Volume 90 — Maryland Reports

<p> Taxation of Ward’s Property in Possession of Foreign Guardian. </p> <p>The personal property of a ward in the possession of a guardian appointed and residing in a foreign jurisdiction is not taxable in this State, although the ward’s husband may have a residence in this State.</p>

<p> Limitations—Dismissal of Former Action. </p> <p>When the Statute of Limitations once begins to run on a claim, its operation is not suspended by the fact that a suit was instituted in a foreign jurisdiction which was dismissed before judgment, and the statute is a bar to another suit on the same claim instituted in this jurisdiction after the expiration of the time limited.</p>

<p>Liability of Sureties on a Constable's Bond— Void Warrant of Distress</p> <p>The sureties on a constable’s official bond are not liable to an action for his seizure of plaintiff’s property when acting under a void distress warrant, the act of the constable in such case not being done virtute officii.</p> <p>An action on a constable’s bond to recover damages for his official delinquencies must be brought' in the name of the State for the use of the party injured.</p> <p>Under Code, Art. 53, secs. 8 and 9, a warrant .authorizing a bailiff to levy a distress for rent must be accompanied by an account and the affidavit of the landlord that the rent claimed is due. Held, that a warrant issued without such affidavit is null and void, and a constable who seizes and sells property under such void warrant is liable as a trespasser, but the sureties on his official bond are not liable therefor.</p>

<p>Constitutional Law—Title of Statute—Equal Protection of the Law— Prohibiting Directors of Mining Corporations from Selling Goods, Wares and Merchandise.</p> <p>The title of the Act of 1898, ch. 493, was “An Act to prohibit railroad and mining corporations, their officers and agents, from selling or bartering goods, wares or merchandise in Allegany County to their employees.” In the body of the Act it was made unlawful for railroad or mining corporations to sell goods, wares or merchandise, and for the officers and directors of such corporations to have any interest in any general merchandise store or to sell to any person any goods, wares or merchandise. Held, that the act is void because in violation of the Constitution, Art. 3, sec. 29, which provides that the subject of every law shall be described in its title.</p> <p>A statute which imposes upon one person or class of persons a disability or burden not similarly borne by others, denies to such persons the equal protection of the law and is unconstitutional, unless the classification of the persons upon whom the disability is imposed is just and reasonable.</p> <p>The Act of 1898, ch. 493, provided that it should be unlawful for any officer or director of a railroad or mining corporation doing business in Allegany County to have any interest in any general merchandise store in that county or to sell goods, wares or merchandise therein. Held, that the statute is void because in conflict with the 14th Amendment of the Federal Constitution in that it makes an arbitrary and unreasonable classification of the persons who may sell goods, wares or merchandise.</p>

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

<p> Time of Signing a Bill of Exceptions Under a Rule of Court. </p> <p>A rule of the Circuit Court for Washington County provides that every bill of exceptions must be submitted to the Judge for his signature, unless otherwise expressly ordered, ‘ ‘during the sittings of the term at which such exception shall be takert.J’After the trial below of this case, the regular sittings of the Court with the jury ended on March 22nd, when the jury was discharged for the term, and no regular session was held after March 25th, although the Court sat occasionally to dispose of special motions. The bill of exceptions was submitted to the Court and signed on April 10th. Held, that the exceptions were not signed during the sittings of the term within the meaning of the rule, and that the appeal must consequently be dismissed.</p>

), dismissing the bill of complaint. The prayer of the bill was as follows : (i). That the alleged short release of mortgage made and executed by the said Stephen G. Hood, executor, on the thirty-first day of May, eighteen hundred and eighty-seven, may be declared null and void. (2).

<p> Jurisdiction of Suit Against Fire Insurance Company—Irregularity in Service of Process—Appeal. </p> <p>An insurance company, incorporated under the laws of this State, whose principal office is in Baltimore City, may be sued in any county of the State where it has a local agent, for a loss there sustained, but the summons must be served on the local agent in such county under Code, Art. 75, sec. 22 A.</p> <p>When a Court has jurisdiction of an action, any defect or irregularity in the service of process must be taken advantage of by motion to quash the writ.</p> <p>When a demurrer to a plea is erroneously overruled and a judgment of non pros, entered against the plaintiff for want of a replication, an appeal lies therefrom.</p>

<p> Negligence—Escape of Steam from Locomotive Frightening Horse at Railway Crossing—Appeal. </p> <p>The mere fact that while plaintiff was driving across defendant’s rail" way tracks at a crossing, in front of a standing engine, steam was discharged therefrom which frightened plaintiff’s horse and caused “ it to run away, does not entitle the plaintiff to maintain an action therefor against the defendant, in the absence of any evidence that the noise made by the escaping steam was unusual or unnecessary, although"plaintiff had been told by the engineer that it was safe to drive across the tracks.</p> <p>An appeal will be dismissed when the same is not taken within two months after the date of the judgment, as required by Code, Art. 5, sec. 6.</p>

<p>Highways and Streets—Municipality Not Liable 'for Defective Condition of a Dedicated Street Unless it Has Been Accepted.,</p> <p>Although a street may have been dedicated by the owner and used by the public, yet the municipality is not liable to a person injured in consequence of its defective condition, unless the dedication has been accepted.</p> <p>In a condemnation proceeding by which a railway company was allowed to use the land of another private corporation, part of which had been used as a way by the public but was not a street, it was stipulated that the ráilway company should provide another road. The new road passed under the tracks and crossed a ditch, which was occasionally cleaned by the city employees, but there had been no formal acceptance of the same by the city. Held, that the municipality is not, liable for an injury caused to plaintiff by the defective condition of the new road.</p>

<p> Right of Purchaser at Mortgage Sale to Growing Crops. </p> <p>When crops are planted on land which is subject to a mortgage, a purchaser of the land at a foreclosure sale before actual physical severance and gathering of the crops, is entitled to the same as against a third party to whom the mortgagor had previously executed a bill of sale of the crops as well as against the mortgagor.</p>

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

<p>Landlord, and Tenant—Forfeiture of Lease for Non-Payment of Rent— Waiver of Forfeiture—Evidence.</p> <p>When a lease is liable to forfeiture for non-payment of rent when due, the subsequent receipt by the lessor of that rent is not in itself a waiver of the forfeiture.</p> <p>But where the lessor had not on previous occasions exacted prompt payment of the rent when due and allows the lessee to remain in possession and make improvements on the premises after a failure to pay the rent according to the terms of the lease, there is in such case legally sufficient evidence, in connection with the subsequent receipt of the rent, to show a waiver of the forfeiture.</p> <p>Facts showing a waiver of a forfeiture of a lease may be given in evidence under the general issue and need not be specially pleaded.</p> <p>When a lease provides that it shall become null and void in case default be made in any of the covenants, then a failure to pay the rent at the time it falls due according to the terms of the lease is a cause of forfeiture which renders the lease voidable, at the option of the lessor, but not absolutely void, by the mere fact of non-payment.</p>

<p> Receivers—Banks—Set Off—Right of Depositor in Insolvent Bank to Set Off Claim for Deposit Against Claim of Receivers on a Hole. </p> <p>A depositor in a bank was indebted to it in a sum greater than his deposit, on a promissory note which matured after the insolvency of the bank and the appointment of receivers. Held, that the depositor is entitled to set off the amount of his deposit against his indebtedness on the note and is only required to pay to the receivers the difference between the two.</p> <p>Although the general rule is that a depositor cannot maintain an action against a bank to recover the amount of his deposit until he has made a demand, yet in an action by the bank against the depositor the latter may set off the amount of his deposit against a claim of the bank without a previous demand nor is a demand necessary when the bank has suspended payment or been placed in the hands of receivers.</p>

<p> Negligence—Probable Consequences of an Injury—Injury lo Vision and Nervous Shock—Evidence—Damages—Allegation of Special Damage—Sick Benefits—Starting Street Car Prematurely. </p> <p>Plaintiff, while attempting to board an open trolley car on defendant’s road, was thrown off and injured because the car was suddenly started upon a signal from the conductor before plaintiff had entered. In an action to recover damages plaintiff’s evidence was that his eyesight had been impaired by the accident because of a jar to the optic nerve. The declaration contained no special allegation of an injury to plaintiff's vision. Held, that the injury to the vision was such a natural consequence of the accident that, if the jury found that it resulted therefrom, plaintiff could recover damages for it without any special allegation of such damage in the declaration.</p> <p>Plaintiff’s evidence in this case was to the effect that the accident complained of had caused a shock to his nervous system which injured the optic nerve and diminished his power of making calculations, and subsequently produced emaciation. Held, that this evidence wms admissible, the nervous shock not being made an independent ground for awarding damages but only being considered in connection with other evidence to determine the extent of the injury suffered.</p> <p>It was not error to refuse to allow the plaintiff to be asked upon cross-examination if the medical witness in the case had not advised him to bring the suit, because the question had been answered in the negative before the ruling of the Court upon it, and it was not asked for the purpose of contradicting the medical witness.</p> <p>When a passenger while endeavoring to board a street car is thrown off and injured because the car is started by the conductor prematurely, and before the passenger has an opportunity of taking a safe position, there is such negligence on the part of the conductor as entitles the passenger to recover damages for the injury.</p> <p>In an action to recover damages for a personal injury the sick benefits that the plaintiff may have received from an association are not to be considered by the jury in estimating the damages.</p>

<p>Evidence — Identification of Persons—Contradicting and Impeaching Witness in a Criminal Case.</p> <p>Two witnesses in a criminal case testified that at a designated hour, upon a certain evening, they recognized the traverser as he passed under a street lamp about a hundred feet distant from the place where the witnesses were seated. Held, that this evidence may be impeached by the testimony of other witnesses of equally good eyesight, seated in the same place a few evenings afterwards, that under similar conditions of atmosphere, and at about the same hour of the evening they were unable to recognize persons of their acquaintance who passed under the same lamp.</p> <p>When the prosecuting witness in a criminal case denies on cross-examination that he offered to pay a sum of money to a witness for the defence to induce him not to appear, or to another person to induce him to testify, he may be contradicted by evidence showing that he did make such offers.</p>

15th, be set aside and annulled, and that the third account as originally stated on Nov. 17th, 1896, be again approved, except as to the item of household articles and dividends of the Hagerstown Machine Company, and that the executors be not allowed to retain any of the property to which Edward Hoffman or his legal representatives may be entitled on account of any alleged indebtedness from said Edward Hoffman to the estate.

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

<p> Bills and Notes—Liability of Accommodation Endorser—Waiver of Notice of Dishonor by one Partner—Material Alteration of Note —Questions for the fury—Evidence. </p> <p>A plaintiff suing on a promissory note cannot be asked what in his opinion is the effect of-the words “protest waived ” written on the note.</p> <p>In an action against the endorsers on a note, evidence that the holder, before maturity, had requested the maker to execute a new note in settlement, which was not done, is inadmissable.</p> <p>An accommodation endorser is liable to the bona fide holder for value before maturity of the note, whether such holder knew at the time of taking the note that the endorsement was for accommodation or not.</p> <p>When the endorser of a note promises after maturity to pay the same, with knowledge that notice of dishonor had not been given, he waives the notice and is liable on the note.</p> <p>Prior to the Negotiable Instruments Act (Act of 1898, ch. 1x9), a material alteration of a note, after its execution or endorsement by the defendant, prevented a bona fide holder for value from maintaining any action on the note</p> <p>One of several partners may waive the failure to give notice of dishonor on a promissory note endorsed by the firm.</p> <p>When the defence in an action on a note is that it was materially altered by the addition of words after the execution or endorsement, the prayers should leave it to the jury to find whether such alteration was in fact made, and whether made by a party to the note, because if made by a stranger it is a spoliation and not an alteration.</p> <p>A promissory note made by one D. to the order of defendants, a partnership, was endorsed by them for D’s. accommodation and sold by him to plaintiff for value before maturity. In an action on the note plaintiff testified that when he acquired title, the words “protest waived ” appeared over the names of the endorsers ; that after nonpayment of the note at maturity by tiie maker, no protest having been made or notice of dishonor given, plaintiff presented the note to the defendants who admitted the genuineness of the endorsement and promised to pay the same if the maker did not. Defendants denied that they liad so promised to pay the note and testified that the words “protest waived ” had been written on the note after their endorsement was made and without their knowledge. Held,</p> <p>1st. That it should be left to the jury to find as a fact whether the defendants had promised to pay or not with knowledge that notice of dishonor had not been given.</p> <p>2nd. That if such promise was made it was a waiver of notice of dishonor and no consideration was necessary to support the same.</p> <p>3rd. That if the words “protest waived” were placed over defendants’ endorsement without their knowledge that was a material alteration and there can be no recovery against them on the note even by ail innocent holder for value ; the note having been executed prior to Code, Art. 13, sec. 143, providing that such holder may enforce payment according to the original tenor of the note, and consequently a prayer which fails to submit to the jury the question whether the note had been so altered after leaving the hands of the defendants, is erroneous.</p>

<p> ■Negligence—Master and Servant—Exposure of Employee to Hidden Danger Without Warning. </p> <p>Plaintiff, an inexperienced girl fifteen years of age, was employed in, the laundry department of defendants’ shirt factory upon work not connected with the operation of machinery. On the day of the injury for which this action was brought, she was ordered by the forewoman to assist in passing cuffs and bands between the iron rollers of a dampening machine run by steam. She was not warned that her fingers might be caught between the rollers, although to an inexperienced person they seemed to be too close together to admit of this ; no instructions were given to her, and the guard usually on. the machine to protect the hands of operators was not in its place. A few minutes after being put at this work plaintiff’s hand was. caught between the rollers as she fed the machine and it was crushed. . Held, that there was legally sufficient evidence of negligence on the jpart of the defendant to be submitted to the jury.</p>

<p>Sales—Reservation of Property in the Seller by Transmission of Bill of Lading in Seller's Name, Together With Draftfor the Price.</p> <p>When a seller ships goods to the buyer under a bill of lading by which they are deliverable to the order of the seller, and the bill of lading is transmitted together with a bill of exchange, the seller thereby reserves a right of disposal, and the property in the goods does not pass to the buyer until the bill of exchange is paid.</p> <p>Plaintiff ordered a quantity of flour from the M. Co. without any stipulation as to the time of payment. The flour was delivered to the defendant, carrier, and plaintiff was notified that the seller had deposited in bank a draft for the price attached to the bill of lading. By the bill of lading the flour was consigned to the order of the M. Co. with a direction to “ notify ” plaintiff. No offer to pay the draft or obtain the bill of lading, without which the carrier would not deliver the flour, was made until several weeks after plaintiff was notified of the arrival of the consignment, when the bank holding the bill of lading and draft refused to accept payment and deliver the bill of lading because the M. Co. had so directed. In an action of replevin against the carrier, who pleaded property in the M. Co., Held, that since plaintiff could obtain no title or right of possession to the goods without having first paid the draft, he was not entitled to recover.</p>

<p>Criminal Law—Presentment in Prosecution for Misdemeanor— Requisites of Presentment—Filing of Valid Presentment is Commencement of Prosecution—Indictment for Violation of Liquor Law Found After the Statutory Period of Limitation Upoti Invalid Presentment Filed Prior Thereto.</p> <p>Code, Art. 57 sec 10, provides that the prosecution for all misdemeanors, except those punishable by confinement in the penitentiary, shall be commenced within one year from the time the offence was committed. Held, that the filing of a valid presentment by the grand jury is the beginning of the prosecution for such misdemeanor which stops the running of the statute of limitations, and the accused may be tried upon the formal indictment filed thereafter.</p> <p>A presentment in a criminal case should clearly inform the accused of the charge preferred against him, and should be sufficiently explicit to enable the State’s officer to prepare the indictment.</p> <p>A presentment which merely charges the accused with “violation of the liquor law ” is invalid for lack of definiteness.</p> <p>In this State it is not unusual to try persons accused of misdemeanors on presentment without proceeding to indictment.</p> <p>A presentment charged the defendant with “violation of the liquor law” without any description of the nature of the violation. Subsequently; an indictment was found charging the defendant with a sale of liquor on Sunday to persons not his bona fide guests, &c. The sale was made less than a year before the presentment was filed, but more than a year before the indictment was found. Under Code, Art. 57, sec. 10, the prosecution for such offence must be commenced within one year from its commission. Held,</p> <p>1st. That the indictment cannot be taken as the formal and technical statement of the charge contained in the presentment, because the latter is in such general terms that the nature of the accusation cannot be determined from it; that the indictment itself was therefore the beginning of the prosecution, and not having been found within one year after the commission of the offence, it is barred by the statute.</p> <p>2nd. That if the presentment had been valid it would have been the commencement of the prosecution and would have stopped the running of the statute.</p>

<p> Master and Servant—Dangerous Employment—Assumption of Risk. </p> <p>When the work carried on is dangerous to life or health, the employer is bound to take all reasonable precautions to secure the safety of his employees, and must make known to them the inherent dangers of the service and especially those risks which are ascertainable only through a knowledge of scientific facts which an uneducated man is not presumed to know. But if a man chooses to accept and continue in such dangerous employment with knowledge of the risks attending it, he has no claim against his emyloyer for an injury suffered from such risks.</p> <p>The deceased, an employee in defendant’s fertilizer factory, was poisoned by the fumes of gas while repairing a leak in the floor of an acid chamber. The chamber was lined with lead, and sulphuric add was there produced from sulphur or pyrites. When it became necessary to repair such a leak, the flow of acid and gas was cut off, but even afterwards some liquid acid would remain on the floor and some injurious gases in the chamber. Workmen who entered to make repairs were compelled to wear rubber boots and gloves, and remained inside but a few minutes at a time so as to prevent too great an inhalation of the gases. The workmen were fully acquainted with the danger and fastened sponges or cotton waste over their mouths and nostrils when exposed to the gases. Plaintiff’s deceased, who had worked at the factory for some years, went with another workman into an acid chamber to repair a leak in the floor. It did not appear how long he remained there, but on that day[he returned home ill, and died two days thereafter from the effect of the inhalation of gas. Held, that since the deceased kn,ew of the dangerous character of the work in question, he took upon himself the risks of the employment, and in the absence of any proof of negligence on the part of the defendant, the plaintiff is not entitled to recover damages for a death caused in this manner.</p>

<p> Civil Officers—County School Commissioners—Governor not Empowered. to Remove—Constitutional Law. </p> <p>Civil officers, within the meaning of the Constitution, are governmental agents and natural persons, in whom is vested a part of the State’s sovereignty to be exercised by them individually for the public good.</p> <p>When a governmental function is exercised by a public corporation created for that purpose, and the members of such corporation are intrusted with no authority to act as individuals, but only through and in the name of the corporation, such persons are not civil officers of the State within the purview of Constitution, Art. 2, sec. 15, relating to removal by the governor of civil officers.</p> <p>Under Code, Art. 77, the management of the public schools in each county is confided to a Board of School Commissioners, which is declared to be a body corporate. No power is conferred upon any individual commissioner or member of the board, but all their acts are those of the board or a majority of its members. The commissioners are not required to take an oath of office. Held., that the school commissioners are merely members of a public corporation discharging duties imposed upon the board in the name of the corporation and do not act as individual civil officers.</p> <p>Code, Art. 77, sec. 19, provides that the school commissioners for each county, who are appointed by the Governor with the consent of the Senate, shall constitute a body corporate under the name of the Board of School Commissioners, and all their duties must be exercised by the board as a corporate entity. Sec. 25 provides that in case of 1he death, resignation, &c., of a school commissioner during a recess of the Legislature, the Governor shall have power to appoint to fill the vacancy for the unexpired term; and “in case of inefficiency, refusal to act, or breach of trust, the board may by ajvote of a majority of its members declare the office vacant.” Constitution, Art. 2, sec. 15, provides that the Governor may remove for incompetency or misconduct, all civil officers who receive appointment from the Executive for a term of years. Held,</p> <p>ist. That a county school commissioner is not a civil officer within the meaning of this clause of the Constitution, and that the Governor has no power to remove such commissioner from office for incompetency or misconduct.</p> <p>2nd. That where the Governor, after due notice, removed a county school commissioner for incompetency, and appointed another in his place, the board consisting of three members, then an officer elected by such appointee and one member of the old board is not authorized to demand payment from the Comptroller, of the funds appropriated to the schools of that county.</p>

<p> Summary Trial of Criminal Case by Police Justice When Jury Trial is Waived—Constitutional Law—Certiorari. </p> <p>The Act of 1894, ch. 281, confers upon police justices of the peace in Baltimore City jurisdiction to try and pass sentence in cases of assault and battery, not punishable by confinement in the penitentiary, when the accused waives his right to a trial by jury. Held, that the Act is valid and does not deprive the accused of his constitutional right to a jury trial.</p> <p>When a justice of the peace has jurisdiction to try a case, mere irregularities in the proceedings before him can only be reviewed upon an appeal from his judgment. The writ of certiorari does not lie to determine the regularity of the proceedings in such a case.</p>

<p> Evidence of Collateral Fact to Contradict Witness. </p> <p>Where a witness has testified that a third person made to him certain statements of facts, it is not competent to contradict the witness by evidence that such occurrences did not take place.</p> <p>Plaintiff contracted to grow tomatoes upon twenty acres and deliver the same to the defendant during a certain season. In an action for breach of the contract, plaintiff testified that defendant refused to accept any deliveries after a designated time. Defendant testified that plaintiff told him that he could make no more deliveries because his pickers refused to work according to his directions. Field, that it is not competent for the plaintiff to offer evidence in rebuttal to show that he had had no trouble with his workmen during that season.</p>

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

<p>Corporations—Right to Subscribe to New Shares of Stock—Rights of Assignee of Stock Certificate— Waiver of Right of Stibscription —Damages for Refusal to Allot New Shares.</p> <p>A bill in equity lies to compel a corporation to transfer on its books shares of stock to a purchaser of the same and to issue a certificate therefor.</p> <p>When the capital stock of a corporation is increased by the issue of new shares, the general rule is that the holders of the original stock are entitled to the new stock in the proportion that the number of shares held by them bears to the whole number before the increase.</p> <p>If the holder of shares of stock waives to the corporation his right to subscribe to new shares, the issue of which may be thereafter authorized, and subsequently transfers his shares to a person who has no notice of such waiver, the transferee is not affected by the waiver and is entitled to subscribe to the new shares, the issue of which is authorized when he is the holder of the original shares.</p> <p>A person who subscribed to fifty shares of the stock of a new corporation received a certificate stating that he had paid a certain sum. thereon, and that upon payment of the balance as called, a full-paid certificate of stock would be issued upon surrender of that certificate. The charter of the company provided for an increase of the capital stock by a vote at a stockholders’ meeting, and directed that the stockholders at the time of such increase should be entitled to a pro rata share of the same. The subscriber to said fifty shares, signed a paper waiving his right to take any additional shares and afterwards sold his certificate to the plaintiff, who purchased the same without any notice of the waiver. Subsequently, the stockholders formally voted to increase the capital stock. The corporation refused to transfer the fifty shares to plaintiff or to allot to him any of the increased stock, and he filed a bill in equity asking that the defendant be required to transfer to him the fifty shares of stock and to accept his subscription for his proportion of the new stock, or if that relief could not be granted, that the defendant might be decreed to pay him such damages as he had suffered. Held,</p> <p>xst. That the plaintiff is entitled to have the fifty shares transferred to him on the books of the company as of the date of his first demand therefor.</p> <p>2nd. That the person entitled to subscribe to the increased stock is not the original subscriber, but the holder of the original stock at the time the increase is legally authorized, the right to the increase being an incident to the ownership of the stock, and that since plaintiff was such holder at the time the stockholders directed the issue of the new stock, he was entitled to subscribe for his share of the same.</p> <p>3rd. That the plaintiff as bona fide assignee of the original fifty shares is not affected by the waiver of the right to subscribe to the new stock made by his assignor, of which waiver he had no notice, and . when the certificate issued by the corporation after such waiver» made no mention of the same.</p> <p>4th. That since the corporation had issued all of the authorized in-increased^ stock to other persons the plaintiff is entitled to recover ' damages.</p>

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

<p> Estoppel to Assert Priority of Mechanics’ Lien—Oral Agreement to Waive Lien—Assignment of Mechanics’ Lien. </p> <p>The holder of a mechanics’dien on unfinished houses who induced persons to loan money to complete the same by promising to waive the priority of his lien, but who subsequently refuses to sign such waiver, is estopped to set up his lien as against those making the advances.</p> <p>Receivers were appointed to take possession of certain unfinished houses, the builder of which was insolvent. The holders of mechanics’ liens on the houses, all agreed verbally that the receiver should borrow the money necessary to finish the houses, and that their liens should be postponed to the payment of such borrowed money. The money was borrowed and the houses completed. One of the lien claimants refused to sign a waiver of his lien and alleged that his promise so to do was unenforceable under the statute of frauds because not in writing. Held, that both this lien claimant and his assignee are estopped under these circumstances from claiming priority.</p> <p>Equity will in some cases enforce against one party an oral contract relating to land when the other party has done certain acts upon the faith of the contract and in execution of it.</p> <p>The assignee of a mechanics’ lien takes it subject to the equities enforceable against it in the hands of his assignor.</p>

) At the trial the following prayers were offered by the plaintiff: 1st. If the jury shall find that the plaintiff owned the premises mentioned in the evidence on the southeast corner of Ensor street and Ashland avenue, and that the natural flow of the surface-water coming down the east side of Ensor street and both sides of Stexding street, and the west side of Aisquith street, was due south on said streets and sides of sti'eets, respectively, by open gutters there placed,…

<p>Removal of Trade Fixtures—Scenic Railway—Restraining Order— Distraint for Rent cm Property in Hands of Receiver.</p> <p>The lessee of land, where a pleasure resort was to be established, contracted with appellant to construct a scenic railway, consisting of a pavilion and elevated tracks on brick piers together with cars and machinery. It was stipulated that the appellant should retain possession and ownership of the railway and the right to operate it till paid for. A part of the railway was built when the lessee proved unable to complete the improvements and a receiver was appointed to' take, charge of the property. Upon petition of the appellant leave was granted to remove the railway and pavilion. The landlord then intervened alleging that these were permanent improvements and asking that the appellant be restrained from removing the same. Held,</p> <p>1st. That the railway and the pavilion are trade fixtures and removable as such by the tenant.</p> <p>2nd. That the landlord is not entitled to prevent their removal'by the appellant under the above-mentioned circumstances.</p> <p>A restraining order in equity when passed before hearing the defendant should not go further than to suspend his action until an opportunity is afforded to answer and defend.</p> <p>An order granting leave to a landlord to distrain for rent on property in the hands of a receiver should not be passed before the receiver has had notice of the application and an opportunity to be heard.</p>

<p> Building Associations—Bisolvency—Claim of Withdrawing Member not Entitled to Share With General Creditors. </p> <p>In the distribution of the assets of an insolvent building association, the general creditors are entitled to priority over shareholders of the association, who, in accordance with its by-laws, gave notice of withdrawal before the judicial declaration of insolvency.</p>

<p>Divorce a Mensa—Insufficient Evidence—Cruelty of Treatment— Record on Appeal.</p> <p>In this case a bill for divorce a mensa filed by a wife against her husband relied upon the grounds of cruelty of treatment, desertion and abandonment. Held, that the evidence failed to establish-the allegations of the bill and that the complainant is not entitled to a decree.</p> <p>A single act of violence on the part of a husband is not such cruelty of treatment as constitutes cause for divorce.</p> <p>A conversation between the trial judge and the parties to the cause after the hearing below is not a part of the record.</p>

J., Holland, J.) The defendant’s sixth prayer as amended by the Court was that if the jury “believe from the evidence that the defendant made a contract with the plaintiff in contemplation of marriage to be performed upon the contingency that he should learn her to love him and that she should become an ideal wife, the same to be determined by the defendant, and that no other contract was made, then there is no valid marriage contract and the jury must find for the…

<p> Evidence—Res Gestee—Right of Trial Court to Amend Prayer as Offered. </p> <p>A statement made by a person injured in an accident while being treated therefor in a drug store two or three blocks distant from the place of the accident and an unascertained time thereafter is not ad" missible as a part of the res gestee.</p> <p>Although a prayer as offered correctly states the law applicable to the case, yet the trial court has the right to change its language so as to state the same principle in other words.</p>

<p>Negligence—Limitation of Action■—Evidence—Expert Witness— Proximate Cause.</p> <p>An action against a street railway company to recover damages for an injury caused by a collision with a car is not an action for assault, battery or wounding within Code, Art. 57 sec. 1, which provides that all actions of assault, battery and wounding shall be commenced within one year from the time the cause of action accrued.</p> <p>In an action to recover damages for a physical injury caused by defendant’s negligence, a medical witness may be asked if plaintiff’s deafness in one ear was the natural and probable result of the injury inflicted upon him.</p> <p>When an expert has heard the evidence in the case he may be asked whether such evidence, assuming it to be true, leads to a certain conclusion, and it is not necessary to repeat the evidence to him in . the form of a hypothetical question.</p> <p>When a witness has been cross-examined upon a matter collateral and irrelevant to the issue it is not competent to offer evidence to contradict him as to such matter.</p>

<p>Devise and Legacy— Condition Stibseqtient Annexed to Bequest—Impossibility of Performance— Vesting of Estate.</p> <p>When the performance of a condition subsequent annexed to a devise or bequest becomes impossible by the act of God, it is dispensed with and the estate vests absolutely in the devisee.</p> <p>A testatrix devised as follows : “I leave the rest and residue of my Baltimore property to my grand-nephew, James, for the purpose of securing to him a liberal education. He shall remain at some good preparatory school in the State of Massachusetts until he is fitted to enter either Harvard or Yale University, where he shall remain until he has finished the college course. If, however, through his own disinclination or incapacity^ or the indifference of his parent or guardian, he shall fail to carry out these intentions, then the money which has been left to him for this purpose shall pass away from him entirely into the body of my estate.” By another clause of the will the testatrix gave and bequeathed to James certain other property real and personal, “provided, however, that all the estate and property devised and bequeathed by me to James P. E., shall be held by my trustee until the said James shall have attained the age of twenty-five years,” in trust, to manage the same and devote the net income to the education of James. The will also provided that “in case the above directions having been carried out upon my said nephew, James, attaining the age of twenty-five years, I desire my trustees to deliver over the property and estate into his hands and possession.” At the time of the death of the testatrix, her nephew, James, was fifteen years of age. He died seven years afterwards, while in the sophomore class at Harvard. Held, that James took a vested equitable estate in the property devised to him subject to be divested by his non-performance of the condition mentioned ; that this was a condition subsequent and its performance having become impossible by his death, the estate was not thereby divested but the same descends to his heirs and next of kin.</p>

<p> Grant of Ammity Need Not be Under Seal—Informal Contract of Corporation. </p> <p>An annuity issued by an insurance company is a chose in action, and need not be executed under the seal of the company unless expressly required by its charter, or by statute.</p> <p>Defendant company issued a policy promising to pay an annual sum to a woman during her life in consideration of a certain amount paid to it. The annuitant died a year afterwards and her administrator brought an action to recover the amount paid for the annuity, alleging that the contract was invalid because not under seal. Defendant’s charter authorized it to grant, purchase or dispose of annuities. Held, that defendant’s charter did not require the agreement promising to pay the annuity to be under its corporate seal, and that even if such were the case, defendant would not have been allowed to repudiate the agreement, but would have been compelled to execute a grant in binding form, and consequently plaintiff is not entitled to recover the money, as having been paid upon a consideration that failed.</p>

2, of Baltimore City. The houses referred to in this case were situated on the northeast side of Eutaw Place, beginning at a point 77 feet north from the corner of Eutaw Place and Laurens street, and running thence northerly on Eutaw Place 231 feet 3 inches, with an even depth easterly of 130 feet to Jordan alley.

<p> Conditional Sale or Mortgage—Conveyance of Property Subject to Mortgage—Covenant of Special Warranty—Contribution to Payment of Mortgage by Different Lots—Limitations—Appeal. </p> <p>Certain property was conveyed by deeds absolute in form and expressed to be for a valuable consideration. The grantor subsequently alleged that the deeds were intended to operate as mortgages to secure an indebtedness due by him to the grantee. Held, upon the facts, that the proof failed to sustain this allegation and that the conveyances were absolute deeds.</p> <p>The distinction between a conditional sale and a mortgage is that in the former there is no right of redemption in the vendor after the time fixed for the payment of the stipulated price, while in the latter the right of redemption continues until a sale is made under a decree or until the lapse of twenty years after foreclosure, and that in the conditional sale there is not, while in the mortgage there is, a continuing personal liability for the amount named as the consideration.</p> <p>If the relation of debtor and creditor exists between the parties when the conveyance is made and this relation is to be considered as subsisting after the conveyance- is made, the transaction will be regarded as a mortgage, but if the debt is treated as extinguished, and the grantor merely has the privilege of obtaining the property by repaying the price the transaction is a conditional sale.</p> <p>A debtor conveyed certain property to his creditor by a deed absolute in form and the grantee entered into possession and managed the property. No interest was paid on the debt or demand made therefor. The grantor 'alleged that the agreement at the time of the conveyance was that the grantee should sell the property, take from the proceeds the amount due him and pay the balance to the grantor. The grantee alleged that his promise was that if the grantor should pay the amount of the debt, the property'would be reconveyed to him. Held, upon the facts, that the conveyances were not mortgages but conditional sales.</p> <p>A person who was indebted to another, conveyed property to him to secure a certain indebtedness existing between them. The grantee subsequently alleged that the grantor was also indebted to him upon another claim, which at the time of the conveyance was barred by limitations, and that he intended the conveyance to stand as security for that claim also. This purpose of the grantee was not then communicated to' the grantor. Held, that the conveyance under these circumstances did not remove the bar of the statute.</p> <p>A covenant of special warranty in a deed conveying- property, stated in the habendum clause to be subject to a mortgage, does not operate to bind the grantor to pay the mortgage.</p> <p>Where a party conveys property subject to a mortgage, he is not personally bound to the grantee to pay the mortgage, and an undertaking to do so cannot be inferred from the fact that he subsequently paid the interest on the mortgage which embraced other property belonging to him besides that conveyed.</p> <p>A debtor conveyed to his creditor lots A and B by deeds absolute in form in payment of an indebtedness, but upon the understanding that upon payment of the debt the property would be Keconveyed to the grantor. At that time there was a mortgage covering lots A and B as well as three other lots retained by the grantor. In the conveyance of lot A it was declared to be subject to the mortgage, while no mention of the mortgage was made in the conveyance of lot B. Held, that lot A so conveyed, must contribute to the payment of the mortgage, according to its value at the time of the conveyance, together with the three lots retained by the grantor and that lot B was not subject to be sold under the mortgage unless the other lots were insufficient to satisfy the same.</p> <p>Where a party creates a mortgage upon several pieces of property and subsequently conveys his equity of redemption in one of these pieces retaining his equity in the other, the equity of redemption conveyed cannot be sold by the morgagee until those retained by the mortgagor shall have been exhausted.</p> <p>A decree adjudging certain property to be exonerated from a mortgage until the exhaustion of other property for the payment is final in its nature and can only be reviewed upon appeal directly therefrom.</p>

<p> Motley Had and Received—Sufficiency of Evidence—Rebate by Insurance Broker. </p> <p>An insurance broker who had placed for some years a firm’s fire in- ' Sura'nce and allowed a rebate to the assured of io per cent, alleged ' that he had made this allowance because he had been led to believe that a third party, who had procured the business for him, received this rebate from the assured. Upon subsequently learning that the rebate was retained by the assured, he sought to recover the amount thereof. ■ Held, that the burden of proving these allegations was upon the broker and that the evidence failed to establish the same.</p>

) The defendant’s third prayer, which was granted, instructed the jury that the burden was upon the plaintiff to show by a preponderance of testimony satisfactory to the jury, that upon a fair and bona fide practical test, the furnaces placed by the plaintiff in the Meadow Mill, under the contract offered in evidence, effected a saving of 1.2 per cent in cost of fuel over the method of making steam used by the defendants at the Meadow Mill at the time said contract was…

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

<p> Husband and Wife—Suit on Promissory Note Executed by Husband and Wife to Order of Husband—Impeaching Return of Writ of Summons. </p> <p>A promissory note executed by husband and wife payable to the order of the husband and by him endorsed in blank is enforceable by the holder against the wife under Code, Art. 45, sec. 2, providing that a married woman may be sued on any contract executed by her jointly with her husband.</p> <p>In a suit against a married woman, she was returned summoned, and a judgment by default was entered against her. Upon a motion to strike out the judgment made after the lapse of the term at which it was entered, the woman testified that the deouty sheriff, after having served the summons, returned to her house and said that he had summoned the wrong party and that she need not pay any attention to the writ. This was denied by the deputy sheriff who testified that the defendant was duly summoned and a copy of the writ left with her. Held, that the evidence of the defendant was insufficient to overthrow the official return, supported as it was by the testimony of the officer.</p>

<p> Admission of Service of Summons by Counsel for Husband in an Actioh Against Husband and Wife—Striking ozd fudgment. </p> <p>In an action against a husband and wife counsel was employed by the husband, who admitted service of summons for both defendants. The writ was not served on the wife, and she had not authorized her husband to employ counsel for her. Held, that since the husband had no authority to employ counsel for his wife, and she had not been summoned, the judgment against her in the action must be stricken out.</p>

) There was a judgment for plaintiff for $7,411.61. At the trial the only exception was taken to the rejection of the two following prayers, offered by the defendant. 1.

) The trial Court rejected all the prayers of the plaintiff and instructed the jury that “ there being nothing in the case to show that in the passing of the $3,000 check to Downs, under all the circumstances in evidence, the defendant’s attorney failed to exercise such care and caution as might be reasonably expected of an ordinarily competent and careful attorney under like circumstances, the verdict must be for the defendants.”

) The Act of 1880, ch. 16, is as follows : “ An Act to adjust and settle finally, by agreement, all pending controversies between the State of Maryland and the Northern Central Railway Company, by subjecting the franchises and property of said company within this State to taxation for State purposes to a certain extent and by providing for the payment of a certain indebtedness claimed by the State of Maryland to exist on the part of said Northern Central Railway Company to…

) The restriction in the original deeds of both plaintiff’s and defendant’s lots is as follows: “ Provided, however, that if the said” grantee, “his heirs, devisees or assigns, shall construct or cause to be constructed upon the lot of ground hereby conveyed any dwelling-house or building or other improvements, such dwelling-house, building or other improvement shall not be located, built or constructed upon said lot closer to the west marginal line of the lot hereby…

<p>Rights of Bona Fide Assignee for Value of Mortgage Voidable by ■ Creditors of Mortgagor as Against Mortgagee Because Without Consideration— Creditors' Bill—Notice—Priorities.</p> <p>A party who takes an assignment of a mortgage for a valuable consideration, and without notice that the title of the assignor was voidable by the'creditors of the mortgagor because the mortgage was without consideration, acquires a good title as against such creditors.</p> <p>The owner of property executed a mortgage of it in due form to secure a stated indebtedness, but there was in reality no consideration between the parties and their object was to raise money for the benefit of the mortgagor. The defendant loaned to the mortgagee a sum of moneys and took an assignment of the mortgage as security. The mortgage was not given to secure the payment of a promissory note. The defendant had no notice of a lack of consideration for the mortgage and was a bona fide purchaser. Plaintiffs, who were general creditors of the mortgagor at the time of the execution of the mortgage and subsequently became judgment-creditors, filed a creditors’ bill to have the mortgage set aside because fraudulent and without consideration as against them, Held,</p> <p>1st. That the defendant as bona fide purchaser of the mortgage did not take the same subject to all the equities that might have been charged against it in the hands of the original mortgagee, but that the legal title of the defendant is entitled to prevail since the plaintiffs have no superior equity and no lien on the property.</p> <p>2nd. That the fact that the treasurer of the defendant was also the cashier of the bank in which the mortgagee kept his account did not put the defendant upon inquiry as to the bona fides of the mortgage.</p> <p>3rd. That the mortgaged property should be sold and the proceeds applied, first, to the payment of the amount loaned by defendant, with interest, and then to the payment of the creditors of the mortgagor according to their legal priorities.</p>

<p> Municipal Corporations—Qualification of City Council-men—furisdiction of Circuit Court Under the Charter of Cumberland to Declare Office Vacant. </p> <p>The charter of the city of Cumberland, as amended by the Act of 1898, ch. 158, provides that every member of the City Council shall be, at the time of his election and for a year prior thereto, the owner in his own right of property assessed for $500, upon which the taxes must not be in arrear. Another section provides that if any member of the council shall fail to retain during the time for which he was elected the qualifications rendering him eligible, he shall forfeit the office, and the forfeiture shall be declared by the council. And if the council shall neglect or refuse to declare such vacancy and fill the same, then any taxpayer may file a petition in the Circuit Court against such officer, and the Court shall have power to declare the office vacant and order the election of a successor. The petition in this case, filed by a taxpayer alleged that the defendant was elected a member of the City Council of Cumberland and was sworn in as such; that he was not at the time of his election the owner of property to the amount in value of $500, and has not at any time been legally qualified to fill the office, and that the council has neglected and refused to declare the same vacant. The prayer of the petition was for an order declaring the office of the defendant forfeited and ordering a new election. Upon demurrer, held, that the charter authorizes a petition by a taxpayer only in a case where a duly qualified person elected as councilman has failed to retain the necessary qualifications during his term of office, and that since the defendant never possessed the requisite qualifications his election was a nullity, and the Court is not empowered under the statute to declare a forfeiture of the office to which he was never legally entitled.</p>

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

<p> Vendor and Purchaser—Specific Performance—Mutuality of Obligation—Acquisition of a Clear Title by Vendor After Making of Contract—Deeds—Mistake in Description of Lot—Calls. </p> <p>The mere fact that a vendor’s property is encumbered, or his title defective at the time a contract of sale was made does not prevent his enforcing specific performance of the contract, if the encumbrance has been removed or the title perfected by the time the conveyance is required by the contract to be made.</p> <p>Upon a bill to enforce specific performance of a contract to purchase real estate from the plaintiff, a corporation, it was alleged by the defendant that the corporation had previously executed a declaration of trust to the effect that all its property was held for the benefit of a third party, at whose direction conveyances were to be made. This third party united in the deed which was tendered to the defendant. Held, that the objection that the contract was lacking in mutuality, and consequently one not proper to be specifically enforced is no defence to the relief asked for, since the deed tendered by plaintiff was executed by all the parties having an interest in the land, and the agent of the plaintiff who effected the sale was also the agent of the third party mentioned in the declaration of trust.</p> <p>A deed of a lot of ground described it as beginning at the distance of forty-five feet northwest from a certain corner and at the centre of the division wall of the house to be erected on the lot adjoining thereto and to the northwest thereof, and running thence northwesterly. The rest of the description showed that the beginning point was not at the centre of the division wall of the house to be erected on the lot adjoining to the northwest. Held, that the beginning was clearly intended to be at the point forty-five feet from the designated corner, and that the error in referring to the division wall did not invalidate the otherwise correct description of the lot.</p> <p>The second line in the description of a lot of ground in a deed called for it to run 63 feet 3 inches in a certain direction; thence southeasterly parallel with X street 15 feet to the lot secondly described in the deed. This second lot had a depth of only 60 feet to a three-foot alley. Held, that the expression, parallel with X street, is to be treated as a call which prevails over courses and distances.</p> <p>When it clearly appears that the word “northwesterly” in the description of a course of one line of a lot of ground was intended to ¡be “ northeasterly ” it will be so construed, and such mistake does .•not invalidate the deed</p> <p>A contract for the sale of land described it as containing about forty-five feet fronting on one street and about sixteen feet on another. The deed as offered conveyed forty-four feet on the one street and fifteen feet six inches on the other. Held, that the deed was a substantial compliance with the contract.</p> <p>IDelay in completing a contract for the sale of land for which the venador is not responsible is no defence to a bill for specific performance.</p>

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

<p> Office and Officer—Vacancy in Office of State Senator—Constitutional Law. </p> <p>The Courts have no power to decide that a State Senator has vacated the office during the term for which he was elected, by his acceptance of another office, because Constitution, art. 3, sec. 19, provides that each House of the Legislature shall be the judge of the qualifications and elections of its own members.</p>

<p>Criminal Law—Disqualification of furor Because He had Sat on Coroner’s Jury— Time and Mode of Making Objection to Qualification of Juror—Waiver of Objection—Admissibility of Confession-Deposition of Absent Witness in Criminal Case.</p> <p>The proper method of objecting that a juror in a criminal case is disqualified is by a challenge to the polls for cause and not by a challenge to the array and to discharge the panel.</p> <p>The objection that a juror in a criminal case is disqualified must be made by a challenge for cause before the juror is sworn, in all cases where the party objecting knew, or by the exercise of reasonable diligence could have known of the disqualification. If the challenge is not then made, the objection is deemed to be waived.</p> <p>On a trial for murder, after the jury was sworn and the evidence begun, the prisoner’s counsel moved to discharge the panel upon the ground that one of the jurors had been foreman of the coroner’s jury which held the inquest on the homicide, and that they did not know this fact when the jury was sworn. Held] that since the prisoner or his counsel could have had knowledge of this alleged dis'qualification before the jury was sworn, and did not then challenge for cause, itwas too late to make the objection after the jury was sworn.</p> <p>A voluntary confession made to a peace officer by a person, without any inducement or threat, is admissible in evidence although he was then in custody charged with the offence.</p> <p>No commission can be issued to take the testimony of an absent witness in a criminal case, since there is no statute authorizing the depositions of such witnesses to be read in evidence.</p>

<p>Appeal from an order of the Circuit Court No. 2, of Baltimore City (Stockbridge, J.), refusing the injunction asked for.</p>

),. whereby it was adjudged that there must be deducted from the share of Mrs. Falconer in the estate of James Hodges, all sums of money of any kind due to the estate of Hodges from Mr. Falconer, and that the amount of such indebtedness found to be due and which ’must be deducted from the share of Mrs. Falconer ■ in said estate was $14,589.13.

<p> Liability of Assignee of Mortgaged Leasehold Property on Covenanf in the Mortgage to Pay Ground Rent and Taxes—Covenants Running with the Land. </p> <p>Covenants to pay ground rent and taxes on leasehold property, contained in a mortgage thereof, run with the land and bind the assignee of the mortgagor so long as he holds the term. The foreclosure of the mortgage does not disentitle the mortgagee to maintain a suit against such assignee of the leasehold to recover the ground rent and taxes due while the term was vested in him, the mortgage debt not being fully paid by the proceeds of sale.</p> <p>The failure of the assignee of leasehold property, subject to a mortgage, to pay the ground rent according to the covenant in the mortgage is a default which puts an end to his term and the legal estate being thereby vested in the mortgagee without actual entry, no suit can be maintained by the mortgagee against such assignee to recover ground rent subsequently becoming due, although the assignee remain in possession of the premises.</p> <p>Leasehold property was mortgaged to the plaintiff, the mortgagor covenanting to pay the ground rent and taxes. The property was after-wards assigned to the defendant, subject to the ground rent and to the mortgage. Defendant failed to pay the ground rent and taxes while he was in possession. These were paid by the plaintiff on a sale under his mortgage and the proceeds of the sale were insufficient to discharge the mortgage debt. Upon a bill by plaintiff to recover from defendant such taxes and ground rent. Held,</p> <p>1st. That the mortgage was in fact an assignment of the term and if it contained no provision that the mortgagor should remain in possession until default, then the defendant is not liable to plaintiff for the ground rent and taxes, since there was no privity of estate between him and the plaintiff.</p> <p>2nd. That if the mortgage contained a provision that until default the mortgagor should remain in possession, then the defendant, as assignee of the mortgagor, is liable to the plaintiff for the ground rent and taxes falling due and unpaid by him while the term was vested in him, before the foreclosure of the mortgage.</p> <p>3rd. That upon failure of the defendant to pay an instalment of ground rent when due, the term vested in the mortgagee without entry by reason of such default, and the privity of estate being thereby ended, the defendant is not liable for non-payment of ground rent which thereafter became due, although he remained in possession of the property.</p>

<p> Appeal—Right of Appellant to Control Transmissio?i of the Record. </p> <p>After an appeal has been prayed and during the time allowed by law for the transmission of the record to this Court, the matter is within the control of the appellant, and the appellee has no right to transmit the record without the consent of the appellant.</p> <p>Where the appellee caused the transcript of the record of an appeal to be sent to this Court without the consent of the appellant, who was not in default, the time allowed for the transmission of the record not having elapsed, this Court, upon the application of the appellant, will order the record remanded to the Court below.</p>

<p> Telephone Companies—Construction of Conduits iy, Streets of Baltimore City Under a Municipal Ordinance—Injunctions. </p> <p>It was determined on a former appeal that the Chesapeake and Potomac Telephone Company is entitled, under a binding municipal ordinance,' to construct conduits for its wires in the streets of Baltimore City under the direction of the City Commissioner. The company applied for permits to lay conduits in certain named streets, according to plans and specifications filed therewith ; the work to be done according to the direction of the City Commissioner. The permits were refused without any objection being made to the specifications filed. Held, that the company is entitled to an injunction restraining interference by the city with the construction of such conduits, but that the jurisdiction of the case should be retained by the Court below for the purpose of enforcing obedience by the company to the regulations of the City Commissioner in doing the work.</p>

<p> Regulating the Practice of Dentistry—Constitutional Law—Police Power—Construction of Statutes—Examination of Dental Graduates—Lndictm en t. </p> <p>A statute requiring persons practising dentistry to obtain a certificate of proficiency from a State Board of Dental Examiners is a valid exercise of the police power.</p> <p>The Act of 1896, ch. 378, provides that any person desiring to practice dentistry in this State who holds a diploma from a college authorized to grant diplomas for dental surgery “ may be examined ” by the State Board of Dental Examiners “with reference to qualificationsandafterpassing an examination satisfactory to the board ” his name shall be registered, &c., and a certificate issued. “Any graduate of a regular college of dentistry may, at the discretion of the examining board, be registered without being subjected to an examination.” Defendant was indicted for practicing dentistry without a certificate, and alleged that the Act was unconstitutional because it gave to the State board the arbitrary power to examine or to refuse to examine persons holding diplomas in dentistry, also because it authorized the board to examine applicants upon any subject whatever, and also because it authorized the board to dispense with the examination in certain cases. Held,</p> <p>1st. That the provision in the statute that the applicant “ may be examined ” imposes upon the board the duty of examining all the applicants according to the general rule that when a statute directs an act to be done for the benefit of the public or third persons, the word “may” employed in conferring the authority to do the act, is to be construed as “shall” or “must,” and the fact that the word “may ” is used in its permissive sense in the latter part of the same section, does not require that construction to be given to it in the ormer part.</p> <p>2nd. That the authority to examine applicants with reference to qual- . ifications does not refer to any other qualifications than those required for the practice of dentistry and confers no arbitrary power to examine on other subjects.</p> <p>3rd. That the provision authorizing the board in its discretion to dispense with the examination of graduates of a regular college of dentistry is valid, and does not create an arbitrary classification of persons to be examined.</p> <p>An indictment for the violation of a statute which contains an exception in a section thereof subsequent to that containing the general prohibition need not negative the exception.</p>

<p> Physicians and Surgeons—Right of Practitioner to be Registered by the Board of Medical Examiners—Statutory Construction—Changing Punctuation—Mandamus to Compel Exercise of Authority to Act—Appeal in Mandamus Cases—Instructions. </p> <p>A person who practiced medicine as a profession prior to June ist, 1892, and who continued to practice till the passage of the Act of 1894, ch. 217, is entitled to be registered as a physician under the Act of 1896, ch. 194, although he had not registered under the Act of 1894 and although he does not have a diploma from a medical college.</p> <p>A section of a statute as printed contained two sentences separated by a period, but the latter by itself was unintelligible. Held, that in construing the statute, the period will be changed to a comma, and the capital letter beginning the last sentence as printed changed to a small letter, since thereby some meaning is given to the -last clause of the section and the whole is made to harmonize with the general scheme of the legislation of which it forms a part.</p> <p>Neither bad grammar nor inaccurate punctuation can alter the obvious sense of a statute.</p> <p>Under the Act of 1896, ch. 194, a person who had been engaged in the practice of medicine as a profession prior to June ist, 1892, and continuously thereafter, is entitled to be registered as an authorized physician, provided the president of the Board of Medical Examiners is satisfied of that fact. Petitioner’s application to be registered as such a practitioner was rejected by the board because he held no diploma from a medical college. Held, that since possession of a diploma by the petitioner is not necessary under the statute he is entitled to a writ of mandamus compelling the board to decide on the truth of the averments contained in his application.</p> <p>An officer vested with power to act may be compelled by mandamus to exercise that power although his honest discretion in the exercise of it cannot be controlled.</p> <p>When a prayer as offered is modified by the Court, it will be treated on appeal as having been presented in the form in which it was granted, unless the bill of exceptions shows that the party offering it excepted to its rejection as offered and to its modification by the Court.</p> <p>Upon appeal from an order granting or refusing a mandamus, when the issues of fact have been determined by the Judge below without the aid of a jury, the Appellate Court is not confined to a review of the rulings on questions of law presented by exceptions, but in such cases the inquiry will be whether the writ was properly granted or properly refused after an inspection of the whole record.</p>

<p>Appeal—Final Decree—Equitable Defence in Action at Law—Cancellation and Reformation of Contract—Jurisdiction of Equity— Sufficiency of Evidence.</p> <p>A decree determining the right of a party to a credit on the purchase-.money of property, and that the written contract does not correctly •express the agreement of the parties, and referring the case to the auditor to state an account, is a final decree from which an appeal lies.</p> <p>An appeal lies under Code, Art. 5, sec. 25 from an order whose practical effect is to refuse to dissolve an injunction.</p> <p>Under Code, Art. 75, sec. 83, allowing defences in actions at law upon equitable grounds, a Court of law has no power to cancel or reform the contract sued on.</p> <p>When a party alleges that the sealed contract upon which an action at law is brought against him was procured by fraud and that it does not express the real agreement of the parties, equity has jurisdiction of a bill to restrain the action at law and to reform or cancel the contract.</p> <p>A written contract under seal provided for the sale by defendant to plaintiffs of a stock of goods for a designated sum ; possession to be given the following day, and payment to be made 15 days thereafter. Plaintiffs took possession, paid part of the purchase-money and subsequently filed a bill alleging that the real agreement between the parties was that plaintiffs were to pay one-third of the inventoried value of the goods; that defendant falsely represented that an inventory would show the cost of the goods to be about $9,000, while the inventory in fact showed the cost to be only about $5,000. The prayer of the bill was for the cancellation and reformation of the contract according to this allegation and for an injunction to restrain the prosecution of an action at law on the contract. Held, that the evidence failed to establish, by the requisite convincing proof, that the written contract did not express the real agreement of the parties, and that plaintiffs are not entitled to the relief asked for.</p>

<p>Municipal Corporations—Drains Causing Overflow of Abutting Land —Notice to Abate Nuisance— Venue of Action.</p> <p>When a municipal corporation, by a change in the grade of streets and the construction of drains, diverts the surface-water from its natural flow, concentrates it in volume, and throws it upon the land of an abutting owner, such action is an invasion of the adjoining property and the municipality is liable for the injury thereby caused.</p> <p>In such case it makes no difference whether the drains were constructed negligently or not.</p> <p>In an action against the original creator of a nuisance, notice of the injury thereby caused is not necessary before bringing suit.</p> <p>When a declaration for an injury caused by wrongfully overflowing-plaintiff’s land shows that the land was situated in a certain county and the declaration is entitled in the Circuit Court for that county* the venue is sufficiently stated.</p>

<p> Appeal—Delay in Transmission of Record—Filing Amended Declaration After Demurrer to Original Declaration—Review on Appeal. </p> <p>When it appears from the affidavits filed that the failure to transmit the record on appeal within the time prescribed was not attributable to the fault of the appellant, the appeal will not be dismissed.</p> <p>When, under leave to amend á declaration after demurrer thereto is sustained, the plaintiff files an entirely new declaration complete in itself, then an appeal from a judgment rendered under issues joined on the amended declaration does not bring up for review the ruling of the Court on the demurrer to the withdrawn declaration.</p>

<p> Jurisdiction of Orphans' Court to Order Sale of Real Estate. </p> <p>The Orphans’ Court has no jurisdiction to order a sale of real estate devised to testator’s widow for life, after her death to be sold by the executors, upon the ex parte application of the widow stating that it would be for the interest and advantage of all parties to sell the property.</p>

<p>Appeal from an order of the Orphans’ Court of Washington County dismissing a petition asking for the rescission of an order for the sale of the property referred to in this case.</p> <p>The cause was argued with the preceding case.</p>

<p>Appeal from the Orphans’ Court of Washington County.</p> <p>The cause was argued with the preceding case of Snook v. Munday.</p>

<p>A testator devised his estate to trustees to hold the same for the benefit of his three daughters during their lives , “ after their death or the death of any one, to the child or children of said daughter, and in the event of said child dying without children of her body, then to the surviving child or children.” One of the testator’s daughters died unmarried leaving the other two surviving her. Held, that the daughters of the testator took under the will as tenants in common and that the share of the daughter dying as aforesaid passed to her surviving sisters in equal shares discharged from the trust.</p>

<p> Statutory Liability of Shareholders in a Bank Not Enforceable by •Receivers. </p> <p>The charter of a bank provided that the stockholders should be liable for its debts to the amount of their shares of stock. Held, that upon the insolvency of the bank, the receivers thereof are not authorized to enforce this statutory liability, the same not being an asset of the bank, but that the liability of the shareholders is enforceable only by the creditors themselves.</p>

<p> Building Associations—Premium on Loans—Usury—Appeal—Exception to Auditor’s Account. </p> <p>Code, Art. 23, sec. 98, authorized building associations to make advances to members “ for such premium as may be agreed upon ; ” the sum advanced to be secured by a mortgage bearing interest at the rate of six per cent. The mortgage in this case to a building association to secure a loan of fifteen hundred dollars to a member, provided for the payment of interest at six per cent together with the payment of the monthly dues on the borrower’s shares of stock and also a premium of $7.50 monthly during the continuance of the mortgage. Held,</p> <p>1st. That the premium authorized to be charged by building associations is a sum of money to be paid for the loan in advance and that the stipulation providing for the payment of the monthly sum called premium, in addition to the legal rate of interest during the continuance of the'mortgage is not authorized by the statute but is-usurious.</p> <p>2nd. That since the Act of 1894, ch. 321, providing that building associations, “ instead of receiving the whole amount of the premium for the loan in advance or deducting the whole amount of said premium,” may contract with the borrower to pay the same in instálments, was passed after the execution of the mortgage in this case, the borrower’s rights are not affected by that statute.</p> <p>Upon appeal from an order ratifying an auditor’s account, no objections thereto will be considered, unless contained in the exceptions filed below.</p>

<p> Physicians and Surgeons—Examination and License to Practice Medicine—Exemptions—Constitutional Law—Classification of Persons—Office and Officer. </p> <p>Code, Supplement, Art. 43, secs. 39-63 provide that persons practicing medicine in this State shall obtain a license from the Board of Medical Examiners, but an exemption from this requirement is made in favor of commissioned surgeons of the U. S. Army, Navy or Marine Hospital Service, and physicians or surgeons in actual consultation from other States and persons temporarily practicing under the supervision of an actual medical preceptor. Held, that the classification of persons who are required to obtain licenses is just and reasonable, and is not in violation of the equality of rights secured by the Fourteenth Amendment of the Federal Constitution.</p> <p>The Legislature has the power to require practitioners of medicine to obtain licenses from a Board of Examiners appointed by a private corporation</p> <p>The provisions of the Constitution, Art. 2, sec. 10, authorizing the Governor to nominate, and by and with the advice and consent of the Senate, appoint all civil officers unless a different mode of appointment is prescribed by the law creating the office, does not operate to prevent the Legislature from providing that appointment to an office created by statute shall be made by a private corporation.</p>

<p> Partnership—Contribution by One Partner to Make Good Loss of Capital Supplied by Another—Accord and Satisfaction. </p> <p>Where one partner supplies all the capital of the firm and the other partners, who furnish their time and skill, are entitled only to a share of the profits after payment of debts, then, upon liquidation of the business, any impairment of the capital must be borne by him who supplied it, and the other partners are not bound to share such loss, in the absence of an agreement to that effect.</p> <p>A father formed a partnership with his sons, all the capital being supplied by him. There were no written articles of partnership, but the evidence showed that the sons were never credited with any interest in the property of the firm, but only with a percentage of the net profits, and when there were no net profits none of the partners received anything. All debts of the firm were payable primarily from profits. Upon the father’s death and the dissolution of the firm the debts were paid by his executor and there was a loss of capital. Upon a bill for contribution by the executor against the other partners, held, that the sons are not liable to contribute to the payment of such loss, since the intention of the parties was that if the profits of the business were not sufficient to pay the debts, then they were to be paid from the capital, and that the sons should not be liable to make good to their father any proportion of such loss.</p> <p>The executor of a deceased partner alleged that the surviving partners were liable to. the creditors of the firm for certain debts, while this was denied by the latter. An agreement was made by which the surviving partners conveyed to the executor their interest in certain property belonging to the firm, and it was stipulated that the question as to the liability of the surviving partners should not be concluded by the arrangement. The Orphans’ Court thereupon directed the executor to pay the creditors of the firm. Held, that these proceedings do not constitute an accord and satisfaction, so as to be a bar to a bill for an accounting and contribution by the executor against the surviving partners, if they were liable to contribute to the payment of such debts.</p>