Volume 83 — Maryland Reports

) dismissing the bill of complaint in this cause filed by the appellant, as permanent trustee in insolvency of Charles J. Carruthers.

) In 1849 John Hoye died, seized of a tract of land in Allegany County known as “ Military Lot No. 858,” which he devised to George Smith and Edward Hoye, trustees, with power to sell and distribute the proceeds among certain parties. Smith alone acted as trustee and executor under the will.

), directing that the name of B. II. Warner be placed upon the list of qualified voters of that county. The facts appear in the opinion of the Court.

At the trial below the defendant asked the Court to instruct the jury that the policy sued on was rightfully cancelled before the occurrence of any loss, and hlso that there was no legally sufficient evidence to establish the liability of the defendant under the policy.

<p>Appeal from a decree of Circuit Court No. 2, of Baltiinore City (Wickes, J.), dismissing the bill of complaint. The facts are set forth in the opinion of the Court.</p>

The case was tried before the Court below (Dobler, J.) upon an agreed statement of facts which are set forth in the opinion of the Court.

<p> Fire Insurance—Condition Against Other Insurance—Invalid Policy —Burden of Proof. </p> <p>Where a policy of fire insurance contains a stipulation avoiding it in the event of other subsequent insurance without the consent of the first insurer, if the subsequent insurance is invalid the first policy remains in force, since the forfeiting condition prohibits a second valid insurance and not a mere ineffectual attempt to procure additional insurance.</p> <p>Plaintiff obtained a policy of fire insurance in defendant company which contained a stipulation declaring that it should be void in the event of other insurance without the consent of the defendant. Subsequently, without notice to the defendant, plaintiff procured a policy irom another company on the same property, and this policy provided that the insurer would not be liable in the event of other prior or subsequent insurance, whether valid or otherwise, without the written consent of the company. The second insurer had no notice of the prior insurance. A loss having occurred, plaintiff sued on the first policy. Held, that since the second policy was void ab initio on account of the non-disclosure, it did not constitute other insurance within the prohibition contained in the first policy and that consequently the first policy was not avoided.</p> <p>When the insurer contends that his policy is avoided by reason of a breach of the condition against other insurance, the burden is on him to show that there is a second insurance, and hence the validity of the second policy is directly put in issue in an action on the first.</p>

<p> Evidence—Impeaching and Corroborating Witnesses. </p> <p>Where the credibility of a witness is impeached by evidence showing that he testified under corrupt motives or has fabricated testimony to meet the exigencies of the case, he may be corroborated by evidence that shortly after the transaction and before the motive to fabricate existed, he made the same statement of facts as that given in his testimony.</p> <p>But where a witness has testified as to the details of an accident by which a party was injured and is subsequently impeached by evidence showing that he was not present when the accident occurred, it is not competent to corroborate him by evidence that shortly after the accident he had said that he had seen a man injured, since such general statement is not a prior declaration of the same facts testified to.</p> <p>Where a witness testified that shortly after the accident, the party injured told him how it occurred, it is competent to impeach his credibility by evidence that previously, when asked if the injured person had said anything to him about the particulars of the accident, the witness had replied in the negative.</p> <p>If in the previous statement of the witness he had denied hearing from the person injured the particulars of the accident, he may be impeached by evidence that he had denied hearing the details of the accident, since the two words are synonymous.</p>

), by which it was adjudged that the holders of matured certificates issued by the Order of the Iron Hall, an insolvent Indiana corporation, who had laid attachments upon the funds of the Order in this State, were entitled to be paid in full, and that the balance should be paid over to the receiver of the Order in Indiana.

The order for the appeal was in their names as executors of Samuel Warehime, deceased; also in behalf of the children of said Richard Warehime, the son of George Warehime, a deceased brother of said testator in said will mentioned, being the legatees under the will of said Samuel Warehime, deceased, and also in behalf of George R. Warehime, the personal representative of George Warehime, under the will of said George Warehime, as mentioned in the will of said Samuel Warehime.

Appeals by the Chester County Hospital and Emily Howard, an infant, by her guardian ad litem, from a decree of the Circuit Court of Baltimore City (Wright, J.), construing the will of Virginia Norwood, deceased, and distributing the funds of her estate.

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

At the trial the plaintiff offered in evidence a copy of the guardian’s bond sued on, appended to which was the form of a certificate that it was a true copy, but the certificate, although bearing the seal of the Orphans’ Court, was not signed by the Register of Wills.

<p>Appeal from an order of the Circuit Court for Montgomery County (Lynch, J.) dissolving an injunction previously issued.</p>

<p>Fees of Witnesses in Criminal Cases Before fustices of the Peace— Liability of County Commissioners Therefor.</p> <p>Under Code, Art. 24, sec. 7, and Art. 25, sec. 7, County Commissioners must pay the fees of all witnesses in criminal cases before justices of the peace, summoned on behalf of the State, and of those summoned on behalf of the defendant where the defendant has been discharged or acquitted or punished only by a fine of fifteen cents ; but they are not bound to pay the fees of defendant’s witnesses when he has been convicted.</p>

2, of Baltimore City. The appellant filed a bill asking that the appellee be enjoined from widening its road opposite the property owned by the appellant. The defendant demurred and the Court below (Wickes, J.) made a decree dismissing the bill.

Two appeals in one recot'd from an order of the Circuit Court for Washington County, sitting in equity. The appellees were appointed by said Court receivers of the Washington County Savings Institution. In their first account, the assets then on hand were distributed among all the depositors equally.

After the execution of the deed of trust from Samuel Ridgely and “wife to James S. Ridgely and Georgeanna, his wife, which is set forth in the opinion of the Court, the latter made conveyances of portions of the land to parties who are, with them, appellants in this case.

Baltimore City Court, where the case was tried before the Court (Dobler, J.) without a jury.

) upon the trial of an indictment charging the appellant with having sold liquor to R. R. Cook, a minor under the age of twenty-one years, contra- fonnam statuti. The appellant was convicted and sentenced to pay a fine of .$50 and costs-. The first three exceptions are set forth in the opinion of the Court.

<p>Appeal from a pro forma order of Circuit Court No. 2, of Baltimore City, overruling exceptions filed to the ratification of a trustee’s sale.</p>

<p>Appeal from a pro forma judgment of the Court of Common Pleas of Baltimore City sustaining a demurrer to plaintiff’s declaration.</p>

<p>Appeal from an order of the Circuit Court of Baltimore City (Wright, J.), making absolute a previous order nisi directing the appellant to pay a certain sum to the appellee.</p>

J.), by which exceptions to the return of the commissioners to make partition of real estate between tenants in common was overruled and the return ratified and the parcels allotted in accordance therewith. The facts are set forth in the opinion of the Court.

), sustaining the third exception filed to the ratification of a mortgage sale reported to the Court. The exceptions were as follows: “ The defendant above named excepts to the ratification of the sale reported in the above cause, for: 1st. There were no bidders at said sale but one, and the same should have been postponed. 2nd.

At the trial all of the defendant’s prayers were rejected and the Court below (Ritchie, J.) instructed the jury as follows : ist.

At the trial the first nine exceptions were all taken by the defendant to the action of the trial Court (Harlan, C. J.) in allowing certain questions to be asked the witness, McAfee, who operated the “drop” machine by which the plaintiff was injured. In the first exception, after describing the machine and the manner in which the plaintiff was struck on the elbow by a flying fragment of iron, the witness was asked if he had been previously employed in breaking scrap iron.

That Court (RiTCHrE, J.), instructed the jury that by the true construction of the bond sued on the plaintiff was entitled to recover, and the jury returned a verdict for the plaintiff for $2,435-68.

Cross-appeals from a decree of the Circuit Court of Baltimore City declaratory of the title to the real estate of which T. Swann Latrobe died seized, intestate. Held: subject to a life estate in himself, all his property in trust—as one-fifth.part thereof for his grandson, the said Thomas Swann Latrobe, the only child of his deceased daughter, Louisa Sherlock Latrobe. Thomas Swann died in 1883, leaving a will by which the provisions oí the deed of trust were ratified.

<p>Appeal from a pro forma decree of the Circuit Court of Baltimore City, dismissing the bill of complaint.</p>

Appeals from the Circuit Court for Frederick County. The opinion of the Court below (McSherry, C. J., Lynch and Henderson, JJ.), after setting forth the course of dealing between Deford & Co. and Brown & McKinney, and the contract between the firms, as stated in the opinion of this Court, proceeded as follows : “ This paper (the said contract) was not executed on the day it bears date, but some few days afterwards Mr. McKinney went to Baltimore, and there, in behalf of the…

The plaintiff offered the following prayers : I. If the Court shall believe from the evidence that the Home Fire Insurance Company of Baltimore City underwrote a policy of fire insurance for $1,000, on the building on the west side of Streeper street, communicating with Nos. 2805 and 2807 Hudson street, in Baltimore Cjty, on the nth of April, 1893, for the owner, Eugene Fisher, for one year from said date, and charged and collected from the insured therefor the premium of…

<p>Appeal from the Circuit Court for Allegany County, where the case was tried upon an agreed statement of facts. The trial Court ruled that upon the pleadings and evidence the plaintiff was not entitled to recover.</p>

), directing the issue of a peremptory writ of mandamus commanding the appellant to surrender to the appellee the office of Insurance Commissioner of the State of Maryland.

<p> Executors and Administrators—Sale of Leasehold Property Under General Poiuer of Sale in Will Must be by Order of Orphans' Court. </p> <p>An executor authorized by the will in general terms to sell the property of the estate to pay debts, &c., cannot make a sale of leasehold property without having previously obtained an order of the Orphans’ Court directing such sale to be made, since Code, Art. 93, sec. 276, provides that no sale shall be made by an executor or administrator without an order being first had.</p> <p>If a testator desires a power of sale to be exercised by his executor without application to the Orphans’ Court, it should be so stated in the will.</p>

), directing the appellant to deliver to the appellee, for the purpose of a sale as provided .for by a decree in the cause, a certificate of stock in the appellant bank, after payment of a certain indebtedness thereon due to the appellant.

At the trial the plaintiff offered the following prayers : Plaintiff's 1st Prayer.—The jury are instructed that by the terms of Ordinance No. 23 of the Mayor and City Council of Baltimore, approved April 8th, 1891, read in evidence, the defendant was authorized to build its elevated railway on North street, upon the express condition that it should be responsible for injuries judicially ascertained to be done to private property by the construction and use of said elevated…

<p>Appeal from an order of the Circuit Court for Anne Arundel County (Revell, J.)</p>

<p>Appeal from an order of the Circuit Court for Prince George’s County.</p>

<p>Appeal from a judgment of the Circuit Court for Kent County (Wickes and Stump, JJ.)</p>

<p>Appeal from a pro forma decree of the Circuit Court for Baltimore County.</p>

2, of Baltimore City (Wickes, J.), directing “ That the case be referred back to the auditor for a restatement of the accounts, under the instructions following: (a.) He shall state an account between Winfield J. Taylor, receiver, and the estate of C. W. Lord and Company from the time of the appointment of the said Taylor as sole receiver, down to the time of the appointment of Samuel D. Schmucker as co-receiver; in this account the said Taylor is to be credited with his…

<p>Appeal from a decree of the Circuit Court for Talbot County (Stump, J.), dismissing appellant’s petition.</p>

At the trial the plaintiff’s first prayer instructed the jury that if the construction of defendant’s elevated railway in the street opposite plaintiff’s property had caused a depreciation in the market value of the same, then the plaintiff is entitled to recover.

At the trial the plaintiff offered the following prayers : I. If the jury find that the plaintiff on the night of the accident was proceeding to his home along the country road driving his horse and buggy, and that before attempting to cross the defendant’s railroad he slowed up his horse tc look and listen for trains on the railroad, and that he neither saw nor heard any cars or locomotive near the crossing or in motion, and that while attempting to cross the first or main…

The appellant sued for breach of a contract, which bore date on December 8, 1894, and purported to have been executed in duplicate on that day. By its terms, the appellant was to assign to the appellee a certain invention for a machine to make barrels and kegs, for which application had been made in the Patent Office by the inventor, one Henry Campbell, and of which said invention the appellant declared himself to be the owner, by assignment from Campbell.

) The appellees were indicted for acting as insurance brokers without having procured a license from the State of Maryland, contrary to the form of the Act of Assembly in such case made and provided.

), which set forth that “ the demurrer in this case having been overruled with leave to plead to or traverse the answer, and the petitioner having in open Court declined to plead over or traverse the answer filed by the respondent, it is ordered by the Court here, this 15th day of April, 1896, that the petition herein be and the same is hereby dismissed with costs to the respondent.” The appellant’s petition, after reciting the passage by the City Council of an ordinance…

<p>Appeal from an order of the Circuit Court for Anne Arundel County (Revell, J.), dismissing appellants’ petition for a mandamus.</p>

<p>Appeal from orders of the Circuit Court for Baltimore County.</p>

At the trial the plaintiff offered the following prayers ; Plaintiff’s ist Prayer.—The Court instructs the jury that if they find from the evidence that the plaintiff, Mary Burkhardt, was driving down the Mt. Carmel road where it crosses the tracks of the P., W. & B. Railway Company, and that she waited until the safety-gates had been opened, and then drove upon the defendant’s track, and while there defendant’s servants who were in control of one of the defendant’s engines…

At the trial the first exception was taken to the refusal of the Court to allow one of the plaintiffs to be asked, on cross-examination, ‘ ‘ If anything was done in pursuance of the agreement for appraisal.” In the second exception the Court refused to allow plaintiff to be asked, on cross-examination, “ If he ever refused to accept any amount of money that was agreed upon for their loss after the refusal to accept $800.” The third exception was taken to the refusal of the…

J., Jones and Revele, JJ.), dismissing the bill of complaint in this case. The single bill referred to in the opinion oí the Court reads as follows : “Twelve months after date, I promise to pay to Martha A. Duttera, or order, the sum of twenty-six thousand five hundred dollars, amount due her from her mother, Anna Barbara Babylon, with interest from date, for value received.

A former appeal involving some of the questions arising on this appeal is reported in State v. Brown, 73 Md. 484. The decretal order entered on October 2, 1890, and affirmed in that case, by which trustees representing certain bondholders were authorized to take possession of the Chesapeake and Ohio Canal, and to repair and operate it as a waterway, provided as follows : “ Sixth.