Volume 85 — Maryland Reports

) The first count in the indictment was as follows : “That Joseph P. Carnell, on, etc., by certain false pretence by him then and there made to Jacob Gross, a member of the firm of Gross Brothers, consisting of Abram P. Gross, Jacob Gross and Solomon Gross, partners, trading under the firm name and style of Gross Brothers (which said false pretence was not then and there a mere promise of future payment, and was not then and there a mere promise of future payment, not…

<p>Bes Adjudicata — When Dismissal of a Bill in Equity is a Bar to Subsequent Litigation on the Same Subject — Absolute or Qiialified Dismissal of Bill — Effective Decree.</p> <p>Whenever a decree dismissing a bill in equity fails to restrict its own scope, the presumption is that the issues raised by the proceedings had been disposed of on their merits, and they therefore become res adjudicata.</p> <p>The broad terms of a decree dismissing a bill in equity cannot be limited by the opinion of the Court filed in the cause. The decree, and not the opinion, is the instrument with which the Court acts.</p> <p>Plaintiff sued in trover to recover the value of certain coupon bonds alleged to have been converted by defendant’s intestate. Defendants pleaded res adjudicata, and set forth the proceedings in an equity case previously instituted by the plaintiff to recover the same bonds. That bill was dismissed in absolute terms after a hearing. Plaintiff alleged that the bill was dismissed upon the ground that the Court had no jurisdiction because the remedy at law was ample. The opinion of the Equity Court was against the plaintiff on the merits, but also stated that a bill in equity could not have been maintained, even if the plaintiff’s title had been made out. Held, that since there are no qualifying words in the decretal order dismissing the bill, to warrant the inference that the merits of the case were not finally adjudicated, or indicating that the dismissal was founded on purely technical grounds, the order of dismissal must be taken to be a final determination of the controversy and a bar to this action.</p>

2, of Baltimore City (Harlan, C. J.), dismissing the bills of complaint in the consolidated cases of Barton v. The International Fraternal Alliance and Benton v. The Same.

), whose certificate of the question decided was as follows: “John G. Vogler and Henry W. Sharpless, and Townsend Sharpless, copartners, trading as Sharpless Brothers, having entered an appeal from the orders of this Court passed on October ist, 1896, in above cause, authorizing Jacob Goldman and Hyman Rosenthal, respectively, to withdraw their answers to the petition in involuntary insolvency filed in this cause without prejudice, I hereby certify that the questions…

), by which it was adjudged that the deed of certain real estate from the Wooldridge Co. to Folsom & Co., mentioned in the opinion of the Court, be set aside and declared to be null and void. “ And that the said property shall be sold by the receivers, and the proceeds thereof appropriated to the payment of the claims of the complainants in this cause, and such other creditors as shall file bona fide claims and stand on a similar footing with the plaintiffs against the said…

) At the trial the Court granted the plaintiff’s first prayer as follows: If the jury shall find from the evidence that at the time of the happening of the injury complained of in the declaration, the defendant possessed and occupied a building in the city of Baltimore, in which he conducted the business of a butcher, and that in said building there was an elevator running through openings in the floor thereof, and used as a means of communication between the rooms of said…

Three appeals from a decree of the Circuit Court of Baltimore City (Dennis, J.), construing the will of Joseph Henry Stickney. The fourth and fifth sections of the seventy-fifth clause of the will, and the seventy-sixth clause are as follows: “ 4.

<p>Electric Light Companies — Right to Lay Conduits in Streets of Baltimore City — Assent of Mayor and City Council.</p> <p>Under Code, Art. 23, sec. hi, and the Act of 1890, chap. 233, the appellant being an electric company, formed in pursuance of the Act of 1892, chap. 666, by consolidation of the companies mentioned in the Act of 1890, is not authorized to dig up the streets of Baltimore City for the purpose of laying conduits for wires without an ordinance of the Mayor and City Council authorizing the same to be done.</p> <p>The sole effect of the Act of 1890, chap. 233, was to enable the corporations named therein to exercise the franchise of electric light and power companies in Baltimore City, subject, however, to the provisions of the Act of 189b, chap. 370, which expressly empower the Mayor and City Council to regulate the use of the streets by electric light and other companies.</p> <p>Corporations formed under Code, Art. 23, sec. 24, for the construction of telegraph and telephone lines are required by Code, Art. 23, sec. 254, to obtain the assent of the Legislature and of the Mayor and City Council before using the streets of Baltimore City.</p>

After the conviction of the appellants motions for a new trial and in arrest of judgment were overruled by the Supreme Bench of Baltimore City.

J., and Stump, J.), sustaining a demurrer to defendant’s answer to the petition for a mandamus, and directing a peremptory mandamus to issue commanding the appellant, Ash, to vacate the office of school commissioner for Cecil County held by him and surrender the same to the appellee.

2, of Baltimore City (Harlan, C. J.), sustaining exceptions to the mortgage sale reported in this case and declaring the mortgage to be null and void.

<p>, Appeal from a decree of the Circuit Court for Washington County (Stake, J.), dismissing the bill of complaint filed by the appellant.</p>

2, of Baltimore City (Harlan, C. J.), dismissing the bill of complaint in this case.

), dismissing the petition of the appellant asking that his name be entered on the registration books as a legal voter. The agreement of facts, upon which the appeal was argued, is as follows : “ On the 15 th day of September, 1896, the petitioner, who had not attained the age of 21 years, and who was foreign born, applied to the aforesaid registers of voters for registration.

), dismissing the petition of the appellant, which asked for the passage of an order directing the officers of registration of said county to enter petitioner’s name as a qualified voter on the registration lists.

<p>Appeal from an order of the Circuit Court for Harford County (Watters, J.), in the matter of the insolvent estate of Arthur E. Edie, overruling exceptions to the auditor’s report distributing the balance of the estate and finally ratifying the same.</p>

<p>Appeal from a judgment of the Circuit Court for Dorchester County (Lloyd, J.), quashing an indictment found by the grand jury of Queen Anne’s County.</p>

), dismissing the bill of complaint filed by the appellant to enforce a lien claim against certain houses and lots of ground. The claim of the Brick Company was filed for record on February 23rd, 1888, and the bill of particulars showed that the last delivery of bricks was made on August 24, 1887. The next preceding delivery was on May 30.

) At the trial the Court below granted the defendant’s prayers instructing the jury to find for the defendant and rejected the plaintiff’s prayers, which were as follows : xst.

<p>Appeal from the Circuit Court for Calvert County.</p>

), by which it was adjudged that in the distribution of the assets, under the deed of trust in this case, the claim of Kennedy, a judgment creditor, should first be paid in full, and the balance distributed among the employees of the grantor, and that the claim of Hess & Brother for rent was not entitled to priority.

) At the trial the following prayers were offered : Plaintiff's ist Prayer. — That if the jury find from the evidence that there was a contract between William E. Walsh and the plaintiff, by the terms of which the plaintiff was to rebind and clean the law books of the said William E. Walsh at the rate and for the price of one dollar per volume for rebinding and cleaning such of said books as required to be rebound and cleaned, and at the rate of ten cents per volume for…

Appeal as upon writ of error from a judgment of the Circuit Court for Cecil County sustaining a demurrer to each count of the indictment… Held: the said gambling and making books and pools on the result of said running race of horses not being then and there held and had within the grounds of any agricultural association, race course or driving park in existence before and at the time the Act of 1894, chapter 232, of the General Assembly of the State of Maryland, became a…

J.., and Revell, J.), dismissing appellant’s petition for a mandamus directing the appellee to surrender to him the office of Chief Judge of the Orphans’ Court of said county.

) The conditions of the policy of insurance sued on, which are referred to in the opinion of the Court, are as follows : “ If fire occur the insured shall give immediate notice of any loss thereby in writing to this company, protect the property from further damage, forthwith separate the damaged and undamaged personal property, put it in the best possible order, make a complete inventory of the same, stating the quantity and cost of each article and the amount claimed…

<p>Appeal from an order of the Orphans’ Court of Baltimore 'City, dismissing a petition filed by the appellant asking for the removal of James McEvoy as guardian of Isabella B. Graham and the appointment of another person in his place.</p>

<p>Cross-appeals from a decree of the Circuit Court for .Allegany County (Sloan, J.)</p>

The indictment charged “that Professor M. Jules, who is unknown to the jurors aforesaid under any .other name, late of the' city of Baltimore aforesaid, on the fourth day óf February, in the year of our Lord one thousand eight hundred and ninety-six, at the city of Baltimore aforesaid, by a certain false pretence by him then and there made to William Wicker (which said false .pretence was not then and there a mere promise for future payment, and was not then and there a mere…

), dismissing the appellants’ petition asking for a rescission of a decree for a sale under the mortgage mentioned in this case.

<p>Appeal from a decree of the Circuit Court of Baltimore City (Dennis, J.), dismissing the bill of complaint.</p>

) The contract mentioned in the opinion, provided that the payments stipulated for should “be made on the first day of each month, -if demanded by the party of the second part; otherwise partial payments are to be made every sixty days upon estimates furnished by S. J. Martenet and Company, retaining, however, from each partial payment so made ten per cent, of amount of such estimates, which amount so retained shall be due and payable only upon completion by said party of…

Mary’s County (Crane, J.), dismissing the bill of complaint.

2, of Baltimore City (Phelps, J.), sustaining a demurrer to the bill of complaint and dissolving an injunction previously issued. The allegations of the bill were substantially that Messrs.

Thomas. H. Stanford, Jr., being indebted to the Baltimore and Ohio Railroad Company, and holding a farm in Howard County in his own name, and a house on Eutaw Place in the names of himself-and wife as tenants by entireties, on June nth and 12th, 1894, conveyed said farm and said house to The Real Estate and Improvement Company of Baltimore City by deeds absolute in form, but which were in fact mortgages or deeds of trust to secure the payment of the debt due to the Baltimore…

<p>Appeal from a judgment of the Circuit Court for Washington County (Stake, J.)</p>

<p>Appeal from a pro forma decree of Circuit Court No. 2, of Baltimore City.</p>

<p>Taxation — Priority of Payment of Taxes When an Assignment for the Benefit of Creditors is Made — Leasehold Property of Assignor not Accepted by the Trustee — Lien Of Taxes — Costs.</p> <p>Taxes are not per se liens, either on the property taxed or other property of the person owing them, but the Legislature has the power to ■ make taxes liens and give them priority of payment and this power has been exercised in a number of cases.</p> <p>When a trustee for the benefit of creditors, to whom a debtor’s whole estate has been assigned, refuses to take possession of certain leasehold estate, as he has a right to do, taxes due on such property are ' not entitled to priority of payment out of the funds in the hands of the trustee, derived from other sources, when both- State and city are amply protected by liens for the taxes on the property itself.</p> <p>The owner of an undivided half interest in certain leasehold property made an assignment for the benefit of his creditors. Taxes and ground rent on the property were in arrear for two years. The trustee under the deed refused to take possession of the leasehold ■ interest because without benefit to the trust estate. The collector of State and city taxes and the owner of the reversionary interest in the property filed petitions asking that the trustee be required to pay the taxes out of the funds in his hands, which were derived from other property belonging to the assignor. Held,</p> <p>ist. That neither the collector nor the reversioner had the right to ask that the taxes be paid by the trustee out of such funds, as prior liens.</p> <p>2nd. That under Code, Art. 81, sec. 64, amended by the Act of 1892, chap. 518, a trustee for creditors is required to pay by way of preference only.the taxes due on the property of the debtor taken possession of or sold by him, and not all taxes due by the debtor, or taxes on property which he does not accept for the estate.</p> <p>When it is proper that the Court should be asked to decide whether certain taxes are entitled to priority of payment out of the funds in the hands of a trustee for the benefit of creditors, it will be ordered that the costs of the case be paid out of such funds, although it is ' held that the taxes are not entitled to priority.</p>

2, of Baltimore-City (Harlan, C. J.), sustaining a demurrer to the bill of-complaint in this case and dismissing the same. The cause was submitted for the appellant on brief by Hodson &■ Hodson.

), by which it was adjudged that the legacy of $2,000 to the appellee, mentioned in the opinion of the Court, was not intended by the testator to be in compensation for the appellee’s services as executor, and was not forfeited by his refusal to act as such.

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

<p>Appeal from a decree of Circuit Court No. 2, of Baltimore City (Harlan, C. J.), dismissing the bill of complaint in this case.</p>

<p>Appeal from an order of the Orphans’ Court of Baltimore City.</p>

<p>Game Laws — Prohibition of Killing or Possession of Game Dtiring Certain Seasons — Possession of Game Killed in Another State— Act of 1894, Ch. 404, Relating to the Killing or Possession of Rabbits — Indictment.</p> <p>Where a statute prohibits the killing or having in one’s possession certain kinds of game during certain months, the prohibition as to possession will be construed to relate only to game killed in this State, since the object of such statute is to protect the game in this State. And the possession here of game lawfully killed in another State is not prohibited, by such a statute unless explicit words are used to show that such is the intention of the Legislature.</p> <p>The Act of 1894, ch. 404, provides that no person shall shoot, kill or have in his possession any rabbit between December 24 and November 1, ensuing. Defendant was indicted for having in his possession rabbits during the time prohibited. He offered evidence to show that these rabbits were killed in another State, where such killing was lawful, and shipped thence to him. Held,</p> <p>1st. That the object of the statute was to prohibit the killing of rabbits in this State during the prescribed period.</p> <p>•2nd. That the prohibition against having rabbits in one’s possession related only to rabbits caught or killed in this State.</p> <p>3rd. That the evidence offered by the defendant, if found to be true, constituted a defence.</p> <p>In an indictment for a statutory offence, it is sufficient to describe the offence in the words of the statute.</p>

), where the case was submitted to the Court under a plea of non cul. and a verdict of guilty rendered. A motion in arrest of 'judgment because the~Coupt erred in overruling defendant’s demurrer to the indicttnent,; and a motion for a new trial because the Court refused to’ admit evidence to show that the defendant did not know: that the articles found in his possession were policy books, J were both overruled by the Supreme Ben¿h of Baltimore City.

<p>Cancellation of Lease Executed in Consequence of Misrepresentation — Proof of False Representation Must be Clear.</p> <p>The cancellation of an executed contract is an exertion of extraordinary power of a Court of Equity. The power ought not to be exercised except in a clearicase and never for alleged false representations unless it be certainly proved that they were made and were false and that the complainant has been thereby deceived and injured.</p> <p>Plaintiff leased a wharf from the defendant for three years by a written agreement and entered into possession. He afterwards abandoned the property and filed a bill asking for the cancellation of the lease and an injunction restraining the defendant from proceeding to collect the rent upon the ground that before the execution of the lease defendant falsely represented to plaintiff that there was a depth of seventeen feet of water at the wharf, whereas in fact there was so much less water there as to render the wharf unfit for plaintiff’s purposes, and that plaintiff executed the lease in consequence of his reliance upon the defendant’s representations. Held, upon the facts, that these allegations of the bill were not sustained by the evidence and that plaintiff was not entitled to the relief asked for.</p>

), on appeal from the action of the Commissioners for Opening Streets, in the matter of the opening of Fairmount avenue from Luzerne street to the eastern city limits.

<p>Appeal from an order of the Circuit Court of Baltimore City (Dennis, J.), overruling exceptions to an Auditor’s report and finally ratifying the same.</p>

<p>Appeal from an order of the Circuit Court for Frederick County (McSherry, C. J.), ratifying an auditor’s account distributing the proceeds of sale of certain mortgaged property.</p>

), ordering the issue of a writ of injunction restraining the appellants — the Mayor of Baltimore and the Marshal of Police — from interfering with the construction of an electric trolley system on a certain line of appellee’s railway.

<p>Executors and Administrators — Administration Cum Testamento Annexo — Right of Widow to Administer the Will — Notice to Parties First Entitled to Letters — -No Delegation of the Right to Administer.</p> <p>Code, Art. 93, sec. 34, provides that when letters of administration with the will annexed are to be granted, the residuary legatee is to be preferred to all except a widow, and that before administration is granted to any other person, notice must be given to the parties first entitled. The widow of a man who was supposed to have died in- ' testate and without children renounced her right to administer and letters were granted to a certain party at her request. Subsequently the man’s will was admitted to probate. The executrix therein named, who was also the residuary legatee, renounced administration and at her request letters c. t. a. were granted by the Orphans’ Court to the appellees without notice to the widow. Held,</p> <p>ist. That the widow had not renounced her right to administer the will, and the letters having been granted without notice to her, she was entitled to have the same revoked and letters of administration c. t. a. granted to her as being first éntitled under the statute.</p> <p>2nd. That the Orphans’ Court exceeded its authority in granting letters of administration c. t. a. to the appellees upon the nomination of the executrix named in the will, since the right to administer cannot be delegated.</p>

), enjoining the appellant from proceeding to levy upon or sell the property of the appellee, mentioned in the bill of complaint.

) At the trial the following prayer offered by the plaintiff was granted : “ If the jury shall find from the evidence that the equitable plaintiff informed the Marshal of Police of Baltimore City, in February, 1893, of certain circumstances connected with the occupancy of the second and third floors of the building No. 316 N. Holiday street, in the city of Baltimore, and that he, the equitable plaintiff, had reason to believe that a policy business was being carried on upon…

<p>Appeal from a decree of the Circuit Court of Baltimore City.</p>

<p>Highways and Streets — Opening and Grading — Compensation to Owner of Bed of Street — Injunction—Remanding Cause.</p> <p>The general rule is that questions relating to the right of a party to claim compensation for land which a municipal corporation condemns for use as a street, must be determined upon appeal from the action of the Commissioners for Opening Streets.</p> <p>A bill asking for an injunction to restrain a sale of plaintiff’s property, advertised to be made by a municipality to enforce an assessment for grading and paving a street, alleged that the plaintiff and those under whom she claimed'had had possession of part of the street about to be graded for more than twenty years; that in the proceedings by which the bed of the street was condemned nothing was awarded as damages for the fee to the plaintiff or those under whom she claimed, and that the defendant was about to take possession of the plaintiff’s property without making compensation. Held, that although the bill is defective in not alleging that the plaintiff had the fee-simple title to the bed of the street, or that the same had not been dedicated, and in not being accompanied by an exhibit of the condemnation proceedings referred to therein, as well as in other particulars, yet since it appears to be possible, under the circumstances of this particular case, that the bill may be amended so as to show that the plaintiff is entitled to some relief, the cause will be remanded, with leave to amend, without either affirming or reversing the order appealed from.</p>

<p>Dedication — Map of Public Square in Projected Town — Joint Owners — Recording of Agreement Relating to Land — Constructive Notice. - '</p> <p>Where the owner of land makes an agreement by which a joint interest in the same is given to another party, and this agreement is duly recorded among the Land Records, he can do no acts afterwards by which a part of such land becomes dedicated to the public without the consent of the other party. And the subsequent recording by vendor of a plat of the land upon which a part thereof is designated as a public square does not constitute a dedication of the same.</p> <p>A corporation which owned a large tract of land, the site of a projected village, caused a plat of the same to be made showing lots and streets, and also a public square of several acres. Before this plat was recorded and before any lots were sold, the corporation made an agreement with another company by which the latter acquired the right to purchase a certain number of lots on certain terms, and also a right to fence in the proposed public square and have exclusive use of the same until a certain date, after which time it was agreed that the square should be vested jointly in the two companies for such purposes as they should agree upon. This agreement was recorded among the Land Records and the map was subsequently recorded. The defendant company became the successor in title to these two companies and claimed to own the land embraced within the proposed square. Plaintiffs, who were owners of lots in the town, purchased after the agreement claimed that the square had been dedicated, and asked for an injunction restraining the defendant from exercising acts of ownership therein. Held,</p> <p>ist. That under the Act of 1835, ch. 205, the agreement between the two companies was a “ contract relating to land ” and as such was entitled to be recorded.</p> <p>2nd. That the record of said agreement was constructive notice to all the world that the square laid down on the plat subsequently filed was not a public square, but the private property of the two corporations, and no dedication thereof could be established by the act of the vendor alone.</p>

<p>Appeal from a decree of the Circuit Court for Somerset County (Page, C. J.), dismissing the appellant’s bill of complaint.</p>

<p>Executors and Administrators — Reopening Accounts — Improper Allowance of Claim — Burden of Proof — Releases to Executor— Debts Returned as Desperate.</p> <p>After a claim of an executor against the estate was passed by the Orphans’ Court, paid to himself by the executor, and an account in which it was allowed was also passed, the legatees disputed the correctness of the claim and petitioned the Court to reopen the account and reject the same. Held, that the burden of proof was upon the petitioners to show that the claim was improperly allowed, and that the executor need offer no further evidence to sustain it.</p> <p>An executor stated an administration account in which certain claims of his own against the estate were allowed, after having been passed by the Orphans’ Court and paid. Distribution was made after notice to the legatees to be present in Court, under Code, Art. 93, secs. 138, etc. At that time the account so stated was open to inspection and the legatees upon receipt of the amounts audited to them, executed releases under seal to the executor in which they discharged him from all claims on account of said settlement. Afterwards some of the legatees petitioned the Orphans’ Court to reopen the account and reject the claims of the executor against the estate, alleging that they did not know that such claims were allowed in the account and that the same were not just debts. No evidence was offered by the petitioners to show that the claims were not valid. Held, that under these circumstances the releases executed by the petitioners are a bar to their obtaining the relief asked for.</p> <p>The Orphans’ Court is without jurisdiction to determine the validity of releases made to an executor by distributees of the estate, upon the payment to them of the amounts stated in a distribution account.</p> <p>Where an executor has returned a debt due the estate as “ desperate,” the Orphans’ Court cannot order that the debt be returned collect ible and charged against the executor, unless there be sufficient evidence that the debt can be collected.</p>

<p>Appeal from the Circuit Court for Allegany County.</p>

), by which it was “ adjudged and ordered that the demurrer of the petitioners to the answer of the defendants be and the same is hereby sustained.

), passed on March 15th, 1897, by which the demurrer of the appellees to the answer of the appellants (defendants below), was sustained; and it was ordered that a peremptory writ of mandamus issue against the defendants, commanding them, “individually and collectively, claiming to be the Board of Commissioners of Public Schools of Baltimore City, to restore to the petitioners as the legal Board of Public School Commissioners of Baltimore City, the free and obstructed use of…

<p>Appeal from an ex parte order of Circuit Court No. 2, of Baltimore City (Harlan, C. J.), granting the injunction asked for by the bill of the appellee.</p>

<p>Appeal from a decree of the Circuit Court for Frederick County (McSherry, C. J.)</p>

The second and following exceptions were taken to the refusal of the trial Court to allow certain questions to be asked by the plaintiff of his witnesses.

), dismissing the bill of complaint. The deposit in the Eutaw Savings Bank, referred to in the opinion of the Court, amounted to $960.28, and the amount of the deposit in the Savings Bank of Baltimore was $884.53. The certificate of Baltimore City stock was for the sum of $1,500.

<p>Appeal from an order of the Orphans’ Court of Washington County overruling exceptions to a sale reported .by an executor and finally ratifying the same.</p>

), dissolving an injunction previously granted and dismissing the bill of complaint The cause was submitted on briefs by

<p>Appeal from Baltimore City Court, (Dobler, J.), where the case wras tried before the Court without a jury, and the verdict and judgment was for the defendant.</p>

<p>Appeal from the Orphans’ Court of Baltimore City.</p>

Two appeals in one record from Circuit Court No. 2, of Baltimore City. The bill and amended bill filed by the appellant asked for an injunction restraining the defendant (appellee) from proceeding further with an attachment on a judgment rendered in favor of the defendant against the appellant. The defendant’s demurrers to the bills were sustained and the same dismissed.