Volume 86 — Maryland Reports

) At the trial the plaintiff offered the following prayers: Plaintiff's 1st Prayer.—If the jury shall find from the evidence in the case that the defendant, Gunther, constructed or caused to be constructed an open gutter running along the north side of O’Donnell street, in Baltimore County, to •drain property belonging to said Gunther adjacent thereto, .and at the westernmost extremity of said gutter constructed •or caused to be constructed a covered sewer into which the…

) At the trial the plaintiff’s first prayer, which was granted, was as follows: If the Court, sitting as a jury, finds that John Bowles died in the year 1866 or 1867, and the plaintiffs in this action are the descendants and the only legal heirs of said John J. Bowles, and that said John J. Bowles and wife, in the year i860, conveyed the land mentioned in the declaration in this case to Washington County for a public schoolhouse, as the property of the public schools of said…

<p>Libel and Slander—Judgment by Default—Inquisition of Damages— Evidence—Privileged Communication.</p> <p>Where in an action of slander a judgment by default was obtained against the defendant, such judgment conclusively establishes the right of the plaintiff to recover some amount to be determined by an inquisition of damages, and consequently that the defendant was chargeable with at least legal malice in speaking the words. And upon the inquisition of damages the defendant is not entitled to an instruction that the words set out in the declaration were spoken under such circumstances as to make them a privileged communication, because in that event the defendant would not be liable at all.</p> <p>In such case, the defendant is entitled to show upon the inquisition that the words were spoken without express malice so as to relieve him from the imposition of punitive damages.</p>

) At the trial the defendant offered the following prayers: Defendant's 1st Prayer.—If the jury believe from all the evidence that James Gibbons, the Roman Catholic Archbishop of Baltimore, and his successor in the Archiepiscopal See of Baltimore, according to the discipline and government of the Roman Catholic Church, are the owners of the church edifice on Eastern avenue, in the city of Baltimore, known as the Holy Rosary Church, and that by appointment of said Archbishop…

<p> Specific Performance—Discretion of the Court. </p> <p>A party who asks a Court of Equity to decree the specific performance of a contract must show that he has fully performed all that the contract required to be performed on his part.</p> <p>The principle that the specific performance of contracts is not a matter of right, but rests within the discretion of the Court, does not mean that the Court may arbitrarily direct one contract to be performed and refuse the relief in the case of another, but it means that the Court takes into consideration the conduct of the plaintiff and all the circumstances of the case, and the mere fact that a valid contract exists is not conclusive in plaintiff’s favor.</p> <p>A lease from defendant to plaintiff of certain property provided for the payment of rent at fixed periods and contained covenants for other things to be done by the plaintiff. Plaintiff entered into possession and subsequently filed a bill asking that defendant be decreed to complete the lease by acknowledging the same before a magistrate, so that it might be recorded. The evidence showed that plaintiff had failed to pay the rent and had violated other covenants in the lease. Held, that under these circumstances he was not entitled to the relief asked for.</p>

) Those of the plaintiff’s prayers which were granted at the trial are as follows : Plaintiff's 1st Prayer.—If the jury find that the plaintiff, on the night of the accident, was proceeding to his home along the county road driving his horse and buggy, and that before attempting to cross the defendant’s railroad he slowed up his horse to 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…

J.), directing the appellant to pay into Court the sum of $3,100, being the balance of purchase money due by him for the yearly rent he agreed to buy from the appellees; and also an appeal from an order of the same Court dismissing a petition for a rehearing.

) At the trial the plaintiff’s second and third prayers, which were granted, were as follows : (2). That by the true construction of the agreement offered in evidence the defendants were cotenants of the plaintiff of the property therein named. (3).

<p>-Married Women—Shares of Stock in National Banks—Personal Lia- . bility of Stockholder—Assignment of Shares.</p> <p>A married woman residing in this State is capable of holding shares of stock in a national bank located in another State, and is subject as such stockholder to the personal liability imposed by the National Banking laws, without regard to the question whether under the laws of the State where the bank is located a married woman may become the owner of shares of stock.</p> <p>A person who holds shares of stock in a national bank as a self-appointed attorney or trustee for an infant, or for an undisclosed principal, is subject to the liability imposed upon owners of such stock by sec. 5152 Rev. Statutes of the U. S.</p> <p>A party to whom shares of stock in a corporation are assigned is the equitable and real owner of the same, without a transfer on the books of the corporation.</p> <p>The general rule is that when a person appears on the books of a corporation to be the absolute owner of shares of stock, he will not be allowed to relieve himself from personal liability as a stockholder by showing that he held the stock in a representative capacity.</p>

<p> Dedication of Streets—Revocation Thereof </p> <p>The dedication of a street to the public arising from the fact that the owner of land has made a map thereof, designating lots and streets, and has sold lots described as binding on such street, is complete so long as the relation of grantor and grantee exists, and the municipal authorities may accept such dedication and open the street without making compensation to the grantor. But if before the street has been so accepted and opened one person becomes the owner of both the bed of such street and the adjoining lots, the dedication is revoked.</p>

) The terms of the policy sued on are set forth in the first appeal in this case reported in 80 Md. 214. See also the second appeal in 83 Md. 524.

), by which it was adjudged “ That by the true interpretation of the last will and testament of Elizabeth Henderson, deceased, the defendants, John Henderson Bentz and Richard L. R. Bentz, are each entitled to a life-estate only in one-half part of that portion of the estate of the said Elizabeth Henderson which passed under the residuary clause of her said will to the Safe Deposit and Trust Company of Baltimore, in trust for the purposes therein mentioned, and that such of…

) At the trial the following prayers were offered: Plaintiffs’ 1st Prayer.—The plaintiffs pray the Court if it shall find as a matter of fact that at the time of the purchase of the coal for which the replevin in this case was issued, the purchasers thereof, August and Julius Hellweg, knew themselves to be insolvent or had good reasons to know themselves to be insolvent and had no reasonable expectation of paying for the same, and that the defendant in the replevin claims…

<p>Fire Insurance—Conditions of Policy Affecting the Interest of the Assured—Knowledge by Insurer’s Agent of the Character of Assured’s Title—Estoppel—Powers of Insurance Agents — Waiver of Proof of Loss—Insurable Interest.</p> <p>A policy of fire insurance provided that if the interest of the insured be other than that of unconditional and sole ownership, the policy shall be void, unless otherwise provided by agreement endorsed thereon. Held, that the meaning of this provision is that, whether the title of the insured be legal or equitable, his interest in the property must be completely vested, not contingent or conditional nor for years or life only, nor that of a part owner, but it must be of such a nature that if the property be destroyed, he suffers the entire loss.</p> <p>When at the time of the issue of a policy the insured was the purchaser of the property at a judicial sale which had not then been finally ratified, his interest in the same is not unconditional within the meaning of the above-mentioned clause.</p> <p>But if the insurance company’s agent by whom the policy is issued has full knowledge that the interest of the insured is not that of a sole and absolute owner, the company is estopped from setting up such defence in action in the policy.</p> <p>It is not necessary that the interest of the assured in the property be personal. If he holds the same as agent, trustee, attorney, &c., he has an insurable interest.</p> <p>When property is sold under a mortgage foreclosure, and the purchase money has not been fully paid, the attorney of the mortgagee has an insurable interest.</p> <p>Where the company’s agent is supplied with policies of insurance, signed in blank, with authority to issue them and collect the premiums, his knowledge of the nature of the interest of the insured in the property is the knowledge of the company.</p> <p>A clause in a policy providing that no agent shall have power to waive any of its conditions except such as by its terms may be endorsed thereon, does not apply to conditions relating to the inception of the contract, but operates to prevent agents from modifying the terms of the policy after it has been issued.</p> <p>A condition requiring proofs of loss to be furnished by the insured within sixty days after a fire is binding and must be complied with.</p> <p>But such condition may be waived either expressly or by such conduct on the part of the insurer as is inconsistent with an intention to demand strict compliance.</p> <p>If after a loss the insurer recognizes its liability and promises to pay, a waiver of proof of loss may be inferred therefrom.</p> <p>A special agent of an insurance company sent by it to investigate a loss has apparent authority to waive the preliminary proof.</p> <p>After a mortgage sale of property had been made and before the filial ratification thereof by the Court, a policy of fire insurance on the property was issued to the purchaser. It contained a clause avoiding it in case the interest of the assured was other than that of unconditional and sole ownership. Part only of the purchase money was paid and the policy was endorsed by the insurance company so as to make the loss payable to plaintiffs’ attorneys, as their interest might appear. The agent who issued the policy and made the endorsement thereon was fully acquainted with all the facts of the case and the character of the title. The purchaser having failed to pay the balance of the purchase money, an order for a re-sale at his risk was obtained, but before such sale was had, the property was totaljy destroyed by fire. In an action by the attorneys as payees of the policy, Held,</p> <p>ist. That the defendant was estopped from setting up the defence that the interest of the assured in the property was not absolute and unconditional, because its agent had full knowledge of all the facts relating to the title.</p> <p>2nd. That the plaintiffs had an insurable interest and were entitled to recover.</p>

<p>Appeal from a decree of the Circuit Court of Baltimore City (Dennis, J.), granting an injunction.</p>

<p>Malicious Prosecution— When Corporation Not Liable for an Arrest Ordered by an Agent.</p> <p>A turnpike company is not liable in an action for malicious prosecution for the arrest and prosecution of plaintiff which was ordered by a gatekeeper for non-payment of tolls, when such agent was not authorized to institute the proceeding nor acted within the scope of his employment in so doing, and when his act was not ratified by the company.</p>

J., Jones and Revell, JJ.) On the night of December 9th, 1895, about half-past six P. M., two sisters, living in the village of Phoenix, in Baltimore County—one, at the time, seventeen years of age, and the other, the plaintiff, fifteen years old—started from a store in said village to go on an errand for their mother, across the railroad tracks of the defendant, to a small house on the west side of the railroad.

<p> Executors and Administrators—Same Person Both Executor and Trustee—Liability of Sureties on Executor's Bond— Transfer of Properiy by Operation of Law. </p> <p>Where property is bequeathed to a trustee who is also appointed executor of the will, then, after the lapse of the time limited by statute for the settlement of the estate, the law will adjudge the property to be held by him in his capacity of trustee, whether a final account has been passed by the Orphans’ Court or not, upon the principle that what the law has enjoined upon him to do shall be considered as done; and in such case the bond given by him as executor is not liable for a devastavit committed by him after the lapse of such time.</p> <p>A testator left one-half of his property to his widow and the other half to K. as trustee for third parties. The widow and K. were appointed executors, qualified as such and took possession of the estate. The widow died eight years after probate of the will and no inventory of the estate had then been filed. K. was insolvent and the property bequeathed to him as trustee wasted. A new trustee was-appointed who filed a bill against the sureties on the bond of K. and' the widow as executors to recover the value of the trust estate. Held, that after the time fixed by law for the settlement of the estate, the-testator’s widow and K. held the property in their character of legatees, and although there was no visible change of possession there-was a change in the nature of the title by which they held, and consequently the liability of the sureties on their bond as executors then ceased.</p> <p>If the devastavit had been committed by the executors before the time fixed for such settlement of the estate, then their bond would have, been liable therefor.</p>

), one dismissing both the original and the supplemental bill as to Colgate Cockey, widow, without prejudice to the right of the plaintiffs to file another bill; another order excluding as against the Equitable Life Assurance Society, one of the defendants, the testimony taken in the cause prior to the filing of the supplemental bill h}' which that defendant was made a party ; a third order dismissing the supplemental bill against that defendant ; and a fourth order refusing…

J.) At the trial the Court granted a prayer offered by the plaintiff instructing the jury that the assignment from Harrison Hopper to Henry W. Fox was fraudulent in law and invalid against the plaintiff and could not be relied on by the garnishees to prevent a verdict against them in favor of the plaintiff.

<p> Elections and Voters—Residence—Registration—Removal of Voter from One Ward of a City to Another. </p> <p>The charter of Hagerstown provides that male citizens who shall have resided in the city for 12 months and in the ward for 6 months preceding an election shall be entitled to register, and that in case a voter duly registered shall remove to another ward in the city he shall be entitled to vote in the ward from which he removed until he shall have resided in the other ward a sufficient time to entitle him to be registered there. Held, that a voter has no right to have his name kept upon the registration books of the ward from which he removes until he is actually registered elsewhere, but that so soon as he has resided long enough in the ward to which he removes to be entitled to registration there, his right to vote in the ward from which he removed is gone, whether he becomes actually registered in the new ward or not. In such case it makes no difference that the voter was absent from the city at the time of the sitting of the registers, and his name may be stricken from the registry list of the ward from which he removed.</p>

<p>Elections and Voters—Appeals in Registration Cases—Residence— Registration.</p> <p>The Act of 1896, ch. 202, provides that appeals in registration cases shall be taken within five days from the date of the decision complained of. In this case an appeal was prayed from the order of the Court below within five days after the same was passed, but the bill of exceptions was not signed until after that period. Held, that a motion to dismiss the appeal should be overruled because if the appeal in a registration case is taken within the time limited, the bill of exceptions may be presented and signed in accordance with the general practice regulating appeals.</p> <p>A. was adjudged to be a qualified voter of M. County by an order of Court in September, 1895. In October of that year he removed with his family to Washington, D. C., but made an affidavit under the Act of 1890, chap. 573, to the effect that he did not intend to change his residence but proposed to return. He paid taxes in M. • County and on April 1, 1896, returned to his house there. His place of business and one of his homes were in Washington and he lived in M. County only from April to November of each year. The Act of 1896, chap. 202, provides that if a person be shown to have acquired a residence in one place it shall be presumed to continue until it be affirmatively shown that he has acquired a residence elsewhere. Held, that under these circumstances A. is entitled to be registered as a voter in M. County.</p>

) The Natchaug Silk Company was a Connecticut corporation with its principal place of business in Willimantic. Risley, the cashier of the First National Bank of Willimantic, was a director of the Silk Company, and managed its finances. The Silk Company kept all its deposits at the bank and made all its discounts there, all through Risley.

<p>Fraudulent Conveyances—Rights of Creditors of Grantor—Rights and Liabilities of Grantee who has Paid a Consideration—Subrogation of Grantee to Claims of Creditors Paid by Him— Testimony in Equity Cases—Proof of Claims—Prayer for General Relief.</p> <p>A deed and bill of sale made and accepted by the grantee with intent to delay or defraud the existing creditors of the grantor will be vacated, although the grantee therein paid full value for the property. As against creditors, a transfer of property must be bona fide as well as for value.</p> <p>A man indebted to different creditors to a large amount sold and conveyed his visible and tangible property to his father who had knowledge of the facts and aided his son in putting the property out of the reach of creditors. Some of the money so obtained was used in paying certain creditors who had issued attachments against the son or threatened to have him adjudged an insolvent, and part of the money was concealed. Some of the property was afterwards turned over to a corporation of which the son was general manager. Held. that the conveyances were fraudulent and void as to the creditors of the son who were such at the time of the transfer.</p> <p>A debtor in failing circumstance_s conveyed all his visible property to his father for the purpose, participated in by both, of delaying and hindering the creditors of the former. The purchase money was paid. Part of the property had been previously attached by a creditor and a certain sum was paid by the grantee to release the attachment. The grantee also paid certain other creditors of the grantor. Upon a bill to vacate the conveyances, Held,</p> <p>1st. That although the conveyances were void as to creditors yet the grantee should not be ordered to pay into Court the entire value of the property conveyed to him, without any deduction for the payments made by him to creditors.</p> <p>2nd. That if the attachment was valid and the payment of the attaching creditor necessary, then the grantee should be allowed a credit for that sum, because such allowance does not make the position of the other creditors any worse than it would have been if the debtor had made an assignment for the benefit of creditors after the attachment was laid.</p> <p>3rd. That the grantee is entitled to be subrogated to the distributive shares of the other creditors whose claims he paid, the amount to be ascertained by an audit showing the percentage payable to each creditor.</p> <p>4th. That the grantee is not entitled to be credited with the amounts he or his son paid to creditors who issued attachments after the conveyances were made, or to those who instituted or threatened insolvency proceedings, beyond what their distributive shares may be.</p> <p>5th. That the grantee is not entitled to deduct from the fund money paid by him for counsel fees or for the personal expenses of his son.</p> <p>6th. That the creditors are not limited in their recovery to the purchase money paid by the grantee for the goods, if it can be proved that they were worth more.</p> <p>Upon a bill to vacate certain conveyances because fraudulent against creditors, the depositions were closed and returned to Court by the examiner at the direction of all the solicitors. After the case had been regularly heard an order was passed remanding the same to the examiner solely for the purpose of enabling plaintiffs to offer additional proof of their claims. On the same day that the testimony was returned with such proof, a final decree was passed vacating the conveyances. Equity Rule 43 requires testimony in equity cases to lie in Court for ten days before a hearing. Held, that the rule does not apply to testimony taken under these circumstances ; that the Court had a right to limit the additional testimony to proof of claims, subject to the right of other parties to offer evidence in rebuttal, upon application to the Court for that purpose.</p> <p>Certified copies of judgments against the defendants are sufficient evidence of the claims of the plaintiff.</p> <p>The relief that may be given under a prayer for general relief must be agreeable to the case made by file bill and not differing from it or inconsistent with it, and must be warranted by the allegations of the bill.</p> <p>Upon a bill to vacate conveyances because fraudulent as against creditors, where the grantee has paid value for the same, which does not ask that he be directed to repay such value, no personal decree can be had against the grantee for the value of the goods when there is no allegation in the bill giving him notice that such claim would be made.</p>

), dismissing the bill of complaint, the Court holding that there was no fraud or duress practised in procuring the decree of August 29th, 1889, for the purpose of vacating which the bill in this case was filed.

<p>Appeal from an order of the Circuit Court of Baltimore City (Dennis, J.), dismissing appellant’s petition.</p>

) At the trial the following prayers were offered: Plaintiff's 1st Prayer.—That if the jury shall find from the evidence that Robert Garrett was in his lifetime and at the time of his death, the owner of the lot of ground lying on the west side of North street or Guilford avenue, bounded northwardly by Chase street; southwardly by Eager street, and westwardly by Hunter alley, and that Robert Garrett being so owner thereof, the defendant erected in the centre of a portion of…

<p>Appeal from the Court of Common Pleas (Harlan, C. J.) The plaintiffs below obtained a judgment for $4,000.</p>

2, of Baltimore City (Stockbridge, J.) In 1892, one Charles Brown, being the owner of certain stalls in the Lexington and other markets, borrowed on the security of the same the sum of $2,000 from the Butchers’ Mutual Protective Association.

<p>Dogs— Validity of Municipal Ordinance Providing for the Killing of Dogs Running at Large—Police Power— Constitutional Law.</p> <p>Laws designed to prevent dogs from running at large in cities are within the police power of the State.</p> <p>The owner of a dog has only a qualified property therein.</p> <p>Where a municipal corporation is authorized by charter to abate nuisances and to provide for the safety and health of the community, an ordinance by it providing that dogs running at large shall be seized and impounded, and if not redeemed within twenty four hours shall be killed, after notice to the owners if known, is within the charter powers and is not unreasonable, nor is it in violation of the Constitution.</p>

<p>Appeals from the Circuit Court of Baltimore City (Dennis, J.)</p>

<p> Interpleader—Finality of Decree—Right of Party to Participate in the Distribution of the Fund Who Answered the Bill After Decree of Interpleader. </p> <p>The failure of a party to answer a bill of interpleader by which a fund is brought into Court for distribution until after an interlocutory decree is passed, does not preclude such party from asserting his claim at any time before a final decree is made.</p> <p>A decree of interpleader is not final.</p> <p>H. & Co., members of a syndicate against which a bill of interpleader was filed, failed to answer the same before a decree of interpleader was filed which adjudged that by reason of the failure to answer H. & Co. were not entitled to any part of the fund brought into Court by the interpleader. H. & Co. filed an answer and set up a claim before final decree of distribution. The answer was filed without special leave of the Court, but no objection was made thereto. The final decree adjudged that the whole fund belonged to R. No appeal therefrom was taken by H. & Co., but it was reversed on appeal by other parties and it was held that the fund belonged, to the syndicate as an undivided entirety. Held, that H. & Co. were entitled to participate in the distribution as members of the syndicate.</p>

), dismissing the bill of complaint. Former appeals between the same parties are reported in 83 Md. 650, and 85 Md. 519.

) The Court after declaring the legal insufficiency of the evidence to support the pleas, directed the jury “ that if they shall find from the evidence that the defendant, at the time of the execution of the lease sued on, was aware that the property therein described was supplied with water exclusively by means of a cistern intended to receive the rain falling upon the roof of the house, and carried thence into such cistern by pipes, and that with such knowledge he entered…

<p>Appeal from a fro forma order of the Circuit Court for Anne Arundel County dismissing a petition for a writ of mandamus to command the supervisors of election of said County, and other election officials appointed under the general election law of 1896, to provide for a municipal election in the city of Annapolis.</p>

<p>Appeal from the Circuit Court for Garrett County (Sloan, J.)</p>

) John Jameson was the contractor for the building of the Pikesville, Reisterstown and Emory Grove Railroad.

J.) At the trial the following prayers were offered: Plaintiff's 1st Prayer.—That if the plaintiff, Nugent, while a passenger on one of the defendant’s cars and while exercising ordinary care, was shocked and knocked off said car and injured by coming in contact with the end of a broken trolley wire used by defendant in the operation of their railway, then their verdict must be for the plaintiff, unless they shall further find that by the exercise of that high degree of care…

<p>Appeal from an order of the Circuit Court for Washington County (Sloan, J.)</p>

<p>Appeal from the Circuit Court for Montgomery County (Henderson, J.)</p>

<p>Appeal from an order of the Circuit Court for Dorchester County (Page, C. J. and Holland J.), dismissing petition for a writ of mandamus.</p>

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

<p>Bill of Interpleader—Affidavit Thereto— Offer to Bring Money Into Court—Strict Neutrality Between Claimants Required of Plaintiff in Such Bill—When Garnishee in Whose Hands Different Attachments Have Been Laid May Not Pile a Bill of Inter-pleader.</p> <p>A bill of interpleader should be accompanied by an affidavit that the bill is not filed by the plaintiff in collusion with any of the defendants ; and the absence of such affidavit makes the bill demurrable.</p> <p>Upon a bill of interpleader the money must either be brought into Court or there must be an offer to do so ; otherwise a demurrer lies to the bill.</p> <p>Where a bill in equity is without a necessary affidavit and there is no docket entry or writing filed in the case showing that the affidavit was made, the defect cannot be remedied on appeal by depositions taken under a writ of diminution showing that an agent of the plaintiff had appeared in the Court below and there made such affidavit.</p> <p>The fact that several attachments by different persons are laid in the hands of a person holding funds belonging to the defendant debtor, does not itself entitle such garnishee to file a bill of interpleader against creditors, but there may be cases in which such relief is proper. In such case, however, the bill must be filed before judgment has been obtained in any of the attachments against the garnishee.</p> <p>Plaintiff in this case held a sum of money to which S. was entitled. Several attachments on judgments against S. were laid in plaintiff’s hands to affect the money, and upon three of these judgments of condemnation were entered. Plaintiff then filed a bill of interpleader alleging that the aggregate of the attachments was greater than the sum in his hands ; that some of the creditors of S. contended that the judgments of certain other attaching creditors were void, and praying that the parties might interplead ; that certain of the defendants be restrained from further prosecution of their suits, and that the judgments obtained by others be declared void. Held,</p> <p>1st. That the bill could not be maintained because plaintiff was not a mere stakeholder occupying a neutral position between the defendants, but was interested in having the judgments upon which condemnation was had either vacated or established.</p> <p>2nd. That the bill was also liable to demurrer because the attaching creditors are entitled to priority in the order to which the attachments were laid; and if plaintiff permitted judgments of condemnation to be rendered against him by reason of his neglect to make proper defence, he cannot now require other attaching creditors to contest the claims of those who obtained this advantage.</p>

), passed upon the petition of Textor in the matter of the trust estate of D. R. McCauley, by which it was adjudged: 1st. That the hoops mentioned in the petitioner’s exhibit to the number of one hundred and eighty-two thousand, passed into the possession of Waitman L. Orr, trustee under the deed of trust charged with the lien created by said exhibit, and that said lien, to the extent of the petitioner’s claim, is valid as against all creditors of the said McCauley…

<p>Banks—Trusts—Deposit to Personal Account of Money Payable to the Depositor as Trustee—Breach of Trust—Liability of Bank for Participation in Such Breach—Notice—Memoranda on Checks— Limitations in Equity.</p> <p>When money is deposited in a bank and the bank’s officers are unaware that the fund does not belong to the person making the deposit, the bank will be free from liability upon paying out the fund upon the depositor’s checks, although it should afterwards turn out that the fund in reality belonged to some one else.</p> <p>If money be deposited by one as trustee, the depositor as trustee has the right to withdraw it, and the bank, in the absence of knowledge or notice to the contrary, may assume that the trustee will appropriate the money to a proper use, and would not be liable for a misappropriation by him.</p> <p>But if a bank is explicitly directed to put a certain sum to the credit of a party as trustee and yet places the sum to the personal account of that party, who commits a breach of trust by misappropriating it, then the bank is liable to the trust estate for such participation in the breach of trust, after notice.</p> <p>Memoranda or figures placed on a check for the convenience of the drawer are not notice to the bank that the check is to be paid from a particular fund, or is to be credited to a particular account.</p> <p>All persons who knowingly aid a trustee in committing a breach of trust are equally liable with him for the consequences of such breach.</p> <p>A party liable as a participant in a breach of trust cannot rely upon the Statute of Limitations as a defence.</p> <p>Limitations cannot be relied on in equity unless the defence of the statute be set up by plea or answer.</p> <p>A sum of money due to a trustee and belonging to the corpus of the trust estate was paid to him by a check as follows: “Pay to the order of J. S., cashier, $2,024, to deposit to the credit of H. W. C., trustee.” J. S. was the cashier of the defendant bank m which the trustee C. kept a personal account only. The proceeds of the check were placed by the bank to C.’s individual account and the money was misapplied by him. The bank had no notice that the fund belonged to the trust estate, other than that derived from the check itself. C. was removed from the trusteeship because a defaulter to the estate, and plaintiffs, appointed trustees in his place, brought suit against the bank to recover the amount of said check. Held,</p> <p>1st. That the bank participated in C.’s breach of trust by placing the proceeds of the check to his personal account instead of to his account as trustee, according to the plain direction of the check, and was liable to make good to the trust estate the amount misappropriated by C.</p> <p>2nd. That it was no defence that if the bank had opened an account with C. as trustee and credited that account with these funds, still he could have withdrawn them on checks signed as trustee and then misapplied the money without involving the bank in any liability, because that is what might have been done and not what was actually done.</p> <p>3rd. That no subsequent ratification of the wrongful act of the bank by the trustee C. can bind the beneficiaries of the trust estate.</p> <p>The same trustee received another sum of money belonging to the same trust estate by a check reading as follows : “ Pay to the order of J. S., cashier, $2,000 for deposit to the credit of H. W. C., being the balance of purchase money due him as trustee from J. R. C.” This was also placed to C.’s personal account in defendant bank, and the proceeds were misapplied by him. Held, that the bank was not liable as a participant in this breach of trust, because there was no direction in the check to place the proceeds to the account of C. as trustee, but the amount was made payable to him personally, and the memorandum on the check as to the origin of the fund was placed there for the convenience of the drawer.</p>

<p>Appeal from an order of the Circuit Court for Talbot County (Stump, J.), ratifying an arbitrator’s account.</p>

2, of Baltimore City (Stockbridge, J.), dismissing the bill of complaint.

<p>Appeal from a judgment of the Superior Court of Baltimore City (Ritchie, J.) At the trial before the Court, without a jury, the plaintiff offered the' following prayers, all of which were rejected :</p> <p>1st. The plaintiff prays the Court to rule as matter of law that under the pleadings and evidence in this cause the plaintiff has shown such a title and right of possession to the property described in the declaration as entitles him to recover, and the verdict of the jury must be for the plaintiff</p> <p>2nd. That if the Court find that John G. Medinger was, on July 27th, 1874, the owner in fee-simple of the property described in the declaration and in possession thereof, and did on said day lease said property for the renewal term ot ninety-nine years to D. Henry Black, subject to an annual rent of $110.00, and on the same day said D. Henry Black assigned said leasehold interest in said property to Charles H. Black, and that on August 1st, 1877, said Medinger conveyed the reversionary interest therein to Robert Rennert, who subsequently, on February 24th, 1887, conveyed the said reversionary interest to Anton Textor, the plaintiff in this case; and if the Court further find that the defendant Shipley claims title and possession of said land under and by virtue of a tax sale reported by Lewis H. Hopkins, City Collector of Baltimore, to the Circuit Court of Baltimore City, in the proceedings in the matter of tax sale No. 09, offered in evidence in this case, and the deed from Lewis N. Hopkins, City Collector aforesaid, to the Mayor and City Council of Baltimore, dated September nth, 1889, and the deed from the Mayor and City Council of Baltimore to Charles Shipley, dated December 30th, 1889, that then the verdict should be for the plaintiff in this case, because the said tax proceedings show no levy to have been made upon the property described in the declaration legally sufficient to authorize a sale of said property for taxes.</p> <p>3rd. That if the Court find the facts set out in the plaintiff's second prayer, that then the verdict must be for the plaintiff in this case, because the said tax sale proceedings show that the City Collector failed to leave with the person by whom were to be paid the taxes on the property described in the declaration in this case, or at his usual place of abode, a statement showing the amount of taxes due upon said property by him, with a notice annexed thereto, that unless said taxes so due were paid within thirty days thereafter, the said City Collector would proceed to collect the same by distress or execution to be levied on said property as required by law.</p> <p>4th. That by a true construction of the documentary evidence in this case, the plaintiff has shown in himself a good and sufficient title to the property mentioned in the declaration in this case and to the possession thereof, entitling him to recover against the defendant.</p> <p>A former appeal between the same parties is reported in 77 Md. 473.</p>

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

Appeals from pro forma orders- of the Superior Court of Baltimore City, quashing writs of attachment laid in the hands of the assignee for the benefit of creditors of the firm of Henderson, Pfeil & Co.

<p> Restraint on Alienation—Spendthrift Trust—Attachment. </p> <p>A testator bequeathed property to a trustee to hold the same and pay the net proceeds to testator’s widow during her life, so that the same shall not be liable for the debts of any future husband, “or to be taken in execution or attachment or otherwise howsoever, and so that she shall not pledge or anticipate” said property or income. Held, that the income in the hands of the trustee was not liable to attachment for the debts of the cestui que trust.</p>

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

<p>Answer of a Corporation in Equity Must be Under Seal—Appeal— Receivers.</p> <p>A defendant corporation cannot answer a bill of complaint in equity except under its corporate seal.</p> <p>No appeal lies from an order overruling a motion to dismiss a bill in equity against a corporation and to discharge receivers appointed under it.</p> <p>From an order appointing receivers an appeal can only be taken after the defendant has filed an answer, and if that which purports to be an answer is in law no answer at all, the appeal will be dismissed.</p>

<p> Criminal Law—Discharge of Jury—Mistrial—Once in Jeopardy. </p> <p>A jury in a criminal case, if unable to agree upon their verdict, may be discharged by a Clerk of the Court, acting under the direction of the Judge of the Court, and such discharge is not a bar to another trial.</p> <p>The fact that a jury in a criminal case was discharged because unable to agree upon a verdict is no bar to a subsequent trial, because a party indicted is not in jeopardy until a verdict has been rendered.</p>

) At the trial the Court granted the plaintiff’s prayer, which was as follows: “ If the jury believe that William W. Hafer leased to Charles J. Miester and Edward M. Romoser, the premises known as the Millington Mill, upon the terms set forth in the paper dated October 23, 1885, offered in evidence, and that they entered into possession of said premises under said paper, and shall further find that it was agreed between said Hafer and said Miester and Romoser as tenant of…

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

<p> Equity Pleading—Reference to Court Records—Appointment of Receivers. </p> <p>A bill in equity must show that the plaintiff has an interest in the subject-matter and is entitled to institute the suit.</p> <p>A mere reference in a bill of complaint to proceedings in another suit in the same Court does not make the same a part of the plaintiff’s case, without the filing of exhibits, or the taking of any testimony.</p> <p>As a general rule a receiver should not be appointed until the defendant has had an opportunity to answer, and if this be not practicable, it is the duty of the complainant not only to show that he has an interest in the property in dispute, but also that the interposition of the Court is absolutely necessary to preserve it from loss and injury.</p>

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

<p> Divorce—Evidence of Adultery—Exceptions to Testimony. </p> <p>Upon a bill for divorce on the ground of adultery it is not necessary that any one act should be proved as having occurred at any certain time and place, but the Court must consider the opportunity for the commission of the act, the conduct of the parties and all the circumstances, and then determine from the whole testimony whether it should convince unprejudiced and cautious, persons of the guilt of the defendant.</p> <p>When adultery is charged, evidence of the conduct and relations of the defendant with the co-respondent before defendant’s marriage with the plaintiff is admissible when defendant’s relations with the corespondent after marriage are similar.</p> <p>Upon a bill by a wife for divorce on the 'ground of adultery, the evidence was to the effpct that before his marriage the defendant, who was a widower with young children, employed a young woman as attendant and housekeeper; that she occpuied a bedroofn communicating with that of defendant, the door between the rooms being without a fastening; while the children and a servant occupied rooms in a disconnected part of the house; that she sat at table with defendant ; that he had been seen to kiss her; that early one morning, when she was in the house; a servant observed that her bed had not been occupied; that defendant, who was a retired physician, gave the woman cold baths when she was ill, carrying her alone into the bath-room for that purpose, etc. Just before plaintiff’s marriage with defendant, the woman left the house and obtained employment as a domestic elsewhere and never came to the house while plaintiff was there. During this time defendant frequently met the corespondent upon street corners by appointment and often wrote to her in affectionate terms; he called to see her at the servants’ entrance of the house where she was employed. There was also evidence, but not of a satisfactory character, showing that he had during this period gone with the co-respondent to a house of ill-repute. After having been married for about two months, the defendant compelled plaintiff to leave his home and return to her mother’s, and his letters showed that she had become an oppressive burden to him. As soon as she left, the co-respondent returned to defendant’s house and resumed her position as housekeeper, occupying the same bedroom as formerly, adjoining that of defendant. Held, that the defendant’s adultery was established and that the plaintiff is entitled to a decree of divorce a vinculo matrimonii.</p> <p>A general exception to the testimony of a witness in an equity cause is insufficient when some of it is competent.</p>

<p> Appeal—Divorce—Alimony and Counsel Fees—Enforcement of Order for Payment Thereof—Motion for Rehearing—Cross-Bill in Equity—Evidence—Removal of Cause to Federal Court. </p> <p>An appeal lies from an order directing alimony and counsel fees to be paid pending a suit for a divorce, Code, Art. 5, sec. 25, providing that an appeal may be taken from any order directing money to be paid except an order for payment to a receiver.</p> <p>The general rule is that a wife has a right to demand maintenance and counsel fees from her husband pending a divorce proceeding, but the amount of the allowance is not committed solely to the discretion of the trial Court.</p> <p>When a cause is remanded to the Court below for further proceedings, its jurisdiction to pass orders is not ousted by the fact that a motion for a reargument is pending in the Court of Appeals.</p> <p>Statements made in an exception filed to an order of Court cannot be treated as competent evidence in the case of the facts so stated.</p> <p>The filing of an appeal bond under Code, Art 5, sec. 28, does not operate to suspend, until the passage of a final decree on appeal, the enforcement of an order requiring the payment of counsel fees, suit money and alimony in a divorce case.</p> <p>When an order directing the payment of alimony, etc., has not been obeyed, it should be enforced without its repetition by being incorporated in a new order to the same effect.</p> <p>A cross-bill in equity is not a new suit, but is a defence, or a proceeding designed to procure a complete determination of the matter already in litigation.</p> <p>A divorce proceeding cannot be removed to the Federal Court upon the application of the plaintiff, although the defendant filed a cross-bill under which the payment of alimony was ordered.</p>

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

), by which it was “ adjudged and ordered, that the demurrer of the petitioner to the answer of the defendant be, and the same is hereby sustained ; and the Court being of the opinion that legal cause of forfeiture has been shown, and that the public interests require that the said forfeiture shall be declared, it is further adjudged, ordered and decreed that the charter of the said International Fraternal Alliance of Baltimore City, the corporation defendant in this suit,…

J.) At the trial the following prayers were offered: Plaintiffs' First Prayer.—If the jury find that the plaintiffs are possessed of the premises referred to in the evidence, situate at the comer of First street and 8th avenue, and that they became possessed of said ground and the buildings in October, 1882, and if the jury find that in 1883 the defendant leased certain ground on the same street and almost ^opposite the plaintiffs’ premises, and commenced the manufacture of…

—Nevertheless, the said Emma S. Weybright dies without bodily heirs, my will is then that said real estate and personal property thus described shall relapse to my son, Samuel Weybright, and his heirs, for their purpose and benefit, but not until her mother’s death,’ vests in the said Emma Weybright, now the wife of William H. Powell, an absolute fee-simple estate in the house and lot in the village of Double Pipe Creek, Carroll County, and the corner lot in Keysville,…

2, of Baltimore City (Stockbridge, J.), dismissing the petition of appellant. The appellee as trustee sold, on May 23, 1895, all the property and corporate rights of the Baxter Electric Motor Co. After disposing of exceptions thereto the sale was finally ratified on December if 1895. The appellant filed a petition in the case asking that the trustee be directed to pay the State taxes for the year 1895 assessed on the shares of stock of the company.

), to which Court the case had been removed for trial from the Circuit Court for Baltimore County.

J.) At the trial the following prayers, among others, were offered: Plaintiff’s 1st Prayer.—If the jury find from the evidence that the Horner-Miller Straw Goods Manufacturing Company of Baltimore City, a body corporate, purchased from the plaintiffs the goods described in the declaration; and that at the time of said purchase said body corporate knew itself to be insolvent and had no reasonable expectation of paying for the same, and did not pay for the same; that said body…

<p>Taxation—Building Association—Deduction of Mortgage Investments from, Assessment of Shares of Stock—Amending Charter— Finality of Valuation of Shares of Stock by Tax Commissioner.</p> <p>The charter of the appellant, a building association organized under the general law, was afterwards amended and its powers enlarged by a special Act of Assembly. Under Code, Art. 23, sec. 99, the shares of stock of building associations incorporated under the general law were exempt from taxation to the extent of their investments in mortgages on real or leasehold property, but this exemption did not apply to corporations created by the special Acts. Part of the mortgages in which the funds of the appellant were invested were those authorized by Code, Art. 23, sec. 99, and another part were mortgages authorized by the special Act. The Tax Commissioner and the Board of Appeal assessed the shares of stock of the appellant for taxation, under Code, Art. 81, secs. 141, &c., but it did not appear specifically what mortgages of the appellant were deducted from the assessment, because exempt. Upon a bill to restrain the collection of the taxes so assessed, Held,</p> <p>1st. That so far as the appellant’s powers under the special Act are concerned, it is not a building association formed under the general law, and is not entitled to the exemption from taxation given to such building associations.</p> <p>2nd. That the investments of the appellant in mortgages of the description mentioned in the general law are not taxable, and the amount represented by them in the stock of the corporation must be deducted from the assessed value of the stock, but that mortgages not of this character should not be deducted.</p> <p>3rd, That in the absence of proof that the proper deduction was not made by the Tax Commissioner, the Court cannot assume that an error was committed.</p> <p>Under Code, Art. 81, secs. 141, &c., providing for the valuation of the shares of stock of corporations for taxation by the Tax Commissioner and the review of his valuation by a Board of Appeal, the decision of the board is final on the question of valuation, and cannot be controlled by the Courts even if a mistake were made. But relief could be afforded, if the board should erroneously assess for taxation, property which is exempt by law.</p>

<p> Wills—Caveat—Finality of Judgment of Orphans’ Court. </p> <p>When issues involving the validity of a will have been submitted to the Orphans’ Court by plenary proceedings, without asking for the trial of the same in a Court of Law, the decision of the Orphans’ Court upon the issues is final and conclusive upon all persons, whether parties to the proceeding or not, unless reversed on appeal, the jurisdiction of that Court in the premises being conferred by Code, Art. 93, sec. 330.</p>

<p> Devise and Legacy—Land Passes Under the Word “ effects ” in a Residuary Clause. </p> <p>A testatrix, after making certain specific devises and bequests, provided as follows: “To T. C, R. I give all the remainder of my effects.” Held, that the land acquired by the testatrix after the execution of the will passed under this residuary clause.</p>

<p>Appeal from a pro forma decree of the Circuit Court of Baltimore City granting the relief asked for in a bill for the specific performance of a contract to buy land.</p>

<p> Sales—Statute of Frauds, Sec. —Acceptance and Receipt. </p> <p>Defendants made an oral contract for the purchase of a car-load of dressed beef. He superintended the loading of it, said that he was satisfied with its quality, and promised to make payment upon its arrival in B. The seller shipped the goods under a bill of lading in his own name, endorsed, and attached the same to a draft upon the defendant which the latter refused to pay. In an action to recover the price, Held, that the contract was unenforceable under the seventeenth section of the Statute of Frauds, because there was no memorandum in writing of the agreement, or acceptance and receipt of the goods or part payment.</p>

), dismissing the bill of complaint after testimony was taken. The opinion of the Court below upon the demurrer to the bill was as follows after -stating the allegations: “ The main question to be determined is whether a married woman can admit in a Court of Equity that such facts as the above exist, and yet hold property thus acquired without being compelled to carry out her part of the agreement.

<p> Parol Gift of Land Accompanied by Possession. </p> <p>When a father makes a verbal gift of land to his son, who enters into possession and expends money in making permanent improvements, the son is entitled to a conveyance of the land.</p>

<p> Mechanics' Lien—Machine—Heating Apparatus. </p> <p>A steam heating apparatus consisting of a boiler and furnace built in the cellar of a hotel with pipes and radiators, is not a machine within the purview of Code, Art. 63, sec. 22, which provides that every machine shall be subject to a mechanics’ lien in like manner as buildings.</p>

<p>Appeal from an order of the Circuit Court for Frederick County (Lynch, J.), dismissing the petition asking that the appellee be adjudicated an insolvent.</p>

<p> Mortgages—Statutory Foreclosure Under Local Code, Art. 4—Right of Assignee of Part of Mortgage Debt to Foreclose—Exceptions to Ratification of Sale. </p> <p>Under Local Code, Art. 4, secs. 692, 703, &c., the assignee of some of the notes secured by a mortgage which contains a consent to a statutory foreclosure, may, after default, obtain a decree for sale without making the holders of other notes, secured by the mortgage, parties to the proceeding.</p> <p>A mortgagor has a right to except to the ratification of a sale made under the mortgage upon the ground of the invalidity of the decree.</p>

) The trial Court ruled that there was no evidence in the case legally sufficient to entitle the plaintiff to recover. This was an action of assumpsit instituted by the appellant, company, against its treasurer, to recover from him an amount of money paid by him to the directors of the company for mileage, in excess of the amount limited for that purpose by an alleged by-law adopted at a meeting of the members of the company, held on January 7th, 1895.

<p> Bills and, Notes—Bona Fide Holder—Transfer of Note by a Trustee —Bill of Interpleader. </p> <p>The purchaser of property at a judicial sale gave to one of two trustees, in part payment, the promissory note of a third party payable to the order of the purchaser and endorsed by him in blank. This trustee, without the knowledge of his co-trustee, sold the note before maturity to a person who took the same in good faith. Held, that since the transferee of the note had no notice that it was the property of the trust estate, he was entitled to enforce the same against the maker and endorser.</p> <p>A bill of interpleader which neither brings the money into Court nor offers to do so is defective.</p>

<p>Specific Performance—Uncertain Agreement—Remedy at Law.</p>

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

<p> Subrogation—Payment. </p>

<p>Specific Performance— Vague and Uncertain Agreement.</p>

<p>Appeal from the Superior Court of Baltimore City (Wrigiit, J.)</p>

<p> Remanding Cause Without Affirming or Reversing Decree. </p>

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