Volume 89 — Maryland Reports

<p>Laches — Acquiescence—Estoppel.</p> <p>A testator declared in liis will that he had given to his son, W., his full share of the estate and devised all of the same to other children. W. was then in possession of a farm, the title to which stood in his father’s name, for which he had paid rent and for which he-continued to pay rent after his father’s death. He was a party to-a bill for the sale of testator’s real estate, and made no objection to-a decree directing a sale of the farm as part of such real estate. Subsequently, he tiled a petition alleging a parol gift of the farm to him by his father and that this was the advancement referred to in the will. Again, fifteen years after the testator’s death, W. filed another petition claiming the proceeds arising from the salé of the farm, alleging that the same had been purchased for him and that his father’s name was inserted in the deed by mistake. Held, that the petitioner was estopped by laches and acquiescence from seeking to enforce this claim.</p>

<p>Appeal from an order of the Circuit Court for Washington County (Sloan, J.), setting aside tax sale reported in this case.</p>

J.) The defendant’s fourth and seventh prayers which were rejected are set forth in the opinion of the Court.

J.), dismissing the bill of complaint. The opinion of the Court below was as follows: This case was brought before me on a demurrer to the bill.

), by which it was adjudged that the mortgage mentioned in the proceedings in this case does not constitute a lien or charge 011 the four lots of land owned by the plaintiffs and fronting on Mt. Vernon street, in the city of Baltimore, and that the defendant and his agents be perpetually enjoined from setting up or attempting to enforce said mortgage against the said four lots of land or from interfering with the enjoyment thereof of the plaintiffs, or those, claiming under…

<p>Appeal from an order of the Circuit Court for Worcester County (Page, C. J., and Lloyd, J.), directing the issue on the writ of mandamus.</p>

<p>Appeal from the Circuit Court for Harford County.</p> <p>The cause was submitted to the Court on the briefs by:</p>

<p>Agency —Revocation of Power of Attorney — Advances Made by Agent — Power Coupled With an Interest.</p> <p>The general rule is that an agent’s authority is always revocable at the will of the principal, unless the authority be coupled with an interest in the thing itself, on which the authority is to be exercised, or has been conferred for a valuable consideration moving from the agent.</p> <p>The owner of a farm, then occupied by tenant, appointed plaintiff agent to collect the rents thereof for a certain commission, until January, 1898. It was provided that plaintiff was “ not to advance any rents before due except when absolutely convenient.” Plaintiff had made advances in excess of the rents collected when his power of attorney was revoked by deed before January 1st, 1898, and the farm conveyed to a third party in trust, Held, that the owner had the right to revoke plaintiff’s power of attorney, notwithstanding the fact that he had made advances upon the faith of it; the power not having been conferred as security for such advances, and plaintiff having been under 110 legal obligation to make them.</p>

<p>Appeal from an order of the Circuit Court for Baltimore County (Burke, J.), overruling exceptions to the receivers’ sale reported in this case, and finally ratifying and confirming the same.</p>

) The contract between Clark & Mc-Culloh of the first part and Beeghly of the second part, provided that the former gave to the latter “ a job of logging and peeling bark,” and that “it is agreed that the party of the second part cuts all the merchantable timber of every kind that will make an eight-inch log, and peels all the hemlock and rock-oak bark, peeling the same from the entire tree.

<p>Appeal from the Baltimore City Court (Dennis, J.), where the case was tried before the Court without a jury.</p>

<p>Appeal from a judgment of the Circuit Court for Worcester County (Holland and Lloyd, JJ.)</p>

<p>Jurisdiction Over Foreign Corporation Doing Business in this State —Regulating Internal Management of Corporation — Mutual Life Insurance Company — Fraudulent and. Illegal Assessments — Forfeiture of Policy — Receivers.</p> <p>The Courts of this State have no jurisdiction to inquire into and regulate the internal management of a foreign corporation doing business in this State.</p> <p>Code, Article 23, section 124, providing that every foreign insurance company doing business in this State shall appoint an agent here upon whom process can be served, does not confer upon the Courts of this State jurisdiction to regulate the internal government of such corporation.</p> <p>A policy-holder in a life insurance company operating on the mutual assessment plan is an insurer of others as well as insured himself. An action on the policy to recover a loss insured against would be within the jurisdiction of the Courts of this State although the company be foreign, and in such case the policy would be construed and the rights of the plaintiff ascertained. But a suit to determine whether certain assessments in a foreign insurance company were fraudently and illegally made and to enjoin the forfeiture of a policy for non-payment thereof, involves an inquiry into and the regulation of the internal management of a foreign corporation, and is not within the jurisdiction of the Courts of this State.</p> <p>The constitution and by-laws of a mutual assessment insurance company form part of the contract of insurance, whether mentioned or not; and the policy is to be construed in connection with them.</p> <p>The assessments paid by a member of-such a company to meet death losses, are not assets of the company, but are collected by it for the benefit of those entitled.</p> <p>Plaintiff] a resident of this State, was a member of a mutual assessment life insurance company created by another State, and doing business here. The policy provided for certain regular assessments, and also that if the death fund should be insufficient to meet existing claims, then assessments might be made at such rates as should be established by the board of directors. Provision was also made for the issue of a bond, for his proportion of the reserve fund to each member after a certain time, which should be available for the payment of future assessments. It was stipulated that the contract should be construed according to the constitution and by-laws of the company and the law of the State of its domicile. Plaintiff filed a bill alleging that his assessments had been fraudulently and illegally increased in amount by the directors of the company for the purpose of forcing him to allow his policy to lapse, and that the bond issued to him was for less than the amount that would be his share of the reserve fund upon a true accounting. The bill asked for an injunction restraining the forfeiture of plaintiff’s policy for non-payment of the extra assessments, for an adjudication that they were fraudulent and void, and a determination as to the power of the company to levy assessments ; for an account of the assets and liabilities of the company and for a receiver. It was also alleged that if the company had the power to make the-extra assessments, the plaintiff had been mistaken as to this matter when his policy was issued, and it was asked that the payments made by him should be refunded. Upon demurrer, Held,</p> <p>ist. That the question whether the condition of the company’s death fund required the extra assessments to be made, or whether they were unnecessary and fraudulent, could not be determined until the condition of the death fund, and the claims upon it, and the whole management of the association as to its liabilities and assets, should be investigated, and that since this involved an inquiry into, and an attempt to regulate the internal affairs of a foreign corporation, the Courts of this State have no jurisdiction.</p> <p>2nd. That since the Court had no jurisdiction over the principal subject-matter of the bill, it had no power to appoint a receiver upon the mere allegation of the company’s insolvency.</p> <p>3rd. That the Court would not construe plaintiff’s rights under his certificate of membership because that alone was set out in the bill while his rights under it depend also upon his application, and the constitution and by-laws of the company which are not before the Court.</p> <p>4th. That the sums paid in by the plaintiff were paid by him as insurer to meet losses and that he had no standing to ask to have the same refunded merely because he did not know that the company had the right under the contract to increase the assessments mentioned in his policy.</p>

<p>Appeal from the Circuit Court for Kent County (Stump and Martin, JJ.)</p> <p>The cause was submitted to the Court on briefs by:</p>

<p>Appeal from the'Baltimore City Court (Dennis, J.)</p>

) The Actmf 1894, ch. 380, sec. 66, enacts that any person, firm or corporation engaged in the business of packing or canning oysters for sale or transportation shall * * take out a license to engage in such business by application under oath to the Clerk of the Circuit Court, &c., and such application shall state the number of bushels of oysters which is proposed to be packed by himself, his firm or corporation during the succeeding eight months, and at the time of issuing…

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

<p>Appeal from the Circuit Court for Prince George’s County (Crane,,J.) Former appeals in this case are reported in State v. Duvall, 83 Md. 123, and Scaggs v. Reilly, 88 Md. 6.3.</p> <p>The cause was submitted to the Court on briefs by:</p>

<p>Appeal from a decree of the Circuit Court No. 2, of Baltimore City, (Sharp, J.)</p> <p>The cause was submitted to the Court on briefs by :</p>

<p>Corporations — Election of Directors — By-Laws—Fraud on the Part of the Judges of Election — Mandamus—Appeal.</p> <p>A by-law of a corporation provided that at the regular annual election the judges of election appointed by the board shall “judge of the qualifications of all voters and the sufficiency of all proxies offered and their decision shall be final and conclusive in all cases.” Held, that this by-law is only conclusive upon the members in the absence of proof of fraud upon the part of the judges of election.</p> <p>Where a petition for a mandamus alleges that the petitioners were legally elected directors of the corporation at a meeting; that the defendants were returned by the judges as elected, and that the count was fraudulent and the result of the voting falsely announced; that lawful proxies were fraudulently rejected and unlawful proxies unlawfully deposited, such petition states a case within the jurisdiction of the Court.</p> <p>This Court must decide cases as they are presented by the record, not as they may have been argued in the Court below, in contravention of the record.</p>

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

<p>Advertisement of Mortgage Sales in Baltimore City — Agreement as to Notice.</p> <p>Local Code, Art. 4, sec. 720, &c., contains provisions as to the notice to be given by advertisement of mortgage sales in Baltimore City and directs that the advertisement shall be inserted in two daily newspapers. A mortgage provided fora sale upon default after giving twenty days notice, by advertisement in some newspaper. Held, that under the statute the parties to a mortgage are not prohibited from agreeing as to the notice to be given, and a sale made in pursuance of the notice agreed upon is valid, but if there be a power of sale in the mortgage and no agreement as to notice, then it must be given in two daily newspapers published in Baltimore.</p>

<p>Gifts — Savings Bank Deposits.</p> <p>A woman made deposits in a savings bank in the names of her nieces, then infants, subject to her order. She was told by the bank officers that in this way the money would continue to be subject to her control. She was not the guardian of the nieces, did not inform them of the deposits and retained in her possession the pass-books. Held, that no gift had been made of the money and that the depositor is entitled to draw out the same.</p>

<p>Appeal from a decree of the Circuit Court of Baltimore City (Wickes, J.)</p>

<p>Appeal from a decree of the Circuit Court of Baltimore City (Wickes, J.)</p>

<p>Appeal from the Circuit Court for Carroll County (Jones and Revele, JJ.)</p>

<p>Election of Jury Trial in Civil Cases in Baltimore City — Practice— Amendment of Declaration — Appeal.</p> <p>Under Rule 50 of the Supreme Bench of Baltimore City, a party who elects to have his case tried before a jury must do so by filing a writing distinct from the pleadings. In this case, the plaintiff wrote and signed on the outside of the cover enclosing the declaration under the proper title of the Court and case, the following direction : “Mr. Clerk : Please file this declaration and notice to plead and mark the case for a jury trial.” Held, that this was a sufficient election of a jury trial under the rule.</p> <p>Where an election for a jury trial was made in the above-mentioned manner, the subsequent filing of an amended declaration does not withdraw such election.</p> <p>The provision of the said rule of Court, requiring the plaintiff to file his election of a jury trial within fifteen days after the filing of the declaration, means the filing of the original declaration and the plaintiff who has failed to make his election within that time, cannot enlarge his privilege by amending his declaration after the expiration of such time.</p> <p>An appeal lies from an order of Court determining whether a case shall be tried with or without a jury, because such order determines a constitutional right.</p>

<p>Appeal from the Circuit Court for Prince George’s County.</p> <p>The cause was submitted to the Court on briefs by:</p>

<p>Appeal from an order of the Circuit Court for Carroll County (Jones, J.), overrulling demurrer to defendant’s answer and dismissing the petition for mandamus.</p>

) The plaintiff’s second prayer, which was granted, was: “If the verdict be for the plaintiff, the measure of damages shall be the difference between the contract price of the goods described in the written contract, and the market price of the same goods at the time and place of delivery, on September 30th, 1897.”

<p>Practice — Service of Pleas — Absence from State of Defendants Attorney— Waiver of Pleas — Appeal.</p> <p>Where a defendant’s attorney leaves the State it is proper for the Court to direct the orders, &c., setting the case for trial to be served on the defendant personally.</p> <p>A day may be fixed for the trial of a case without personal service of notice thereof on the defendant’s attorney.</p> <p>The question whether pleadings in a case have been served on the opposite party in accordance with the rules of the trial Court can only be brought before the Court of Appeals by bill of exceptions, unless the facts appear in the record.</p> <p>Where a defendant files several pleas and goes to trial after joinder of issue upon one of them, without requiring replications to the other pleas, he will be held, after verdict, to have waived the latter pleas.</p>

<p>Habitual Drunkard— Waiver of Jury Trial — Sale of Land by Committee — Order Nisi — Appeal.</p> <p>Code Art. 16, sec. 47 (Act of 1894, ch. 474), provides, that when a person is found by a jury upon inquisition to be an habitual drunkard, incapable of taking care of himself or his property, the Court shall have the same power over his person and property as it exercises over persons adjudged to be lunatics. It is also provided that a person may dispense with legal proceedings to establish the fact that he is an habitual drunkard and appoint his own committee, with the approval of the Court. Held, that where a person charged upon petition with being an habitual drunkard voluntarily appears, admits the charge, and appoints his own committee with the approval of the Court, such committee may be authorized to sell and convey the property of such party.</p> <p>A person charged with being an habitual drunkard dispensed with a jury trial and appointed his own committee, as provided by Code, Art. 16, sec. 47. Subsequently, an order of Court directed a private sale of the habitual drunkard’s property to the appellant, who had agreed to purchase it. Upon appeal from this order, Held, that the validity of the order appointing the committee was not open to review.</p> <p>Code, Art. 16, sec. 47, authorizes a person charged with being an habitual drunkard to dispense with a jury trial to establish the same, and appoint his own committee, but the mode in which such election and appointment shall be evidenced is not prescribed. Held, that the recital in a decree of Court of such election by the person charged, and the appointment of the committee is sufficient evidence of the fact and the same need not be shown by other papers filed in the case.</p> <p>A committee of an habitual drunkard reported to the Court a private sale of his property, together with a full statement of the terms thereof and asked for authority to make the sale. The purchaser answered the petition, admitting its allegations and consenting to a ratification. Thereupon, an order was passed directing the committee to convey the property to the purchaser upon payment of the purchase money. Held, that under the circumstances of this case the petition and answer may be regarded as a consent to the ratification of the sale without an order nisi, but that the committee should now ask to have his petition accepted as a report of sale with direction for the usual order nisi.</p>

), restraining the appellant from selling under his mortgage the real estate previously directed to be sold by the Orphans’ Court of said county.

<p>Two appeals from the Circuit Court of Baltimore City (Wickes, J.)</p>

<p>Proof of Ancient Indebtedness — Stale Claims — Laches in Prosecurtion of Suit— What Questions May be Determined Upon Distribution of Proceeds of Mortgage Sale — Release of Surety — Powers of Trustee — Effect of Scire Facias Reviving Judgment— Estoppel.</p> <p>A fund arising from a sale under a mortgage to a trustee was in Court for distribution many years after the sale and after the death of the trustee, and also of one of the parties who would be entitled to the surplus after payment of balance due on a judgment for which the mortgagors were liable. The controversy related to the amounts with which the deceased trustee should be charged as having been received by him from various sources and properly applicable to the payment of the distributees’ indebtedness. Appellant, who would be entitled to such surplus, produced before the auditor a number of receipts and statements of accounts in the handwriting of the deceased trustee, found among the papers of appellant’s father, under whom she claimed. Held, that although these papers standing alone would create a prima facia presumption of indebtedness on the part of the trustee, yet this presumption is overcome by the fact that they are produced twenty-five years after the transactions to which they relate, by persons having no personal knowledge of their contents, and after the death of both parties to the transactions, and also because they are contradicted by other papers showing that the amounts claimed to have been collected by the trustee were by him paid to the executor of appellant’s father.</p> <p>Where a party does not make a claim that a trustee is indebted to her father’s estate until fifteen years after the latter’s death, and then abandons a petition in which the claim is set up, and does not again assert it until after the trustee’s death, who, when living, had denied it under oath, there is such laches as requires the Court to deal strictly with the evidence produced subsequently in support of such claim.</p> <p>Laches in the prosecution of a suit is as fatal to recovery as delay in. its institution.</p> <p>When a fund arising from a mortgage sale is in Court for distribution,, the Court has no authority to decide questions not relating to the-mortgage debt, and not arising betweeen the parties to the mortgage or their assignees, Therefore, if an executor is entitled to part of such fund, a distributee of the estate in which he is executor has no right to demand payment to himself. Nor can the Court in such case determine the question of the existence of an indebtedness of the executor of the mortgagee to the executor of the mortgagor growing out of transactions having no relation to the mortgage. And an agreement of the parties that such questions should be determined does not confer jurisdiction upon the Court.</p> <p>When a trustee executes an unauthorized release of part of the land from a mortgage indebtedness for which a surety is liable on a bond, the surety is not thereby discharged, because such attempted release is ultra vires and invalid. And even if the surety would have been entitled to rely on this defence his executor cannot do so when a judgment for the indebtedness was, after the release, revived against the executor by scire facias.</p> <p>When a scire facias is issued against an original defendant or his administrator, to revive a judgment, and he is summoned, a judgment of fiat operates as a conclusive estoppel preventing him from asserting any defence to the original judgment which he neglected to plead to the' scire facias.</p> <p>A defendant in a scire facias is entitled to plead any defence which goes to show that his liability has been extinguished.</p>

) The prospectus of the Roanoke Development Company, dated October, 1890, announced that the company proposed “to purchase 1,300 acres of land lying adjacent to the corporate limits of Roanoke and directly west of the centre of the town. The property has a frontage of about two and a-half miles on the Roanoke River, and comprises some 300 or 400 acres of fine bottom lands, suitable for business and manufacturing.purposes.

<p>Contributory Negligence — Avoidance of Injury — Accident at Street Railway Crossing.</p> <p>Plaintiff’s failure to stop and look before walking upon the tracks of a street railway company is not per se such contributory negligence •as prevents him from recovering for an injury, if the motorman of the car which struck the plaintiff did not exercise ordinary care to avoid the accident after he saw, or by the exercise of care could have seen plaintiff’s peril.</p> <p>At a street crossing where defendant’s electric railway double tracks occupied nearly the entire bed of the street, the distance between the outer rail and the curb being only six feet, plaintiff, with bundles in her hands, attempted to cross and was struck by defendant’s car, which was running at the rate of ten miles an hour. The accident happened in the daytime and there was a clear view for one thousand feet in the direction of the approaching car. The evidence was conflicting as to whether a gong was sounded or not. The motorman’s evidence was that he first saw plaintiff as she was stepping from the curbstone and then endeavored to stop the car. Plaintiff testified that she looked but did not see the car. Held, that under these circumstances the case should not be withdrawn from the jury.</p>

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

<p>Attachment for Fraud — Breach of Promise to Pay for Goods Not Fraud — Disposition of Property in Fraud of Creditors — Bill of Sale to Bona Fide Creditor.</p> <p>Plaintiff sold a quantity of fertilizer and seed-wheat to defendant, who gave his notes for the price thereof and promised to deliver wheat as soon as threshed to plaintiff in satisfaction of the same. Delivery not having been made, plaintiff issued an attachment alleging that the debt had been fraudulently contracted. . Held, that there was no evidence legally sufficient to show that defendant did not intend to pay for the goods when he purchased them, and that the breach of his promise to deliver the wheat when threshed is not per se actionable fraud, because such fraud consists in false representation as to an existing fact, and not in the failure to perform a promise for the future.</p> <p>The execution of a bill of sale to secure a bona fide creditor is not to be considered as an assignment' or disposition of property with intent to defraud creditors, within the meaning of the attachment law, merely because it results in giving to the vendee a preference over other bona fide creditors.</p>

<p>Appeal from the Circuit for Harford County (Watters, J.)</p> <p>The cause was argued before McSherry, C. J., Fowler, Briscoe, Page, Boyd and Schmucicer, JJ.</p>

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

<p>Four appeals from a pro forma decree of the Circuit Court No. 2, of Baltimore City, upon a special case stated under General Equity Rule No. 47.</p>

<p>Police Power — Public Health — Prohibition of Cesspools in Towns— Summary Abatement of Nuisance.</p> <p>The Act of 1898, ch. 453, incorporating the town of Garrett Park, provided that the corporation should have “full power to regulate privies, specify the character of boxes and other fixtures for them, and the mode in which they shall be emptied and their contents removed, as well as the disposition of said contents, and they shall prohibit the construction or maintenance of privy-sinks, cesspools and other depositories of filth within the corporate limits.” The town council passed an ordinance directing the use of water-tight dry earth-boxes for these purposes, and prohibited the use or construction of any cesspool or privy-sink, and directed that such cesspools should be removed by the health officer upon the order of the council. Before the passage of the Act, the plaintiff had constructed a water-tight cesspool on his premises within the town limits, and upon his refusal to cease the use thereof, the health officer of the town, in pursuance of orders from the town council, severed the pipes connecting the cesspool with plaintiff’s house and removed a part of them. Upon a bill for an injunction, Held,</p> <p>1st. That the charter of the town and the ordinance passed in pursuance thereof was a valid exercise of the police power designed in good faith to protect the public health, and that plaintiff had no vested right to continue the use of the cesspool.</p> <p>2nd. That the ordinance did not operate to deprive plaintiff of his property without due process of law within the constitutional inhibition.</p> <p>3rd. That it was not necessary to give to plaintiff notice of the passage of the ordinance, or of the order directing the health officer to sever plaintiff’s pipes, and that the town has the right to proceed to a summary abatement of the nuisance without a judicial proceeding.</p>

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

<p>Criminal Law — Challenge of Juror — Admissibility of Confession.</p> <p>In a criminal case, the State may peremptorily challenge a juror after he has been examined on his voir dire and accepted by the prisoner when the State’s right of peremptory challenge has not been exhausted.</p> <p>A prisoner charged with murder said to a police officer that he was willing to confess. ' A stenographer was sent for and the prisoner made a confession in the presence of his sister, two police officers and the stenographer, which was afterwards written out on a typewriter, read over to the prisoner, pronounced correct, and signed by •'him. The prisoner and his sister testified that certain threats and inducements had been made by the police officers, but this testimony was contradicted by the officers. Held, that the confession was a voluntary act and admissible in evidence against the prisoner.</p>

<p>Mechanics' Lien — Bill to Enforce Against Married Woman— Work Done Under Separate Cojitracts — Claim Must State Time of Doing Work.</p> <p>Apart from the Act of 1898, ch. 457, when a bill is filed to enforce a mechanic’s lien against the property of a married woman, her husband should be made a party defendant.</p> <p>When materials are furnished or work done under distinct contracts the material man or mechanic is not entitled to a lien under all the contracts by simply accounting from the date of the last item of one of them. He must file his lien-claim within six months after the work is finished or the materials furnished under each contract.</p> <p>A lien-claim which includes work done and material furnished under two or more separate contracts should state the dates for each, and a mere statement that the work has been finished and materials furnished within less than six months before filing of the claim is not sufficient.</p> <p>When money is paid by a person indebted on a lien-claim and also on another claim not secured by lien, and no apportionment thereof is made, the law will apply the payment to the lien-claim as being the most burdensome obligation.</p>

<p>Appeal from an order of the Circuit Court for Harford County (Watters, J.), overruling exceptions to a sale and finally ratifying the same.</p>

<p>Rhsfakg in policy of Fire Insurance — Billfor Reformation of Polity and Payment of Loss — Re-opening Decree for Payment — Offer to Rebuild.</p> <p>A policy of fire insurance was issued on property therein stated to belong to a husband, and the loss was made payable to a certain named person as mortgagee. After destruction of the property by fire, a bill was filed alleging that, in fact, it belonged to the wife of the assured ; that a person other than the one named in the policy was the mortgagee ; that the insurance company’s agents were informed of these facts at the time of the issue of the policy, and that the form of the policy as issued was the result of mutual mistake. Held, that since these allegations were established by evidence, the Court would decree a reformation of the policy, and at the same time direct payment of the loss, which was alleged and proved to be total.</p> <p>A bill for the reformation of a policy of fire insurance to correct a mistake, alleged also a total loss and asked for its payment. The answer admitted the loss and plaintiff’s evidence established the same, and that there had been no overvaluation. Defendant produced no testimony as to the valuation. Held, that after a decree for payment it is too late for defendant to seek to re-open the case and produce evidence of overvaluation orto offer to rebuild the property, since under the policy, notice of the insurer’s intention to rebuild must be given within thirty days after proof of loss, and such proof had been furnished more than a year before the decree was made.</p>

<p>Evidence of Estoppel in Pais — Limitations—Acknowledgment of . Debt by Testimony in Another Case — Effect of fudgment in Replevin for Promissory Notes.</p> <p>The facts which constitute an estoppel in pais are admissible in evidence without being specially pleaded.</p> <p>In an action against a maker by the assignee of certain promissory notes, where limitations are pleaded, an acknowledgment made'by the defendant when giving his testimony in an equity cause that he executed the notes in question, and that they have not been paid, is sufficient to remove the bar of the statute.</p> <p>The assignee of certain promissory notes recovered them from the maker in an action of replevin, where judgment was rendered by confession. Held, that in an action on the notes against the maker, the record of the replevin suit is not competent evidence to show an admission of the debt evidenced by the notes, since the judgment in replevin determined only the right to the possession of the pieces of paper on which the notes were written.</p>

<p>Mortgages — Right of Mortgagee to Rents and Profits Upon Demand After Default and Before Sale — Application by Assignee for Creditors of Rents of Mortgaged Leasehold Property to Payment of Taxes and Ground-rent.</p> <p>Where a trustee under an assignment for the benefit of creditors takes possession of mortgaged leasehold property, and collects rents therefrom, the mortgage being overdue at the date of the assignment, the taxes, ground-rent and interest being in arrear, and the mortgage security being insufficient, the trustee is bound, on demand made, to apply rents so collected to the taxes, ground-rent and interest.</p> <p>Where in such case the mortgagee makes demand upon the trustee for possession of the property and upon refusal thereof gives notice to the tenants not to pay rent to the trustee, he is entitled, upon application to the Court administering the trust, to the rents collected by trustee after such demand for possession.</p> <p>When a mortagor is allowed to remain in possession after default he is entitled to collect for his own use the rents and profits, but after a demand for possession by the mortgagee or a demand of the rents, then the mortagee is entitled to the same.</p>

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

<p>Appeal from an order of the Circuit Court for Washington County (Sloan, J).</p> <p>The cause was submitted to the Court on briefs by:</p>

J.) At the trial some of the prayers offered were the following : Plaintiff's Prayer No. 11-2. — If the jury find that Uriah Johnson, the deceased, was related to the equitable plaintiffs as charged in the declaration, and that on the rst April, 1893, said Johnson and Andrew Reynolds were engaged in a fight, near the defendant’s store at Bynum Station, in Harford County, and that the defendant came out of his store and seeing said fight, ran up to within a short distance of…

). The defendant’s third and fourth prayers were as follows : Defendant's yd Prayer. — If the jury believe that the plaintiff drove upon that portion of Park Heights avenue, exclusively used by the defendant’s cars and occupied by its '* T ” rail tracks and stone ballast, on a dark and rainy night, and drove his horse down said track for over two hundred yards, and that the motorman in charge of the defendant’s car, after he discovered by the exercise of all due and proper…

<p>Fraud — Certificate as to Bonds by a Trust Company as Mortgagee— Evidence.</p> <p>A telephone company executed a mortgage of property to a T rust Company to secure the payment of certain bonds. The Trust Company endorsed on each bond a certificate signed by its officers, stating that “this bond is one of a series of six hundred bonds for $500 each for the security of which the within mortgage was executed.” Plaintiff bought some of the bonds so certified, and when they proved to be without value he brought an action of deceit against the Trust Company, alleging that he had been induced to buy the bonds on the faith of the company’s statement that they were secured by mortgage, and that said statement was false. The mortgage was not recorded before the bonds were issued, but it was recorded before plaintiff purchased, and there was no loss arising from any defect in the mortgage. Held,</p> <p>ist. That there was no evidence to show that the certificate of the Trust Company was false, the bonds being in fact secured by a mortgage of property, and the certificate being designed to identify them and not being in the nature of a guaranty that the property mortgaged was an adequate security.</p> <p>2nd. That evidence as to knowledge by the Trust Company concerning property owned by the telephone company, after its formation, is not admissible.</p>

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

<p>Appeal from a decree of the Circuit Court for Wicomico County (Page, C. J. and Lloyd, J.)</p>

<p>Forcible Entry and Detainer — Jurisdiction of Justice of the Peace— Appeal— Certiorari.</p> <p>Under the statute of 8 Henry VI, ch. 9, and Code, Art. 53, sec. 6, a . Justice of the Peace has jurisdiction to try a case of forcible entry and detainer without a jury, and to award restitution of the premises. In the case of a forcible entry the jurisdiction of the Justice is limited to the imposition of a fine, and the commitment of the accused until paid. In the case of a forcible detainer as well, the Justice may also award restitution of the premises. The defendant has a right of appeal to the Circuit Court from the judgment of the Justice, but the decision of that Court is final, and one from which no appeal lies to the Court of Appeals.</p> <p>When the jurisdiction of a Justice of the Peace is attacked on the ground that the statute conferring it is unconstitutional, a writ of certiorari from the Circuit Court brings up the questions for review, and an appeal lies from the judgment of that Court to the Court of Appeals.</p> <p>When the proceedings of a Justice of the Peace can only be reviewed upon certiorari, an.agreement of counsel cannot dispense with it, nor can effect be given to an agreement that a record voluntarily transmitted by the Justice shall -be treated as though it had been brought into Court by certiorari.</p>

<p>Appeal from a decree of the Circuit Court for Baltimore County (Burice, J). Parts of the testator’s will, in addition to those quoted in the opinion of the Court, were as follows :</p> <p>“ And as to all the rest and residue of my estate, whether real or personal, and wheresoever the same may be situated, including my reversionary interest in the property mentioned in the deed of marriage-settlement aforesaid, and all ■other my lands, tenements, hereditaments, and property of every description whatsoever, I dispose of the same in manner following, that is to say: I direct the same to be divided equally by my executors hereinafter named, into so many parts or shares as I shall leave children living at the time of my death; and if'any of my children shall die in my lifetime leaving issue, who shall be living at the time of my death, it is my will, that the issue of such child or the respective issue of such children, if more than one, shall represent their said parent or respective parents, and be reckoned and counted as a child or children, as the case may be, for the purpose of such division. * * *</p> <p>“ And one other of the said equal parts or shares of my said residuary estate, I devise and bequeath to the said Herman H. Grane, Louis Wilkens and Gustav Adolph Schlens, upon the trusts following, that is to say, in trust during the minority of my daughter, Anna Maria Wilkens, to expend the whole or so much as they may deem requisite of the income thereof, in or about her maintenance and education, or otherwise, for her benefit; and the receipts of the said Catherine Wilkens, her mother, shall be full acquittances to the said trustees for all of said income which may be paid to her for such purposes, and the surplus, if any, of said income, to accumulate and invest; and in further trust, if and when my said last-mentioned daughter shall attain the age of twenty-one years, to pay the income of the part or share of the accumulations aforesaid, during the natural life of the said Anna Maria, to her, the said Anna Maria, for her sole and separate use, without power to her to alien or anticipate said income, so as her receipts alone shall be sufficient discharges to the trustees for the said income, and at the death of the said Anna Maria, then as to the principal of the said part or shares and accumulations in trust for all the children of the said Anna Maria, share and share alike, and if the said Anna Maria shall die leaving no issue living at the time of her death, and leaving her mother, the said Catherine, her surviving, then, and in such case I give and devise one equal half-part of all the said part or share of my residuary estate, in this clause mentioned, and of the accumulations therefrom, to her, the said Catherine, absolutely, and the other half-part thereof to all my children living at the time of the death of the said .Anna Maria, and to the issue then living of any child or children of mine, then deceased, to take, if more than one, as tenants in common, according to the stocks and not to the number of individuals, the issue of deceased children taking by substitution as tenants in common, the respective shares only which their respective parents would, if living, have taken ; and if my said wife, Catherine, shall not be living at the time of the death of the said Anna Maria, then I devise and bequeath the whole of the said part or share with the accumulations to my other children, and issue, in the same manner as above provided as to a moiety thereof, in case of the said Catherine surviving the said Anna Maria.”</p>

J., Stump and Martin, JJ.) At the trial the plaintiff’s first prayer was, that if the jury found that the defendant was the owner of the tug W. S. Cahill and had been towing barges through the Albemarle and Chesapeake Canal, and that the said Canal Company had been charging him a towing privilege of twenty dollars for each barge towed by kim through said canal in addition to the regular tolls on cargoes.

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

<p>Construction of Grant to Baltimore City of Right to the Water of a River for the Municipal Water Supply— Conditions Subsequent in Deed.</p> <p>The city of Baltimore constructed a dam on a river as a part of its water supply. Plaintiff, a riparian proprietor below the dam, executed a deed by which he granted to the city the use in perpetuity of so much of the stream as flowed by, along, and upon the lands of the grantor. It was declared to be the intent of the deed not to grant the fee-simple in the bed of the stream, but to give to the city the full and unrestricted control of the river “for the purpose of maintaining a pure water supply for the use of the inhabitants of the city of Baltimore.” Plaintiff alleged that the city sold the water to persons and corporations not within the city limits and asked for an injunction to restrain the city from using the water of the river for supplying any section of country outside of the municipal limits. Held, that the deed conveyed to the city the complete right to use all the water of the river in any manner authorized by statute, and that the reference to the inhabitants of the city in the deed, was only descriptive of the general purpose for which the right was obtained, and did not operate to prevent the city from disposing of the water to persons not inhabitants thereof.</p>

) At the trial the plaintiff’s first prayer was as follows: If the Court, sitting as a jury, shall find the plaintiff made the written proposal to the defendant offered in evidence, in the following words : For value received, .we, the undersigned, hereby agree to accept ninety (90%) per cent, of our respective claims v. Clarence F. Gettier, trading as “John L. Gettier and Son,” in full satisfaction and settlement thereof, ' payment to be made upon completion of the three…

<p>Constitutional Law — Police Power — Inspection of Dairies and Milk— Registration of Herd — Equal Protection of the Law.</p> <p>The provision of the Fourteenth Amendment of the Federal Constitution, that no State shall deny to any person the equal protection of the law, is not to be construed as meaning that every person shall possess the same rights and privileges as every other person. In the exercise of its police power a State may lawfully prescribe regulations for certain classes of persons to which other persons are not subject, provided the classification is based on reasonable grounds.</p> <p>The Act of 1898, ch. 306, prescribing certain sanitary regulations to be observed by dairymen who supply milk to cities, towns and villages, makes a reasonable classification of persons by whom the sale of impure milk would be especially injurious to the public, and the Act being applicable to all persons of that class, is valid, although other persons selling milk to individuals in the country are not included within its regulations.</p> <p>The Act of 1898, ch. 306, provides, that all dairymen supplying milk to cities, towns or villages, shall register their cattle with the Live Stock Sanitary Board; that the board shall inspect the premises where cows are kept, which premises must be used and maintained in conformity with the rules laid down in the Act relating to ventilation, drainage and cleanliness. Power is given to the board to prohibit the shipment of milk from dairies not kept in conformity with these rules, and a fine is imposed for any violation of the statute. Defendant, a dairyman, was indicted for having failed to register his cows. Held, that the Act is a valid exercise of the police power of the State, designed to protect the public health from the dangers arising from the sale of contaminated milk, and does not operate to deprive defendant of any right without due process of law, within the meaning of the Constitution</p>

<p>Taxation of Property of a Ward — Liabilities of Sureties on Guardian’s Bond for Taxes — Action in Name of the State for Use of Collector — Non-Residence of Ward.</p> <p>The sureties on a bond of a guardian, conditioned for the performance of his duties as guardian according to law, are liable for the taxes assessed against the property of the ward; Code, Art 81, secs. 9 and 65, expressly directing the payment of such taxes by the guardian.</p> <p>Such sureties are also liable for taxes on the ward’s property levied after he came of age, but while the guardian still held the property and before he passed a final account.</p> <p>The fact that the guardian settled his final account with the ward and delivered the property to him after the taxes were levied, and before the institution of the suit to recover the same, does not relieve the sureties from liability therefor.</p> <p>An action to recover such taxes is properly brought in the name of the State, to the use of the Collector of Taxes for the County where the guardian was appointed. The objection that the term of office of the collector, named in the declaration, has expired, is no defence, since the judgmeut is entered in the name of the State for whoever is entitled to the beneficial interest.</p> <p>When a statute authorizes a suit to be brought on a bond in the name of the State, the Court will, on motion, direct the proper use to be entered. A change in the name of the person beneficially entitled does not affect the defence.</p> <p>Code, Art. 81, sec. 83, provides that taxes shall be collected by the Collectors of the counties within four years after the same shall have been levied, and if the same shall not be collected within four years, the parties from whom such taxes may be demanded may plead this section in bar of any recovery of the same. Held, that this provision is not a bar to a suit against the sureties, on a guardian’s bond, brought to recover taxes assessed on the property of the ward, when such property was not within the State, and could not have been seized and sold for taxes by the Collector.</p> <p>Under Code, Art. 81, sec. 145, ample provision is made for giving notice of the assessment for taxation of property held by a guardian.</p> <p>When a ward owns real estate in a county other than that in which the guardian is appointed, such real estate is taxable only in the county where it is situated.</p> <p>When a guardian has been appointed in this State, the property in his hands, as such, continues to be liable to taxation here, although both ward and guardian subsequently remove to another State, if the property is not transferred to a guardian appointed in that State under Code, Art, 93, sec. 196.</p>

), by which it was adjudged that the holders of the preferred stock of the Chesapeake Guano Company have a lien upon the property of the corporation, including the moneys collected by the receivers, and are entitled to priority over creditors of the corporation whose debts were contracted subsequently to the time when said stock was issued. The cause was argued before McSherry, C. J., Fowler, Boyd and Page, JJ.

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

Cross-appeals from a decree of the Circuit Court of Baltimore City (Wickes, J.) The record in this case brings up cross-appeals from a decree of the Circuit Court of Baltimore City, and although but a single question is presented, viz., the liability of the estate of William L. Winans to the estate of DeWitt Clinton Winans for interest on the purchase money of certain real estate in Baltimore City, and certain letters-patent for ocean steamers.

<p>Landlord and Tenant — Time of Payment of Rent — Construction of Lease — Patent Ambiguity in JVriting — Parol Evidence.</p> <p>Rent is not due and payable until the end of the term, unless there be some provision to the contrary in the lease.</p> <p>Parol evidence is not admissible to explain a patent ambiguity appearing on the face of a writing.</p> <p>A lease of a house provided “for the term of eleven months, beginning on the 20th October, 1897, and ending on the 20th September, 1898, at $641.63, payable $58.33 on the 20th day of each and every month.” Held,</p> <p>1st. That since there is no provision in the lease for the payment of the rent in advance, the general rule that rent is not due until earned will be applied, and the several instalments consequently fall due on the 20th calendar days occurring at the end of the respective months of the tenancy and not at the beginning.</p> <p>2nd. That evidence that the lessee did pay the rent in advance during the earlier months of the tenancy, is not admissible to show that according to the true construction of the lease the rent was payable each month in advance, because the construction placed by a party upon an instrument of writing is not binding upon him, and also because the ambiguity as to the time of payment of the rent is patent, and therefore one which cannot be explained by parol evidence.</p>

<p>Appeal from an order of the Circuit Court of Baltimore City (Wickes, J.) /</p> <p>The cáuse was argued before McSherry, C. J., Fowler, Briscoe, Boyd and Pearce, JJ.</p> <p>3. Because the bill does not show that the property to be affected by it, or any part thereof, was within the control or jurisdiction of the Court, nor does the bill show the existence of any real or personal property lying or being in this State.'</p> <p>4. Because the mere averment that the defendant has “ assets ” in Maryland is insufficient.</p> <p>5. Because the exclusive right of the appellant as foreign receiver to collect the debts due to the corporation should have been respected.</p>

<p>Appeal from the Criminal Court of Baltimore (Sharp, J.)</p>

<p> Parol Evidence Inadmissible to Vary a Deed. </p> <p>Parol evidence is inadmissible to show that a deed executed to a person as trustee for a designated beneficiary was intended toube for a different beneficiary, when there is no allegation that the name of the designated beneficiary was inserted by fraud, surprise or mistake.</p>

<p>Two appeals from decrees of the Circuit Court of Baltimore City (Wickes, J.)</p>

) The complete text of ordinance No. 41 is as follows : No. 41. An ordinance to provide for laying the wires of The Chesapeake and Potomac Telephone Company of Baltimore City, or of The Chesapeake and Potomac Telephone Company, or of both of said companies, in underground conduits in the city of Baltimore.

<p> Use of Oleomargarine by Restaurant Keeper. </p> <p>Code, Art. 27, sec. 91, makes it unlawful for the proprietor of any hotel, restaurant or place of entertainment to use or serve oleomargarine to his customers. Held, that under an indictment for violation of this law it is no defence that the oleomargarine served was a wholesome article of food imported from another State, since such use of the article cannot be considered as a sale in the original package.</p>

<p>Fraud— Voluntary Promise. Not to Enforce Mortgage.</p> <p>A father made a voluntary conveyance of a farm to his son, taking from the latter a mortgage for about one-half of the value of the land. At the same time the son executed an agreement by which he covenanted to pay to his father the sum of thirty dollars annually during the latter’s life. The father told his son that he did not intend to collect the mortgage, but would be satisfied with the payment of the interest thereon during his life. The mortgage was subsequently assigned to plaintiff, and as a defence against its foreclosure the son alleged that he had been induced to execute the same in consequence of his father’s fraudulent representations. Held,. that the mortgage was not executed in consequence of any false representation by the father, but was a condition of his gift freely accepted by the son; that the promise not to enforce the mortgage/ even if made as alleged, being without consideration, was not binding, and was a mere expression of intention, and that the mortgage is enforceable in the hands of the assignee.</p>

Cross-appeals from a decree of the Circuit Court No. 2, of Baltimore City (Sharp, J.), enjoining the appellants from placing any governors on gas meters and refusing to grant a mandatory injunction requiring them to remove governors already placed on gas meters. The cause was argued before McSherry., C. J., Fowler, Page, Boyd, Pearce and Schmucker, JJ.

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

<p>Appeal from the Criminal Court of Baltimore (Sharp, J.)</p>

<p>Negligence — Accident at Railway Crossing on a Country Road— Legal Insufficiency of Evidence.</p>

<p>Allowance of Counsel Fees for Preserving a Lunatic's Estate — ■ Nemo est Flceres Viventis.</p>

<p> License to Sell Liquor in Carroll Cotmly. </p>

<p> Municipal Taxation. </p>

<p>Appeal from the Criminal Court of Baltimore (Sharp, J.)</p>