Volume 88 — Maryland Reports

<p>Lien of one Co-tenant for money expended on Permanent Improvements — Subrogation of Lender of money to lien of Co-tenant — Parties to billfor Enforcement of Lien— Injunction to Restrain Partition — Demurrer—Appeal.</p> <p>When one tenant in common of an estate expends money in making permanent improvements thereon, at the request of his co-tenants and for the benefit of all, he is entitled to a lien for the amount so expended upon the shares of the other tenants.</p> <p>And a third party who lends money to one tenant in common for the purpose of making such improvements, at the request of the other tenants, is subrogated to the rights of such tenant and is entitled to a lien on the property for the amount so expended.</p> <p>Upon a bill to subject land owned by tenants in common to a lien for improvements erected thereon with money loaned by the plaintiff, one of the tenants, who has conveyed all his interest in the property to a trustee for creditors, is not a necessary party.</p> <p>An injunction lies to restrain a contemplated partition of real estate owned in common whereby the lien of the plaintiff thereon for money loaned by him for improvements made by the tenants will be destroyed.</p> <p>No grounds for a demurrer to a bill in equity will be considered on appeal from an order sustaining the demurrer unless such grounds were set forth in the demurrer, under Code, Art. 16, sec. 136.</p>

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

<p>Appeal from an order of the Circuit Court for Prince George’s County (Merrick, J.) dismissing the appellant’s petition.</p>

<p>Appeal from a declaratory decree under Code, Art. 16, sec. 26, of the Circuit Court for Cecil County (Russum, C. J.).</p>

<p>Appeal from the Circuit Court for Queen Anne’s County (Stump, J.).</p>

<p>Executors and Administrators — Correction of Errors in Accounts — Indebtedness of Distributee to the Estate —Distribution.</p> <p>When an executor alleges by petition that an account stated by him is erroneous in that it fails to charge a distributee with a debt due by him to the estate and fails to charge the executor with the appraised value of certain property, it is the duty of the Orphans’ Court to reopen the account and order a restatement thereof.</p> <p>When a distributee is indebted to the estate, it is the duty of the executor to retain from his share the amount of such indebtedness.</p> <p>An executor has the right to have a distribution of the personal property made under the direction of the Orphans’ Court upon the citation of the distributees, in accordance with Code, Art. 93, secs. 138, 139 or 143.</p>

). The condition of the bond sued on was that the guardian “ shall faithfully account in the Orphans’ Court of said county, as directed by the law, for the management of the property and estate of the said orphans under her care and shall also deliver up the said property agreeably to the order of said Court or the directions of the law, 'and shall, in all respects, perform the duty of guardian to, etc., according to law,” etc.

<p>Notice from Possession of Land— Cloud on Title— Conveyance of Equitable Interest in Land — Statute of Frauds.</p> <p>A party in possession of land and holding the legal and equitable title thereto is entitled to a decree annulling a void deed purporting to convey an interest in the land, because the same is a cloud on his title and a hindrance in disposing of the property.</p> <p>Possession of land is notice of the rights of the party in possession which could be ascertained upon inquiry.</p> <p>A parol agreement for the sale of an equitable unrecorded interest in land to the party in possession who has the legal title, when the purchase money has been paid, is enforceable against the vendor and those claiming under him with notice.</p> <p>Plaintiff being in possession of certain land and holding the entire legal title thereto bought out an equitable and unrecorded interest therein owned by another person. Subsequently this person conveyed the same equitable interest to the defendant by a deed which was recorded, together with the contract creating the equitable interest. Held, that plaintiff’s possession was notice to the defendant of plaintiff’s rights; that defendant acquired no interest under the conveyance to him, and that this conveyance should be vacated and annulled.</p>

). At the trial the Court granted the plantiff’s first and second prayers (the latter related to the measure of damages) and modified the defendant’s third, fifth and sixth prayers by adding to the same as offered the clauses enclosed in brackets.

<p>Mutual Fire Insurance Company— Waiver of Non-payment of Premium — Authority of Agent — Estoppel— Cancellation of Policy.</p> <p>Plaintiff, a member of a mutual fire insurance company failed to pay, when due, the interest on his premium note, but afterwards paid a sum of money in renewal of the policy for the future to an agent of the company, who was also a director, and the money was paid by the agent to the company with notice of the facts. The company had previously can-celled plaintiff’s policy by a memorandum on its books, but no notice of the same had been given to the plaintiff and the company retained the renewal premium until a loss occurred when an offer was made to return it. Held, that the company had waived the payment of the back interest on plaintiff’s note and was estopped to deny the authority of the agent to renew the policy.</p> <p>A by-law of a mutual fire insurance company provided that the secretary should cancel all policies in default for two years for non-payment of interest on the premium note. Held, that a cancellation on the books of the company of a policy in default for less than two years, without notice to the member, is of no effect and that the subsequent acceptance by the company of money paid to an agent in renewal of the policy is binding on the, company.</p>

) by which it was adjudged that according to the “ true intent of the last will of George G. Presbury, deceased, Mary Van Bibber is entitled to receive as her share of the sum of $9,544.58, now in the possession of the trustee to be distributed, under the said third item, ten-thirtieths thereof, and that Imogene PI. Sykes, and Imogene H. Sykes, trustee for Lena Sykes, Harry Lee Sykes, and Anna St. Clair Patterson, assignee of Charles PI.

<p>Official Bonds— Condition of Bond varying from that prescribed by Statute — Liability of Sureties— Treasurer of Board of School Commissioners.</p> <p>The obligation of a surety upon an official bond is to be strictly construed.</p> <p>When the condition of an official bond states the duties of the officer for whose faithful performance the bond is given, in a manner different from that prescribed by statute, the liability of the surety is to be determined by the language of the bond as executed, and a new term cannot be added by reading the bond in connection with the statute.</p> <p>Code, Art. 77, sec. 67, requires the Secretary and Treasurer of each Board of County School Commissioners to give bond with surely conditioned that he will faithfully perform the duties of the office, “ pay over and apply all moneys that shall come to his hands or care as Treasurer to such persons and in such manner as said Board may, under the provisions of this article, direct.” The bond of a Treasurer of a School Board executed by the defendant as surety designedly omitted from its condition the words under the provisions of this article, and provided for the payment of money by the Treasurer to such persons as the Board should direct. In an action on the bond, the plaintiff alleged that certain payments were made by the Treasurer without legal authority. These payments had been authorized by the Board. Held, that the defendant was not liable for illegal payments of money directed to be made by the Board.</p>

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

). At the trial the plaintiff’s second and third prayers, which were granted, were as follows: 2.

<p>Appeal from the Court of Common Pleas (Harlan, C. J.).</p>

<p>Appeal from orders of Circuit Court Number Two, of Baltimore City (Stockbejdge, J.).</p>

<p>Building Associations— Withdrawal of Stock — Foreign Receivers — Attachment—Impossibility of Performance —Bill of Particulars — Common Counts in Assumpsit.</p> <p>Plaintiff was a stockholder in a Tennessee building association and gave notice of the withdrawal of his stock. A by-law provided that “ withdrawn stock will be paid for in the order in which notice is given, but the Association shall not be required to use in the payment thereof, in any one month, without the consent of the Board of Directors, more than one-half of the receipts of the loan fund for that month.” After plaintiff’s notice of withdrawal was given, the association was placed in the hands of receivers, by a decree of a Tennessee Court, and ceased to do business. Plaintiff then laid an attachment on the property of the association in this State to recover the amount of his withdrawn stock. Held, that after notice of withdrawal, plaintiff became a creditor of the association for a fixed sum and that the decree of the Tennessee Court, appointing receivers, terminated and rendered impossible of performance the contract contained in the by-laws regarding the fund from which withdrawn stock was to be paid, and entitled plaintiff to proceed by attachment, in this State, as a creditor.</p> <p>The fact that a contract made by a foreign corporation becomes impossible of performance on account of a decree of the Court of its domicil, is no excuse in the Courts of this State for its failure to perform.</p> <p>If at the time of making a contract, the thing promised be possible in itself, it is no excuse for non-performance that its performance became subsequently impossible from causes beyond the control of the promisor.</p> <p>When the declaration is on the common counts and a bill of particulars, filed after demand, shows that there was a special contract between the parties, the plaintiff is entitled to recover on the common counts if the special contract was fully performed by him.</p> <p>No objection to the sufficiency of a bill of particulars can be made after a plea to the merits.</p>

). The contract sued on after the introductory paragraph quoted in the opinion of the Court provided as follows: “ Now, therefore, this agreement witnesseth, that whereas, the said Howard Cassard is the sole owner of the said recipes and trade-marks of the powders, liniments and medicines known as “ Stonebraker’s Medicines ” (a list of the same being hereto annexed as part of this agreement), and has agreed to sell the same to the said Alexis M. McGlannan and Frank M. Hall,…

J.). The defendant’s first and second prayers which were refused were as follows: 1.

<p>Appeal from a decree of the Circuit Court Number Two of Baltimore City (Stockbridge, J.).</p> <p>The cause was argued before McSherry, C. J., Bryan, Fowler, Boyd and Pearce, JJ.</p>

That said H. H. Barroll, trustee, will bring into this Court for distribution so much of the purchase money for the purchases of Pere T. Forman as is represented by the notes of John B. Brown to his order and endorsed in blank by him, one for $1,167.15, endorsed by A. Randolph Weedon, a former trustee in this cause, to The Workingmen’s Permanent Building and Loan Association of Queen Anne’s county, and one for $i,-230.50, endorsed by said Weedon to Robert J. Reynolds, and…

<p>Pro Forma Decree — Assignment of Fund by Distributee of an Estate to Trustee — Priority between Assignments— Ex parte Order Directing an Audit— Costs on Appeal.</p> <p>When one of several parties to an equity cause files an answer in which he submits his rights to a Court, and also as solicitor for another party, consents to a pro forma decree, he cannot afterwards object, on appeal from such decree, that it was invalid because he had not consented to it.</p> <p>When one of two -trustees of an estate, having the trust funds in his hands, mingled with his own money, pays a debt due by A, a distributee of the estate, with the express understanding that whatever is distributed to A shall be applied to that payment, neither A nor any one claiming by subsequent assignment from A, can demand payment of the same sum from the other trustee.</p> <p>In order to constitute a valid assignment in equity of a fund, no formal writing is necessary.</p> <p>An ex parte order of Court directing the auditor to audit to the assignee of a distributee of an estate the fund that may become due to such distributee, has no effect upon the rights of a party having a superior claim to that fund.</p> <p>Where a pro forma decree was passed without the express consent of the appellant, but under such circumstances as made it binding upon him, and the decree is affirmed upon appeal, he will not be required to pay the costs of the record or the costs of the other party in this Court.</p>

<p>Construction of Devise — Power of Disposition Superadded to Life Estate.</p> <p>When a power of disposal accompanies a devise- of a life estate, the power is limited to such disposition as a tenant for life can make, unless there are words clearly indicating that a larger power was intended.</p> <p>A testator gave the residue of his estate to his wife, “ To hold' and dispose of as she may see fit, while she remains single, and at her death or marriage the remaining property is to be equally divided between my two daughters.” Held, that the widow took only a life estate in the real property, with remainder to the daughters, and that she had no power to dispose of the same in fee.</p>

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

<p>Privity of Contract — Assignment of Liability — Liability of Corporation under Contract made by a Firm whose business it takes — Contract by Correspondence — Finality of Agreement.</p> <p>No one can be sued for a breach of a contract to which he was was not a party.-</p> <p>If a person who has contracted to do work for another assigns the contract without the consent of the other party to the defendant, the latter is not liable in an action for breach of the contract.</p> <p>By a contract in writing between the firm of E. & Son and a publisher, the former agreed to pay a sum of money for an advertisement inserted in the publisher’s book, but it was stipulated that the amount should only be deducted from the price of new work. Afterwards the E. Co. was formed to take over the business of E. & Son, and was sued upon the contract by the assignee of the publisher. Held, that the E. Co. was not liable to the plaintiff upon the contract so made by E. & Son.</p> <p>When negotiations between parties looking to the formation of a contract take place by correspondence, many letters being exchanged, and at a certain point an agreement seems to have been reached, still such agreement will not be held to constitute a final contract when the succeeding letters between them show that they did not intend to abide by such terms as a complete expression of their intention.</p>

<p>Liability of Assignee of Lease for Rent— Waiver of Condition against Assignment of Term, without Consent of Lessor — Departure in Pleading.</p> <p>When there is a.condition in a lease against the assignment of the term without the consent of the lessor, and such consent is given to one assignment without any restriction as to future assignments, the condition is waived altogether and the. assignee may assign the term without the consent of the lessor.</p> <p>The liability of the assignee of a term to the original lessor for rent is founded on privity of estate, in the absence of express agreement, and continues only so long as that privity exists; when such assignee makes a new assignment of the term to a third party he ceases to be liable for rent to the lessor.</p> <p>The declaration set forth defendant’s liability for rent, as assignee of a term founded on privity of estate. Plea, that before suit brought defendant had assigned the term to a third party. Replication, that the assignment to the defendant was made subject to the conditions of the lease which prohibited an assignment without the consent of the lessor and which contained a covenant to pay the rent. Held, that the replication was bad on demurrer because a departure, the declaration founding defendant’s liability on privity of estate and the replication relying upon a contract. The assignment of a lease “with all its covenants, terms and conditions ” does not impose upon the assignee any liability for rent other than that growing out of privity of estate.</p>

). The principal items of expense not charged in the auditor’s account against the fund realized from the sale of the personal property levied upon by the execution creditor, consisted of rent of the premises where the property of the Surbridge Company was kept, and the cost of a watchman for the same.

<p>Dedication of Streets — Revocation when same Person becomes Own'er of Street and of Adjoining Land before Acceptance.</p> <p>A dedication of a street arising from the fact that the owner conveyed land abutting thereon to a grantee by a deed describing it as binding on the unopened street, is revoked when such grantee acquires the fee in the bed of such street before there has been any acceptance or use of the street by the public.</p>

<p>Pleading in Equity— When Answer is Evidence for Defendant — Answer responsive to Interrogatories in Bill —Matters set up by Way of Avoidance — Proof of Allegations in Bill.</p> <p>Code, Art. 16, sec. 146, provides that it shall not be necessary for the defendant in an equity cause to make oath to his answer unless required by the plaintiff, nor shall any answer, whether sworn to or not, be evidence against the plaintiff at the hearing, unless read as evidence against the defendant. Code, Art. 16, sec. 147, provides that if the plaintiff shall only require an answer under oath to specified interrogatories, the answer of the defendant though under oath, except such part as shall be directly responsive to such interrogatories, shall not be evidence in his favor unless the cause be set down for hearing on bill and answer only. Held, that under these provisions when an answer is required by the bill to be under oath it will only be evidence against the plaintiff if read by him at the hearing, and that when not required to be under oath, it will, if under oath, be evidence for the defendant when the case is heard on bill and answer alone. But whether the answer be treated as evidence or not, it will, when denying the allegations of the bill, force the plaintiff to prove those allegations.</p> <p>Under Code, Art. 16, sec. 147, the answer of the defendant under oath to the interrogatories propounded by the bill, when responsive thereto, is evidence in defendant’s favor.</p> <p>Matters set up in the answer by way of avoidance of a liability once admitted are not responsive and must be proved; but the mere fact that the averments of an answer are affirmative and not strictly negative in their character, does not determine the question whether they are averments of new matter in defence by way of avoidance, or strictly responsive averments. A bill by some of the distributees of an estate against the administrator and F. alleged that the • administrator had omitted from the inventories returned by him a debt due by F. to the decedent and that the administrator and F. had conspired together to defraud plaintiffs of said debt. An answer was required to be made under oath and the defendants did so answer, denying that F. was indebted to the 'decedent. There was no evidence in the case to support the averments of the bill or to overthrow the denials of the answer, but testimony was taken and the case was not heard on bill and answer. Held, that the answers were sufficient to cast upon the plaintiffs the burden of proof, and as no proof was offered, the plaintiffs were not entitled to relief under the bill.</p> <p>An amendment of the said bill charged that the decedent in 1890 loaned to F. the sum of $4,500, no part of which was repaid to her, and that the administrator had never returned the same in his inventory. F. was required to answer special interrogatories asking how much he had borrowed from decedent, and how much, when, and how any part of such sum had been repaid. Defendants answered, stating that F. had borrowed $4,500 from decedent in 1890, giving a note therefor; that when said note was due decedent requested F. to execute a new note for said amount to her son, to whom she gave the debt; that this was done and F. received the original note, and that F. had since paid the new note to the decedent’s son. Held, that the answers, while admitting that the loan had been made, set forth in the same connection, facts showing in law a payment thereof, although not expressly designated as such; that the answers are responsive to the averments of the bill, and not new matters of avoidance; that a part of the answers having been read by the plaintiff at the hearing, the whole were admissible and there being n.o countervailing proof, the bill should be dismissed.</p> <p>Upon a general bill to account, the answer is no evidence of disbursements, because such a bill is a demand upon the defendant to show his vouchers.</p>

). The plaintiff’s prayer, which was granted, instructed the jury that “if they shall find from the evidence in this case that the plaintiff purchased from the defendant and one Harvey L. Page, 19 shares of stock in the Sinepuxent Beach Company for the sum of $2,090.00, and agreed that said defendant and Page should have one-half the profit that might be realized on said stock; and it was agreed that said stock was to be placed by said Waggaman and Page in a pool for eight…

). The decree provided, “ that the proceedings of the Supreme Lodge of the defendant .corporation — its session at Atlanta, Georgia, in May, 1896 — in refusing the complainants admission to said session, and denying them the right to vote in accordance with the Act of 1896, chapter 331, were contrary to law and void, and that the defendants, claiming to act as officers of the Supreme Lodge, Order of the Golden Chain, by virtue of such election, are hereby restrained and…

Appeals from the Circuit Court of Baltimore City (Wickes, J.). The will of Johns Hopkins, construed in this case, is dated July 9th, 1870. The first codicil is dated October 31st, 1871, and the second codicil December 13th, 1873.

), where, at the close of plaintiffs’ case, a prayer was granted that there was no legally sufficient evidence to entitle the plaintiffs to recover. The case was tried before the Court without a jury.

<p>Action for Money had and received — Liability of Administrator of Life Tenant to Action by Legatee in Remainder — Beqtiest of Personalty for Life with Power of Disposition and Remainder over of the Residue— Competency of Evidence.</p> <p>An action for money had and received lies to recover money in the possession'of the defendant, which in justice and conscience belongs to the plaintiff; and it is not necessary 'that there should be any privity of contract between the parties.</p> <p>Where an administrator has in his possession money to which the plaintiff is entitled after a life estate therein by the administrator’s decedent, it ' may be recovered under an action for money had and received.</p> <p>A testator bequeathed the residue of his estate to his wife for life “ with full power to her to use, consume or dispose of any portion of said personal estate in her discretion,” and after the death of his said wife, then, upon a contingency which happened, one-half of the personal estate was given to the plaintiff. Held:</p> <p>1st. That the widow took only a life estate in the personalty with a power to dispose of it, and in the event of her death without having exercised that power, what remained of the personalty passed to the legatee in remainder.</p> <p>2d. That the administrator of the wife is liable in an action to the plaintiff, the legatee in remainder, upon proof that he received into his possession the residue which had not been disposed of by the life tenant.</p> <p>When plaintiff’s right to recover depends upon his proof of several facts, evidence tending to prove any one of those facts is admissible at any time without regard to the order in which it is introduced.</p>

). At the trial the following prayers were offered and rejected: Plaintiff’s 1st Prayer. — The jury are instructed that the pleadings in this case show that the defendant admits that the plaintiff is a stockholder in The Windsor Knitting Mills, and that he called upon him at his office as secretary of the directors of the Windsor Knitting Mills of Washington county, on the 10th and also on the 18th of December, 1897, and asked permission to inspect the books containing the…

), where the case was tried without a jury. The trial Court ruled, as matter of law, “ that there is no evidence in this case legally sufficient to show any fraud in the purchases by O’Brien & Co., of the horseshoes replevied in this case, entitling the plaintiff to rescind the sales therof, and therefore the verdict of the Court sitting as a jury must be for the defendants.” The verdict, as rendered, was “ in favor of defendant for the return of the property replevied and…

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

<p>Appeal — Failure to Transmit Record in Due Time.</p> <p>Code, Art. 5, sec. 6, provides that the transcript of the record must be transmitted to the Court of Appeals within three months from the time of the appeal taken; and sec. 38 provides that no appeal shall be dismissed because the record shall not have been transmitted within the time prescribed, if it shall appear to the Court that such delay was occasioned by the neglect, omission or inability of the clerk or appellee, but such neglect, omission or inability shall not be presumed but must be shown by the appellant. Held, that where the clerk of the Court after preparing the record in due time did not transmit it within three months because the appellant’s solicitor expressed a wish to examine it, and the record was held to await such examination and a specific order from the solicitor, which order was not given until after the prescribed time, then in such case, the failure to transmit the record in due season was not the fault of the clerk, and the appeal must be dismissed.</p>

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

). At the trial the following prayers were offered in addition to plaintiffs’ first prayer, which is contained in the opinion of the Court.

<p>Appeal from the Superior Court of Baltimore City (Dennis, J.), where the case was tried without a jury.</p> <p>The cause was submitted to the Full Bench on briefs.</p>

<p>Probate of Will after Contest — Revocation of Probate— Fraud in Obtaining Verdict — Collateral Attack on Probate — Amendment of Petition — Laches.</p> <p>When probate of a will has been granted after a verdict sustaining the will upon issues tried under a caveat, no other persons can caveat the will upon the same grounds, although not parties to the former proceeding, unless the order admitting the will to probate has. been rescinded.</p> <p>The probate of a will after contest can be set aside only by direct proceeding upon allegation and proof that the verdict was obtained by fraud and collusion. And in such proceeding all the persons participating in the fraud should be made parties.</p> <p>Where probate has been granted after a caveat and the trial of the issues, another person who files a caveat to the will upon the same ground, cannot, by the amendment of the petition, ask to have the order admitting the will to probate revoked, because that is not the direct proceeding that is requisite, but only a collateral attack and the petition involves other questions.</p> <p>An application to strike out a judgment admitting a will to probate after contest, on the ground of fraud, must be made within reasonable time after the discovery of the fraud. A delay of a year is too great unless good reasons are shown to excuse the same.</p> <p>In the Orphans’ Court the defence of laches to the relief asked for may be raised by motion to dismiss the petition.</p>

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

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

<p>Vacating Release of Mortgage — Insufficient Evidence of Fraud.</p> <p>Plaintiff filed a bill to vacate a release to her nephew of a mortgage on a farm, alleging that she had been induced to execute it by his fraud and upon his assurance that she was becoming surety on a note. The plaintiff’s evidence was contradicted on all points by that of the defendant and the latter was supported by certain circumstances in the case. Held, that the plaintiff had failed to prove the allegations of the bill by a preponderance of evidence, and that the relief asked for must be refused.</p>

<p>Probate of Wills — Notice to near Relations — Jurisdiction of Orphans' Court — Issues—Delay.</p> <p>Code, Art. 93, secs. 328 and 329, provides that the Orphans’ Court may grant probate of a will when any of the next relations of the deceased shall attend, or if notice of the time of exhibiting the will for probate has been given to such of the next relations as might conveniently be served therewith, and if none do attend and such notice shall not have been given, then the Orphans’ Court may issue summons or direct notice by publication. Held:</p> <p>1st. That it is the duty of the Orphans’ Court when a will is exhibited for probate to require the attendance of some of the next relations or to be satisfied that the executor or other person exhibiting the will notified them that it would then be presented, and that such notice need not be formal as by summons or publication; the latter notice only being required when the former has not been given.</p> <p>2d. That after a will has been admitted to probate it will be assumed that the notice required by the statute has been given, and when no appeal has been taken from the order admitting the will to probate and the same stands unrevoked, a party is not entitled to ask that an issue be sent to a court of law for trial to determine whether the will was admitted to probate in accordance with sec. 329.</p> <p>The question whether notice has been given to the next relations of the deceased that his will is to be exhibited for probate as required by Code, Art. 93, secs. 328 and 329, is a matter for the determination of the Orphans’ Court and is not one upon which issues can be asked after grant of probate.</p> <p>When a party attacks the probate of a will on the ground that notice thereof had not been given to near relations as required by statute, he must file his petition within a reasonable time after acquiring knowledge of that fact, and, in analogy with the time limited for taking appeals from orders of the Orphans’ Court, this should be within thirty days after the grant of probate.</p>

J., and Stump, J.) The jury rendered a verdict for the plaintiff for $5,000, of which $3,000 was remitted under an order of Court directing a new trial unless that should be done.

<p>Tax Sales — Irregular Proceedings — Effect of Order of Ratification — Presumption—Failure of Purchaser to Obtain Deed — Equitable Title — Ejectment.</p> <p>An order of Court ratifying a tax sale gives rise to the presumption that the proceedings were regular. But this presumption is rebutted when the proceedings leading up to the order are shown to be defective and in violation of statute.</p> <p>An order ratifying a tax sale under a statute which contemplates the execution of a deed to pass the legal title, can only give the purchaser an equitable title unless the statute otherwise provides, and such title is ordinarily not sufficient to defeat an action of ejectment by the former owner.</p> <p>When a statute requires that a full report of all the proceedings relating to the tax sale shall be made to a Court, it is not complied with by a report which refers to a book containing the requisite information, which book is kept in the county treasurer’s office and entries made therein subsequently.</p> <p>Code Local Laws, Art. 17, sec. 116, etc., provides that the treasurer of Prince George’s County shall advertise the property upon which taxes are in arrear and sell the same after notice. It is also provided that he shall make a full report to the Circuit Court in Equity setting forth the proceedings, with the notice, and showing at what price the particular property was sold, to whom, the amount of the taxes, etc. Provision is also made for the ratification of all unopposed sales. In this case the treasurer filed in one equity case a book purporting to set forth all the sales in a certain year and in another equity case in which the sale of plaintiff’s land for taxes was reported, there was no such return as was required by statute but reference was made to the book filed in the other case. This book was kept in the treasurer’s office and he made entries in it from time to time. There was a general order of Court ratifying all unopposed sales. It could not be ascertained from the exhibits in the equity cases or from the book what property had been sold or what had been redeemed. Held, that there had been a substantial failure to comply with the provisions of the statute and that the order of ratification was too indefinite to give validity to a sale in this case.</p> <p>Another section of said article provided that if the land sold for taxes should not be redeemed within two years, the treasurer of the county should make a deed in fee of the property which should be prima facie evidence of title. There was no provision for reporting the redemption of land to the Court that ratified the sale, and the money therefor was payable to the treasurer. Plaintiff, the owner of land sold for taxes, the sale having been ratified in the manner above stated, sued defendant, the purchaser in ejectment, more than two years after the sale. Held, that if the defendant had not obtained a deed from the treasurer for the land he could not set up the sale to him as a bar to the action.</p>

). The defendant’s first prayer which was rejected by the Court, was that there is no evidence legally sufficient to entitle the plaintiff to recover, and that the verdict of the jury must be for the defendant.

<p>Appeal from The Baltimore City Court (Wright, J.)</p>

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

). At the trial, the defendant’s tenth prayer instructed the jury that the city of Baltimore, in the exercise of the power conferred upon it by the city, has the paramount right to construct sewers in and along and under public streets of the city as it sees fit, and that for such incidental injuries as result therefrom, as complained of in this action, it is not liable.

). At the trial the following prayers were offered: Plaintiff’s ist Prayer. — If the jury shall find from the evidence that the plaintiff was indicted, tried and acquitted in the Criminal Court of Baltimore on the charge set forth in the record of that Court and the docket entries read in evidence; and shall find that the defendants, Charles H. Torsch and Frederick A. Torsch, aided and assisted in procuring the arrest and prosecution of the plaintiff under such circumstances…

J.). The deceased referred to in this case was found dead about io o’clock one morning lying on the floor of his bath room, fully dressed to go out, with a pistol shot wound over the right ear and the pistol on the floor near by. No motive for suicide was shown, nor any suspicious circumstances, and the deceased kept a pistol in that room which he often handled.

2 of Baltimore City (Sharp, J.), dismissing the bill of complaint. The bill prayed among other things that the comptroller of the city and the clerk of Lafayette market may be enjoined and required to issue to the plaintiff a license for the stall referred to, from May 1, 1897, to May 1, 1898.

<p>Action by Married Woman for Personal Injury — Pleading.</p> <p>Prior to the Act of 1898, ch. 4S7, it was necessary that husband and wife should join, as co-plaintiffs in an action to recover damages for personal injuries to the wife and a demurrer lay to a declaration in an action for such injuries by the wife suing by next friend.</p> <p>The right of a married woman to sue for a tort is not such t property as under Code, Art. 45, sec. 4, she may sue to recover by next friend.</p>

J'.). At the trial the following prayers were offered: Plaintiff’s 2d Prayer. — If the jury find from the evidence in this case that on the 16th day of September, 1895, the plaintiff, John Marney, was, and for some months prior thereto had been, in the employ of the Maryland Steel Company, the defendant, as cupola tender in one of its foundries at Sparrows Point; that the said defendant owned and operated a large establishment and plant at that place for the manufacture of…

' J.). At the trial the plaintiff offered the following prayers: Plaintiff’s 1st Prayer. — That it was the duty of the defendant to exercise ordinary care to provide a reasonably safe place in which the female plaintiff might perform the service which she was employed to perform for said defendant. — (Granted.) Plaintiff’s 2d Prayer. — If the jury find under all the circumstances testified to in the case, that the defendant in requiring the female plaintiff, under her…

<p>Specific Performance — Indefinite Agreement.</p> <p>Specific performance will not be decreed of a written contract for the sale of land which is indefinite and obscure in its terms, and when the real intention of the parties cannot be clearly ascertained.</p> <p>The plaintiff wrote to defendant offering to take $4,500 for the H. lot “with the $8,500 thereon, if you will allow G. one year in which to pay you Si,500, and deed the farm to him or his order when the $1,500 is paid you, provided also G. will receipt to me for any interest he may have in the said lot.” Defendant accepted this offer, but there was nothing in the memorandum to show what farm was intended or what relation the payment of the $1,500 bore to the payment of the $4,500. The evidence taken was in direct conflict as to whether the plaintiff was to pay the difference between the two amounts or not. Held, that specific performance should be refused.</p>

<p>Subrogation of Surety to Rights of Principal — Bill for Discovery.</p> <p>A surety is not entitled to be subrogated to the rights of his principal against the creditor, unless he has paid in full the debt due by ihe principal to such creditor.</p> <p>Where a principal has executed a mortgage to his creditor to secure the payment of certain debts, a surety for one of such debts is entitled to maintain a bill of discovery to ascertain what part of the debt for which he is liable is covered by such mortgage, or has been paid in full or in part from the proceeds thereof.</p> <p>A bill of discovery lies to obtain information proper for the defence of a suit about to be brought against the complainant.</p>

2 of Baltimore City (Wickes, J.), dismissing the bill of complaint so far as the property involved in this appeal was concerned.

). At the trial the following prayers were offere.d: Plaintiffs’ Prayer. — If the jury find for the plaintiffs they should award such damages as will, under all the circumstances of the case, compensate for the injury to the person and feelings suffered by Mrs. Neal by reason of the unlawful act of the defendant, if they shall find that defendant assaulted and struck her; and if they further find that the female plaintiff was treated with reckless violence and indignity,…

<p>Street Railways — New Servitude — Eminent Domain— Constitutional Law — Injunction— Use of Narrow Street by Railway and by Vehicles.</p> <p>Where the construction of a street railway is authorized by competent authority and there is no invasion of or physical interference with the property of an abutting owner, there is no taking of such property within the meaning of the Constitution, and no injunction will be granted to prevent consequential injuries resulting therefrom.</p> <p>For injury to the property of an abutting owner other than a taking, arising from the construction of a railroad, a remedy by action at law is provided under Code, Art. 23, sec. 169.</p> <p>The construction of an electric railway under legislative authority upon a street which is so narrow that there is not sufficient space for vehicles to pass or stand between the kerbstone of the pavement and the tracks, is not such a taking of the property of an abutting owner, who owns the bed of the street subject to the public easement, as entitles him to enjoin the making of the road, nor is such road so authorized a public nuisance.</p> <p>By the making of such a railway the street is not destroyed or seriously impaired for the ordinary uses of the public, nor is it burdened with a new servitude. Both vehicles and the cars of the company are entitled to use the street in a reasonable way although each may at times cause some inconvenience to the other. If it is necessary for vehicles to stand in front of the abutting owner’s property to deliver goods, etc., the street cars must wait, and such owner is hot deprived of access to his property.</p>

). At the trial the following prayers were offered: Plaintiff’s 1st Prayer. — If the jury find from the evidence that the defendants were in possession of a store and premises in the city of Baltimore, in which they maintained and operated adjoining elevators, one of which was applied and operated as a passenger elevator, and the other as a freight elevator, both running from the basement to the top of said store, and that the machinery and appliances operating the same were…

<p>Appeal from the Court of Common Pleas (Harlan, C. J.).</p>

). The following prayers were offered at the trial: Plaintiffs’ 1st Prayer. — If the jury find that the defendant owned and operated an electric railroad between Pikesville and Emory Grove, Baltimore County, and that part of the structure of said railroad consisted of upright poles placed at certain intervals alongside, and for the length of the track of said railroad, and that the defendant maintained as part of its railway structure a certain pole, No. 300, at a distance…

<p>Appeal from an order of the Circuit Court for Montgomery County (Motter, J.), refusing an injunction.</p>

E. Elooper, late of said city, deceased. Held: to such issue absolutely. (5.) That in the event of Mary H. Smith dying under the age of 21 and without issue, the appellants are directed to pay over the said principal and accumulated income, discharged of said trust, “ to the then surviving granddaughters of the said testator and the surviving issue of his then deceased…

<p>Appeal from an order of the Orphans’ Court of Baltimore City, setting aside the last will of F. C. Meyer and revoking the probate thereof.</p>

<p>Receivers — Effect of Appointment — Attachment in this State of Property of Foreign Corporation in the Hands of a Receiver — Estoppel.</p> <p>After the appointment of a receiver for a' foreign corporation, none of its officers have power to transfer its assets in this State or to ratify a transfer previously made.</p> <p>Creditors of a foreign corporation for which a receiver has been appointed may proceed by attachment in this State to enforce their claims against the assets of the corporation, whether such creditors be citizens of this State or of any State other than that in which the receiver was appointed.</p> <p>A receiver was appointed for a foreign insolvent corporation in the State of its domicil, and a creditor sued out an attachment in this State against assets of the corporation situated here. Subsequently, the creditor filed his claim with the foreign receiver, expressly reserving his right to proceed with the attachment in this State. Held, that under these circumstances the creditor was not estopped from proceeding with the attachment suit because he had filed his claim with the receiver.</p>

<p>Appeal from a judgment of the Circuit Court for Anne Arundel County (Jones and Revell, JJ.).</p>

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

<p>Constihitional Law — Title of Statute — Changing Name of Corpo? ation by Act of Legislature — Right to Alter Charters — Impairing Obligation of Contract.</p> <p>The title of the Act of 1898, ch. 17, was “ An Act to change the name of the trustees of the Sheppard Asylum, incorporated ... by the Act of 1853, ch. 274, as amended by the Act of 1886, ch. 9.” The body of the Act, after a preamble, provided that the name of the trustees of the Sheppard Asylum should be changed to the trustees of the Sheppard and Enoch Pratt Hospital, and that the corporation by the new name should hold all the property, enjoy all the rights, and possess all the powers which were possessed by or conferred upon it by its former name, and shall hold in like manner all the property which it might acquire under said change of title. Held, that the act was not in violation, of the Constitution, Art. 3, sec. 29, which provides that the subject of every law shall be described in its title, because none of the clauses of the Act added anything that would not have resulted by operation of law from the mere change of the corporate name.</p> <p>At the time when the charter of the defendant corporation was granted by th'e Legislature (in 1853) the Constitution provided that all charters might be altered from time to time or repealed, and defendant’s charter also declared that the General Assembly might at any time alter -or amend that Act. Held, that the Act of 1898, ch. 17, changing the name of the corporation with its assent, was valid and did not impair the obligation of the contract, since it was not only within the reserved power of the Legislature but had been assented to by the corporation, the other party to the contract.</p> <p>One who is not a party to a contract cannot object that an Act of the Legislature impairs its obligation.</p> <p>Property was devised to a corporation upon condition that it procure the passage of an Act of the Legislature changing its corporate name, and there was an alternative remainder over in case such change was not made. The change was made by the Legislature with the assent of the corporation. Held, that the alternative devisees not being parties to the contract contained in the charter had no standing to allege that the Legislature did not have power to change the corporate name.</p>

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

The bill of complaint was filed June 30, 1897. Mrs. Ann Catherine Buchanan, mother of the plaintiffs, died January 7, 1892. The cause was argued before McSherry, C. J., Fowler, Page, Boyd, Pearce and Schmucker, JJ.

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

Cross appeals from a decree of the Circuit Court No. 2 of Baltimore City (Wickes, J.) awarding damages to the amount of $10,000 to L. L. Bush & Co. upon their claim filed in a case in which receivers had been appointed for the Construction Company.

<p>Appeal from an order of the Circuit Court for Baltimore County (Fowler, C. J., and Burke, J.) overruling exceptions and finally ratifying the mortgage sale reported in this case.</p>

<p>Appeal in Criminal Cases — Special Plea to Indictment— License to Sell Oysters on Commission — Agreement Construed to Constitute Sale on Commission.</p> <p>Upon an indictment, the facts relied on as constituting a defence may be set forth in a special plea, and upon a demurrer thereto the Court will consider the merits of the case on appeal from the judgment.</p> <p>The traversers were indicted for selling oysters on commission without having obtained a license as commission merchants, according to the Act of 1894, ch. 380. The defence was that the oysters sold were their own property and that they did not sell them on commission. A special plea and the evidence, showed that the defendant’s firm owned certain boats, the captains of which were supplied by the firm with money for the purchase of oysters, and for these advances the captains gave their notes to the firm. When the oysters were sold the buyers gave a statement of the sale, etc., to the captains and these claims against the buyers were assigned to the firm. Each captain paid his crew and received 60 per cent, of the gross receipts from the oysters sold, less Ij4 cents on each bushel, and the firm received 40 per cent, of the gross receipts plus ij4 cents on, each bushel. The bujers of the oysters were procured by the firm and all sales were required to be effected through it. Held, that under this agreement the 40 per cent, of the gross receipts of sales is compensation to the firm for the use of its boats and the ixA cents per bushel is a commission for making the sale, and that consequently the traversers acted in the premises as commission merchants.</p>

<p>Appeal from an order of Baltimore City Court (Phelps, J., concurred in by Ritchie and Wickes, JJ.), dismissing appellant’s petition for a writ of mandamus.</p>

<p>Evidence — Admissibility of Statement made as Part of the Res Gestae.</p> <p>Upon a trial for murder evidence of a statement made by the prisoner a few minutes after he had left the scene of the homicide, and when he had had time for reflection is not admissible in his behalf as part of the res gestae.</p>

<p>Statute Valid in Part and Void in Part— Title of Statute— Licenses to Stevedores.</p> <p>A statute may be valid in part and void in part even when the two parts are contained in the same section, provided the valid part is independent of, and severable from, that which is void.</p> <p>The title of the Act of 1898, ch. 505, was “ An Act to provide for licenses to stevedores.” In the body of the Act it was provided that every master stevedore in Baltimore City should take out a license, paying therefor a certain sum and that he should also file a bond. A penalty was provided for failure either to take out a license or to file a bond. Defendant was indicted for acting as a master stevedore without having been licensed and .in another count for failure to give a bond. It was conceded that the Act was void so far as the provision relating to the bond is concerned, because in violation of the Constitution, Art. 3, sec. 29, which declares that the subject of every law shall be described in its title. Held, that the provisions of the Act relating to licenses are independent of those relating to the bond; that the former are valid although the latter are void, and that consequently a demurrer to the count in the indictment charging the defendant with acting as a master stevedore without having obtained a license was properly overruled.</p>

). The appellants are the owners of a tract of land at Highland Station in Prince George’s County through which there runs a mill race, intended to supply a grist mill belonging to the appellee. A considerable portion of the tract is laid out in streets, alleys, parks and lots and a number of lots have been sold and houses erected on some of them.