Volume 77 — Maryland Reports

<p>Sections 29 and 33 of Article 3 of the Constitution — Section 205 of Article 16 of the Code — Act of 1890, oh. 263, authorizing the Fidelity and Deposit Company of Maryland to become Sole surety on Trustees’ bonds — Special legislation— Title of Act of Assembly.</p> <p>Section 205 of Article 16 of the Code, provides that every trustee for the benefit of creditors, shall give bond with sureties for the faithful performance of his trust. The Fidelity and, Depoi.it Company of Maryland is authorized by its charter (Act of 1890, ch. 263,) to become sole surety in all cases where two or more sureties are required for the faithful performance of any trust or office; and its charter further provides that “it shall and may be lawful for any Court, register, clerk, or other officer to approve said company as sole surety in all such cases.” Section 33 of Article 3 of the Constitution declares that “the General Assembly shall pass no special law for any case for which provision has been made by an existing general law.” By the same section it was made the duty of the Legislature to pass general laws, providing not only for the cases enumerated in the section, but for all other cases in which a general law could be made applicable. Held:</p> <p>1st. That section 205 of Article 16 of the Code, providing that every trustee for the benefit of creditors, shall give a bond with sureties, referred to individual or personal suretyship, and there was no general law providing for corporate security in such case.</p> <p>2nd. That as a corporation can exercise such powers only as are conferred upon it by its charter, the Fidelity and Deposit Company could not become a surety on a trustee’s bond unless specially authorized by its charter, and the provision in its charter conferring this power could not be said to be a special law, for which provision had been made by a general law.</p> <p>3rd. That such provision could not be regarded as unconstitutional upon the ground that it conferred upon a corporation a privilege or right not enjoyed by private persons.</p> <p>4th. That the Act of 1890, ch. 263, entitled, “An Act to change the name of the Fidelity Loan and Trust Company of Baltimore City, to the Fidelity and Deposit Company of Maryland, and to amend and define the powers of said Company,” was not in conflict with section 29 of Article 3 of the Constitution which declares that “every law enacted by the General Assembly shall embrace but one subject, and that shall be described in its title.”</p> <p>5tin That the provision in the charter of the Fidelity and Deposit Company authorizing it to become sole surety on the bonds of trustees, was not a repeal, by implication or otherwise, of section 205 of Article 16 of the Code, which still remains in force but applies to the suretyship of natural persons.</p>

Mrs. Mary G-. Small filed a bill in equity against Theodore Marburg for the specific performance of a contract of purchase of certain real estate in the City of Baltimore. The defendant resisted her hill on the ground that she was not able to convey a clear, good, marketable title to the property.

<p>Dismissal of Action — Bights of Dquitable plaintiffs.</p> <p>When an action is dismissed by order of the legal plaintiff, and a motion is made by the equitable plaintiffs to strike out the order of dismissal and reinstate the case, such motion is addressed to the discretion of the Court, and no appeal will lie from its refusal, even though the equitable plaintiffs are prevented from bringing another action through lapse of time.</p>

<p>Motion to Strike out Judgment and Reinstate (Jase for New trial — Order from which Appeal will not lie.</p> <p>Under section 171 of Article 4 of the Code of Public Local Laws, providing that ‘"any action taken or order passed by any of said Courts in relation to any judgment rendered by it, if taken or passed within thirty days after the entry of such judgment, or upon a motion or application made to it within said thirty days, shall have the same effect and force as it would have had, under the practice heretofore existing in said Court, if taken or passed during the term, or upon a motion or application, made during the term, at which said judgment was entered, and no more, * * *” no appeal will lie from an order striking out a judgment and reinstating the case for a new trial, where the motion to strike out was made within thirty days after the entry of such judgment, though the motion was not decided until after the expiration of that period.</p>

This appeal was taken from a decree of the Court helow, (Dennis, J.,) dismissing the complainant’s bill for a receiver. The case is stated in the opinion of this Court.

Appeals from the Circuit Court of Baltimore City. The appeals in this case were taken from a pro forma decree of the Court below (Dennis, J.) construing the will of the late John C. Backus, and directing the sale of certain real estate for the purpose of partition. The case is stated in the opinion of this Court.

Alexander Brown and Sons brought an action against the Hanover Fire Insurance Company on a policy of insurance.

<p>Insurance policy — Conditions of Policy — Sale under Pore-closure of Mortgage.</p> <p>An insurance policy contained a clause making the policy void, ■‘if, with the knowledge of the insured, foreclosure proceedings be commenced, or notice given of sale of any property covered by this policy, by virtue of any mortgage or trust deed.” Under a power of sale contained in a mortgage of the insured property, the same was advertised and sold by the duly constituted attorney of the mortgagee and the sale was reported to the Circuit Court. In an action on the policy, it was Held:</p> <p>That the proceedings for sale under the power contained in the mortgage showed such a notice of sale under a mortgage or trust deed as was meant by the clause of forfeiture, and the plaintiffs were not entitled to recover.</p>

<p>Constitutional law — Void legislation — Construction of the Act of 1892, ch. 401 — Changing the Lines of tico Legislative districts of Baltimore City, and emitting one Ward— Act void for Uncertainty — Registration of Voters.</p> <p>By the legislation in force prior to 1892, (see Code of Public Local Laws, Art. 4, sec. 3, and Acts of 1882, ch. 2, 1888, ch. 98, secs. 2, 3, 17, and 1890, ch. 186,) the ninth precinct of the eleventh ward, and the seventh precinct of the twenty-first ward, of Baltimore City were both in the third legislative district of said city. By the Act of 1892, ch. 401, the ninth precinct of the eleventh ward was made part of the second legislative district, and the seventh precinct of the twenty-first ward remained part of the third legislative district. This Act omitted to make any provision for the inhabitants of the sixteenth ward to vote at any election; that ward being placed in neither of the three legislative districts of said city. Subsequent to the passage of ilie Act of 1892, G-. R., who had formerly resided in the ninth precinct of the eleventh ward, removed to the seventh precinct of the twenty-first ward, and two months after such change of residence applied to the registration officers of the last named precinct and ward to be registered as a qualified voter of said precinct and ward, and his application was granted. Under the election law a voter moving from one legislative district to another was not entitled to vote in the district to which he removed until he had resided there six months. Held:</p> <p>1st. That as the Act of 1892, had omitted to make any provision for the inhabitants of the sixteenth ward to vote at any election, thus disfranchising them, and depriving them of their right to representation in the Legislature, said Act was unconstitutional and void.</p> <p>2nd. That the previously existing Act of 1882, ch. 2, which did provide for the sixteenth ward, was inconsistent with the Act of 1892, and was repealed by that Act, as it provided that all Acts which were inconsistent with it should be repealed to the extent of such inconsistency.</p> <p>3rd. That the Act of 1882, being thus repealed, it could not be referred to for the purpose of ascertaining whether other wards and precincts than those named in the Act of 1892, did not also constitute a part of the legislative districts named in the latter xVct.</p> <p>4th. That the officers of registration properly registered G. R. as a qualified voter of the precinct and ward to which he had removed, as prior to the void Act of 1892, they were in the same legislative district as those from which he had removed, and therefore a six months residence at his new place of residence was not necessary in order to qualify him to register there.</p> <p>Section 1 of the Act of 1892, provides that “the legislative districts lines of the second and third legislative districts of Baltimore City, as now described and defined by an ordinance of the Mayor and City Council of Baltimore, (Ho. 36,) approved April the 6th, 1882, * * * are hereby amended and changed so as to read as follows: “Then follows what at first sight appears to be intended for section 2, of the Act of 1892, which section professes to set out and fully describe the boundaries of the second and third legislative districts, omitting the sixteenth ward. Held:</p> <p>1st. That from air examination of section 1 of the Act it was impossible to regard section 2, as a separate and independent section of said Act, but that what was intended was that some section of the ordinance referred to should be amended and changed so as to read as set out in section 2 of the Act.</p> <p>2nd. That if this construction be adopted the Act was void for uncertainty; for in the ordinance mentioned in section 1 of the Act of 1892, there was no provision at all for which section 2 of this Act could be substituted.</p> <p>3rd. That it was intended to have referred to some other ordinance, but as it could not be ascertained from anything in the Act itself, what ordinance the Legislature had reference to, the whole Act was rendered void from its uncertainty.</p>

This appeal was taken from an order of the lower Court referring the auditor’s account to the auditor to he re-stated in accordance with the views expressed in the opinion of the Court. The case is stated in the opinion of this Court.

<p>Subscription to Capital stock — Tender of Certificates— Validity of Subscription — Sec. 163 of Art. 23 of the Code —Absolute subscription — Statute of Frauds.</p> <p>In the subscription book of a railroad company, W. signed his name to an agreement to take twenty shares of the stock of the company when the road was completed to Vienna. The road was completed. Held:</p> <p>1st. That it was not necessary that the railroad company should have tendered the certificates of stock before bringing suit to recover the money due on the subscription.</p> <p>2nd. That the subscription was binding on the subscriber notwithstanding he failed to pay, at the time of making the subscription, an instalment of five dollars In cash on each share of stock subscribed, as required by section 163 of Article 23 of the Code.</p> <p>When the railroad was completed to Vienna, the subscription for the twenty shares of stock became absolute, and the price therefor then became payable on demand of the directors of the company.</p> <p>The contract of subscription, in such case, is not within the Statute of Frauds, (29 Charles II, eli. 3, sec. 17,} not being a contract for the sale of “goods, wares, and merchandise,” — shares of stock being only dioses in action.</p>

The bill in this case was filed by Gf. Ober & Sons Company to have the agreement of the 30th of September, 1890, between the plaintiff and Caroline C. Davis and John W. Powell, and the proceedings consequent thereon, construed to give the plaintiff an equitable mortgage or lien upon the crop of wheat then growing on the farm of the said Caroline ; and it prayed for an injunction against the defendants. The Court( Stump, J.,) dismissed the bill, and the plaintiff appealed.

■Appeal from the Circuit Court for Carroll County, in Equity. ' A bill was filed in this case by Margaret Yingling and her husband, to obtain a construction of the will of one Henry Tasto, who died in Carroll County, in the month of November, 1891.

<p>Perjury before Grand jury — Authority of de facto Cleric to Administer oath to Witness.</p> <p>A person who has knowingly, wilfully, and maliciously sworn falsely in giving testimony before a grand jury, may be indicted and tried for perjury, as the grand jurors before whom he has testified falsely are competent witnesses against him; the obligation of secrecy imposed on them not being permitted to be made the means to defeat the punishment of crime, or obstruct the administration of justice.</p> <p>Where a person had been in the undisputed possession of the office of deputy clerk of the Court for some years, and had openly and notoriously discharged the duties pertaining thereto, he was at least a de facto officer, filling a de jure office, and although there may have been some defect and irregularity in the manner of his appointment or qualification, his acts done under color of title, would, upon grounds of public policy and necessity be valid, and he could legally administer an oath to a witness.</p>

<p>Framing issues on a Caveat to a Will— Custody of Will.</p> <p>In framing issues of fact for the jury on a caveat to a will, it is error in the Orphans’ Court to multiply them by submitting an issue as to whether the testatrix was of sound and disposing mind, and capable of making a valid deed or contract, such being the standard of mental-capacity prescribed by statute to enable a party to make a valid will, and then submitting-another issue as to whether she had sufficient mental or testamentary capacity to know the nature and extent of her property, and the relative claims of those who should have been the objects of her bounty.</p> <p>In ordering issues on a caveat to a will to be sent to a Circuit Court for trial by jury, it is error in the Orphans’ Court to direct the transmission of the disputed paper writing with such issues, section 389 of Article 93 of the Code expressly providing that at the trial in any Court of this State of any issue involving the validity of a will, a subpoena duces tecum may issue on the special order of the Court holding such trial, requiring the register of wills to produce such paper in evidence, but that the said will shall not at any time be taken out of the care and custody of said register.</p>

Appeal as upon Writ of Error,, from the Circuit Court for Montgomery County. To the indictment in this case the traverser demurred, and the Court sustained the demurrer and quashed the indictment, upon the ground that it was bad for duplicity. The case is further stated in the opinion of this Court.

<p>Act of 1892, ah. 285 — Commissioners of Hyattsville — -.Exemption of Buildings and Improvements from Taxation— Single tax — Article 15 of Declaration of Rights — Mandamus— UneonstitutionaMty of Act of 1892, ch. 285.</p> <p>The Act of 1892, ch. 285, in authorizing the hoard of commissioners of Hyattsville, as a final hoard of appeals, equalization, and control, to hear appeals, and make such deductions or exemption from, and addition to, the assessment made by the assessors as they might deem just, and to correct errors or illegal assessments, did not confer upon the board power to exempt all buildings and impovements from taxation, leaving only the land assessed.</p> <p>Under Article fifteen of the Declaration of Rights which provides that “every person in the State, or persons holding property therein, ought to contribute his proportion of public taxes for the support of the government according to his actual worth in real or personal property,” buildings, improvements, and personal property are as liable to assessment for taxation as land, and the Legislature has no power to exempt them.</p> <p>When State policy and considerations beneficial to the public justify it, the Legislature has the power to exempt, within reasonable limits, some species of property from taxation.</p> <p>The right toQimpose fines, duties, or taxes “with a political view for the good government and benefit of the community,” given by Article fifteen of the Declaration of Rights, is in no sense a power to exempt at all, and will not uphold an Act that would impose the entire burden of taxation upon land.</p> <p>A mandamus to have an assessment corrected will not he granted, where both the period for making it and the period for levying the tax have passed.</p> <p>The Act of 1892, ch. 285, in its unrestricted exemption of personal property from assessment and taxation, in disregard of Article fifteen of the Declaration of Rights, is null and void.</p> <p>Kote. — The power oí the Legislature as to the exemption oí property from taxation is fully treated in a note to Hogg vs. Mackay, (Oregon,) 19 Law Reps. Anno., 77.</p>

<p>Appeal as upon Writ oe Error, from the Circuit Court for Prince George's County.</p> <p>The case is stated in the opinion of the Court.</p>

This appeal was taken by the plaintiff' from a judgment of the lower Court in favor of the defendant. The case is stated in the opinion of this Court.

The case is stated in the opinion of the Court. Exception. — The plaintiffs offered., one prayer which will he found in the opinion of the Court, and the defendant offered the four following prayers: 1.

The case is stated in the opinion of the Court. Exception. — At the instance of the defendants, the Court (Piielps, J.,) instructed the jury to find a verdict for the defendants, because the evidence showed that the contract was in default on the 1st of October, 1891, and that no notice of such default was given by the plaintiff to the defendants until the McAfee Brothers had become insolvent, and had made a deed of trust for the benefit of creditors, dated the 10th of…

<p>Residence of Defendant — Place of Business.</p> <p>Under section 132 of Article 75 of the Code, which provides that any person who resides in one county, but carries on a regular business or habitually engages in any avocation or employment in another county, may be sued in either county, a person residing in Baltimore County but carrying on a regular business in Baltimore City, whether it be his principal business or not, may be sued in such city.</p>

<p>Registration of Voters — Construction of the Act of 1892, ch. 239, sec. 19.</p> <p>The Act of 1892, ch. 239, sec. 19, provides that, “when any person applying for registration at any sitting of officers of registration appointed under this Article shall be found, upon proper inquiry, to have been previously registered within the State, under the provisions of this Article, the officers of registration to whom such application is made, before registering such person, shall demand and receive from him a certificate of his last previous registration made by the officers of registration or by the clerk of the Court in whose custody the duplicate registries of voters may then be, in which such applicant was formerly registered, showing the entries relating to said person in such former registration, and showing that the name of such person has been stricken from the duplicate registries of voters in the election precinct or election district in which he was last before recorded as a qualified and registered voter. Such a certificate of previous registration shall be cancelled by the officers of registration, who shall register such person anew.” During the September sittings of the year 1892, M. applied to the officers-of registration of the seventh precinct of the eighteenth ward of Baltimore to be registered as a qualified voter of said precinct and ward. At that time he lived in said precinct and ward, andhadso resided for four years previous to the filing of said petition. In the year 1886, the petitioner had been registered in Howard County as a qualified voter, but since that time he had been registered as a qualified voter of the seventh precinct of the eighteenth ward, and he proved that he had exhibited to the registration officers in the City of Baltimore in 1890, when he last registered, his proper certificate from the registration officers of Howard County containing the requisite entries, and showing that his name had been stricken fro.m the register of voters in said county. Held:</p> <p>1st. Thai; the petitioner having been, in the year 1890, registered as a qualified voter in the seventh precinct of the eighteenth ward, and having again, in the year 1892, applied to the registration officers of the same precinct and ward for registration, he was entitled to be registered without producing a certificate from the officers of registration of Howard County.</p> <p>2nd. That the fact of his previous registration, coupled with his sworn testimony to the effect that he had delivered to the officers by whom he had been registered when he first became a voter in said ward, said certificate from the Howard County officers, was a substantial compliance with the provisions of the law, and was, together with all the evidence adduced, legally sufficient to entitle him to be registered.</p>

<p>Partnership — Death of Partner — Settlement—Laches of Surviving partner — Primary liability of Personal estate for Debts of decedent.</p> <p>R. H. and J. T. II. formed a co-partnership in 1853. which continued until the 10th of July, 1877, when it was dissolved by the death of J. T. H. The deceased partner loft a will appointing his wife and R. H., his co-partner, his executors, and devising and bequeathing his estate, real and personal, to his wife during her life, and at her death to be equally divided among his children. The estate of the deceased partner was duly settled in the Orphans’ Court, and the sum of §7,693.21, being the balance left after the payment of debts, was paid over to the widow in accordance with the will, but in the administration accounts no notice was taken of the testator’s interest in the partnership property. On the 10th of August, 1878, R. II. sold the stock of goods, and divided the proceeds equally between himself and the widow of the deceased partner. Upon proceedings taken after the death of the widow, the real estate which the firm owned and held as tenants in common was sold. A bill was filed on the 1st of October, 1880, by the children of J. T. H., the deceased partner, against R. II., the surviving partner, to compel the latter to account and settle the partnership affairs of the firm. The defendant in his answer claimed that upon a proper accounting the firm was indebted to him in the sum of §1,746.98, and when testimony was being taken, he produced as the foundation of his claim a sealed promissory note of J. T. H. to the firm dated 1st of January, 1861, for $2,727.56, payable one day after date, upon which were indorsed payments amounting to $1,731.68. This note was produced for the first time on the 11th of November, 1891, thirty years after its date, nearly fifteen years after the death of the maker and the dissolution of the firm, and eighteen years after the last credit. Held:</p> <p>1st. That as the sum of the various credits indorsed on the note amounted to a little more than half of the face value thereof, it might well be inferred from all the facts in evidence that the payments so credited on the note were at the time they were made intended by the parties as a payment to the defendant of his half of that particular partnership asset; and this inference was strengthened by the fact that no entries of these payments were found upon the books of the firm.</p> <p>2nd. That the defendant had been guilty of neglect and delay in enforcing his claim, and a Court of equity would not aid him.</p> <p>3rd. That the personal estate being the primary fund out of which a claim like that of the defendant should be paid, and it appearing that such estate of the deceased debtor was more than sufficient to pay this and all other claims, it could not be allowed as against the proceeds of his real estate. (Sec. 188 of Art. 16 of the Code.)</p>

<p>Husband and Wife — Bill for Separate maintenance — Interference with Wife' s property — Injunction—Amended bill —Dismissal—Effect.</p> <p>On a'_bill by a wife against her husband praying for a separate maintenance out of the rents and profits of certain real estate, and for an injunction to restrain the defendant from collecting such as might be set apart for her, and also from interfering with the property, until the final hearing of the case, an injunction was ordered and the writ was issued. Pending a motion to dissolve the injunction, after answer by the defendant, the plaintiff, leave first being obtained from the Court, filed an amended and supplemental bill, containing substantially the same averments as the original, and praying for the same relief as therein asked for. The Court thereupon passed an order refusing the injunction prayed for by the amended bill. After the taking of much testimony the Court finally decreed that the order “refusing the injunction prayed for by the amended bill * * * be, and tlie same is hereby, made perpetual,” and that the “hill of the complainant is hereby dismissed.” ITkld:</p> <p>That such decree was, in effect, a refusal to continue the injunction previously granted, and it was no longer in force.</p> <p>Even if it could be considered that the amended bill was not the entire complaint of the plaintiff, and could be taken as an amendment only, which, together with the original bill, formed the basis of her action, the final decree dismissing the bill ipso facto dissolved the injunction, inasmuch as amendments to a bill are always considered as forming a part of the original bill.</p> <p>On a bill by a wife for separate maintenance, she is not entitled to an injunction to restrain her husband from interfering with propel^' acquired -by her by purchase since the adoption of the Code of 1860, it not being clearly alleged that the defendant had made any effort to collect the rents therefrom, nor charged that the plaintiff was in danger of irreparable injury as a consequence of any act of the defendant.</p>

<p>S(tle of Land of Infants — Procedure — Investment of Proceeds.</p> <p>A bill was filed for the sale of land of certain infants, by J. one of the infants, by his next friend, alleging that it would be for the benefit and advantage of said infants that a decree be passed for the sale of said land, and for the investment of the proceeds. The prayer of the bill was for the sale of the property, distribution of the proceeds according to law, and for general relief. All the infants, including J., were made defendants, were duly summoned, and all answered by guardian. Testimony was taken showing that the land was not susceptible of division among the parties without loss or injury, and that it would be for their benefit and advantage that it should be sold. A decree for sale was passed, and the property was sold. Held :</p> <p>1st. That under section 36 of Article 16 of the Code of 1860, which provides for the sale of property of infants if such sale be for their ' benefit and advantage, and section 37 which provides that a decree for sale may pass upon the petition of the guardian or prochein ami of such infants, and the appearance and answer of such infants by guardian to be appointed, such decree was valid.</p> <p>2nd. That the fact that the bill was filed by only one of the infants, did not invalidate the decree, inasmuch as all the infants were summoned, duly appeared, and answered by guardian.</p> <p>3rd. That the decree was not rendered invalid by the fact that the bill asked for a distribution of the proceeds of sale according to law, and did not ask for an investment, as provided by section 45 of Article 16 of the Code, requiring such proceeds to be invested for the benefit of the infants under the order of the Court.</p>

Appeals from the Circuit Court of Baltimore City. The Court below (Wick.es, J.) decreed that the Central Trust Company of New York was not entitled to a lien upon the machines and appurtenances erected upon the premises by the Arctic Ice Machine Manufacturing Company, and that as against the said Central Trust Company of New York, the Ice Machine Manufacturing Company was entitled to immediate possession of said machines and appurtenances, but that as against the Maryland…

The hill was filed by the appellant against the appellee asking that a certain deed of lease he declared a mortgage, and that the plaintiff he declared entitled to her equity of redemption. The Court below (Dennis, J.,) passed a decree dismissing the hill, and the plaintiff appealed. The case is stated in the opinion of this Court.

The case is stated in the opinion of the Court. The judgment being for the defendants for costs, the plaintiff appealed.

<p>Construction of Deed, of Trust — Power reserved of Disposition by Will.</p> <p>W. made a conveyance to his mother of certain real and personal property in trust, whereby the trustee was authorized to collect the rents and income from the trust estate, and pay over the net income to said grantor for his own use and benefit, free from liability for his debts. The grantor reserved to himself the power to dispose of the trust property by will, and the deed declared that the trusts thereby created should cease from, and after the death of the grantor. The trustee named in the deed died, and by proceedings in equity R. was substituted trustee in her place, and the Court assumed jurisdiction of the trust. Subsequently a petition was filed by the grantor asking that ■ the substituted trustee be authorized to deliver to him certain bonds constituting part of the trust estate, to be applied by him to the payment of his debts, he tendering himself ready to stipulate by contract irrevocable with the trustee against any disposition by will of said bonds. With the petition, was filed an agreement under the hands and seals of the sister, and the son of a deceased sister of the grantor, who were his only next-of-kin, agreeing that said bonds be delivered to the grantor as requested by him, and that the said trustee should be in no manner liable for the said bonds or the proceeds thereof; it having been agreed by the grantor, and as a condition precedent to the signing of said agreement that all the other trust property should remain in trust. Held :</p> <p>1st. That as it was impossible to ascertain who might be legally entitled to claim the bonds should the grantor survive his sister and nephew, and then die intestate, the agreement proposed to be executed by them would be a very uncertain and unsatisfactory protection to the trustee, even supposing the grantor could execute a valid irrevocable contract not to dispose of the bonds by will.</p> <p>2nd. That as it was clear from the language used in the deed, that the grantor intended to convey in trust all the property mentioned in the deed, and to strip himself of all right of disposing of the same except by will, the proposed transfer would clearly be in violation of the deed and of the power.</p> <p>3rd. That so long as the deed stands the trust estate must remain undisposed of by the grantor, and when, by his death, the trust ends, the property, if disposed of at all by him, must be by will.</p>

<p>Sale under Power contained in a Mortgage — Power coupled with an Interest — Assignment of Mortgage — Rights and Powers of Assignee — Act of 1868, cli. 273, sec. 32 of Art. 21 of the Code — Mortgage to Trustee — Authority of Succeeding trustee.</p> <p>A mortgage was given to secure tlie payment of a promissory note payable to G. as trustee under a will. G. on application to the appropriate Court was relieved of the trust, and M. was appointed by the Court trustee in his place. The mortgage contained the power of sale authorized by sec. 6, Art. 66 of the Code, which power declared that “it shall be lawful for the said G. trustee, his successors and assigns, at any time after default to sell the property hereby mortgaged,” &c. By the order of Court substituting M. in the place of G. as trustee, G. was directed to assign to M. as such trustee the said mortgage and mortgage debt, and in pursuance of said order the mortgage note was, by indorsement and delivery, assigned to M. trustee, and an assignment of the mortgage was made on the back thereof. This assignment dated the 1st of July, 1890, was not recorded. On the 8th of July, 1890, a more formal assignment was made by a deed which was duly recorded, in which the former assignment was recited, and all the right, title and interest in and to said mortgage and mortgage debt were granted and assigned to the new trustee. M. as such trustee afterwards instituted proceedings for foreclosure, under the power contained in the mortgage, and sold the mortgage property to G., but the recorded deed of assignment, although ordered by the attorney of the trustee to be filed with the mortgage, was not in fact so filed with the foreclosure proceedings. G. afterwards contracted to sell the property so acquired by him, and the purchaser refused to comply with the contract on the ground that G. could not convey a good and merchantable title. On a bill filed by G. against his purchaser for a specific performance of said contract, it was HmIjI):</p> <p>1st. That the power of sale contained in the mortgage was a power coupled with an interest in the estate conveyed by the deed, which would pass to any one who came to the estate under the mortgagee, whether he be an assignee in fact or in law.</p> <p>2nd. That when M. as trustee exorcised the power'of sale contained in the mortgage, he held by assignment the title to the mortgage, and also to the debt which it was intended to secure; and it was not necessary in such case that there should be an assignment of the mortgage to entitle the assignee to the benefit of the same; and although such assignment was made, there was no reason why it should be recorded.</p> <p>3rd. That in equity the mortgage was but a security for the debt, and the assignment of the latter necessarily carried with it the former, unless there was some statutory provision in this State contravening this well established rule in equity.</p> <p>4th. That it was not the purpose of the Act of 1868. ch. 373, (Code, Art. 21, sec. 32.) requiring the assignment to be recordedt to affect in any manner the equitable assignment of mortgages t by the mere assignment of the mortgage debt, or to impair the rights of assignees thereunder.</p> <p>5th. That the fact that there was no certified copy of the recorded assignment of the mortgage filed in said proceedings, in compliance with the order of M’s attorney, in no way detracted from the legal sufficiency of the title to the property sold by M. as trustee, who either as the successor of the former trustee, or in virtue of the assignment of the debt to himself, as trustee, was fully authorized to exercise the power of sale.</p>

Appeals from the Circuit .Court for Washington County, in Equity. The first and second appeals were taken from the decree of the lower Court granting an injunction; and the third ajipeal was taken from the refusal of the Court to require the complainants to give an injunction bond. The case is stated in the opinion of this Court.

The case is stated in the opinion of the Court. First and Second Exceptions, sufficiently stated in the opinion of the Court.

<p>Nee. 2 of Art. 35 of the Code, Evidence Act — Competency of Witness — Transactions ivith Decedent.</p> <p>Where an action for money claimed to be due by a testator in his life-time, is brought against his administrator with the will annexed, by the administratrix of the deceased creditor, the plaintiff is not entitled under section 2 of Article 35 of the Code, (Evidence Act) to testify on her own behalf in regard to a promise made to her by the defendant’s testator in his life-time that he would pay the money so claimed to be due from him to her intestate.</p>

<p>Specific performance — Uncertainty of Contract — Opinions of Witnesses as to Values.</p> <p>Certain parties, complainants and defendants, having some interest in the soil, by previous lease or conveyances, in the bed of B. street, between C. and P. streets, and there being an ordinance pending, or about to be introduced in the City Council for the condemnation and closure of B. street between C. and P. streets, entered into an agreement, the parties of the second part being the complainants, and the parties of the lirst part thereto being the defendants. By this agreement it was mutually agreed between said parties that in the event of the passage of said ordinance, they would divide the ground forming the bed of B. " street as follows: “The parties of the second part shall, be awarded the ground beginning at the south west comer of the lot now owned by them at the north east comer of C. and said B. streets, running thence southerly into the bed of said B. street a distance of twenty-five feet, thence easterly, a distance of ninety-five feet, to a ten foot alley, with the use in common; thence northerly to the southeasterly boundary of the lot now owned by them, thence westerly ninety-five feet to the place of beginning. The parties of the first part hereto shall be awarded the ground of said proposed street which shall remain after the award to the parties of the second part, as above set forth. The parties of the second part further agree to sell to the parties of the first part, after said division shall be made, apiece or parcel of said ground which shall be furtherest south in the proposed division, which piece or parcel shall front seven feet on O. street to a ten foot alley, charging therefor the market price for said ground as it shall appear on the date of said sale. The parties of the first part agree to purchase, on the above terms, the piece or parcel of ground above described.” The ordinance above referred to was passed, and the city authorities proceeded to condemn and close B. street between said points, and the defendants were assessed for benefits §432.14. On a bill filed by the parties of the second part against the parties of the first part for the specific performance of said contract, and for the payment by the defendants of the amount of said assessment, it was Held :</p> <p>1st. That there was such uncertainty and vagueness in the terms ol the contract as to render it improper for the Court to undertake to decree its specific performance.</p> <p>2nd. That as to that part of the contract by which the plaintiffs stipulated that they would sell to the defendants a portion of ground “charging therefor the market price for said ground as it shall appear on the date of said sale,” the price to be paid was. in part, of the substance of the consideration for the contract; and in the absence of any provision therefor in the contract the Court had uo means bj’ which to ascertain, with any proper degree of certainty, the market price of this piece of ground at the date of its sale.</p> <p>3rd. That the opinions or judgments of witnesses as to values, was too proverbially variant and conflicting to be appealed to for this purpose.</p>

<p>Judgment, of Condemnation in Attachment — Strilcing out Judgment — Laches—Evidence—Notice.</p> <p>A judgment condemning funds in the hands of garnishees will not be stricken out on the petition of a creditor of the defendant in garnishment, on the ground that before the attachment was ' laid, such defendant had assigned the money due him by the garnishees to the petitioner, and the garnishees had been notified of the assignment, where the petitioner delayed application to have the judgment stricken out for more than eight months after notice of the laying of the attachment.</p> <p>On the question as to whether the assignee of the petitioner received notice of the attachment, it was shown that the garnishees prepared for mailing a letter containing notice of the attachment, and enclosed it in an envelope, with the firm name printed thereon and a direction to return to them, if not delivered within five days, and placed said letter among the material intended for the post office, according to the usual course of business, together with a similar letter to the defendant in garnishment, which latter was duly received and responded to, while the former was never returned notwithstanding the printed direction on the envelope. In rebuttal the book-keeper of the assignee stated that if the letter had been received, while he would not have been detailed to answer it, it would have come into his hands for filing. Its attorney testified that the company never received the letter in question; that, if any notice of the attachment had been received by the company, it would, necessarily, have come into his hands, and he would have answered it. The secretary and treasurer of the company, who at one time seemed to have been the officer who conducted the correspondence relating to this matter, was not examined. Held :</p> <p>That the assignee of the petitioner must be charged with notice of the attachment as of the date of the letter.</p>

The case is stated in the opinion of the Court. .Exception. — The following prayers, offered by the plaintiff were granted by the Court (Harlan, J.): 1.

<p>Subscription to Stock of Corporation — Bights of Subscriber.</p> <p>Where a corporation, already organized, has been authorized to increase its capital stock, a subscription to such new or additional stock does not of itself make the subscriber a stockholder, and entitled to have a certificate issued to him therefor; payment for the stock, as demanded by the company, being necessary to constitute him the owner thereof.</p>

The appeal in this case was taken from a pro forma -decree of the lower Court (Dennis, J.,) refusing the injunction asked for, to restrain the city athorities from removing the railway tracks on Lexington street, and dismissing the bill of complaint. The case is stated in the opinion of this Court.

The case was submitted on an agreed statement of facts to the Court below, (Harlan, J.) sitting as a jury, who found the traverser guilty, and imposed upon him a line of fifty dollars; thereupon the traverser appealed. The case is further stated in the opinion of this Court.

<p>Labor organization — Procuring discharge of Non-union employe — Liability—Appeal—Remanding cause for New trial.</p> <p>Where an employe, a non-union man, who is performing the duties of his position to the entire satisfaction of his employers, who would gladly have retained him in their service, is discharged in consequence of a threat‘from a labor organization that in case he is any longer retained, it will be compelled to notify all labor organizations of the city that the business house of the employers is a non-union one, and thus subject them to great loss, such interference by the labor organization is wrongful, and an action will lie against it by the non-union employe for the damages he has sustained in consequence of such discharge.</p> <p>Section 37 of Article 23, of the,Code, in authorizing the formation of trade unions “to promote the well-being of their every day life, and for mutual assistance in securing the most favorable conditions for the labor of their members, and as beneficial societies,” did not mean that such promotion was to.be secured by making war upon the non-union laboring man, or by any illegal interference with his rights and privileges.</p> <p>Where the declaration fails to state a cause of action, to which the evidence is legally applicable, and there is a substantial variance, the judgment of the lower Court must be affirmed, but it appearing that upon a proper amendment of the declaration, there is evidence in the cause legally sufficient to be submitted to a jury, the case will be remanded for a new trial, in accordance with section 20 of Article 5, of the Code.</p>

This was an action of trover by the appellants agaiust the appellee for the wrongful conversion to its own use, of the proceeds of certain negotiable instruments. The verdict and judgment being for the defendant, the plaintiffs appealed. The case is stated in the opinion of the Court.

Cross-Appeals from the Baltimore City Court. The case is stated in the opinion of the Court. Exception. — At the trial the plaintiffs offered the five following prayers: 1.

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

The case is stated in the opinion of the Court. Exception. — At the trial the plaintiff offered the three following prayers which were grarrted by the Court, (Harlan, J.): 1.

<p>Discharge of Insolvent — Petition to Annul order of Discharge — Laches of Or editor — Pleading and Practice.</p> <p>Section 21 of Article 47 of the Code provides “that any creditor may file allegations of fraud at any time within two years after the time of the final discharge of an insolvent, and have issues made thereon and tried by a jury, and, if such issues he found against the insolvent, his discharge and release shall he annulled and rescinded.” Held:</p> <p>That the Legislature never meant that a creditor should stand by and allow the insolvent to be discharged without objection, and then, at any time within two years thereafter, file a petition to annul the order of discharge on the ground of fraud, of which he had full knowledge prior-to the discharge.</p> <p>A petition under section 21, of Article 47, of the Code to rescind and annul an order discharging an insolvent ought to allege specifically the fraudulent acts of the insolvent relied on, and the issues framed thereon ought to submit the finding of such fraudulent acts to the jury.</p> <p>A petition under said section which fails to aver that the fraudulent acts of the insolvent complained of were unknown to the petitioner prior to the final order of discharge, is fatally defective.</p>

<p>City tax Collector — Action on Official bond — liability of Sureties — Evidence — Instruction— Verdict — Burden of Proof.</p> <p>By an ordinance of the City of Cumberland, the city tax collector was required to be elected annually, and it was provided that ho should “hold his office for one year, or until his successor is duly elected and qualified.” A tax collector was elected in June, 1886, and gave bond, with sureties that “during his continuance in said office” he would well and truly account for and pay over all moneys which he should receive for or on account of the city. In June, 1887, he was again elected collector, but failed to give a new bond and take the oath of office. Notwithstanding this failure to qualify, he made collections, but did not pay over all the money received by him for the two fiscal years 1886-87 and 1887-88. On a suit on the bond given by him when -he was first elected in June, 1886, it was Held:</p> <p>That his sureties were liable for the moneys collected by him during the second fiscal year.</p> <p>Whether a warrant to collect has been delivered to the tax collector or not, is immaterial, so far as the liability of the sureties on Ms bond is concerned, as he becomes accountable for taxes voluntarily paid to him though he has received no warrant.</p> <p>The fact that the tax-books did not specify in each tax payer’s account, as required by ordinance, the amount levied for general purposes, the amount levied for interest, and the amount levied for the sinking fund as separate items, but gave only the aggregate of these several items in each instance, is immaterial, so far as respects the liability of the sureties on the bond of the tax collector.</p> <p>In a suit on the official bond of a city tax collector for failure to turn over money collected, it is not error, where the entries on the tax-books are numerous, to allow the witness to testify to the sum total, as added up by himself, of the items which the collector had admitted to him had been collected, the Court stating at the same time to the jury that the additions of the witness were not conclusive on them, but that they were at liberty to ascertain from the books themselves whether the amounts were properly added up.</p> <p>The fact that the witness referred to a rejected audit to refresh his recollection, did not affect the admissibility of his testimony, where, after refreshing his memory, he spoke from an independent recollection and not from the audit.</p> <p>In an action upon the bond of a tax collector for amounts collected in two separate years, the verdict against the defendants must be for one entire sum, and need not specify the amounts due on each year separately.</p> <p>The reports made by the tax collector to the Mayor and City Council, showing the amounts collected by him, were prima facie correct as against him and his sureties, and it was incumbent on the defendants to point out any errors therein, if such existed.</p> <p>Entries made by the collector in the tax-books showing receipts of money by him, were prima facie evidence that those sums were collected by him, and his mere statement, or that of any one else, that there were errors in the entries; was not sufficient to overcome the probative force of these entries as admissions.</p>

<p>Malicious arrest and False imprisonment — Fvidence—Instruction.</p> <p>In an action for malicious arrest and false imprisonment, against a bank, the officer who made the arrest said he had no orders from the defendant, but that his superior officer ordered him to go to the plaintiff’s place of business and “see that there were no violations of the law committed.” The defendant’s collection clerk said the cashier gave him a draft and told him to present it to the plaintiff for payment, to let him see every thing that was in it, to be as polite as possible, that he did not want to have any trouble with plaintiff, and that a detective officer would go along and protect him. The cashier swore he gave no orders or instructions as to arresting the plaintiff. Apprehending that the collector might be assaulted by the plaintiff, he went to the office of the marshal of police, and requested that an officer might be sent along to protect the collector. The arrest of the plaintiff was made by order of the collector. Held:</p> <p>That there was no proof to justify an instruction leaving it to the jury to find that the defendant or its cashier authorized or directed the arrest of the plaintiff.</p>

<p>Limitations — Allowance by Auditor of Claim for Taxes— Exceptions.</p> <p>Certain real estate having been sold for taxes, the sale was finally ratified and confirmed. More than two years after the ratification, on the motion of the widow and heirs-at-law of the former owner, the order was rescinded with leave to the widow and heirs-at-law to.file exceptions thereto. On the day of the passage of the order exceptions were filed to the ratification of the sale, on the ground mainly, that the proceedings under which the property was sold were irregular and defective, and, further, that the taxes were barred by limitations, which the exceptants pleaded. Five days after the filing of the exceptions, an order was passed, without disposing of the plea of limitations, allowing the widow and heirs-aLlaw to redeem the property upon payment into Court of the sum of $242,11, with fifteen per cent, interest from the day of sale. This amount was not paid, and seven days after the passage of the order, a hill was filed by some of the heirs-at-law for a sale of the property as not being susceptible of division among the parties in interest. On the same day a decree was passed for the sale of the property. In the distribution of the proceeds of sale, the auditor allowed the sum of $242.11 with interest thereon. Held:</p> <p>That the parties in interest having failed to plead the Statute of Limitations to the allowance of this claim by the auditor, could not afterward rely upon it as a ground for rejecting the claim.</p>

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

The appeal in this case was taken from a decree of the lower Court (Dennis, J.,) sustaining the demurrer to the hill, giving permission to the plaintiff to answer the bill within five days, and upon failure to amend, dismissing the bill. The case is stated in the opinion of the Court.

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

2 of Baltimore City. The appeal in this case was taken by the plaintiffs from a decree of the Court below (Wickes, J.,) dismissing their hill. The case is stated in the opinion of this Court.

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

<p>Consolidation of Railroad Companies — Act of 1890, ch. 553— Liability of Consolidated company for Tort of Original-companies— Wrongful death of fJmployé — Contributory Negligence — Pleadings — Stifficiency of Declaration — Amendment of Declaration.</p> <p>Where two railroad companies, whose tracks form a continuous ■ line, consolidate under the Act of 1890, ch. 553, upon such terms as may ho agreed upon, the original corporations cease to exist. and a new corporation is brought into existence which comprehends them both, and as such is liable for the death of an employe of an original company, if such original company were responsible therefor before the consolidation.</p> <p>The combining companies could not, by any contract between themselves, conclude the rights of persons who had been injured by their torts.</p> <p>In an action against a. railroad company to recover damages resulting from the death of an employe, the declaration is defective and insufficient, if it fail to aver that the .person killed was using due care at the time of the killing, it being indispensable for the jury to inquire whether there was contributory negligence on the part of the deceased.</p> <p>Where such omission is evidently accidental, the case will be remanded that the declaration may be amended, and the case tried on its merits.</p>

By virtue of the authority conferred by two deeds of trust, Charles T. Reifsnider, trustee, sold certain property of Joshua Sellman, and the sales were reported to and ratified by the Court; and the case was referred to the auditor to state an account; and he was also directed to give notice to the creditors of the said Sellman to file their claims properly authenticated.

<p>Mutual Fire Insurance— Waiver of Forfeiture — Assessment after Knowledge of Forfeiture.</p> <p>An assessment levied by a mutual fire insurance company on the premium note of a policy holder, with knowledge of the forfeiture of the policy, and the collection of such assessment made to pay losses sustained by the company before the forfeiture, does not constitute a waiver thereof, although such assessment was in excess of what was actually necessary to pay such losses.</p>

The following letters are added to the statement of the case contained in the opinion of the Court: Westminster, Md., Nov. 1th, ’90. Messrs. Smith & Pride, Baltimore, Md. Gentlemen: — I sent you check yesterday for $380. I send you check to-day for $300, amt., mrgn. called for in yours of the 6th. I understand the mkt. is panicy today. Expect to he in Baltimore Monday and will bring amts, with me to meet mgns. to date. Yours Truly, Charles Billinuslea.

<p>Taxation — Adding to Assessment of Property — Notice—Mandamus.</p> <p>The County Commissioners have no authority to add to the asses,s- . ment of property without notice to the person assessed; nor to continue the assessment on the tax books, because such person having appeared in consequence of information that he had been assessed, and applying to have the assessment corrected, refuses, while denying the ownership of the additional property, to disclose the name of the true owner.</p> <p>Where an additional assessment of property has been made by the County Commissioners without first notifying the party assessed, mandamus is not the appropriate remedy to compel the Commissioners to strike from the tax books the assessment thus improvidently made.</p>

<p>Embezzlement by Olerlc of County Commissioners — Evidence.</p> <p>Section 75 of Article 27 of the Code of Public General Laws, provides that if any clerk to any body corporate shall fraudulently embezzle any money received or taken into possession by him for or in the name of or on the account of his employer, he shall be deemed to have feloniously stolen the same from his employer. An indictment under this section charged that D, as clerk of the County Commissioners of Howard County, did receive and take into his possession for and on account of his said employer, the said County Commissioners, $183.80, and did embezzle the same. Held :</p> <p>That a tax bill for $183.80, made out in the name of the County Commissioners against a certain Bank, at the bottom of which was written, “Received payment, W. D. Collector, Per J. A. I). Clerk, Co. Corn’s,” was admissible to show that J. A. D. the defendant, received the money for and on account of the County Commissioners.</p> <p>On the trial such receipted tax bill was admitted by the Court on the assurance by “the State that it would be followed by evidence showing that the clerk was instructed to give to the collectors information of the stocks on which they were to collect taxes, and that the clerk had fraudulently neglected so to do.” There was proof that the regular course of business was for the clerk of the County Commissioners to make out for such collector a book, in which were entered the names of the tax-payers of each district, and also the names of resident corporations from whom taxes were due on corporation stocks; and that this rule was carried out as to all the collectors, except as to W. D. who testified that he did not know for certain if he had any list, but was only told by the defendant what they were; and that the defendant was not authorized by him to collect the tax of $183.80. There was also proof by the collectors of Howard County, that it was a custom for the defendant to collect the stock taxes which were on their books, but not those that were not on their books. Held :</p> <p>That there was no error in overruling the objection to the admissibility of .the receipted tax bill and all evidence tending to show the receipt of the money by the defendant, on the ground that the State had not followed up its proof, as required by the Court’s ruling.</p>

<p>Action on Policy of Fire insurance — Evidence.</p> <p>In an action on a fire insurance policy on a creameiy, it appeared that at the time of the issuance of the policy the smoke-stack of the building projected about seven feet above the comb of the roof, and was there secured by tin; that afterwards the smokestack was changed to the side of the roof, near the eaves, and extended three or four feet above the shingles, bringing the top of the pipe three or four feet below the comb of the roof; and that the fire resulted from this change, about three hours after the alteration had been made. No notice was given the insurance company of the change. The defence set up by the insurance company was that the change so made witliput its authority or approval, increased the risk or hazard frqm what it was under the original contract, thereby avoiding the same. Held :</p> <p>That evidence that the defendant had insured in the same neighborhood, and about the same time the plaintiff’s policy was issued, and at the same rate, buildings of the character of the creamery, and having smoke-stacks arranged as the plaintiff’s was when the fire occurred, was inadmissible.</p>

<p>.Personal injuries — Permission to Examine machinery — Licensee— Liability of Proprietor.</p> <p>Where the president of a corporation on the request of the principal of a school givos permission to a class of thirty or more students to visit the company's power house, for the purpose of viewing and examining the works and machinery therein contained, such students are mere licensees, to whom the company is under no obligation to provide against the danger of •accident.</p> <p>Where one of such students in examining the machinery fell into-an uncovered vat of boiling water, located in a part of the-building which was insufficiently lighted to enable him to see it, and was injured, the company is not liable in damages for failure-to warn him of the existence of the vat or to cover the same, or to'have the building lighted sufficiently to enable him to-observe it.</p>

<p>Life insurance — Fndotvment association — Amenability to Insurance laws of the State — Forfeiture of Charter.</p> <p>Where members of an association, incorporated “for social or fraternal beneficial purposes, or both,” pay entrance foes, monthly dues, and assessments from time to time as the same may be ordered, and the association from funds thus raised, pays to its members a specific sum in case of sickness, accident or death, or maturity benefits at the expiration of a fixed period of time, it does an insurance business within the inhibition of section 127 of Article 23, of the Code, although it has a lodge system and ritual.</p> <p>But the charter of such association will not bo forfeited, thereby bringing disaster upon a large number of persons, but it will be permitted to resort to the appropriate jurisdiction to adjust and wind up its insurance business, and to continue the exercise of its authorized powers as a “social or fraternal beneficial order, or both,” or it may amend its charter under sections 17 and 38, of Article 23, of the Code, and thus bring itself within the provisions of the insurance laws of the State.</p>

2, of Baltimore City. This appeal was taken from a decree of the lower Court (Harlan, J.,) prescribing the terms of accounting between the railroad company, as the assignee and trustee of all the assets of the relief association, on the one hand, and the members of the association in good standing on the 31st of March, 1889, the date of its dissolution, on the other hand. The case is stated in the opinion of this Court.

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

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

<p>Appeal from the Court of Common Pleas.</p> <p>The case is stated in the opinion of the Court. The prayers of the defendant referred to in the opinion of the Court and which it was held ought to have been granted, are as follows:</p> <p>1. That there is no legally sufficient evidence of negligence on the part of the defendant's agents in the employment of engineer Burns, and the verdict must he for defendant.</p> <p>2. That there is no legally sufficient evidence of negligence in retaining engineer Burns in the employ of the city, and the verdict must be for the defendant.</p> <p>3. That there is no legally sufficient evidence that engineer Burns was not a competent and proper person to employ to run the engine at the Cross street sewer, and the verdict must be for the defendant.</p>

<p>Agreement to Submit cause to Court — Section 8 of Article 1 of the Constitution — Consideration—Effect of Submission.</p> <p>Under section 8, of Article 4, of the Constitution which provides that “the parties to any cause may submit the same to the Court for determination without the aid of a jury,” a jury may he dispensed with in civil cases by agreement of the parties, and the promise of each party to relinquish his constitutional right to a jury trial, is a sufficient, consideration for an agreement to submit the cause to the Court.</p> <p>An agreement under section 8, of Article 4, of the Constitution, to submit a civil cause to the Court for determination without the aid of a jury, will not, in tlie absence of an intention so expressed, be construed as an agreement to try the case only before the Judge who happened to be on the Bench when the agreement to submit was made and entered upon the docket. And such agreement will continue in full force until the case submitted has been decided, or something has happened to render such result impossible.</p>