined to the individual to whom it is given, and will not, except by express words, pass to others, to whom by legal transmission the same character may happen to belong-.</p>

<p>Corporations — Transfer of Property of a Corporation — Ratification by Stockholders — Acceptance of Deed, — Exception.</p> <p>The stockholders of a corporation, having had knowledge of the action of its directors when they directed all its property to be sold and conveyed to another corporation, and not having acted upon that knowledge at the proper time, must be held to have ratified the execution and delivery of the deed.</p> <p>A corporation organized to succeed a corporation whose charter was about to expire, purchased certain property for $100,000; the terms being the payment of $20,000, in cash, the execution of a mortgage for $27,000, and the assumption of existing mortgages amounting to $53,000. A deed was received, a mortgage for $27,000 was executed, and the payment of the existing mortgages for $53,000, was assumed. The cash payment of $20,000, however, was not paid by the grantee, which was without business and without money, but the old corporation paid the two vendors $10,000 in cash, gave them its note for $5,000, which it afterwards paid, and in lieu of the remaining $5,000, they respectively accepted a certificate of the preferred stock of the new corporation, which, at that time, it was supposed would soon succeed the old corporation. Immediately after the purchase of the property by the new corporation, the old corporation went into possession. Subsequently it was resolved by the board of directors of the old corporation that inasmuch as its charter was about to expire it should be amended,- and it was accordingly amended so as to continue its existence for a definite period; and its president, who was also president of the new corporation, was authorized to purchase the property of the latter for $100,000. On the same day the new corporation, by its board of directors, passed a resolution that it would be for the interest of both companies that a sale and conveyance of the property should be made to the old corporation at the price at which it had been purchased by the new corporation. Subsequently the directors of the old corporation reported to its stockholders that the president had made this purchase from the new corporation “at their purchase price.” The old corporation continued in possession, and used it in the prosecution of its business for some months, when, after it had become insolvent, a deed providing for the payment of the mortgages as part of the consideration, was executed and put on record by the president of the two companies. Held :</p> <p>1st. That the old corporation must be presumed conclusively to have accepted the deed and was therefore bound by the covenant thereof to pay the mortgages.</p> <p>2nd. That the separate claims of the vendors, based on the two certificates of preferred stock in the new corporation, taken in lieu of the $5,000, it being supposed at the time that it would soon succeed the old corporation, were valid claims against the assets of the old corporation.</p> <p>The fact that the old corporation was insolvent when the deed was delivered to it, would interpose no obstacle to its acceptance, as it imposed no new obligation, but was only the legal evidence of the contract which when made, was a valid exercise of ■ power by both corporations.</p> <p>Where an exception is exact and definite as to the item of the account excepted to, it is not necessary that all the reasons relied on to support the exception should be stated in the exception itself.</p>

This appeal was taken from the order of the Court' below sustaining exceptions by the purchaser to the ratification of the sale in the proceedings mentioned, and setting aside the same. The case is stated in the opinion of the Court.

The hill of complaint in this case was filed by the Safe Deposit and Trust Company of Baltimore, administrator cum testamento annexo of Susanna Warfield, deceased, against The Convention of the Protestant Episcopal Church of the Diocese of Maryland, and others. The case is stated in the opinion of the Court.

2, of Baltimore City. The case is stated in the opinion of the Court.

<p>Injury to Brakeman — Rules of Railroad Company — Evidence of Custom — Obligation of Employ'e to Conform to the Rules of his Employer.</p> <p>In an action by a rear brakeman or flagman of a freight train, to recover for injuries he sustained in going from the inside of the car to the top by ladder strips, evidence to show that it was customary for the rear breakman or flagman to ride inside of the rear car is inadmissible, the rules of the company, with which he was furnished, requiring that the brakeman must not leave his brakes while the train is in motion, nor take any other position on the. train than that assigned him by the conductor, and declaring that th,e post of the rear brakeman or flagman is on the last car in the train, which he must not leave except to protect the train.</p> <p>An employe, when he enters the service of his employer, and accepts the book of rules prescribing his duties and the manner of performing them, obligates himself to observe and conform to such rules, according to the plain terms thereof, and not according to what may have been a customary practice among other employes regardless of the express requirements of the rules.</p>

<p>Assignment for Benefit of Creditors — Bight to Exemption.</p> <p>Where a debtor executes an absolute deed of trust of all his property for the benefit of his creditors, without reservation of his right to exemption, he is entitled to no allowance on that account out of the proceeds of sale of the property.</p>

<p>Corporations — Amendment and Repeal of Charters by the Legislature — Sec. 47 of Art. 3 of the Constitution of 1851, See. 51 of Art. 3- of the Constitution of 1864, and Sec. 48 of Art. 3 of the Constitution of 1867, Relating to such Alteration and Repeal — Vested rights — Legislative powers — Maryland Agricultural College.</p> <p>• By section. 47 of Article 3 of the Constitution of 1851, it was provided that ‘-corporations may be formed under general laws, but shall not be created by special Act, except for municipal purposes, and in cases where, in the judgment of the Legislature, the object of the corporation cannot be attained under general laws. All laws and special Acts pursuant to this section may be altered from time to time, or repealed * * * *” Held:</p> <p>1st. That this provision was designed to be, and as far as language could make it so, was a clear and explicit limitation upon the power of the General Assembly to pass thereafter any Act of incorporation not subject to repeal or amendment by legislative authority.</p> <p>2nd. That upon the adoption of that Constitution every charter thereafter granted, even though it contained no reservation of the right to repeal or alter it, was subject to this paramount provision of the organic law.</p> <p>3rd. That the right of the State to repeal or alter an Act of incorporation was the express condition upon which the grant was made in every instance after the adoption of said Constitution, and an acceptance of the grant was an unequivocal, as it was an irrevocable, acceptance of that condition.</p> <p>4th. That this right would be no more effective if it were written in the charter in the very words of the Constitution itself; and its exercise by the Legislature cannot, when it invades no vested right of property, be successfully resisted in the Courts as an infringement of a contract, because the constitutional provision is a term or stipulation embodied in the contract to which the State and the incorporators are equally parties.</p> <p>The “Maryland Agricultural College,” was incorporated by the Act of 1856, ch. 97, under which commissioners were appointed to receive, and did receive, subscriptions to the capital stock, and the method of electing trustees was prescribed and their number designated. The College having become involved in debt the Act of 1866, ch. 53, was passed, appropriating a large sum of money, to be used in liquidating the indebtedness, and in the purchasing of furniture and apparatus, provided the College would, by a good and valid title, make the State of Maryland “equal joint owner of the property” then ojvned by the College. The fourth section of this Act reduced the number of trustees to eleven, “four of whom shall be members of the State Board of Education, to represent the State’s interest as joint owner, and the other seven shall be elected by a majority of the private stockholders in the manner now provided by law.” The Act was accepted by the stockholders of the College; the sum appropriated for its relief was paid by the State, and a conveyance was made to the State, whereby it became an “equal joint owner of the property.” By the Act of 1880, ch. 231, the number of the trustees was changed, being increased to twelve, five of whom were to be elected by the stockholders, and the others, a majority of the whole number, were to be, the' Governor and other State officers and the U. S. Commissioner of Agriculture. This Act was not formally accepted by the private stockholders, but was acted on by them uninterruptedly until 1888. By the Act of 1888, ch. 326, another change was made in the number of trustees, repealing in this particular both the Act of 1866, ch. 53, and the Act of 1880, ch. 231. By the Act of 1888, ch. 326, the number of trustees was increased from twelve to eighteen, five of whom were to be elected by the stockholders, and the remaining thirteen were to consist of the Governor and other State officers, together with the O’. S. Commissioner of Agriculture, and one person from each congressional district of the State, to-be appointed by the Governor. Under this Act the stockholders elected in 1888, 1889, and 1890, five of the eighteen trustees. But at the annual meeting in 1891 they claimed the right to elect under the fourth section of the Act of 1866, ch. 53, seven trustees, and directed that proceedings be instituted with a view of determining “who are the trustees duly appointed by law to administer the affairs of the College.” Upon a petition filed by the seven trustees then elected by the stockholders against the trustees representing the State, the Acts of 1880 and 1888 were held to be unconstitutional and a mandamus was ordered to issue requiring the State’s representatives to allow the petitioners. ■ as stockholders’ trustees, a representation and vote of seven trustees in a board of eleven members according to the provisions of the Act of 1866, ch. 53. Upon an appeal from this order it was Held:</p> <p>1st. That the case presented no question of vested rights.</p> <p>2nd. That the Act of 1880, ch. 231, in giving the State, which was an equal joint owner of the College, a more liberal representation in the board of trustees, interfered with no contractual, vested, or constitutional rights, of the private stockholders, and violated no obligation whatever.</p> <p>3rd. That it was a measure .which concerned the government of the College and the disbursement of the funds intrusted to it by the State, a measure which the State had, under section 48 of Article 3, of the Constitution of 1867, the authority to adopt,</p> <p>4th. That the authority to adopt it being within the limits of the Legislature’s constitutional prerogatives, questions of expediency as to its exercise were not for Courts of justice to consider or discuss.</p> <p>5th. That there was nothing in the Act of 1866, ch. 53, which could deprive the Gerieral Assembly of the power to pass either the Act of 1880, ch. 231, or the subsequent Act of 1888, ch. 326.</p> <p>0th. That while such of the provisions of the Act of 1866 as related to a sale to the State of a one-half interest in the property, when accepted, formed a contract which neither party could, without the consent of the other, disregard, its other provisions relative to the number of trustees and the mode of electing them were matters affecting merely the government of the afi'airs of the corporation, and were within the control of the General Assembly, and subject to modification by it under the Constitutions of 1864 and 1867.</p> <p>7th. That the Act of 1866, which declared in terms that it was amendatory of the original charter, was intended to be and did become a part of that charter, and under the Oonstitutions of 1864 and 1867 was as subject to amendment, except in the particular above alluded to, as the original charter itself.</p> <p>8th. That if said Act had expressly said .that it was irrevocable, and not subject to amendment or repeal, such a clause would have been nugatory and void. The Legislature was then, and still is, powerless to create or amend any charter, except the charters of Banks, in such a form as to be beyond the reach or control of subsequent repeal or modification.</p> <p>9th. That the right to amend, if not included in the right to repeal expressly reserved in the original charter, was vested in the Legislature by the Constitutions of 1851, 1864 and 1867.</p> <p>10th. That assuming the Acts of 1880 and 1888 to have been passed without constitutional authority, they were acted on and acquiesced in by the stockholders of the College with full knowledge of their provisions, and thereby were legally accepted.</p> <p>An Act of Assembly, amending an irrepealable charter, is void only when it attempts to vary the contract without the consent of the other party thereto. But like any other contract, an irrepealable charter may be altered by the agreement of both the parties to it. Hence a legislative enactment that would, without acceptance be invalid, becomes, when accepted by the corporation, perfectly valid and binding, the Act and the acceptance constituting a new contract.</p> <p>This is true in all cases where the only ground of objection to the statute is that it seeks to amend without previous assent an irrepealable charter.</p> <p>An Act of Assembly which is absolutely and unconditionally void cannot be made valid by consent.</p>

<p>Appeal from the Circuit Court for Frederick County, in Equity.</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 plaintiffs offered three prayers, the second of which was as follows: 2.

The caséis stated in the opinion of the Court. Exception. — At the trial the plaintiff asked the Court to grant the following instructions: 1.

The case is stated in the opinion of the Court. A re-argument of the case “upon the question of the validity of the organization of the corporation under the charter of 18T2, and the right to exercise the rights and franchises therein named,” was ordered by the Court.

2, of Baltimore City. * This appeal was taken from a proforma decree of the Court below sustaining the exceptions of the appellee, as purchaser of certain real property in the proceedings mentioned, the ground of the exceptions being that the trustee could not give a good and valid title to the property sold. The case is stated in the.opinion of' the Court.

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

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

The case is stated in the opinion of the Court. Plaintiffs’ First Exception. — The defendant called William H. Shipley, special surveyor, to whom, upon application of defendant for a warrant of resurvey, and the granting of said application by the Court, under protest of plaintiffs, the warrant was issued, and offered to introduce a certain plat, with locations, for the purpose of showing that the proper location of the land described in the deed from Matthews and others,…

The case is stated in the opinion of the Court. The first five exceptions are sufficiently referred to in the opinion of the Court. Sixth Exception. — At the trial the plaintiff offered the twelve following prayers: 1.

The case is stated in the opinion of the Court. The ordinance from which quotation is made in the opinion, is section 5 of ordinances, Article 20, of the Baltimore ■City Code of 1879. The First, Second, Third and Fourth Exceptions are sufficiently stated in the opinion of the Court. Fifth Exception. — At .the trial the plaintiff offered the five following prayers: 1.

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

The following opinion, containing a statement of the case, was delivered by Chief Judge Alvey, in the Court below: “This is an application by petition, filed in these consolidated cases, (Brown and others, Trustees vs. Chesapeake and Ohio Canal Co., and, others, and Sloan and others.

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

The case is stated in the opinion of the Court. Exception. — At the trial below, the testimony being closed, the plaintiff offered the following six prayers: ' 1.

This appeal is taken from an order allowing and passing the claim of the appellee, the nature of which claim is stated in the opinion of the Court.

This was an action of ejectment brought by the appellee against the appellant and another, to recover a lot of ground embracing the southern half of the bed of the Windsor Mill or Liberty road, at its intersection with the west side of G-ilmor street. The plaintiff offered in evidence the patent of Newington, dated 18th of June, 1789, to Alexander Lawson, which embraced 482| acres, including the land In controversy, and traced a clear paper title to himself.

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

<p>Appeal — Amendment.</p> <p>An appeal was entered in Baltimore City Court from the decision of the Street Commissioners assessing benefits to the appellant in the matter of the opening of a street. It appeared that no benefits had heen assessed, but that damages had been awarded to her for taking her property. Held :</p> <p>That the appeal should be amended by substituting the word “damages” for “benefits.”</p>

<p>Sec. 5 of Art. 93 of the Code — Executor’s commissions— Legacy in Lieu of Commissions — Administrator pendente lite — Sees. 97-99 of Art. 81 of the Code, relating to a Tax on Commissions of Executors and Administrators.</p> <p>Under section 6, of Art. 93 of the Code, when a testator makes a bequest to his executor by way of compensation in lieu of commissions, and the sum bequeathed is less thaD that which an allowance of the highest rate of commissions fixed hy sec. 5 of the same Article would produce, the Orphans’ Court is at liberty, in its discretion, to allow the executor such a per ceutage as reckoning the legacy therein, will not exceed the maximum, and not be less than the minimum rate established by law; and no testator can deprive the Orphans’ Court of that power.</p> <p>Where an executor has been bequeathed, in lieu of commissions, a legacy larger than the commissions would amount to, and upon a caveat to the will is appointed administrator pendente lite, and does as such administrator, only that which he was bound to do as executor, the legacy must be treated as a full compensation for all the labor it was intended to cover, namely, the entire administration of the whole estate by the same person, though part of the estate passed through his hands as administrator pendente lite, and part through his hands as executor.</p> <p>Sections 97-99 of Article 81 of the Code, imposing a tax on the commissions of executors and administrators, do not authorize the Orphans’ Court to allow commissions under the circumstances of this case.</p> <p>Whether these sections do or do not require the imposition of the tax upon a legacy given in lieu of commissions, Qucere 9</p>

<p>Criminal law — Appeal—Libel—Practice—Evidence—</p> <p>No appeal lies from any ruling upon a demurrer to an indictment until after final judgment, and then tlie case can only be brought up fpr review by a writ of error.</p> <p>On the trial of an indictment for libel, a refusal to instruct the jury that the State has offered no evidence legally sufficient to support the indictment, and their verdict must he for the traversers, is proper.</p> <p>Where the State’s attorney expressly stated that he placed no reliance upon the other matters contained in the publication, hut relied exclusively upon the charges of theft, testimony not- relating to the charges o,f theft was properly excluded.</p> <p>Where the traversers offered to prove certain facts tending to show the truth of the libelous matter, and the Court excluded tlie evidence so offered, hut the witness, before leaving the stand, disclaimed being able to testify to the facts which they offered to prove by him, they were not injured by the ruling of the Court.</p> <p>Where the report of a committee of investigation, made to the Board of Directors of the I-Ionse of Correction, was offered in evidence, hut was not set out in the bill of exception, it will he presumed that it was properly rejected.</p>

<p>Sale under Decree — Exceptions to Ratification of Sale— Sustaining exceptions — Setting sale Aside — Equity Practice and Pleading — Proper parties — How to Supply parties After a Decree — Supplemental bill.</p> <p>A testator devised certain portions of Ms estate to his wife for life, including certain ground-rents, and provided that after her death all the property devised to her for life, save certain excepted portions, “shall he sold, if necessary, for equal partition, or, if the same can he accomplished without a sale, shall he divided amongst my children, share and share alike, the child or children of any deceased child to take the portion to which the parent, if living, would have been entitled.” J. T. one of the children, died without issue, after the testator, but before the widow, and left a will by which he disposed of all his estate. After the death of the widow, a bill was filed by some of the parties entitled in remainder, asking for a sale of the ground-rents, and for a division of the proceeds among those entitled thereto. But those who might claim under the will of J. T. were not made parties. A decree was passed directing the sale of the ground-rents by a trustee appointed by the Court. The trustee sold the ground-rents and reported the sales to the Court.- Whereupon the purchasers came in and excepted to the ratification of the sales, upon the ground that those entitled to claim under the will of J. T. were necessary parties to the proceedings for sale, and that no clear or good marketable title to the ground-rents could be conveyed to the purchasers by the trustee. On appeal from an order sustaining the exceptions and setting the sales aside, it was Held :</p> <p>1st. That the Court below could not have passed upon the question of the true construction of the clause of the will in respect to the vesting of the title to the estate in remainder in the ground-rents, — whether at the death of the testator, or at that of the tenant for life — without in effect reviewing the original decree for sale, and that on exceptions to the ratification of sales made under that decree.</p> <p>2nd. That such a proceeding would have been unprecedented, and in no case justified, except in those cases where the want of jurisdiction in the Court to pass the decree can be shown.</p> <p>3rd. That no construction placed upon the will by the Court below, or by this Court would bind the absent parties.</p> <p>4th. That- title therefore could not be made to the purchasers clear of all question, so far as the rights of those claiming under J. T. were concerned.</p> <p>5th. That it would be contrary to all just principle that the Court should undertake to decide upon and conclude the rights of parties in their absence, and without being heard.</p> <p>6th. That the parties who might, even by possibility, be entitled under the will of J. T. were proper parties to the proceedings in order that a clear marketable title might be made by the trustee to the purchasers under the decree.</p> <p>7th. That the Court below was right in sustaining the exceptions to the sale and in directing the refunding of such part of the purchase money as might have been paid.</p> <p>8th. That if, however, it should be determined, when all proper parties were before the Court, that J. T. took no vested interest in remainder in the ground-rents devised, and had no interest therein that passed by his will, then the Court might, if it should deem it proper to do so, revive the contracts of purchase as they had been reported, if the purchasers should desire thatto be done.</p> <p>9th. That it was too late to attempt to review the decree on appeal, and the course for bringing the proper parties belore the Court and making them subject to the decree, was to file a supplemental bill, which could be done as well after as before a decree.</p>

<p>Railroad Company — Action for Killing a Person — Xegligence — Res gestae — Hearsay declarations — Evidence— Contributory negligence— Withdrawal of Case from the Jury.</p> <p>In an action against a railroad company, to recover damages for the killing of a person, where the declarations of S., an employe of the company, were purely hearsay as offered, and not part of the res gesta, and therefore inadmissible as affirmative proof for the plaintiff', the tact that S. was afterwards called by the defendant, and the jury had the benefit of his denial of any such statements, does not deprive the defendant of the right to avail himself of such error on appeal.</p> <p>If S. himself could have been asked, by way of laying a foundation for impeachment, if he had made these statements, they would only have been admissible as tending to discredit and impeach him, and would not have been evidence as tending to establish the fact to which they related.</p> <p>Where the statement of a witness is not responsive to the question asked on cross-examination, and bears no relation to the subject about which he is asked, it ought, upon application, to be stricken out and excluded.</p> <p>A statement of an employe of the defendant in an action for damages resulting from an. accident, made the day after the accident, is inadmissible as evidence for the plaintiff’.</p> <p>In an action against a railroad company to recover damages for the death of a person killed by a train of the defendant at or near where the railroad crossed a public street, the onlj’ witness of the accident was M. the conductor of the train. Looking to his testimony, in connection with the circumstances detailed by the plaintiff's witnesses, he was absolutely uncontradicted, and his statement, if believed, made the case one of inexcusable recklessness and grossly contributory negligence on the part of the deceased. Held :</p> <p>1st. That as the circumstances did not contradict M.. and no witnesses contradicted him. there was no reason for disbelieving the facts to which he testified.</p> <p>2nd. That as but one inference could be drawn from the uncontradicted evidence of M. the case should have been withdrawn from the jury; for if they believed M. they could render but one verdict, and that would be for the defendant, and if they did not believe M. their verdict still should be for the defendant, because the plaintiff’s proof was insufficient to support a verdict for the plaintiff.</p>

<p>Construction of Post-nuptial deed of Trust securing Property of the Wife to her Separate use — Right of Wife thereunder to Demand a Reconveyance. — Effect of Second marriage Upon such Right.— Contingent interest.</p> <p>Mrs. L. Y. W. and S. M. W. her husband conveyed all her propert}' to a trustee upon the following trusts, viz., to pay over the income to Mrs. W. for her sole and separate use during her life : and, upon her death, in further trust to hold the corpus of the estate for such person or persons as she might, by last will and testament, appoint, and in default of appointment then in trust for any child or children she might leave surviving her ; and in the event of her dying without leaving a child or children surviving her. and without exercising her power of appointment, in trust, as to one equal moiety of all said estate for her said husband S. M. W. absolutely, and as to the other moiety in trust for her next-of-kin on the part of her father. The deed further provided ‘-that, in the event of the said L. Y. W., surviving the said ¡8. M. W., the said trustee or any successor or successors in the trust, shall, if requested by the said L. Y. W., after the decease of her said husband, a.nd being discovert, convey, transfer and deliver up all the property and premises aforesaid * * * to her. the sa.i5d L. Y. W. for her absolute use and benefit, and clear and discharged of all the trusts by these presents created or declared.” In June, 1879, S. M. W.died in a distant State, leaving Mrs. W. and an infant son, the only issue of his marriage, surviving him. Sometime thereafter, being still dis-covert, she requested the trustee to reconvey the trust property to he'r; but the trustee did not comply with that request, because he had no direct or personal knowledge of the fact of S. M. W’s death. Upon a bill filed against said trustee and her infant son, by Mrs. W. to procure such conveyance, evidence was taken clearly establishing the fact of her said husband’s death. During the pendency of said proceedings Mrs. W. married again- and had another child. A supplemental bill was filed setting forth the former proceedings, the second marriage of Mrs W. and the birth of another son. The trustee answered this bill, and both infant children having been made parties, answered by guardian. Held :</p> <p>1st. That by the express terms of the deed of trust Mrs. W. had she not married the second time, would have been entitled, after the death of S. M. W., and after a demand upon the trustee, to a reconveyance of the trust property absolutely freed and discharged from every trust.</p> <p>2nd. That the .deed vested no estate in her children, but as to them created only a contingent interest — a mere expectancy — which either an appointment by last will and testament or a reconveyance to herself after the death of S. M. W., as provided in the deed, would completely prevent from ever taking effect.</p> <p>3rd. That this contingent interest could of itself, when the event had occurred which, by the terms creating that interest, was intended to defeat it, afford no valid objection to the reconveyance.</p> <p>4th-. That Mrs. AV’s right under the deed to require a reconveyance to herself depended upon her making a request to that effect “after the decease of her said husband” S. M. AY., and upon her “being discovert” as to the marriage, subsisting at the date of the deed, and none other.</p> <p>5th. That when she demanded the reconveyance, her right to have it w'as clear and absolute, and her second marriage placed her under no disability as to the enforcement of that right.</p>

<p>Corporation — Lien upon Stock — Set-off—Transfer of Stock — Vendor and, Vendee, and Pledgor and Pledgee of Stock —Dividends— Px parte Notice.</p> <p>No lien exists at common law in favor of an incorporated company upon the stock of any shareholder to satisfy or secure a debt due by him to the company; and unless created by statute, or by the charter, or perhaps, in some instances, by a usage brought to the knowledge of and acted on by both parties, it does not exist at all. And where the company has no such lien it is in . no position to resist or prevent a transfer of the stock by the shareholder to some one else.</p> <p>But the right of a corporation to withhold a dividend from a stockholder who is indebted to it rests upon an entirely different principle. It is the right of set-off, for the dividend is a simple debt owing from the corporation to the shareholder.</p> <p>As in every other case to which this doctrine of set-off is applicable, the debt — that is the dividend — due by the corporation must be payable by it to the person from whom: the obligation to the corporation is demandable.</p> <p>If the stock has passed into the hands of a third party before the dividend has been declared, the right of set- off is gone, because a dividend declared •after a transfer of stock has been made belongs to the assignee and not to the assignor.</p> <p>As between vendor and vendee, or pledgor and pledgee of stock, a transfer on the books of the company is not essential to perfect an equitable title in the vendee or pledgee.</p> <p>Dividends declared during the continuance of the pledge belong to the pledgee,' though he is not registered as owner on the corporate books. If not so registered, and the corporation pays the dividend in good faith, and without notice of the transfer, to the nominal owner, the payment would be undoubtedly a good one.</p> <p>But a pledgee who neglects to notify the corporation that he holds the stock in pledge, or to take the proper steps to secure title to the stock in his own name, will not be protected against the lien of the corporation upon the stock to secure the payment of an indebtedness contracted to the company by the pledgor in the meantime, and subsequently to the pledge of the shares.</p> <p>Where the president of a corporation makes a pledge of his individual stock of the corporation without making a transfer thereof upon the books of the corporation, his knowledge of the transaction is not binding upon the corporation, he not then being engaged in its business, and not acting in Ms capacity of president.</p> <p>Where a corporation, although not a going concern, is a party to an equity proceeding, it has like notice with every other party thereto of everything disclosed by the record.</p> <p>Where the papers relating to a pledge of stock, fail to disclose the indebtedness for which the stock is pledged, the statement of what debt it was pledged to secure, contained in a subsequent written assignment of the same stock made by the pledgor to a third person, is merely exp arte, and cannot impair the rights of the original pledgee.</p>

<p>lies Judicata — Effect of Decree passed by Consent after Submission upon BUI, Answer, and Exhibits — Equity Braetice — Competency of a Lunatic, before being so Declared, to Employ an Attorney — Effect of the Acts of such Attorney.</p> <p>On the 6th of April, 1888, J. W. R. filed his bill in the Circuit Court of Baltimore City, to have certain deeds made by him to A. N. H. set aside on the ground of fraud, insufficiency of consideration, and his weakness of mind at the time they were made. After answers filed by the defendants, denying the charges in the bill, but without any testimony being taken, the Court passed the following decree: “This case being submitted on bill, answers, and exhibits by agreement of counsel, it is this 28th day of August, 1889, by the Circuit Court of Baltimore City, and by and with the consent of all parties to the cause, adjudged, ordered, and decreed, that the bill be, and the same is hereby, dismissed, each side to pay their own costs; and it is further adjudged, ordered,- and decreed that the receiver heretofore appointed be, and is hereby, discharged without rendering any account, and that A. C. L. administrator of W. L. shall pay to the defendant A. N. H. or to J. P. P. his solicitor, all the accrued ground-rent and interest thereon.” Upon this decree was the following indorsement: “We consent to the passage of the decree,” signed by the counsel for the respective parties. On a bill subsequently filed by J. W; B. as a lunatic and his committee in the same Court against the same defendants, and asking the same relief as in the former case, a plea of res judicata was filed, and the Court passed a decree holding the plea good, and dismissing the bill. On appeal it was Held :</p> <p>1st. That the recital in the former decree, “this case being submitted on bill, answers, and exhibits by agreement of counsel,” could mean but one thing — that it was submitted for decision in that way.</p> <p>2nd. That when submitted in that way, the Court, upon the answers of the defendants denying the allegations of the bill, could do nothing hut dismiss it; for where a case is submitted on bill and answer all the averments of the answer, whether responsive to the allegations of the hill or in avoidance of it, are to betaken as true.</p> <p>3rd. That argument was not necessary to make a hearing of the case, for a case is heard when what the parties say in hill and ■ answer is being considered by the Court.</p> <p>4th. That because of the assent in writing to the' decree entered upon it by the parties through their counsel, the decree was not made any the less a decision of the Court that H's title, which had been assailed, was good, and could not thereafter he questioned.</p> <p>5th. That it was competent for J. W. R., although a lunatic (and before he was so declared) to have an attorney whose conduct of the case would hind him.</p> <p>6th. That there was no charge of fraud in obtaining the decree pleaded in bar; and without such allegation and proof, the plea of res judicata was a flat bar to the subsequent proceeding.</p>

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

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

This appeal was taken from a, pro forma decree dismissing the hill of complaint. The case is stated in the opinion of the Court.

<p>Appeal from the Circuit Court No. 2 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. The First, Second, Third and Fourth Exceptions are sufficiently stated in the opinion of the Court. Fifth Exception. — At the trial the defendant offered the five prayers, following : 1. The defendant asks the Court to strike out all evidence in this case, upon the value of the services of the plaintiff, on the ground that his bill of particulars sets up a special contract for salary, and an agreement with the company. 2.

<p>Nuisance — Smolce and Cinders^-Action for Damages — Miss-leading instruction.</p> <p>In a action for damages to property caused by the smoke, steam, and cinders from defendant’s chimney, the Court instructed, the jury on the part of the plaintiff, that if the defendant erected a boiler and engine near to the house and lot of the plaintiff, and smoke, steam, and cinders escaped from the chimney of the defendant, connected with said boiler, and entered the premises of the plaintiff “to such extent as to render her house and premises less comfortable, enjoyable, or useful than they otherwise would have been, then the plaintiff is entitled to their verdict.” Held :</p> <p>That such instruction was too general, and was misleading.</p> <p>To entitle the party injured to recover in such action, it must be shown that the injury complained of, is of a character to diminish materially the value of the property, or seriously to interfere with the ordinary comfort and enjoyment of it.</p> <p>The fact that the plaintiff’s dwelling was situated in a locality where there were other factories, in addition to that of the defendant, the smoke, steam, and cinders from which intermingled with the smoke and cinders from the defendant’s factory, will not defeat the plaintiff’s right to recover.</p>

<p>Criminal law — Instruction—Practice in Appellate Court— Practice.</p> <p>In the trial of a criminal case, the Court may, in its discretion, refuse to instruct the jury to render a verdict of not guilty against the defendant on the ground that the evidence is insufficient to convict him, as the jury would not he bound by such instruction, they being judges of law, as well as of fact in criminal cases.</p> <p>In the trial of a criminal case, the Court may, in its discretion, advise the jury as to the law and legal effect of the evidence, but it is not bound to do so, and, being matter within its discretion, its refusal to do so cannot be reviewed in the Appellate Court.</p> <p>Where on a trial under a joint indictment, after all the testimony on the part of the State is in, the State’s attorney consents to a verdict of not guilty as-to one of the defendants, it is the duty of the Court to direct the verdict to betaken immediately, and then to proceed against the others.</p> <p>But the refusal of the Court to direct a verdict of not guilty against a defendant who was afterwards acquitted by the verdict of the jury, is no ground for a reversal at the instance of the defendants who were convicted, where such ruling did them no harm. »</p> <p>Where testimony has been allowed to go in without objection, it is not error in the Court to refuse to strike out such testimony as being too uncertain and remote, and not bearing on the case.</p>