Volume 82 — Maryland Reports

This was an action of ejectment brought by the appellants to recover possession of a narrow strip of land called “Horner’s Fishery,” containing about nine acres, situated in the lower part of Harford County, on Swan Creek, near its mouth, where.it empties into the Chesapeake Bay. The plaintiffs are the sons of the late John Jay, and nephews of Maria M. and Frenetta F. Smith. The Misses Smith died in i860, leaving the wills hereinafter referred to, and John Jay died in 1892.

The former appeal is reported in 81 Md. 397. The second bill of exceptions referred to in the opinion of the Court is as follows: “ To sustain the issues joined in the above entitled cause, the plaintiff offered to prove the consideration of a note that had been offered in evidence by the defendant, and allowed to go to the jury, executed by W. W. Rollins to the plaintiffs, and all the circumstances attending the execution and delivery of said note, in rebuttal, and which…

On November 31, 1893, the Orphans’ Court of Dorchester County sent to the Circuit Court of that County the following issue: “ Is Sally Jackson the only lawful child of Richard Watson Jackson, intestate, deceased, whose estate is sought to be administered upon ? ” and directed that upon the trial of this issue Sally Jackson should be the plaintiff. The appeal from the rulings of the Circuit Court upon the first trial of that issue is reported in 80 Md. 176.

The case is stated in the opinion of the Court. At the trial the Court below (McSherry, C. J., Henderson and Lynch*. JJ.,) ruled that the letter dated June 1, 1894, and the letters dated June 5 and 7, 1894, are a sufficient compliance as to notice with the requirements of the contract to entitle the plaintiff to have the money refunded. The defendant appealed.

<p>Appeal — Bill of Exceptions Necessary when Case is Tried. Before a Court Without fury,</p> <p>When an action at law is tried before the Court below without a jury, upon an agreed statement of facts, and no exceptions are taken to the rulings of the Court, but the appeal is simply from the finding of the Court, such judgment cannot be reviewed on appeal.</p>

In 1854, James Hazle, who had a life-estate in a tract of land in Queen Anne’s County, the remainder being in his three children, then infants, conveyed the same in fee-simple to Hendrix. On August 6, 1855, Hazle executed to Hendrix a mortgage of indemnity conveying certain land in Kent County. The provisions of this mortgage are set forth in the opinion of the Court.

<p>Appeal from an order of the Circuit Court of Baltimore City (Dennis, J.), by which the exceptions filed to the claim of the Bolton Mines Co. in ex-parte, in the matter of the trust estate of the Waring Manufacturing Company, were sustained. The case is stated in the opinion of the Court.</p> <p>The action of the Court below proceeded upon the theory that when the appellant replevied the phosphate from the assignees of the Waring Manufacturing Company, he elected to repudiate and rescind the contract of sale which was the consideration for the note filed as the claim in this case, and that he was bound by that election, and that because he first attempted to avoid the contract and note, he was estopped from now assuming an inconsistent position and claiming that the contract and note are valid. It will be noted that the remarkable result of the above course of reasoning is that a Court of Eqidty permits trustees to exact from the appellant the full value of its phosphate (in the form of the judgment for $4,464.72, affirmed by this Court in 78 Md. 454), and at the same time to refuse its dividend for the purchase price of that phosphate. In other words, the general creditors of the insolvent corporation enjoy the value of the appellant’s phosphate, and do not let' it get-even a dividend on the purchase price thereof. They both eat the cake and have it too. Estoppels should be mutual. If the appellant cannot be heard to say that the purchase money note is a subsisting debt of the Waring Manufacturing Company, the appellees cannot be heard to deny that it is so ; which reduces the whole thing to an absurdity. The appellant did not voluntarily assume the position that the note and sale were valid ; it was forced into it when the appellees defeated its surety in the suit on the replevin bond. When it was decided that it could not retake its property, the only thing left for it to do was to claim to be paid for it, at least in part.</p> <p>“ Where a defendant has successfully resisted the specific performance of a contract, he will not be permitted to set up such contract as binding in order to defeat an action brought to recover money paid in pursuance of such avoided contract.” Pendleton v. Dalton, 92 N. C. 185. The above proposition is the exact converse of the one at bar. Here the appellant unsuccessfully resisted specific performance of the contract of sale of the phosphate and, therefore, should be permitted to set up such contract as binding in order to obtain the money to be paid in pursuance of such unvoidable contract. If the first proposition is true, there is no escape from the second.</p> <p>Here no wrong can be done by permitting the appellant to change its position on the question of the contract of the sale of the phosphate. As the assignees have enjoyed the value of the phosphate, common honesty requires that they should pay the appellant, who has lost its phosphate, at least a dividend on its contract price. It is familiar every day practice in Baltimore for attaching creditors who have unsuccessfully assailed a deed of trust for the benefit of creditors as fraudulent, to afterwards come in and take their dividend under the deed. And the same practice is recognized generally in other jurisdictions as being the law. Burrill on Assignments, page 607; Brashears v. West, 7 Peters, 615; Vernon v. Dana, 8 Dana, 254; 2 Encyclopaedia of Pleading and Practice, page 873, note; In re Van Norman, 41 Minn. 494. This last case is most instructive, and bears a striking analogy to the case at bar.</p> <p>On no other theory than that of the rescission of the contract can we explain the tender of the note, or give even a prima facie justification of the institution of the replevin suit. The Bolton Mines Company then having declared its intention to rescind this contract, and hence necessarily to treat the note a part of the transaction as no longer binding, it is now bound by its election and cannot be allowed to change front and assume the wholly inconsistent position that the contract is binding and the note still enforceable. The company had its election to rely op the note, thus affirming the contract, or to replevin the fertilizers, and offer to return the note thus rescinding the same. It adopted the latter course with a full knowledge of all the facts, and having carried out the same by legal proceedings, equity will not now allow it in further proceedings to take a position diametrically opposed to its former stand. This general doctrine is well established in our equity jurisprudence everywhere, and it is strikingly enunciated by this Court in the case of Edes v. Garey, 46 Md. 41. And also in the following cases: Beall v. Pearre, 12 Md. 566; Walsh v. Chesapeake and Ohio Canal Company, 59 Md. 427; Kiddall v. Trimble, 1 Md. Ch. 143. The cases, however, which most nearly resemble the present in their details are: Weil v. Brownstein, 35 Hun. 68; Fawell v. Myers, 59 Mich. 180.</p> <p>The fact that the plaintiff fails to obtain any redress in the proceeding, which he first adopts is immaterial. In Thompson v. Howard, 31 Mich. 309, a fathgr brought an action of assumpsit for his son’s wages on the theory that his son had been employed by the defendant, and having discontinued this suit, it was held that he was precluded by the doctrine of election from bringing another action on the case on the inconsistent theory that the defendant had unlawfully enticed away and harbored said son. So, in the case of Steinbach v. Fire Ins. Co., 77 N. Y. 498, the plaintiff brought suit on a policy of insurance, which contained a condition forfeiting it, in case certain articles classed as specially hazardous were kept on the premises. The suit was successfully defended by proof that the plaintiff kept fireworks. Thereafter the plaintiff brought an action to reform the contract by inserting a clause authorizing the keeping of fireworks, and it was held, that having recognized the contract of insurance by bringing the first suit, he could not now take the inconsistent position of objecting to the correctness of the terms of said contract, and that the judgment against the plaintiff in the first suit was a complete bar to the second action, though otherwise the second action could have been successfully maintained. To the same effect is Washburn v. Insurance Company, 114 Mass. 175.</p>

Assumpsit by appellant on an open account against F. H. Von Hafften, L. B. Benton and J. W. Gailey, trading as The Sanitary Milk Co.” The contract referred to in the opinion of the Court is as follows : “ This agreement, made this 24th day of April, between Frederick Hundt Von Hafften and James W. Gailey, trading under the style of the Sanitary Milk Company of Balti more City, parties of the first part, and L. B. Benton, of the city of Baltimore and State of Maryland, party…

These were six appeals in one record from the Baltimore City Court. The Street Commissioners of said city in their proceedings for opening Bayard street from Columbia avenue to Ohio avenue, treated the bed of Bayard street as having been dedicated to public use by a lease hereafter referred to from James Carroll to Porter and Davis.

<p>Appeal from a judgment of the Circuit Court for Harford County (Watters, J.) The case is stated in the opinion of the Court.</p>

) directing the issue of a writ of mandamus compelling the City Commissioner to repave forthwith, Saratoga street between Fremont and Carrollton avenues, under an ordinance which became operative on September 28, 1894. The case is stated in the opinion of the Court. It is submitted that the opinion of the Court in M. & C. C. of Balto. v. Sharp settles conclusively the questions involved in this appeal.

) Callahan, the plaintiff, made a contract with the Baltimore Breweries Company to be solicitor of trade for the Spring Gardens Brewery for one year, at a salary of $1,560. The company discharged him before the expiration of the year and he brought suit alleging an unlawful discharge. The defences on the merits were, 1st, that he had not properly performed his duties, and the discharge was lawful; and 2d, that he had accepted $30 in accord and satisfaction of his claim.

Action to recover damages for an injury to a building caused by an explosion of gas. The evidence is summarized in the opinion of the Court.

), setting aside and annulling a sale of real estate reported by certain trustees.

<p> Oral Order for Appeal not Entered in Time. </p> <p>Where a party appeals from a judgment of a Court of law by orally directing the Clerk of the Court to enter an appeal, said order not being given in open Court, the entry must be made on the record within the time prescribed for taking appeals.</p>

This was an action by the State of Maryland to recover the State tax assessed against the defendant, the Consumers’ Ice Company, for the year 1893, amounting to $186.37. The Court below (Harlan, C. J.) ruled that upon the evidence the plaintiff was entitled to recover. The case is stated in the opinion of the Court.

The petition of the appellee, Lankford, stated that he was duly appointed Supervisor of Election for said county to represent the Republican party, and that the defendants (appellants) were Supervisors of Election to represent the Democratic party; that it was the duty of the said supervisors to appoint three judges, two election clerks and two ballot clerks for each election district in said county, to act as such at the election to be held on November 5, 1895; that the…

The action was instituted in the Circuit Court for Garrett County, and removed thence to the above-mentioned trial Court. The County Commissioners are clothed with the power to assess omitted property, that is to say, property which was not assessed by the assessors or collectors ; they have, we claim, incidentally the power to appoint persons to assist them in that authorized duty.

<p>Appeal from a decree of the Circuit Court for Prince George’s County (Brooke, J.), cancelling a deed from J. T. Perkins, tax collector, to the appellant, dated May 29, 1893, which conveyed certain land sold to the appellant at a tax sale. The sale was made under the Act of 1890, chap. 137. The case is stated in the opinion of the Court.</p> <p>The appellant contends: i. Ratification of a tax sale is prima facie proof of its validity and the plaintiff has to show affirmatively the law has not been complied with. Code, Art. 87, sec. 52; Guisebert v. Etchison, 51 Md. 478; Cooper v. Holmes, 71 Md. 26.</p> <p>2. The treasurer was right in advertising the property in the name of M. L. Howser, the person to whom it was assessed. It was on the assessment books for the year 1890, in the name of Howser, and not having been purchased by Simpson until December, 1890, it could not have been transferred to the assessment books in his name until 1891, and was properly advertised in the name of Howser, as the Act of 1890, chap. 137, sec. 116 B, provides that property shall be advertised and sold in the name of the person or persons assessed. In Cooper v. Holmes, 71 Md. 30, the Court says, “ there is nothing in our general tax system which compells the collector to examine what title a party has to land with which he is assessed. The assessments are made by other officers, and he is not required to review or to verify their proceedings before making a sale.” In County Commissioners of Frederick v. Clagett, 31 Md. 210, the Court held that the failure by the Clerk of the Court to send to the County Commissioners the annual list of transfers as directed by the Code, did not relieve the grantor, who failed to have certain property transferred, from the obligation to pay the taxes as long as the property remained on the assessment books in his name.</p> <p>3. There was no defect in the advertisement itself which could invalidate the sale. The Act of 1890, chap. 137, sec. 116 B, directs the treasurer, on the second Monday in January of each year, to publish a list of all taxes in default, which list shall contain the name of the person assessed, a brief description of the property by district of location, its descriptive name of identification, the liber and folio of the County Land Record, wherein is recorded conveyance thereof to the person or persons assessed. In this case it is admitted the property was advertised as directed by the statute, and while it is true the deed referred to in the advertisement described a piece of property known as “ Three Brothers,” containing 103 acres, it was the deed conveying title to. the person assessed, and furnished the information necessary to enable a purchaser to investigate the title. In the case of Cooper v. Holmes, the Court held that giving the name of the property, the name of the person to whom assessed and the election district in which it is located, is sufficient notice of a tax sale. (71 Md. 29.)</p> <p>4. The Act of 1890,. after directing how land upon which taxes are due shall be advertised, directs the treasurer “ to proceed to offer each and every the said parcels of land for sale to the highest bidder for cash.” This means that the treasurer must sell each tract as a whole.</p>

J., and Lloyd, J.), dismissing appellant’s petition for a mandamus. A demurrer to the petition was filed by agreement of the parties.

), setting aside and vacating a sale made by the Receiver of the Gandy Belting Company.

Appeal in the case of the Peabody Heights Co. v. Willson from a pro forma decree of the Circuit Court of Baltimore City sustaining a demurrer to the bill of complaint and dismissing the same. The case is stated in the opinion of the Court. Appeal in the case of Devries and Ramsay v. Cone, from a pro forma decree of Circuit Court No. 2, of Baltimore City, dismissing the bill of complaint.

t. a. of John Frick, deceased. The will referred to in the opinion of the Court was as follows: “And as to my wordly estate and all the property, real, personal or mixed, of which I shall die, seized and possessed, or to which I shall be entitled at the time of my decease, I devise, bequith, dispose as follows, to-wit: First, my will is that all my just debts and funeral expenses shall, by my executor hereinafter named, be paid out of my estate as soon after my decease as…

<p>Appeal from an order of the Orphans’ Court for Harford County.</p>

This was an action of trespass vi et armis brought by the appellee against the appellant to recover damages for an alleged wrongful expulsion from one of the defendants’ trains in March, 1888.

<p>Appeal from a decree of the Circuit Court of Baltimore City (Wright, J.), by which certain deeds were vacated and annulled.</p>

At the trial the appellee, Fear, proved by himself, that so far as Myrtle avenue extends through his property, he began to grade and pave the same sometime about 1891, when he undertook to develop his tract of land of about twenty acres, through which he cut the street; that he got the grade of the street, at the end nearest Fulton avenue, from the City Commissioner, in February, 1894, in order to get the street on a level with any street the city might bring in contact with…

In 1873 William Charles Whitworth, an embosser, and his wife both died of typhus fever at the Stockwell Hospital, London, within three… Held: though at common law a technical will could not be executed by a married woman, the use of this word when applied to a power is not given its technical sense, and is synonymous with “ instrument in the nature of a will.” Jenkins v. Whitehouse, 1 Burrows, 431; Barnes v. Irvin, 2 Dallas, 199-202; Sugden on Powers (8th Eg. ed.), 230;…

<p>Assignment for Benefit of Creditors Executed by a Non-Resident— No Bond by the Trustee need be Filed in this State When Only Personal Property here is Conveyed — Conflict of Laws — Attachment.</p> <p>As a general rule the validity of a transfer of personal property is governed by the law of the domicil of the owner, and this rule is applicable to a voluntary general assignment for the benefit of creditors which does not contain preferences invalid under the law of the State where the property is situated.</p> <p>The provisions of Code, Art. 16, sec. 205, requiring a trustee for the benefit of creditors to file an approved bond before title to the property shall pass, do not apply to an assignment for the benefit of creditors executed by a resident of another State conveying choses in action and personal property situated in this State.</p> <p>A general assignment for the equal benefit of creditors executed by a resident of another State, valid by the laws of that State, and valid at common law, which conveys debts and choses in action belonging to the assignor and situated in this State, operates to vest such property in the assignee and the same is not afterwards liable to attachment by a creditor residing in this State.</p> <p>The case of White v. Pittsburg National Bank, 80 Md. 1, distinguished.</p>

<p>Appeal from Baltimore City Court. The facts appear in the opinion of the Court. At the trial the plaintiff offered the following prayers:</p> <p>1st. That if the jury find from the evidence in the case that on the 24th day of August, 1893, Michael A. Nelson, the son of the equitable plaintiff, while upon Eastern avenue, a public highway in the city of Baltimore, and using due care upon his part, came in contact with a broken wire which had been suspended for a period of about two weeks in and upon said highway from one of the poles of the Western Union Telegraph Company of Baltimore City, one of the defendants, hanging over and in contact with one of the electric feed wires of the City and Suburban Railway Company, the other of the defendants ; and that the said broken wire in this condition became charged with a dangerous current of electricity from the feed wire aforesaid, and that the said son of the equitable plaintiff coming in contact with said broken wire suspended as aforesaid 'and was severely shocked, burned, injured by reason of which he died on the 7th day of September following, that then the plaintiff is entitled to recover. (Granted.)</p> <p>2. The plaintiff prays the Court to instruct the jury that if they find a verdict for the plaintiff, they are to award to him such damages as they may believe will be an adequate compensation for the loss of his son’s services from the time of his death, said services not to be calculated beyond his majority. (Granted.)</p> <p>The prayers submitted by the City and Suburban Ry. Co. were as follows :</p> <p>1st. That there has been no evidence offered in this case legally sufficient to show that the death of the ssid Nelson was caused by the negligence of the said City and Suburban Railway Company, and the verdict of the jury must be for the said City and Suburban Railway Company. (Rejected.</p> <p>2nd. That there has been no evidence offered in this case legally sufficient to show that the discharge of electricity which injured the said Michael Nelson came from a defective condition of the wires of the City and Suburban Railway Company (Rejected.)</p> <p>3rd. That unless the jury believe that the small wire which was in contact with Nelson received a current of electricity by reason of the defective condition of the electrical plant of the City and Suburban Railway Company, and that a current of electricity, sufficient to injure said Nelson in the manner described in the evidence, flowed from said wires into said small wire, and thereby injured said Nelson, the verdict of the juiy must be in favor of the City and Suburban Railway Company. (Granted.)</p> <p>4th. That if the jury do not believe the insulating material was worn off the feed wire when the small wire came in contact with it when Nelson was injured, their verdict must be in favor of the City and Suburban Railway Company. (Granted.)</p> <p>5th. That there has been no evidence offered in this case legally sufficient to show that the three feed wires of the Railway Company, at and near pole No. 3819, near which Nelson was injured, which were there at that time, have ever been changed, altered or repaired since the date of the accident, and the jury, in considering the case, must believe as true that the three upper feed wires of the Railway Company, now near pole No. 3819, are the same wires and in the same condition as they were at the time of the accident, except as they may have been affected by the elements since that time. (Rejected.)</p> <p>6th. That the fact that Nelson, when in contact with the small wire, may have moved from the side of the street towards the centre as the car of the said Railway Company approached him, does not show that the current in the small wire came from the Railway Company’s feed wire, and the movements of Nelson across the street on the approach of the car must not be considered by the jury as showing that there was any electricity coming from the City and Suburban Railway Company’s feed wires through the small wire in contact with it. (Granted.)</p> <p>The first prayer offered by the Western Union Tel. Co., the other defendant, related to the legal sufficiency of the evidence. Its second and third prayers related to the plea of limitations. Its fourth prayer was to -the effect that if the wire which caused the injuiy was not owned and controlled by it, then it was not liable, although the wire was hanging from a pole of the defendant. All of these prayers were rejected.</p> <p>The Court below (Phelps, J.), granted both prayers of the plaintiff, and also the third, fourth and sixth prayers offered by the City and Suburban Ry. Co!, and rejected its first, second and fifth prayers, and also granted an instruction at the instance of both defendants, by which the damages .recoverable were limited to the pecuniary value of the services of plaintiff’s son until his arriving at the age of twenty-one, less the expense of his maintenance.</p> <p>At the request of the defendant the following interrogatories were put to the jury:</p> <p>First Interrogatory. Do you find as a fact that the insulation was so worn off of the three feed wires, or any of them, of the Railway Company, near pole 3819, that the small wire, at the time of the accident, could have received a charge of electricity by contact with any of these feed wires?</p> <p>Answer. Yes.</p> <p>Second Interrogatory. Since the date of the accident, have any of the three feed wires there at that time been changed, altered or repaired as to insulated covering?</p> <p>Answer. No.</p> <p>Third Interogatory. Do you find as a fact that Michael Nelson received a current of electricity when he came in contact with the small wire, while it was in contact with one of the feed wires of the Railway Company, and that the current of electricity came from such feed wire ?</p> <p>Answer. Yes.</p> <p>Fourth Interrogatory. Does the fact that Nelson, while in contact with the small wire, moved from the side to the centre of the street as the electric car owned by the railway approach, show that the small wire was getting its current from the feed wires of the Railway Company ?</p> <p>Answer. No.</p> <p>Fifth Interrogatory. Do you find that the fact that Michael Nelson received a current of electricity when he came in contact with the small wire, while said small wire was in contact with the feed wires of the Railway Company, proves that the current of electricity came from said feed wires ?</p> <p>Answer. Yes.</p> <p>Sixth Interrogatory. If you should find for the plaintiff, please give the amount of money you think the said Michael Nelson would earn in each year up to the date of his majority, and also the items of the expense of maintenance, education, clothing and care of said Michael Nelson from the date of his death to the time he would have attained his majority.?</p> <p>Answer. We find that the said Michael Nelson’s services would have been worth an'average of one hundred and ten dollars per year to his parents above all costs of maintenance, education, etc., for the year, from eleven to sixteen years of age, and an average of seven hundred and fifty dollars per year above all cost of maintenance, education, etc., from the age of sixteen until he reached his majority, making a total of five hundred and fifty dollars for the first five years, and a total of three thousand seven hundred and fifty dollars for the latter five years, making a grand total of forty-three hundred dollars for the period of ten years.</p> <p>The jury returned a verdict for the plaintiff against both defendants for $4,300.</p> <p>The plaintiff claimed, as against the Railway Company, that the small wire received its current from the insulated feed wire, with which it was in contact. The Railway Company contends , that there was certainly no evidence tending to show that the insulation of its feed wires, at the time of the accident, had been so destroyed, or was in such an imperfect condition that the electricity could escape from the feed wires. The uncontradicted evidence in the case is, that when the insulation of the feed wires, at the place where the small wire touched them, was examined within half an hour after the accident, the insulation was found to be perfect. The plaintiff did not attempt to produce any direct testimony to show that the insulation of the feed wires, at the place where the small wire touched them, was imperfect or worn in any way. The electrical experts all agree, that to obtain sufficient current to produce the severe burns received by Nelson, the small wire would have to be in actual contact with the metal of the feed wire, and this would necessarily cause a hole in the insulating covering which would be evident. The flow of a sufficient amount of current from the feed wire to the small wire to severely burn Nelson would also cause more or less sparking at the point of contact between the two wires; this would still further destroy the insulating material and make the place of contact more evident. The uncontradicted evidence is further that at the time of the accident the balance of the wire, one end of which was in contact with Nelson, extended up the street into the city for at least two squares. This wire, as it extended westwardly into the city, might have received a current from sources of electricity other than from the feed wires at the place of the accident, or as the small wire was strung on poles along Eastern avenue, it may have received' its current from contact with the Railway Company’s wire at some other point far distant from the scene of the accident, and under circumstances which would not show negligence on the part of the Railway Company.</p> <p>The Railway Company’s defence to this action is that there has been no evidence offered in this case legally sufficient to show that Michael Nelson’s death was caused by the negligence of the railway, i. e., that the current which charged the small wire was received through contact with the feed wire where it hung over that wire, near the telegraph pole or that it received the current through contact with any other portions of the Railway Company’s electrical equipment, under circumstances which showed negligence on the part of the company. This defence was properly raised by a prayer put in at the close of the plaintiff’s case, and a prayer at the close of the whole case. It was also raised by special.exception to the granting of the plaintiff’s first prayer, on the ground of the failure of evidence to sustain the plaintiff’s prayer. The plaintiff must prove that the accident resulted from the negligence of the Railway Company in some way.</p> <p>The small wire from the lug on the pole to the ground was about twenty-two feet long. The plaintiff’s theory was that by the swaying of the wire by the wind for two weeks, the insulation on the feed wire had been worn through and the contact between the two metals obtained. Necessarily, there would not be much swaying of the wire when the wind was at right angles to the feed wires which ran east and west. The feed wires were covered with three coats of insulating material and are known as “ Washburn and Wroburn three-braid insulated wire.” It was the best wire in the market. (It was agreed that specimens of the wire should be shown in this Court as the best' description of the character of the insulation. A good illustration of the absurdity of the plaintiff’s position that the light weight of the small wire could wear through the insulation by ordinary friction from the wind-in two weeks can be obtained by endeavoring to wear away the insulation by rubbing it with a small wire or even endeavoring to cut it with the ordinary penknife.) The accident happened on August 24, 1893 ; the wires had been put up during the spring of the same year. The insulation had only been exposed to the effects of the weather for about six months, and in that short period the weather would have no appreciable effect. The experts on both sides agreed that feed wires of this make would be perfectly insulated and there would be no escape of electricity if the insulation was in good order, either from the large copper insulated wire of the feed wire to the small wire, or from the small wire through the insulation to the copper feed wire. It could very probably happen, therefore, that the small wire did obtain its current at some other point, and yet touch the feed wire without doing any damage. The plaintiff was bound to prove that the current could have come from the feed wire.</p> <p>The plaintiff did not offer the slightest bit of evidence to the effect that the surface of the insulation of the feed wire at the place where the small wire rested upon it, showed the slightest abrasion or defect of any kind. The plaintiff had every opportunity to obtain such evidence if in fact it had existed. Abrasion or defect was an easily ascertained fact which should be proved as any other fact. An electrician was present at the time of the accident, and testifies that the small wire was hanging over the feed wire, yet this man, whose attention must undoubtedly have been attracted to the feed wire and the possibility of the small wire obtaining its current from the feed wire, does not testify that the insulator, as far as he could observe it, was in any way defective, or that he noted any of the usual signs of sparks, burning, etc., well-known to electricians, when a powerful current is flowing from one wire to another through a contact necessarily not very perfect. Hill, the electrical expert employed by the plaintiff for the express purpose of preparing the case and testifying in it, says that he visited the scene of the accident four or five times, and yet, with every incentive to discover a defect in the insulation or a repair, the plaintiff could not show by him that the insulation was in the slightest way worn or defective. There was a telegraph pole within three feet of the portion of the feed wire, upon which the small wire rested, and any telegraph lineman in five minutes could have detected any defect in the insulation of the feed wire or repair of such defect, and yet there was no such proof by the plaintiff. The same wire is there, according to the uncontradicted proof in the case, and it has not been repaired in any way. It is impossible, according to the testimony of both sides, for such an amount of electricity to flow from the feed wire unless that wire is bared at the point of contact, and at such a point of contact the insulation must be worn away “ to a rather marked extent.”</p> <p>The expression “evidence of negligence" is a technical term employed to designate that “collocation of facts,” which, if believed by the jury, will warrant them in finding that the defendant has been guilty of negligence productive of damage to the plaintiff. In certain cases, the duty which the defendant owes to the plaintiff is of such a nature that proof that the accident happened to the plaintiff under certain circumstances will be of such legal value as to constitute evidence of negligence on the part of the defendant, and present a prima facie case in favor of the plaintiff. The doctrine of these cases is expressed in the maxim res ipsa loquitur. It is intimately connected with the question of the burden of proof. When the plaintiff, having himself used due care, has introduced evidence sufficient as matter of law to charge the defendant with negligence, the burden of proof shifts, and the defendant must exonerate himself to escape the payment of damages. The testimony of the plaintiff’s witnesses, as set forth in the record, presents such a combination of facts and circumstances to which the doctrine res ipsa loquitur clearly applies.</p> <p>As to the insulation on the feed wire, the evidence established that its material becomes impaired and deteriorated by various causes and influences, almost all of which are shown by the testimony to have possibly operated in this particular case. Under such conditions the accident occurred, and immediately after the casualty the company’s men hasten to the scene and remove the hanging wire from its dangerous position. Besides this, every witness for the defendant who has testified upon this point, has admitted that the very circumstance that occurred in this case, the rubbing of the telegraph wire against the feed wire, would wear away the insulation and cause a contact through which the current could flow. In the face of such circumstances, it is submitted that the burden is devolved upon the defendant Railway Company to prove that it was guilty of no default; that its plant was in an absolutely perfect condition, and the current that injured the boy did not come from its wire, but from some other source. This is the well settled doctrine that has been applied again and again to cases of this sort. The decisions are, in fact, so numerous and uniform upon this point, that we beg leave to omit any description of them in this brief, and we give merely the cases and the volumes in which they are reported. They speak for themselves. Haynes v. Raleigh Gas Light Co., 19 S. E. Rep. 344; S. W. Tel. Co. v. Robinson, 50 Fed. Rep. 813; 2 U. S. App. 205; Thomas v. W. U. Tel. Co., 100 Mass. 156; Transp. Co. v. West. U. Tel. Co., 8 Benedict’s Dist. Ct. Rep. 502; Dickey v. Mc. Tel. Co., 46 Me. 483, 484, 487; Uggla v. Railway Co., 160 Mass. 351; W. U. Tel. Co. v. Eyser, 2 Col. 141, 163—4; Kearney v. London, etc., R. R. Co., L. R. 5 Q. B. 411, and L. R. 6 Q. B. 759; also reported in 2 Thomps. Neg., page 1220; Wolf v. Erie Tel. Co., 37 Fed. Rep. 320, 322; Brush Electric Light Co. v. Kelly, 126 Ind. 220; Urlson v. Great South. Tel. Co., 41 La: An. 1041; 2 Thompson, Negligence, page 1227; Whittaker's Smith on Negligence, ch. iv., title, Res ipsa loquitur, pages 419, 420—1; Ray, Negligence of Lmposed Duties, page 694; Stockton v. Frey, 4 Gill, 407 ; R. R. Co. v. Worthington, 21 Md. 283; R. R. Co. v. Andrews, 39 Md. 353; Murray v. McShane, 52 Md. 217.</p> <p>The Court very properly rejected the first prayer of the Western Union Telegraph Company. The proof is that the wire that injured the boy was strung on the poles of the Western Uniou Telegraph Company during the entire period that it had owned and operated the telegraph system along the highway which was the locus in quo; that the said wire became detached and broken, and hung from one of the poles' of the defendant, over and around the feed wire immediately beneath it. The proof further showed that it was allowed so to hang from the said pole into the street and upon the sidewalk for a period of two weeks or more, and that it was heavily charged with electricity and fraught with deadly peril to persons rightfully passing near it. The defendant company made no attempt to remove it from its poles, or to put it in a position that would avoid danger to pedestrians traveling upon the street. Neither did it undertake to separate it from contact with the feed wire of the Railway Company. That such* conduct is flagrant and criminal negligence, the authorites upon the subject have repeatedly and emphatically settled. S. W. Tel. Co. v. Robinson, 50 Fed. Rep. 813; 2 U. S. App. 205; Sheldon v. W. U. Tel. Co., 51 Hun. 591; Blanchard v. W. U. Tel. Co., 60 N. Y. 510; West. U. T. Co. v. Eyser, 2 Col. T. 141; Dickey v. Me. Tel. Co., 46 Me. 483, 484, 487; Thomas v. Tel. Co., 100 Mass, 156; Thompson on Elect., secs. 70, 71, 78; Transp. Co. v. Tel. Co., 8 Benedict’s Dist. Ct., (N. Y.) Rep. 502; Wolfe v. Erie Tel. Co., 33 Fed. Rep. 320, 322; Brush Co. v. Kelley, 126 Ind. 220; Urlson v. Tel. Co., 41 La. Ann. 1041; 1 Wood, Nuisance, (3d ed.) secs. 282, 284, 301, 754.</p> <p>Admit that the wire was a worthless and abandoned one. It had been permitted to be upon the poles of the company for years. It had been hanging in the street and on the sidewalk from the pole for two weeks and over, and in contact with a feed wire heavily charged with electricity, and directly beneath the telegraph wires on the pole. By permitting such a condition of things to exist, the defendant company gravely failed in its duty to the public and to the deceased. It was using the public street for its private gain under a grant from public authority. Its duty to persons upon the street plainly was to maintain its system, and to conduct and operate the same in such a manner as not to injure them. Its obligation to the deceased, as he passed rightfully along the street, was to keep out of his way, as far as its system of poles were concerned, all wires attached to the same, and to prevent by proper diligence his exposure to contact with any wire upon its poles. If its poles, or any of them, contributed to bring a dangerous wire in contact with the deceased, the company is liable. Under the law it was the duty of the defendant to keep the highway along which it constructed its line of poles, substantially in the same condition as to convenience and safety, as it was before the poles were there. In the discharge of this duty it grossly and guiltily failed, and is consequently responsible for any injury inflicted by its fault upon another. Haynes v. Gaslight Co., 19 S. E. Rep. 346, and cases cited in Brief, page 18; Mersey Dock's Trustees v. Gibbs et al., L. R. 1 H. L. 93; 1 Code, Art. 23, sec. 224.</p>

On July 8, 1873, Michael Murphy opened an accouut with the Beneficial Fund Society, a corporation whose name was afterwards changed to “The Metropolitan Savings Bank,” and deposited the sum of $520.

<p>Injunctions— Torts to the Person.</p> <p>No injunction will be granted to restrain the commission of a tort to the person.</p> <p>A bill alleged that defendant had employed detectives to watch the plaintiff, thereby causing annoyance and damage to him, and asked for an injunction to restrain the alleged conduct of the defendant. Held, that equity had no jurisdiction to issue an injunction in the premises.</p>

J., Brooke and Crane, JJ.), sustaining a demurrer to the bill of complaint in this case and dismissing the same. Held: as early as 1854, that a law providing for the removal of the county seat of Clay County was a special law, in conflict with this provision of their Constitution, although not specially enumerated therein as such, and that the removal of county seats, being manifestly a subject of a general nature for which provision could be made by…

Peter Herrman, being then the owner of the leasehold prop erty in question in this case, died in the year i860, leaving a widow, Catherine, and two infant children, Conrad and Elizabeth. Under the residuary clause of his will this property was devised to the widow for life, provided she did not remarry, with remainder over to the two children in equal shares, no provision being made for the contingency of remarriage.

2, of Baltimore City (Wickes, J.), directing an Auditor of the Court to state an account between the parties in accordance with the terms of the award of certain arbitrators filed in the cause.

), sustaining a demurrer to the bill of complaint and dismissing the same, after the plaintiff had refused to amend the bill under leave granted by a prior order.

At the trial below the plaintiff’s (appellee’s) second prayer, granted by the Court, was as follows: Even though the jury may find from the evidence that the use of the portable engine upon the premises in the manner described in the evidence materially increased the risk upon the property insured in the policy offered in evidence, and also that the said fire was caused, in whole or in part, by the use of said engine; yet, nevertheless, if they shall further find that on the…

The will was offered for probate on or about March 14, 1895. On or about June 11, 1895, the executor returned his inventory of personal estate, under oath, showing that it amounted to $38,960.30, and an inventory of real estate, consisting of one lot of ground and improvements in Baltitimore City, valued at $11,000. On July 5, 1895, Charles J. Cary (the executor), made an assignment for the benefit of his creditors to William J. O’Brien.

Action on the common counts in assumpsit by the appellees against the appellant to recover the balance of contract price of five boilers furnished to the appellant. Plea, the general issue. The appellees in February, 1893, submitted to the appellant a bid for five horizontal, tubular boilers, and other work connected therewith.

), dismissing the bill of complaint in this case. The facts appear in the opinion of the Court. The defendants were the Transportation and Terminal Company, W. Gilmor, president, and in his own right, The Maryland Central Ry.

<p>Limitations in Equity — Demurrer—Jicrisdiction—Accounting— Conditional Contract.</p> <p>The defence of limitations may be raised by demurrer to a bill in equity when from the face of the bill it can be seen that the statute applies.</p> <p>When equity has concurrent jurisdiction with a Court of law in a claim . for an accounting, the Court which first assumes jurisdiction is entitled to retain it.</p> <p>A contract by which plaintiff sold to defendant the receipts for certain medicinal preparations and the right to manufacture the same, provided for the payment of a royalty on sales to the plaintiff up to a certain sum, and also that the plaintiff should be employed by the defendant as selling agent for one year. It was also provided that if plaintiff’s son should not within one year thereafter execute a similar contract with the defendant, then there should be no further payment of royalties until that was done or proof made of the death of plaintiff’s son. More than five years after the date of the agreement, plaintiff filed a bill for an account of all sales made. Held,</p> <p>ist. That the plea of limitations was a bar to the relief asked, respecting the sales of the first year.</p> <p>2nd. That since it was not alleged that the plaintiff’s son had executed the contract stipulated for, or that he was dead, the defendant was under no obligation to pay royalties after the first year.</p>

2, of Baltimore City (Wickes, J.), by which it was adjudged that the executors of the estate of Edward Hyatt should pay to the appellee the sum claimed by her to be due from said… Held: and took the deed in his own-name ; and after spending $2,000 more of the trust fund on January 25, 1893, in fixing up and improving 16 West Franklin street, he conveyed the whole property, as if it were his own absolutely, to his second wife, Charlotte Hyatt, the appellant in this case.

This was an action brought by the appellee, collector of State and city taxes, to recover taxes levied for the years 1891, 1892 and 1893, upon twelve bonds of the Consolidated Gas Co. of Baltimore City, owned by the appellant, Mrs. Simpson. The case was tried before the Court without a jury. The defendants offered the following prayers : ist.

Upon the petition of the- appellee, the Baltimore and Ohio Railroad Company, to the County Commissioners of Washington County, the company was authorized to change the location of the public road leading from Sandy Hook to Harper’s Ferry, “ subject to the approval of the Board of County Commissioners.” In making the new road along the side of Maryland Heights a large rock was encountered, the lower part of which was removed by blasting, leaving the upper part hanging…

) The facts appear in the opinion of the Court. In March, 1891, the appellee made application to the appellant stating it had 100 shares of stock on which it desired a loan of $5,000, to be secured by mortgage.

Appeal in the case of Banks v. McCosker & Molloy, from the Circuit Court for Prince George’s County. Action by the appellees, endorsees of a promissory note, against the appellants as makers thereof.

The facts are stated in the opinion of the Court. While it is true that the term of imprisonment is in the discretion of the Court, yet a Court could not legally give any term of years for any common law offence. For instance, an attempt to steal goods under the value of $5 could not be punished by more than eighteen months imprisonment, that being the longest period which the Code allows for the crime of stealing goods under $5 in value.

Appeals by the Boston and Albany Railroad Company and nineteen other parties from an order of the Circuit Court of Baltimore City, distributing the funds of the American Casualty Insurance and Security Company among its creditors, according to certain priorities established by that order.

The appellant was charged before a justice of the peace with violating section 16, of chapter 380, of the Acts of 1894, known as the “ General Oyster Law,” by taking or catching oysters at night, tried and convicted.

The facts appear in the opinion of the Court.- The account filed with the declaration in this case is as follows: Baltimore, Nov. 12, 1890. Held: they were not held for delivery to the defendant, and to be delivered to him upon his paying the balance due thereon, for, by the terms of said contract, they were held liable to be sold by said company at any time, to meet any shortage of the plaintiffs on account of any other stocks held by said company for the plaintiffs.

<p>Fees of Witness Committed in Default of Security for Appearance— Liability of County Commissioners for Witness Fees — Assumpsit— Mandamus.</p> <p>A magistrate has the power to commit a witness to the custody of the sheriff, in order that his attendance to testify against a person accused of crime may be secured at the trial, provided the witness fails to give reasonable security for his appearance.</p> <p>If such witness can give security for his appearance, but refuses to do so and is therefore committed, he is not entitled to a per diem fee as witness during the time of his detention; nor is he so entitled if he is unable to furnish a satisfactory recognizance on account of his own misconduct or bad character. But if the witness’ inability to give security for his attendance arises from his misfortune and not from his fault, and he is therefore committed, he is entitled to witness fees during the term of his detention.</p> <p>Plaintiff, a witness for the State in a criminal prosecution, being unable to give security for his appearance as such, was committed to the custody of the sheriff and detained several months until the trial, when, after testifying against the accused, he was discharged. In an action to recover witness fees during the whole time, Held,</p> <p>ist. That under Code, Art. 35, sec. 10, the plaintiff is entitled to the sum of one dollar for each day of his detention, provided his inability to give security did not arise from his own fault, and provided he obtained a certificate of his attendance from the Clerk of the Court.</p> <p>2nd. That under Code, Art. 25, sec. 7, and Art. 35, sec. 13, the County Commissioners are liable for such fees.</p> <p>3rd. That assumpsit against the commissioners does not lie to recover such witness fees, but the proper proceeding is by mandamus.</p>

Cross-appeals from an order of the Circuit Court for Cecil County (Stump, J.), ratifying an Auditor’s account rejecting certain claims and allowing others filed against the funds arising from the sale of the real estate of Charles A. Cooper, deceased. The case is stated in the opinion of the Court.

), dismissing appellants’ bill of complaint, which asked to have a certain tax deed annulled. The facts appear in the opinion of the Court.