Volume 91 — Maryland Reports

<p>Constitutional Law — Obligation of Contracts — Change in Remedy— Vested Rights — Repeal of Statute Authorizing Mechanics’ Liens for Materials Without a Saving as to Pending Cases.</p> <p>A change by statute in the remedy by which a debt may be enforced does not impair the obligation of the contract or destroy a vested right, provided a substantial remedy for the enforcement of the right is left to the parties.</p> <p>A statute which gives to persons supplying materials for a building a right to a lien therefor against the building does not create a vested right to that remedy in the material-men. When such statute is repealed without any saving as to existing cases, parties who had furnished materials for a building, but had not recovered judgment under the statute, are not entitled to enforce a lien. No obligation of contract is impaired by such repeal since the right to file a mechanics’ lien for materials is an extraordinary remedy which the State may withdraw at its pleasure, leaving the parties to their common law remedy.</p> <p>The Act of 1898, ch. 502, repealed that part of Code, Art. 63, which gave to material-men a mechanics’ lien on buildings in Baltimore City. Prior to the passage of the Act plaintiff had filed a lien for materials supplied to a contractor in the construction of defendant’s house and proceedings to enforce the lien were pending when the Act was passed, but judgment had not then been rendered. Held,</p> <p>1st. That the repeal of the lien law without a saving clause as to pending cases destroyed plaintiff’s right to a lien, the same being entirely of statutory origin and not dependent upon contract.</p> <p>2nd. That the lien formerly given was an extraordinary statutory remedy only, and one additional to plaintiff’s common law remedy on the contract under which the materials were supplied, and that the repeal of the statute does not impair any obligation of the contract or take away from plaintiff a vested right.</p>

<p>Creation of Trusts — Intention of Testator — Devise to Charitable Institution with a Proviso — Condition Subsequent Annexed to Devise.</p> <p>When property is given by will to a charitable institution, “ provided ” that the devisee shall do certain things, the word “provided” will not be held to create a trust as to the use of the property when it appears from the whole will that the testator did not intend to create a trust, and when if a trust should be established the entire gift would be defeated.</p> <p>A testator devised the residue of his estate to the Aged Men’s and Women’s Homes “provided the managers of said homes admit and receive into said homes during their existence one aged man or one aged woman each and every year for each and every $400 of income to be derived from the property hereby devised * * said aged person so to be admitted shall not be required to pay any fee for admission and provided also that said aged person so to be admitted shall have always through life maintained a good moral character and that his or her penury shall not have been the result of his or her vicious or immoral conduct.” The devisee was a charitable institution maintaining homes for aged persons, who were required to pay an admission fee. Held,</p> <p>1st. That the will did not create a trust and that consequently the devise is not void because creating a trust with uncertainty as to the beneficiaries or because it creates a perpetuity.</p> <p>2nd. That the devise is upon the condition subsequent, and the society takes the property given for its general corporate purposes subject to the condition.</p>

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

<p>Appeal from the Circuit Court for Wicomico County (Holland and Lloyd, JJ.)</p>

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

<p>.Appeal from a judgment of the Baltimore City Court (Phelps, J.)</p>

J.) The defendant’s prayer which was granted instructed the jury if they found that “the paper offered in evidence by the plaintiff as a contract between the parties, was signed by the defendant, upon the representations of the agent of the plaintiff, through whom the contract was made, that it was only a matter of form intended to be used to uphold the rates of the plaintiff, and was not signed as a record of the real contract between the parties ; and if they further find…

<p>' Appeal from the Circuit Court for Kent County (Stump and Martin, JJ.)</p>

<p>Ejectment — Covenant of Special Warranty by Ancestor Holding Life-Estate as Bar to Action by Heirs — Equitable Plea.</p> <p>Land was devised to A for life with remainder to plaintiffs, his sons. A conveyed the land in fee to defendant with covenant of special warranty. In an action of ejectment by plaintiffs after the death of A, defendant pleaded by way of equitable defense that in the conveyance by A, he did for himself, his heirs, personal representatives and assigns, covenant that he and they would forever warrant and defend the grantee against all persons whomsoever setting up any claim to said land by, through or under him, and that the plaintiffs are the heirs at law of A and devisees of his real estate, and that whether as devisee or heirs at law sufficient real assets belonging to A at the date of his death passed to plaintiffs to satisfy the said covenant. Held, upon demurrer, ist. That this plea is bad, because it does not allege that the title under which plaintiffs claim was older and better than the title of the covenantor, A, or that it was in existence at the time A made the covenant. 2nd. That the plea is not one proper to be filed as a defense upon equitable grounds.</p>

<p>Pledge of Policy of Life Insurance — Possession of Policy by Pledgee after Payment of Debt.</p> <p>A policy of life insurance was pledged to A, with a written assignment to secure the payment of a certain debt. After this debt was paid the policy remained in the possession of a company to which A had transferred his business. Upon the death of the assured, the proceeds of the policy were claimed by A, who alleged that after the payment of the debt the assured made a verbal agreement that the policy should continue as security for a line of credit with him, or with him as trustee for said company. At the time of his death the assured was indebted to the compány but not to A. The company was not a party to the proceedings. Held, that the evidence failed to prove that the policy had been repledged to A, after the payment of the debt for which it had been originally assigned.</p>

<p>Mistake in Agreed Statement of Facts — Permanent Improvement of Estate by Life- Tenant and Remainderman — Evidence as to Payment by One of Two Mortgagors.</p> <p>Where counsel have filed an agreed statement of facts respecting the rights of the parties to a sum of money in court for distribution, one of the parties may subsequently show that he entered into the agreement under a mistake as to the facts, and the court will then require the facts to be established by evidence.</p> <p>A life-tenant of real estate who makes permanent improvements thereon, has no power to charge the estate in remainder with the cost of the same, without the consent of the remainderman.</p> <p>The life-tenant of a parcel of land united with the remainderman in executing a mortgage to secure the payment of money borrowed for the purpose of making improvements thereon. A promissory note for the amount of the loan was made by the mortgagors jointly and severally. Certain payments to the mortgagee were made on account, the receipts for which were in the name of the life-tenant but it was alleged that some of the payments were made with money belonging to the remainderman. After the death of both life-tenant and remainder-man a sale was made under the mortgage, and the question in this case was as to the distribution of the surplus left after payment of the mortgage. Held,</p> <p>ist. That the life-tenant and the remainderman were each liable for one-half the mortgage debt, there being no evidence of any agreement between them other than that contained in the mortgage and the note.</p> <p>2nd. That the testimony shows that certain payments were made with money belonging to the remainderman, and that consequently his estate should be credited with the same.</p>

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

<p>Appeal from the Circuit Court for Cecil County (Pearce, C. J., and Martin, J.)</p>

J., Holland and Lloyd, JJ.) The third, fourth, fifth and seventh items of the will of Miss Willie F. Hooper, of Salisbury, were as follows : Item 3.

<p>Agreement to Accept Less Than Amount of Debt Before Maturity in Full Satisfaction — Silence as to Material Fact Affecting Subject-Matter of Contract Known Exclusively by One Party — Fraud— Specific Performance— Tender in Equity.</p> <p>An agreement between a debtor and creditor by which the former agrees to pay, and the latter to accept, a smaller sum than the amount of the debt, before its maturity, in full satisfaction is valid and supported by a sufficient consideration.</p> <p>When there is no fiduciary relation between the parties contracting with one another there is no obligation on the part of either to disclose a fact exclusively within his knowledge which may influence the value of the subject-matter, and mere silence as to such fact is not a fraudulent concealment.</p> <p>A debtor, in straightened circumstances, pledged shares of stock in a fertilizer company with his creditor as security for the debt. At that time the shares were estimated to be worth about $30 each, but subsequently the property of the company was sold to another corporation at a price which doubled the value of the shares. While the negotiations for this sale were pending, the debtor being himself the principal promoter thereof, but before it was finally ratified by the purchasing corporation, the debtor made a contract with his creditor by which the latter agreed to accept about $2,000 less than the amount of his claim in full satisfaction, and to release the shares of stock pledged, which at their former value did not cover the amount of the debt. Afterwards the creditor learning of the sale which increased the value of the collateral held by him, refused to carry out the agreement, alleging that the debtor had fraudulently concealed from him the fact of the proposed sale. At the time the compromise agreement was made the debtor said nothing about the sale and stated that his compromise was the best settlement that he could make. Upon a bill for specific performance, held, that the silence of the debtor under these circumstances was not fraudulent in itself, or such a concealment as disentitles him from asking for specific performance of the contract.</p> <p>The technical rules governing pleas of tender in actions at law are inapplicable in equity. Upon a bill to enforce specific performance of an agreement by defendant to accept a certain sum of money in satisfaction of a debt secured by pledged property, a sufficient tender is made when the bill avers that the plaintiff is ready, willing and able to pay the amount due or to bring the same into Court to be paid to the defendant upon the transfer of the collateral security.</p>

) The pooling agreement referred to in the opinion of the Court was as follows: “ This agreement, made and entered into this second day of October, 1896, witnesseth as follows, to wit: That we, the undersigned, owners and holders of stock of the Seaboard and Roanoke Railroad Company, to the amounts set opposite our respective names,- for our mutual protection, hereby covenant and agree each with the other, for the perio.d of five years from the date of this agreement or…

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

Cross-appeals from the Superior Court of Baltimore City (Ritchie, J.) Plaintiffs obtained a judgment below for $8,240.14. Some of the conditions of the bond sued on in this case, in addition to those mentioned in the opinion of the Court, are as follows : 6.

<p>Agency — Contract Made by a Special Agent in Excess of Authority.</p> <p>A principal is not bound by a contract made in his behalf by a special agent, in excess of the authority conferred, unless he subsequently ratifies it.</p> <p>Defendant’s special agent was authorized to sell goods to plaintiff for cash on delivery, which was to be made at a certain time, on vessels to be furnished by plaintiff. This agent made a contract which provided for the shipment of the goods by the principal to plaintiff in another State, and that “ interest is to be charged for delayed deliveries at the rate of six per cent.” When this contract was submitted to defendant he said that he did not understand one clause, and would write plaintiff about it. He did write repudiating the contract so made and submitted another one which plaintiff refused to sign, and sued for breach of the contract so made by the agent. Held, That since the agent’s contract was materially variant in terms from the authority conferred on him, the defendant was not bound, and that his subsequent conduct did not show any ratification.</p>

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

<p>Appeal from the Circuit Court for Dorchester County (Holland and Lloyd, JJ.) There was a judgment in favor of the plaintiff for $3,000.</p>

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

<p>Appeal from a decree of the Circuit Court for Talbot County’ (Stump and Martin, JJ.)</p>

<p>Rights of Creditors of Remainder-man Entitled to Property after a Life-estate — Execution—Receivers.</p> <p>Real and personal property was given by a will to testator’s widow for life with remainder in one-third thereof to his son, Charles. The widow was put into possession of both realty and personalty.. Charles was indebted to the testator’s estate in a large sum secured by judgment. Other judgments were subsequently recovered against him. Certain attaching creditors of Charles filed a bill in equity asking for a sale of his interest in said estate, both real and personal, subject to the widow’s life-estate, or clear thereof an allowance to be made to her therefor, the proceeds of sale to be applied to the payment of the debts of Charles, and for receiver, &c. Held, that a demurrer to the bill was properly sustained because the life-tenant is entitled to the possession of the property, both real and personal, and cannot be compelled to accept the estimated value of her interest in money in lieu of the use of the property, and because the plaintiff cannot compel a prior judgment creditor to submit to a sale of the property free from his lien; and that the plaintiffs are not entitled to a receiver of Charles’ interests in the personalty, his indebtedness to .the testator’s estate being greatly in excess of his interest in such personalty.</p> <p>The interest of a remainder-man in real estate during the preceding life-estate is liable to execution by a judgment creditor.</p>

<p>Contributory Negligence — Driving Under Railway Bridge While Train, Whose Approach Could Have Been Seen, was Passing Overhead — Blowing Whistle of Train on Railway Viaduct Over County Road — Waiver of Exception to Refusal to Take Case from the Jury at End of Plaintiff’s Testimony.</p> <p>Defendant’s railway crossed a county road by a viaduct 80 feet high, near a point where it was necessary for the engine driver to give signal by whistle before crossing a bridge over a river. Ordinarily, the whistle was blown by engines before the viaduct was reached. The tracks in both directions were visible from the road below. Plaintiff was driving a wagon with two horses on this road and while he was under the viaduct the whistle of a passing train- was sounded twice directly overhead, whereby the horses became frightened and ran away, causing the injury for which this action was brought. ' Held, that although the defendant was guilty of negligence in blowing the whistle directly over the said crossing, instead of before reaching or after passing it, yet since the plaintiff could have seen the train approaching and avoided going under the viaduct while it was passing overhead, and moreover because he was walking alongside of the horses and not seated in the wagon, he was guilty of such contributory negligence as precludes a recovery.</p> <p>When the defendant at the close of plaintiffs’ evidence offers a prayer asking the Court to take the case from the jury, and, although excepting to the action of the Court in refusing it, yet proceeds to offer evidence in defense, he thereby waives the exception.</p>

) sustaining demurrer to defendant’s motion to strike out a judgment and overruling the same. Also an appeal from a decree of the Circuit Court No. 2, of Baltimore City (Sharp, J.), sustaining demurrers to the bill of complaint of the appellant in this .case, and dismissing the same.

<p>Appeal from an order of the Circuit Court for Baltimore County (Fowler, C. J.)</p>

The first issue framed by the Orphans’ Court to be tried by jury was as follows : “ Whether the paper-writing dated 5th of January, in the year 1897, purporting to be the last will and testament of the said Rachel L. Gross, was signed by the said Rachel L. Gross or some other person in her presence and by her express direction, and that Henry J. Graham and M. Ada Graham at her request and in her presence subscribed their names as. witnesses thereto.”

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

J., and Sloan J.) The plaintiff’s second prayer was that if the jury find for the plaintiff, then in assessing the damages they may take into consideration the loss of profits in running said mill, if they find there was any such loss occasioned by the act of the defendant, and any injury they may find the plaintiff sustained by being deprived of the use of the water for irrigating his land, watering his stock or other domestic or household purposes up to the bringing of…

) By defendants’ second prayer, which was refused, the Court was asked to rule that the defendants are entitled to an allowance for counsel fees properly expended in realizing the fund from the estate of I. D. Clawson, and if the fund so realized after allowing counsel fees expended shall be less than the sum due by the plaintiffs to the defendants, the verdict must be for the defendants.

<p>Appeal from a decree of the Court for Baltimore County (Fowler, C. J., and Burke J.)</p>

), directing M. L. Needy, Trustee, to convey to the appellant the land conveyed by it to the Maryland Beneficial Association in October, 1892, and directing the appellant to pay to the Maryland Beneficial Association $1,085 with interest from October 5th, 1895, the date of the filing of the answer in the cause.

<p>Attachment by Non-Resident Plaintiff Against Foreign Corporation to Affect Property of the Defendant in this State — Suits Against Foreign Corporations.</p> <p>Under Code, Art. 9, sec. 1, etc., a non-resident plaintiff may maintain an attachment in the Courts of this State against property and credits situated here and belonging to a foreign corporation.</p> <p>Code, Art. 23, sec. 297, provides that suits may be brought in the Courts of this State against any corporation not incorporated under its laws but doing business in this State, by a resident of this State for any cause of action, and by a non-resident plaintiff when the cause of action has arisen, or the subject of the action shall be situated in this State, provided that nothing therein shall prevent or affect the issue of attachments against corporations as now or hereafter allowed by law. Code, Art. 9, secs. 1 and 2, provide that every person who has the right to sue in the Courts of this State shall have the right to become a plaintiff in an attachment against a nonresident of this State, and that any corporation not chartered by this State may be made a defendant as other non-residents. In this case the defendant was a foreign corporation doing business in this State and having property and credits therein. Plaintiff, a nonresident to whom defendant was indebted upon a cause of action not arising in this State, issued an attachment in this State against defendant as a non-resident debtor, and caused the same to be laid upon said property and credits. Upon motion to dismiss the action for want of jurisdiction. Held,</p> <p>ist. That the plaintiff has the right to become plaintiff in an attachment suit in this State, and that the defendant is liable to be proceeded against as a non-resident debtor having property or credits situated in this State.</p> <p>2nd. That the provisions of Code, Art. 23, sec. 297, relating to suits against foreign corporations do not limit the right of the non-resident plaintiff to institute the attachment proceeding under Code, Art. 9, sec. 1.</p> <p>3rd. That even under the terms of Code, Art. 23, sec. 297, plaintiff is entitled to maintain the attachment, since the credits and property in the hands of residents of this State and belonging to the defendant are the subject of the action and situated in this State.</p> <p>The case of Myer v. Liverpool, &c., Ins. Co., 40 Md. 595, relating to suits against foreign corporations, distinguished.</p>

<p>Claim for Extra Work Under Construction Contract Providing for a Written Order for Such Work — Inadmissibility of Parol Evidence to Vary Written Agreement— Wilful Abandonment of Work Under a Contract Before Completion — Authority of Agent to Vary Contract Made by Corporation —Ratification by Corporation of Unauthorised Act of Agent — Delay in Performance of Contract.</p> <p>Plaintiff contracted in writing to construct a railroad for defendant according to certain plans and specifications. The contract provided that “no claim for extra work shall be allowed unless the work shall have been done in pursuance of a written order from the engineer and unless the claim be presented at the first settlement after the work was executed.” Plaintiff claimed compensation for extra work not so ordered in writing, alleging that the same was not the kind of extra work within the meaning of this clause, and also offered evidence to show that before and immediately after the signing of the contract, an oral agreement was made between him and the defendant to the effect that excess of work caused by change in the plans would be paid for by the defendant. Held,</p> <p>ist. That this evidence is inadmissible, because an offerjto vary a written contract by evidence of a previous and contemporaneous oral agreement, and is not an offer to show a collateral agreement as to an independent matter about which the written contract is silent.</p> <p>2nd. That the provision in the contract relating to extra work included all kind of work done in the construction of the road and that consequently plaintiff is not entitled to recover for work alleged to be extra but not done in pursuance of a written order from the engineer.</p> <p>The written contract between plaintiff and the defendant company provided that plaintiff should build a designated section of a railroad according to certain plans and complete the work within six months. Ninety per cent of the price was to be paid to plaintiff from time to time upon certificates of the engineer. These sums were paid. Plaintiff abandoned the work after the expiration of the six months, leaving it incompleted, and brought an action agains the company alleging that defendant’s general manager had agreed to furnish materials for the completion of the work in consideration of a subscription by plaintiff to the bonds of the road; that this had not been done and that consequently plaintiff was justified in abandoning the work. Held, that the evidence failed to show that this agent had authority to make the alleged supplementary agreement or that such agreement had ever been ratified by defendant, and that since plaintiff had abandoned the work under the contract without any legal excuse therefor, he is not entitled to recover.</p>

<p>Fire Insurance — Oral Agreement by Agent to Renew Policy Without Full Payment of Premium— Waiver of Actual Payment of Premium — Pleading—Taking Case From Jury on Account of Legal Instifficiency of Evidence.</p> <p>When an insurance agent agrees to renew a policy of fire insurance without actual payment of the premium and gives credit therefor, the contract is valid and the payment of the premium as a condition of the attaching of the risk is waived, although the policy may provide that the insurance shall not be considered binding until payment of the premium.</p> <p>Where there is an agreement of the renewal of a policy of insurance, the assured is justified in assuming that the premium, and all the terms and conditions of the renewal, will be the same as those of the original policy, unless he has notice of some proposed change.</p> <p>Shortly before the expiration of a policy of fire insurance on plaintiff’s property in the defendant company, the agent of defendant inquired of plaintiff if he wished to have the policy renewed. Plaintiff sent word in reply that he did, and would soon send a check for the premium. The agent replied, "all right, I will attend to it,” and did not say that payment of the premium would be required before renewal. Plaintiff did pay a part of the premium, but before making payment in full the property was destroyed by fire. The original policy contained a provision that it might “by a renewal be continued under the original stipulations in consideration of premium for the renewed'term.” In an action to recover for the loss, after proof of same had been made, Held,</p> <p>ist. That the evidence was legally sufficient to show an agreement by defendant’s agent to renew the policy upon the same terms and conditions.</p> <p>2nd. That the agent had power to waive the actual payment of the full premium as a pre-requisite to the renewal, and did waive the same, and the plaintiff is entitled to recover.</p> <p>In an action on an oral agreement to renew a policy of fire insurance, a'count in the declaration set forth the execution of the written policy for one year from June 21st, 1897, and-a verbal agreement, made shortly before the expiration of the policy, in consideration of a certain sum, to renew the policy for the same amount, and upon the same identical terms, agreements, covenants and stipulations as were contained in said policy for the further term of one year from June 2 ist, 1898, and alleged that the plaintiff then paid a part of said renewal premium and promised to pay the remainder in a few days, which payment and promise were accepted by the defendant as satisfactory. The count then averred the loss sustained, and demand . for, and refusal of payment. Held, that a demurrer to this count was properly sustained, because it fails to set forth with sufficient fullness the terms and stipulations contained in the former policy and which were to be inserted in a renewal of the same.</p> <p>An instruction withdrawing a case from the jury, upon the ground that there is not legally sufficient evidence to entitle the plaintiff to recover, will not be granted unless the Court assumes the truth of all the evidence offered by the plaintiff, though contradicted in every particular by the evidence of the defendant, and then finds that the plaintiff’s evidence is insufficient to establish his case.</p>

<p>Bill to Redeem Mortgage — Subrogation.</p> <p>A testator devised a tract of land, which was subject to a mortgage, to his wife for life, and directed that upon her death his executors should sell the property and apply the proceeds, first, to the payment of the mortgage debt, and then distribute the balance among certain persons. Plaintiff and defendant, who were both distributees after the life-estate, each being entitled to one-tenth of the proceeds, were also executors of the will. Defendant became the assignee of the mortgage during the lifetime of the widow and advertised the property for sale under the power in the mortgage. Plaintiff filed a bill offering to pay to defendant the amount of the mortgage debt, asking to be subrogated to her rights as mortgagee, and that the sale so advertised be restrained. Held, that the plaintiff has not the right to redeem the mortgage and be'subrogated to defendant’s rights, because while both parties have precisely the same equitable interest in the property, the defendant has also the legal title, and subrogation will not be enforced on behalf of one having merely an equitable title against one having both the legal and the equitable title. . ...</p>

<p>Deeds — Restrictive Condition as to Use of the Property — Release of Restriction by Grantor — Marketable Title.</p> <p>The Canton Company conveyed, in 1847, a tract of land to Gelston by a deed which contained the following restriction : The grantee for himself and all persons claiming under him agrees “ that these presents are upon the express condition that no buildings shall be erected on the premises for the purpose of prosecuting any business, trade, calling or manufacture prohibited by the existing laws of the State of Maryland or the ordinances of the City of Baltimore, or which shall cause or produce a nuisance injurious or prejudicial to any of the adjacent lots, or calculated to prevent the beneficial use and occupation of the same, and that no such excepted business, trade, calling or manufacture shall be prosecuted or carried on within the premises unless the consent of the Canton Company shall first be had and obtained therefor, under penalty of rendering this indenture and all parts thereof void.” The Canton Company subsequently conveyed other lots of ground in the same vicinity by deeds con-tabling- no restriction. The tract conveyed to Gelston was subdivided and came into the possession of different persons, to whom, in 1900, the Canton Company executed a deed of release or quitclaim of its title or right to enforce in any manner the above-mentioned restriction. Defendant agreed to purchase a part of the Gelston tract, but refused to accept the same, alleging that he would be bound by the condition, and that the title of the vendor was not good and marketable. Held,,</p> <p>1st. That since there is no evidence that the restriction in said deed was made in pursuance of a.general plan for the improvement of the real estate, and similar restrictions were not imposed in the conveyances by the Canton Company of adjacent property, the grantees of other lots have no right to enforce the condition in the deed to Gelston.</p> <p>2nd. That the restrictive condition could only have been enforced by the Canton Company and, since that company has released its right, the restriction is no longer binding on the property.</p>

<p>Appeal from a judgment of the Superior Court of Baltimore City (Stockbridge, J.), where the case was tried before the Court sitting without a jury. The Court ruled that the plaintiff was entitled to recover the value of the lumber delivered to the defendants, as shown by a schedule offered in evidence, less the amounts paid on account, and that the recoupment allowed the defendant shall be the difference between the value of the lumber so delivered and what it would have been worth if delivered according to the contract. The Court refused to rule that the evidence as to the market values of the different grades of lumber specified in the contract should not be considered in ascertaining the damages, but that evidence as to the entire cuts of mills with guarantees of respective percentages of lumber Nos. 1 and 2 should be considered.</p>

<p>Appeal from the Court of Common Pleas (Wright, J.) The plaintiffs obtained a judgment on verdict for $3,750.</p>

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

<p>Appeal from a decree of the Circuit Court for Queen Anne’s County (Pearce, C. J.)</p>

<p>Charitable and Religious Uses — Valid and Invalid Devises and Legacies — Trusts Void for Uncertainty — Restraint on Alienation — Perpetuities—Legacy to Educational Institution with Direction as to its Application.</p> <p>Testatrix bequeathed a sum of money to an individual in trust to pay and distribute the same “among and to persons and charitable institutions the names of which and the portions to be paid to each beneficiary will appear in a memorandum which will hereafter be prepared by me or at my request.” The testatrix died without having prepared a memorandum. Held, that the bequest is void because made upon a trust not declared.</p> <p>A bequest of a sum of money to an incorporated church, with directions to apply the income to the support of the pastor of the church, is valid.</p> <p>Testatrix gave a sum of money to a religious corporation directing it to invest the principal and pay the income to the “Trinity Auxiliary of the Women’s Foreign Missionary Society of the M. E. Church, South, to be included in the receipts of said society and remitted to the Treasurer of the Baltimore Conference Society,” etc. The auxiliary was an unincorporated, voluntary association which transmitted the money raised by it to the Treasurer of the Baltimore Conference, by whom it was sent to a general missionary board in another State. Held, that this bequest creates a trust which is void because it could not 'be enforced by a Court of Equity.</p> <p>A sum of money was bequeathed to a church corporation with directions to pay the income “.towards the support of the superannuated preachers, their widows and orphans, of the Baltimore Conference of the M. E. Church, South.” The evidence showed that the allowance of aid to superannuated preachers was under the absolute control of the Board of Finance of the Conference of the M. E. Church ' to the discipline of which the legatee is subject, and that the legatee would .have no control over the fund after paying it to the conference. Held, that the trust is void because unenforceable in equity.</p> <p>A church corporation was directed by a will to give the income of the fund bequeathed to it “to the infant class of the Sunday-school of said church to be contributed by said class for the support of a little girl in one of the schools under the care of the Women’s Foreign Missionary Society of the M. E. Church, South.” Held, that since the church corporation does not take the money so bequeathed for its general purposes but upon a trust, the beneficiary of which is wholly indefinite, the bequest is void.</p> <p>Testatrix devised certain real estate to three trustees and directed that if the Women’s Home Mission Society of the M. E. Church, South, should have become a body corporate at the time of the probate of the will and should agree to accept and use said real estate upon certain designated conditions, then the trustees named as devisees shall “ convey said homestead property to said Women’s Home Mission Society to hold to the use thereof so long as said society shall continue to use said property for said purposes with full authority to erect buildings thereon for mission meetings, lodgings, orphanage or any purpose connected with mission work, and without power to sell or alienate said land or any part thereof.” By the next item of her will testatrix gave to the same trustees a sum of money in trust to pay over to the Women’s Home Mission Society upon a compliance with the same conditions. Held,</p> <p>ist. That since the trustees named as devisees would not be authorized to convey the real estate upon any other terms than those named by the testatrix and since she intended that the estate should forever remain extra commercium and beyond the power of alienation, the devise is void, being in violation of the rule against perpetuities.</p> <p>2nd. That since the bequest of the money is interwoven with and dependent upon the invalid devise of the land that bequest is void.</p> <p>Testatrix also bequeathed a sum of money to the trustees of the Randolph-Macon College “to be applied to aid deserving and promising young women, especially such as expect to enter upon mission work, to attend the Randolph-Macon Woman's College, at Lynchburg, as students, such aid to be either by loans or free scholarships as said trustees may deem best. The receipt of the treasurer of the said board of trustees shall be a complete discharge of ¡my executors.” The will also contained in another item a legacy to the “Woman’s College located at the City of Lynchburg for the education of one or more worthy girls.” The college at Lynchburg was organized and controlled by the trustees of the Randolph-Macon College for the purpose of carrying out its general objects. Held,</p> <p>ist. That in the last mentioned legacy to the Woman’s College there is a misnomer, and the testatrix intended the trustees of the Randolph-Macon College to take the same.</p> <p>2nd. That these bequests are valid, not being given upon a trust, but directly to the corporation, to be used by it within the scope of its corporate functions.</p>

<p>Fraudulent Conveyances — Evidence—Laches.</p> <p>Two houses in Baltimore City were conveyed to H. and another one to his wife, on the same day in the year 1S90, by separate deeds. H. dealt with the property so conveyed to him, as owner, executing mortgages thereon, collecting the rents, etc. Nearly nine years after-wards and after a suit had been instituted against H. by plaintiff, who recovered judgment, H. executed conveyances of the two houses to his son and daughter. Upon a bill by the judgment creditor to set aside these deeds because fraudulent as to him, the defendants alleged that the houses had been originally purchased with money belonging to H’s wife, and that the deeds conveying them to. H. were made by mistake. There was a lack of evidence to show satisfactorily that H.’s wife had possessed enough money to buy the houses, or that amistake in drawing the deeds had really been made. H.’s son and daughter said that they had paid to their mother apart of the sums expressed as the consideration in the deeds to them, and had given promissory notes for the balance. Held,</p> <p>ist. That even if the houses had been originally purchased with money belonging in part to H.’s wife, yet, since she had knowledge of the fact that he held the legal title and exercised acts of ownership over the property and had delayed for so long a time to assert her rights or correct the alleged mistake, she cannot now hold a better position than any other unsecured creditor of H., and that the houses in question arc subject to the judgment lien.</p> <p>2nd. That since the deeds to H.’s son and daughter were made with the purpose on the part of the grantor and grantees to evade the collection of the judgment, the decree of the Court below holding the deeds to be void, as against the plaintiff and directing the property to be sold unless the judgment be paid, is affirmed.</p>

), for $1,967.60. The defendant’s fourth plea set forth that the defendant was organized under the laws of the State of New York; that its principal office is located in Elmira, New York; that the fund sued for in this case was and always has been in the State of New York ; that after the death of Charles H. Ehrman, the fund payable under the certificates issued to him was claimed by the sons of the said deceased, also by the executor of his will, also by the administrator…

) The following prayers were offered at the trial: Plaintiff's ist Prayer, asked the Court “ to declare as the law of this case that if the Court, sitting as a jury, shall find from the evidence that subsequent to the expiration of the policy of the Insurance Company of North America, dated October 22, 1879, offered in evidence, a course of dealing grew up between the said Insurance Company of North American and the plaintiffs, Ricards, Leftwich & Co., according to which it…

<p>Husband and Wife — Charge on Wife's Statutory Separate Estate by a Promissory Note is not a Specific Lien as Against Other Creditors — Attachments Against Non-resident — Priorities—Effect of fudgment of Condemnation Nisi — Proof of Assets.</p> <p>A married woman executed a promissory note, together with her husband, prior to the Act of 1898, ch. 457, and added to her signature the words, “for the payment of which I bind my separate estate.” She was then the owner of an undivided interest in certain land. Held, that this charge upon her estate did not create a specific lien upon the property or an equitable mortgage thereof, and that the holder of such note is not entitled to priority over other creditors of the married woman holding claims enforceable against her at law.</p> <p>Different creditors of a non-resident married woman issued attachments against her, and caused the same to be laid upon her undivided interest in certain land, the sale of which had been decreed in a partition proceeding but had not then been made, and the attachments were also laid in the hands of the trustee to sell. Judgments of condemnation nisi were entered in the attachments. Held,</p> <p>1st. That the attachments became inchoate liens on the defendant’s interest in the land in the order of their respective levy, and the judgments of condemnation nisi ripened by operation of law into final judgments at the end of the terms of Court at which they were respectively entered, the liens of which related back to the dates of the attachments.</p> <p>2nd. That after the sale of the land under the partition decree the liens of the attachments were transferred to the defendant’s share of the proceeds of sale.</p> <p>3rd. That since the attachment of one creditor, sufficient in amount to absorb the entire fund was issued and levied earlier on the same day than other attachments, this attachment became the first lien and is entitled to precedence in payment.</p> <p>A judgment of condemnation nisi, in an attachment against a non-resident, laid upon specific property, becomes absolute after the lapse of of the term of Court without further proof of the debt, since the provisions of the Code, Art. 9, sec. 13, relating to proof of debt and assets in the hands of a garnishee do not apply to attachments in rem.</p>

), which granted the prayer of the petitioner and provided that “ a recount of all the ballots cast at the general election referred to is hereby ordered, and the following shall be the mode of procedure, to wit: David Straughn, Esq., Justice of the Peace, conducting the examination in this cause, will appoint two ballot clerks, one a Republican and one a Democrat in political sentiment (whose compensation shall be fixed by counsel), to tally and count said ballots in the…

<p>Officers — Supervisors of Election Appointed During Recess of the Senate Holds Only Until End of Next Legislature — Constitutional Law.</p> <p>Constitution, Art. 2, sec. 11, provides that in case of any vacancy during the recess of the Senate in any office which the Governor has power to fill, he shall appoint some person to said office whose commission shall continue in force until the end of the next session of the Legislature or until some other person is appointed to th'e same office whichever shall first occur. The Act of 1896, ch. 202, sec. x, provides for the appointment by the Governor, with the advice and consent of the Senate, of three supervisors of elections for each county for the term of two years. Sec. 4 of the Act provides that in case of any vacancy in the number of said supervisors occurring when the Legislature is not in session, the Governor shall appoint some person to fill the vacancy during the remainder of the term of office of the person originally appointed. At the session of the Legislature of 1898, the Governor appointed three election supervisors for Baltimore County, one of whom resigned in September, 1899, and the Governor then appointed the petitioner for the residue of that term. At the session of the Legislature in 1900, the Governor appointed a new board of supervisors of election for that county, one of whom, the respondent in this case, failed to qualify by taking the oath of office within thirty days after the receipt of his commission by the Clerk of the Circuit Court, as is required by Code, Art. 70, sec. 10. The Governor subsequently reappointed the respondent and a new commission was issued to him, under which he qualified within the time prescribed. The petitioner, claiming that he held under his commission till his successor duly qualified ; that the failure of the respondent to qualify under his first commission authorized the petitioner to continue in office, and that there was consequently no vacancy at the time of the second appointment, applied for a mandamus to enforce the surrender of the office to him. Held,</p> <p>1st. That under Constitution, Art. 2, sec. ix, the petitioner could not lawfully hold the office by virtue of the recess appointment beyond the adjournment of the succeeding session of the Legislature, and if the Act of 1896 was designed to enable such an appointee • to hold until his successor qualified, it must yield to the express constitutional provision.</p> <p>2nd. That the failure of the respondent to qualify under the first commission issued to him did not authorize the petitioner to hold the office until a new appointment should be made by the Governor and confirmed by the Senate, but upon such failure there was a vacancy in the office which the Governor was authorized to fill by the reappointment of the respondent.</p> <p>Under Constitution, Art. 2, sec. 13, a civil officer appointed by the Governor and confirmed by the Senate holds for the term of his appointment and until his successor shall qualify. But an officer appointed by the Governor to fill a vacancy during a recess of the Senate under Constitution, Art. 2, sec. ix, holds the office only until the close of the next ensuing session of the Legislature, and not an. additional time until the qualification of a successor.</p>

<p>Contested Election — Defective Ballots — Insufficiency of Record on Appeal to Present Rulings of Trial Court.</p> <p>A petition in a contested election case set forth that the petitioner and the respondent were opposing candidates for a county office at a certain election ; that respondent had been returned as elected and said return was erroneous, and petitioner had received a larger number of votes than the respondent; that the judges of election had wrongfully counted for respondent ballots illegally marked, and had failed to count for petitioner ballots legally cast for him. The petition contained other allegations as to the erroneous counting of ballots and alleged that if the mistakes were corrected it would be made to appear that the petitioner had been elected. The answer denied the allegation of the petition and averred that the mistakes made by the judges of election were to the prejudice of the respondent, &c. Testimony was taken and the Court below ordered that since it appeared from the pleadings and evidence that petitioner had received the greater number of votes at said election, he was declared to have been duly elected. Upon appeal from this order the record did not contain authenticated copies of the ballots objected to by the respective parties, but an uncertified exhibit was presented to this Court containing 367 ballots of the official form used at the election and marked in imitation of the voters’ marks as made upon the ballots actually used in evidence. It was not made to appear what specific objections were made by the parties to these ballots, nor what were the rulings of the Court with respect to all of them, nor was there any statement showing what questions of law were ■ passed upon by the trial Court. Held, that there is nothing in the record thus presented as to which error can be assigned since it does not appear what were the rulings of the Court as to any particular ballots, or as to the admissibility of evidence, and this Court is precluded by Code, Art. 5 sec. 9 from deciding any question which does, not appear by the record to have been tried and decided by the Court below.</p>

J.,and Holland, J.), overruling demurrer and directing the issue of a writ of mandamus as prayed in the petition. It is clear that the State Board of Education and the Superintendent of Public Education have no power to remove an examiner for any cause except one of those enumerated in the statutes referred to.

<p>Intoxicating Liquor — Sufficiency of Indictment.</p> <p>The Act of 1896, ch. 332, prohibiting the sale of liquor in Dorchester County, provides that if any person within that county shall directly or indirectly sell or otherwise dispose of by way of barter any liquors, etc., “ or shall therein take any order or orders therefor,” then such person shall be guilty of a misdemeanor, etc. A count of the indictment in this case charged that the defendant ‘1 did unlawfully take an order from said A. B. for one pint of whiskey, contrary,” etc. Held, that since the charge in the indictment is in the words of the statute, it is a sufficient description of the offense, and a demurrer thereto should be overruled.</p>

<p>Appeals from three judgments of condemnation of the ■Circuit Court for Kent County, (Pearce, C. J., Stump and Martin, JJ.</p>

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

<p>.No Oath of Office Can be Reqtdred by Statute Other than the Oath Prescribed by the Constitution— Term of Office of County Treasurer Appointed to Fill a Vacancy.</p> <p>Declaration of Rights, Art. 37, provides that the Legislature shall not prescribe any other oath of office than the oath prescribed by this Constitution. Constitution, Art. 1, sec. 6, provides that “every person elected or appointed to any office of profit or trust under this Constitution or under the laws made pursuant thereto, shall, before he enters upon the duties of said office, take and subscribe the following oath.” The oath so prescribed is to support the Constitution of the United States and of the State of Maryland and the laws thereof, and that the affiant will diligently and faithfully, without partiality or prejudice, execute his office according to the Constitution and laws of the State. The Act of 1894, ch. 615, directed the County Treasurer for Anne Arundel County to take an oath that he ‘ ‘ will justly and impartially value all property which I shall be authorized to value according to the best of my skill and judgment, and that I will not either directly or indirectly make any profit of the money collected by me, or the use thereof in any manner whatever.” Petitioner was duly elected treasurer of said county and took the .oath of office prescribed by the Constitution, but did not take the oath prescribed by the Act of 1894, and applied for a mandamus directing respondent, who held the office, to surrender the same to him. The answer alleged that the petitioner had failed to qualify. Held, that the Legislature has no power to prescribe any other oath of office than the Constitutional oath, and that the petitioner having duly qualified by taking the latter oath, is entitled to the office.</p> <p>The Act of 1894, ch. 615, provides that the Treasurer of Anne Arundel County shall be elected in November, 1897, for the term of four years or until his successor is elected and qualified. It also provided that in the event of his death, &c., the county commissioners should appoint a person to serve as treasurer until a successor shall be elected at the next general election thereafter to be held for county officers. The person elected treasurer in November, 1897, died in December, 1898, and the respondent was appointed to fill the vacancy. At the general election in November, 1899, petitioner was elected treasurer of said county and gave bond and took the constitutional oath of office within thirty days. Respondent refused to surrender the office, alleging that he had been appointed to fill the same for the unexpired term of the person elected in 1897. Held, that under the plain language of the statute the respondent was appointed to fill the vacancy only until a successor should be elected at the next general election, and that petitioner having been so elected is entitled to the office.</p>

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

<p>Orphans' Court — Ex-parte Order Allowing Claim Against Estate of Decedent — Burden of Proof of Claim — Appeal.</p> <p>After the claim of an executor against the estate of the decedent had been allowed by an ex-parte order of the Orphans’ Court, a petition was filed by the legatees disputing the claim and asking that full proof be required to establish the same. The Orphans’ Court passed an order striking out answers to the petition filed by the claimant because not responsive, rescinding the ex-parte allowance of the claim, and setting down for hearing on a day named the question of the allowance of the claim, with leave to the parties to produce evidence. Held, that no appeal lies from this order hecause it is interlocutory and not final in its nature.</p> <p>When a claim against an estate of a decedent is passed or allowed by an ex-parte order of the Orphans’ Court, and the parties interested subsequently file a petition objecting to the claim and asking for the rescission of the order, the burden rests upon the claimant to establish the correctness of his claim, and the fact that he filed an answer under oath to the petition, does not shift the burden of proof.</p>

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

<p>Allowance of Counsel Fees to Executors for Defending Caveat to a Will — Jurisdiction of the Orphans’ Court — Issues to a Court of Law — Appeal.</p> <p>After the probate of a will and the grant of letters testamentary, it is the duty of the executors to appear to and defend a caveat to the will and to employ counsel for that purpose. And the Orphans’ Court has jurisdiction to order compensation to be paid to such counsel upon an ex-parte application of the executors.</p> <p>But when fees are allowed to counsel employed by an executor to defend a caveat, upon an ex-parte application, the parties in interest may subsequently object to the amount of such fees, if unreasonable, and an appeal lies from an order of the Orphans’ Court refusing to reduce the amount of the allowance.</p> <p>Upon a petition to rescind an order of the Orphans’ Court allowing compensation to counsel employed by the executor to defend a caveat to the will, the parties are not entitled to have issues sent to a Court of law to submit to a jury the question whether the fee allowed was proper and reasonable or not.</p> <p>Under Code, Art. 93, sec. 5, the Orphans’ Court is authorized to make an allowance to executors for fees and expenses incurred in defending a caveat to a will, but parties in interest are entitled to object to the amount of such allowance and offer evidence as to its reasonableness, and an appeal lies from an order dismissing a petition asking for the rescission of the order making the allowance without affording petitioners an opportunity to offer proof in support of their allegations.</p>

<p>Statutory Provision as to Number of Members to Constitute a Grand Jury Is Mandatory- — Invalidity of Indictment Pound by an Illegally Constituted Grand Jury — Demurrer to Indictment— Waiver of Defect.</p> <p>When a statute prescribes that a grand jury shall be composed of a certain number of jurors, that provision is mandatory, and an indictment found by a grand jury composed of fewer members than the minimum number required by the statute is invalid; but this objection may be waived by pleading to the merits without taking advantage of the defect.</p> <p>Code, Art. 51, secs. 7, 10, and Public Local Laws, Art. 17, secs. 178 and 179 provide that it shall be the duty of the judges of the Circuit Court for Prince George’s County to select in a designated manner and from prescribed sources, twenty-three persons to constitute the grand jury for each jury term of Court, Held, that when an indictment shows upon its face that it was found by a grand jury composed of only twenty-two members it will be quashed upon demurrer.</p> <p>When there is nothing apparent upon the face of the indictment to repel the presumption that the grand jury which found it was regularly selected, the question as to its legal selection should be raised by plea in abatement before pleading to the merits, but where the indictment itself discloses a defect in this regard, the objection may be properly taken by demurrer.</p> <p>An indictment set forth that at a term of the Circuit Court for Prince George’s County, begun on the 2nd of April, &c., there were duly selected and chosen, A. B. as foreman and twenty-one other good and lawful men, to w'it, &c., who, together with the foreman, constituted and composed the grand jury for said county Held, that this language reasonably imports that all the grand jurors rvere selected on the first day of the term of Court, instead of fifteen days prior thereto as required by statute, and that the grand jury was composed of twenty-two instead of twenty-three members as required by statute, and that a demurrer to the indictment raises the questions as to the time of selecting and the legal constitution of the grand jury.</p>

<p>Parties to Action on Bond of Indemnity — Liability of a Surety Company for Application by Employee of Money Collected to a Different Indebtedness.</p> <p>When in the bond by which a surety company agrees to indemnify an employer against loss arising from the defalcation of an employee, the latter unites for the purpose of assenting to the terms of the bond and of covenanting to indemnify the surety company, such a bond is not a joint obligation, and an action on it lies against the surety company alone without the joinder of the employee.</p> <p>Defendant, a surety company, executed to plaintiff a bond by which it agreed to make good such pecuniary loss as plaintiff might sustain during a certain period by reason of any fraudulent or dishonest act of plaintiff’s agent, in connection with his duties, amounting to embezzlement or larceny. The agent paid over to plaintiff all the money collected during the period covered by the bond, but he directed a part of the same to be credited on other accounts owing to the plaintiff, without knowledge by the plaintiff that the money collected by the agent from certain accounts was so applied to the payment of other accounts for which the agent was also liable. Held, that this action amounted to a fraudulent conversion by the agent of the money collected, and that the defendant is liable therefor under the bond.</p>

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

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

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

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