Volume 93 — Maryland Reports

<p>Appeals from a pro forma decree of Circuit Court No. 2, of Baltimore City, upon a special case stated in conformity with the 47th General Equity Rule. The case stated submitted the following questions to the Court:</p> <p>1. Had the Board of Estimates the power to fix the items of expenditure for new pavements amounting to $180,100 and to state the purpose for which the $190,000 to be appropriated for schools should be used, in the form and manner in which it was done by them in the draft of proposed ordinance submitted by them to the City Council ?</p> <p>2. Had the City Council the right to amend the said draft of proposed ordinance, by changing the item as to street pavements and public schools as hereinbefore set forth ?</p> <p>3. Was the Mayor’s veto of date of December 10th, 1900, a legal and effective veto ?</p> <p>4. Did the City Council have the power to adopt a tax rate when no rate had been sent to it by the Board of Estimates ?</p> <p>5. Had the City Conncil the right to consider and adopt the tax rate before the receipt of the report of the Board of Estimates and its statement of the tax rate, as was done by said Council on December 19th, 1900?</p> <p>6. Are the ordinances, one entitled, “An ordinance to lay and collect a tax for the year 1901,” and the other, “An ordinance to lay and collect a direct tax on suburban property as provided for in the laws of Maryland, Chapter 98, section 19, 1888, of Baltimore City for 1901,” valid and legal ordinances and binding on James P. Gorter as City Collector of Baltimore City?</p> <p>7. Are the two items in the Ordinance of Estimates for 1901 relating to the public schools and pavements above set forth, as amended by the City Council in the manner above set forth, valid and binding parts of said ordinance, or are the said items stricken from said ordinance by the veto of the Mayor communicated to the First Branch of the City Council as above set forth ?</p> <p>8. Is not said levy ordinance void pro tanto, as to the 13^ cents necessary to produce the $370,100, the exact amount of the items of appropriations in dispute, and valid as to the balance, thus leaving a valid direct tax of 49 11-16 cents instead 63 3-16, and a valid total rate of$i.8iJ¿ instead of $1.95 ?</p>

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

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

<p>Power of Orphans’ Court to Appoint a Stranger to Decedent Administrator of His Estate When Collateral Next of Kin do not Apply for Letters— Time Within Which Administration May be Granted— When Notice to Persons Interested is Necessaiy—Right of Next of Kin not a Distributee to Administer—Appealfrom Order Revoking Grant of Letters.</p> <p>A man died intestate, leaving as his only relations a sister and her daughter, his niece. The sister renounced her right to administer and appellant, a stranger to the decedent, was thereupon appointed by the Orphans’ Court administrator, without any notice to, or application by, the niece. Subsequently, upon a petition filed by her, the appellant’s appointment was revoked upon the ground that he had been prematurely and irregularly appointed. Under Code, Art. 93, secs. 22, 23, the niece under the above mentioned circumstances, was entitled as next of kin to administer, provided she applied for letters, but under sec. 33, since she was a collateral relation, more remote than brother or sister of the intestate, it was not necessary to notify her before appointing an administrator. Held, that the Orphans’ Court had the power to appoint a stranger as administrator, at its discretion, without notice to the niece, because under sec. 31 of Art. 93 of the Code, if relations of the decedent not more remote than brother or sister, decline, or refuse to appear on notice, or if other relations or creditors neglect to apply, then administration may be granted at the discretion of the Court.</p> <p>Code, Art. 93, sec. 14, provides that upon the death of a person intestate, letters of administration upon his-estate may forthwith be granted by the Orphans’ Court. Under section 16, unless such dying intestate be notorious or proved to the satisfaction of the Court, no administration shall be granted until at least twenty days after the death of the supposed intestate, and at least seven days after application therefor. Held, that these two sections are not in conflict; that under section 14, administration may be immediately granted whenever there is actual ascertained intestacy, and the provision as to twenty days in section 16, is confined to cases where the intestacy is not notorious, or has not been proved to the satisfaction of the Court.</p> <p>Upon the death of a man leaving as his only next of kin a sister and her daughter, and the sister renounces the right to administer on his estate, the decedent’s niece is entitled, under Code, Art. 93, to administer if she applies for letters within due time, and the fact that she has no interest in the estate so long as her mother lives, does not disqualify her.</p> <p>An appeal lies by an administrator from an order of the Orphans’ Court revoking his letters of administration, and when this has been done on the ground that he was prematurely appointed, no testimony need be incorporated in the record.</p>

J.) The jury returned a verdict for the plaintiff for $2,000. The Court aforesaid ordered a new trial unless plantiff consented to have the verdict reduced to $500, which was agreed to and judgment entered for $500.

<p> Jurisdiction oj Eqaity and, oj the Orphans’ Court to Supervise Sale of Land Directed by a Will tobe Sold—Right of Court First Assuming Jurisdiction—Failure of Executor to give Counter Security. </p> <p>When a will directs land to be sold, the jurisdiction of equity under Code, Art. 16, sec. 79, to appoint a trustee to make the sale is not ousted by Code, Art. 93, sec. 283, which provides that w'hen a testator has directed his real estate to be sold for any purpose and the executor shall refuse to act or fail to exercise the power, the Orphans’ Court may appoint an administrator d. b. n. c. t. a. to execute the trusts of the will. In such cases both Courts have concurrent jurisdiction, and the one which first exercises the jurisdiction is entitled to retain it.</p> <p>A testator directed his real estate to be sold by his executor and the proceeds to be distributed, after the expiration of a life-estate therein demised to his widow. The executor, during the existence of the life-estate, was ordered by the Orphans’ Court to give counter security and upon his failure to do so was removed from office, under Code, Art. 90, sec. 1, relating'to counter security, but no one was appointed in his place. Upon the death of the widow some of the devisees in remainder filed a bill in equity for the appointment of a trustee to sell the land. The executor subsequently filed a petition in the Orphans’ Court offering to give the security required and asked to be appointed administrator c. t. a. to execute the trust for sale. Under Code, Art. 93, sec. 283, and Art. 16, secs. 79, 81, both the Orphans’ Court and a Court of equity have jurisdiction to supervise the sale of land under such testamentary power. Held,,</p> <p>1st. That if at the time of the death of the life-tenant there had been inexistence an executor or administrator c. 1. a. he would have had authority to exercise the power of sale and could have proceeded either in the Orphans’ Court or in the equity Court.</p> <p>2nd. That the failure of the executor to give the counter security required by the Orphans’ Court was a refusal to act within the meaning of Code, Art. 93, sec. 283.</p> <p>3rd. That upon the death of the life-tenant the Orphans’ Court and the equity Court had concurrent jurisdiction to supervise the execution of the power of sale, and since the latter Court first assumed jurisdiction, it is entitled to retain the same exclusively, and the Orphans’ Court has no power to appoint an administrator c. t. a. to sell the land.</p>

<p>Bastardy Proceedings— Transmission of Affidavit Charging Defendant to Justice of the Peace in Another County.</p> <p>In a proceeding before a Justice of the Peace against the putative father of an illegitimate child, Code, Art. 12, sec. 3, provides that if the father be a resident of another county, the Justice shall transmit, under his hand and seal, a copy of the proceedings to a Justice of the Peace of the county in which such father shall reside, who shall proceed against the father as directed by the Act. In this case the original affidavit of the mother, and not a copy, was transmitted to a Justice of the Peace, in another county where the defendant resided and where he was tried. Held, that such original affidavit was not admissible in evidence since the provisions of the statute had not been complied with.</p>

<p>Appeals from a decree of the Circuit Court for Prince George’s-County (Merrick, J.), by which upon the payment of a certain sum of money to the defendánt, she was directed to execute to the plaintiff an assignment of the mortgage mentioned in this cause. The defendant was returned summoned by the-sheriff of Howard County.</p>

<p>Jurisdiction of the Orphans' Court When an Executor Claims Title to ■ Property Alleged to Belong to Decedent's Estate and Omitted from. ■ the Inventory—Construction of Code, Art. gj, sec. 239—Appealfrom Order of Orphans’ Court on Pelition Alleging Concealment of Assets—Parties.</p> <p>The Orphans’ Court has jurisdiction, under Code, Art. 93, sec. 239, to determine the questions arising upon a petition filed by a distributee of an estate alleging that one of two executors has omitted to return in the inventory certain articles of personal property belonging to the decedent and to return in the list of debts certain money of the testator which came into the possession of the executor before the testator’s death ; and the fact that such executor claims title to the property in question, does not oust the jurisdiction of the Orphans’ Court.</p> <p>From an order of the Orphans’ Court passed under Code, Art. 93, secs. 238, 239, upon a petition alleging concealment of assets by an executor or administrator, or failure to return an accurate list of debts or inventory of personalty, an appeal lies to the Circuit Court for the county, or the Superior Court, etc., of Baltimore City, under Code, Art. 93, sec. 240, but no appeal lies from the judgment of that Court to the Court of Appeals.</p> <p>In a petition in the Orphans’ Court alleging that an executrix has omitted to return in the inventory property belonging to the testator, the husband of the executrix is a proper party to be joined as a defendant.</p>

<p> Finality of Order Appealed Agaiiist. </p> <p>After the passage of an order sustaining exceptions to a mortgage sale, a petition for a rehearing was submitted to the Judge of the Court who passed an order granting the prayer thereof, but this petition and order thereon were not filed with the Clerk of the Court until after the expiration of two months from the date of the original order, when they were filed under an order directing the same to be filed as of the date when received by counsel from the Judge. Held, that no appeal lies from this last mentioned order since the same is not final, and that upon appeal from the final decree that may be made in the cause, the previous, orders will be open for review under Code, Art. 5, sec. 36.</p>

City Court (Stockbridge, J.), where the cause was tried without a jury. There was a verdict for the plaintiff for $25, and a judgment of non pros, for lack of jurisdiction.

<p>Taxation—Claim of a Railway Company to Exemption— When Property Omittedfrom Assessment at the Time of I.evy May be Subsequently Assessed—Power to Assess Taxes for Previous Years on Property Omittedfrom Levy— Taxation of Rolling-Stock of Railway Company—Appeal in Case Tried on Agreed Statement of Facts.</p> <p>The case of B., C. & A. Ry. Co. v. Ocean City, 89 Md. 89, holding that the appellant corporation is not exempted from taxation on the ground! that it had purchased at a foreclosure sale the property of a corporation which did possess an exemption, is conclusive as to the same claim of exemption from taxation made by the same corporation in this case.</p> <p>When property liable to taxation has not been assessed at the time prescribed for making the annual levy, it may nevertheless, at any time thereafter in the current year be assessed for that year, when the statute relating to the time of assessing property does not deny to the assessors; power to add to the levy property which had escaped taxation.</p> <p>The provision in the local law of Wicomico County (Local Code, Art. 23, sec. 104), declaring it to be the duty of the clerk of the County Commissioners, on or before the first day of August, in each year, to deliver to the collector a copy of the assessment of his collection district, does not restrict the power of the County Commissioners to assess subsequently in that year property omitted from the levy.</p> <p>Code, Art. 23, sec. 6, directs that the County Commissioners shall make the annual' levy of taxes previous to July ist, in each year. Art. 81, sec. 83, provides that taxes shall be collected by the collectors, etc., within four years after the same have been levied. In the year 1899, the County Commissioners, appellees, assessed for taxation certain property of the defendant which, although liable, had previously escaped taxation, and levied taxes thereon not only for the year 1899, but also for the years 1896, 1897 and 1898. In an action to recover these taxes, Held, that the power of the Commissioners to levy taxes in any one year is restricted to a levy for that year, and when such levy is made, the power as to that year is exhausted, and that the levy of taxes made in 1899 against the defendant for the years 1896, 1897 and 1898 was not made in pursuance of the power conferred and therefore created no obligation upon the defendant to pay said taxes.</p> <p>The County Commissioners of a county in which is situated the principal office of a railway company, whose road extends through other counties of the State, have no power to levy taxes on the rolling-stock of the company, since the Acts’of'1896, ch. 120 and ch. 140, provide a special mode for the assessment of the rolling-stock of railway companies.</p> <p>The provision of Constitution, Art. 3, sec. 51, directing that personal property shall be subject to taxation in the county in which the owner resides for the greater part of the year is not applicable to the taxation of corporations.</p> <p>Code, Art. 5, sec. 9, directing that the Court of Appeals shall not decide any question which does not appear to have been raised in and decided by the Court below, is not applicable when the case was tried ¡below upon an agreed statement of facts providing that if the Court be ■of opinion that the defendant is liable for the taxes claimed, then the Court may give judgment for the plaintiff, otherwise for the defendant. In such case it is the duty of the Court to declare the law upon the facts stated.</p>

<p> Partnership of Which an Insolvent Debtor Was a Member Not Entitled to Payment of Its Claim Out of His Individual Estate Until After Payment of His Individual Creditors. </p> <p>When an insolvent debtor makes an assignment of his individual property for the benefit of his creditors, a co-partnership, of which the insolvent was a member and to which he is indebted, is not entitled to share in the distribution of his individual assets until his individual creditors have been first paid in full.</p> <p>A., one of the members of a firm to which he was largely indebted, withdrew from the firm and made an assignment of his property for the benefit of his creditors without preference. The firm, which was also insolvent, assigned all its assets to a corporation composed of its creditors who accepted the assignment in satisfaction of the debts due to them. A.’spartners claimed to be entitled to share with A.’s individual creditors in the distribution of his estate. Held.</p> <p>1st. That the claim for the indebtedness of A. to the firm should have been filed by the corporation to which the firm’s assets had been transferred.</p> <p>2nd. That even if the claim had been asserted by the corporation, it is not entitled to share equally with A.’s individual creditors, because the indebtedness arose out of transactions between A. and his co-partners, and was due, not to the latter as individuals, but to the firm, and the case is within the rule that a firm of which an insolvent was a member and which is one of his creditors, cannot demand payment out of his individual assets until his individual creditors shall have been first satisfied.</p>

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

) There was a verdict for the plaintiff for $500. Plaintiff's jtli Prayer.—That it is the duty of the defendant to keep the public roads of Charles County in such good repair as to afford free, safe and easy passage over the same ; and if the jury believe that the defendants failed in the performance of the aforesaid duty, and the plaintiff while travel-ling on said road, and using reasonable care, was injured,then he is entitled to recover in this action.

<p>Taxation—Appeal From 'Baltimore City Court in Valuation of Property For Taxation— Court of Appeals Not Required, to Review Findings of Fact as to Correctness of Valuation—Judicial Functions.</p> <p>Under section 170 of the Baltimore City Charter (Act of 1898, ch. 123), an appeal lies to the City Court from the action of the Appeal Tax Court in assessing property for taxation or in revaluing property, and the former Court sits without a jury to ascertain or decide on the proper assessment. The statute also provides that either the petitioner or the city may appeal from the judgment of the City Court to the Court of Appeals, “which Court shall immediately hear and determine the questions involved in said appeal.” Appellee appealed to the City Court from a revaluation of certain property made by tfie Tax Court, and the ' Mayor and City Council, in this case, appealed from the judgment of the City Court reducing the assessment. The record contains no bill of exceptions to the ruling of the Court below on instructions concerning the law or as to the admissibility of evidence, and the only question presented is whether the property in question was accurately valued. Held,</p> <p>1st. That it was not the design of the statute to require this Court to review the findings of fact made by the Court below as to the correctness of the assessment:</p> <p>2nd. That the valuation of property for the purposes of taxation is not a judicial function, and the Legislature could not lawfully require this Court to act as a final board of review in the assessment of property.</p>

), dismissing the bill of complaint. The bill prayed. 1. For a construction of the Act of 1854, chapter 260, and the instruments executed thereunder. 2. For a declaration that the tender was in equity an extinguishment of the obligation. 3. For a mandatory injunction requiring the Comptroller and Treasurer to receive the sum so tendered. 4. For an injunction to prevent any attempted sale under the Act of 1898. 5.

<p> Summary Seizure of Property Designed to be Used in Violation of Law—Police Power—Due Process of L.aw. </p> <p>Articles which are designed to be used in violation of the criminal law, and which can be used for no legitimate purpose, may be summarily seized by the police authorities under a statutory power to prevent crime; and the seizure of such articles is not a taking of property without due process of law, within the constitutional inhibition.</p> <p>The Courts will not entertain an action of replevin to recover property taken from the plaintiff by the police, when the plaintiff intended to use it in violation of the criminal law, and it is capable of no legitimate use.</p> <p>It is the statutory duty of the Police Commissioners of Baltimore City to prevent crime and to see that all laws relating to gambling are enforced. They seized and took from plaintiff’s possession a slot machine, when 'there was no charge pending against him for violation of the law. In an action of replevin for the same it was admitted by the pleadings that the slot machine is a gambling device designed to be used by the plaintiff and others in violation of the gambling laws of the State ; that it could be put to no legitimate use and that it was taken by the defendants in the discharge of their official duty. Held,</p> <p>ist. That under these circumstauces the defendants were authorized to seize the machine for the purpose of preventing a violation of the law.</p> <p>2nd. That the plaintiff cannot maintain replevin to recover possession of the article, being a gambling device, because his intention to use it for an illegal purpose destroys his right to ask for the aid of the Courts.</p>

<p> Registration of Voters—Residence. </p> <p>Petitioner’s name was struck from the list of voters in a certain district of • Prince George’s County, and upon his application to be restored the evidence showed that he was born in that district and had resided there continuously until December, 1899, when he began to reside temporarily in Washington City, but intended'to return to Prince George’s County, and spent two months of the year 1900 there, and had acquired no domicil elsewhere, and that he had voted in that district until October, 1900, when his name was struck off. Code, Art. 33, sec. 23, enacts that if a person is shown to have acquired a residence in one locality it shall be presumed that he retains the same until it is affirmatively shown that he has acquired a residence in another locality. Held, that the petitioner is entitled to be restored to the list of qualified voters in the said district.</p>

<p>Appeals from a decree of the Circuit Court for Garrett County (Stake and Sloan, JJ.)</p>

<p> Municipal Corporations—Ordinance Relating to,A$spsppys;of Taxes in Baltimore City Repealed by the New Chafer,-audit by Subsequent Ordinance. </p> <p>Plaintiff was appointed an assessor of taxes in Baltimore City for the term of two years from March 1, 1898, under-aqbe^existing ordinance-which provided for the appointment of sxjph assessors by the Mayor,, subject to confirmation by the City Council. The new charter of that city (Act of 1898, ch. 123), provided that,tjx§.qpdinanpes thejx.i.q force; and not inconsistent with that Act should be continued until changed or repealed by the General Assembly or by the Mayor'and City Council; and in another section it was provided that all municipal officials then in office, unless otherwise provided by the Act, should continue to hold their offices under existing laws until their successors are appointed. This charter provided for the appointment of tax assessors by the Appeal Tax Court exclusively. The ordinance under which plaintiff was appointed was repealed by the Mayor and City Council in December, 1899, and plaintiff was then notified that he was no longer in office. In an action to recover salary for the balance of the term for which he was originally appointed, Held, that the Mayor and City Council had the power, after the passage of the municipal charter, to repeal the ordinance under which plaintiff held office, and that since that ordinance had not only been repealed but was also inconsistent with the charter, the plaintiff is not entitled to recover.</p>

<p>Contract to Devise a Share of the Promisor's Estate in Consideration of Services to be Rendered is within the Statute of Frauds— When Part Performance takes a Case Out of the Statute—Pleading—Compensation for Services Rendered Under a Contract Unenforceable Under the Statute of Frauds.</p> <p>A contract to devise land to another must be in writing under the fourth section of the Statute of Frauds; and when the contract is to give by will a share of both real and personal property, for the same consideration, it will be void as to both classes of property, unless in writing as required by the statute.</p> <p>The doctrine of part performance as taking a case out of the operation of the Statute of Frauds is peculiar to Court of equity, and cannot be relied on in an action at law on a parol contract within the statute and partly performed by the plaintiff.</p> <p>The Statute of Frauds may be relied on as a defense without being pleaded.</p> <p>In an action on a contract which is within the statute, it is not necessary to allege in the declaration that the contract is in writing.</p> <p>When a party has rendered services for another under a contract unenforceable under the Statute of Frauds because not in writing, he is entitled to recover compensation for such services upon a quantum meruit.</p> <p>By a parol agreement made between a man and his nephew, the plaintiff, the former agreed to give his nephew by will a portion of his estate, equal to that of any of his children, if the nephew, would render services as requested during the remainder of the promisor’s life. Plaintiff rendered various services for about ten years until his uncle’s death. The latter died intestate, leaving one child and the issue of a deceased child. In an action at law against the administrators by the plaintiff, he claimed one-third of the estate as damages for the breach of the contract to devise to him a child’s portion. Held,</p> <p>ist. That the contract sued on is unenforceable under the Statute of Frauds.</p> <p>2nd. That the rendition by plaintiff of services to the decedent, under the alleged contract, is not part performance operating to take the contract out of the statute, since part performance has such effect given to it only in chancery.</p> <p>3rd. That although plaintiff cannot recover in this action, he is entitled to sue on a quantum meruit for the value of the services performed by him for his uncle, if done on the faith of a contract.</p>

<p>Appeal from a pro forma decree of the Circuit Court for Prince George’s County.</p>

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

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

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

<p>Appeal from an order of the Circuit Court for Prince George’s County (Merrick J.), overruling exceptions to a mortgage sale and finally ratifying the same. The will of J. P. Marshall filed as an exhibit by the exceptant is as follows :</p> <p>“June 14th, 1861.</p> <p>“In the name of-the Father and of the Son and of the Holy Ghost, Amen. Being about to enter upon a perilous enterprise, one fraught with the greatest of dangers, wherein death may be encountered at any moment, and anxious to dispose of the earthly goods, with which God in his mercy hath blessed me, before entering upon the said enterprise—I, John P. Marshall, do hereby make, constitute, appoint and proclaim this to be my last will and testament.</p> <p>“ Imprimis, whenever the certainty of my death may be fully established which must rest upon undoubted and official report and unscrupulous investigation. I give and bequeath to my sister, Susan A. B. Marshall, to her arid her heirs lawfully begotten in fee-simple, the landed estate left me by my late uncle, John M. Brown..</p> <p>“Item: I give and bequeath to my sister, Susan A. B. Marshall, whatever of stock and farming utensils I may die possessed of, except a riding pony, which my brother, George R. W. Marshall, shall have the privilege of selecting from among the' horses, furthermore, when the certainty of my death is established, I wish (Dennis), negro man to have his liberty together with one hundred dollars, to be paid him from the proceeds of the crops then on my place, if so much remain over after my first debts are paid, and in case there is not, this amount to be retegivuly furnished him by my sister, Susan A. B. Marshall.</p> <p>“ In case my sister, Susan A. B. Marshall, and my brother, George R. W. Marshall, to whom I wish the said bequest to fall if he should survive her, should die without legal issue, I give and bequeath to my cousin, William H. Marshall, to him and his heirs the above mentioned property, excepting the negro man (Dennis), whom I desire to be set at liberty at my death.</p> <p>“ Again I confide to kind care of my sister, Susan A. B. Marshall, my dog Neptune, unless his former mistress may wish to reclaim him. Whatever interest my father may intended for me in his property, I would wish .left to my brother, George R. W. Marshall. My love abides with my father, my sister and brother--my name I hope to leave on the scroll of the defenders of liberty and our Southern rights. My soul with its makers merciful hands. Of this my last will and testament, I appoint my cousin, William H. Marshall, and sister, Susan A. B. Marshall, sole executors, holding it as a great favor if the above mentioned cousin will so serve me. John P. Marshall, [Seal].</p> <p>“Witnessed by—B. F. Gwynn, David Barry, Wm. H. Marshall.'</p> <p>“Prince George’s County, Set:—</p> <p>“ On this 21st day of January, 1899, came Fannie M. Marshall, of the District.of Columbia, and made oath in due form of law, that she does not know of any will or codicil of John P. Marshall, late of Prince George’s County, deceased, other than the .above instrument of writing, and said will has been in her possession since about the 15th day of November, A. D. 1892, at which time she found the said will among the private papers of her late husband, William H. Marshall, deceased, who died the nth day of November,. A. D. 1892, and to the best of her knowledge and belief, the said William PI. Marshall, deceased, had said will in his possession from the date it was executed, to the date of his, William H. Marshall, decease, and that said William H. Marshall received said will from the said testator, John P. Marshall, at the date of its execution. Said Fannie M. Marshall further made oath, that to the best of knowledge arid belief, the three subscribing witnesses to said will, namely, B. F. Gwynn, David Barry and William H. Marshall, has since died.</p> <p>“Sworn before Richard N. Ryon, Register of Wills for Prince George’s Co.”</p>

<p>Appeal from an order of the Circuit Court of Baltimore ' City (Wickes, J.), dismissing the petition filed in the case.</p>

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

2, of Baltimore City, (Stockbridge, J.) The special case stated, in addition to the facts set forth in the opinion of the Court, as. follows : 10.

<p>Divorce— When Both Parties Guilty of Adultery no Divorce Granted to Either—Condonation of Adultery Upon Implied Condition of Proper Conduct—Revival of Offense—Jurisdiction of Equity in Divorce Cases.</p> <p>Upon a bill and a cross-bill for divorce, each party charging the other with adultery, and the charges being sustained by the evidence as to both, no relief will be granted1 to either.</p> <p>When a wife condones the offense of adultery by her husband, it is upon the implied condition that he will thereafter treat her with conjugal kindness. Subsequent, cruelty of treatment by him is a breach of the condition which revives the cause for divorce arising from the condoned offense, and a husband guilty of such cruelty after condonation is precluded from obtaining a divorce on the ground of his wife’s adultery.</p> <p>Although jurisdiction in divorce cases has been given to Courts of equity by statute in this State, yet the Court in such case sits, not in the exercise of its general equitable jurisdiction, but as a divorce Court, and must be governed by the principles established in the Ecclesiastical Courts m England, prior to the Revolution, so far as they are consistent with the provisions of our statutory law.</p>

<p>Construction of a Will— Vesting of Legacy.</p> <p>Testator gave the residue of his estate to a trustee directing him to pay the income thereof to testator’s brother for life and after his death to pay $500 to E., and the remainder of the estate was then bequeathed to testator’s son. E. died in the lifetime of testator’s brother. Held, that the legacy of $500 was vested in E. upon testator’s death and that upon the death of the life-tenant the said legacy is payable to E.’s personal representatives.</p>

<p>Appeal from the Criminal Court of Baltimore.</p>

<p> Franchise Tax on Gross Receipts of a Guaranty Company Not Payable on Receipts from business Without the State. </p> <p>Code Art. 81, sec. 146, imposes a franchise tax of two per cent upon the gross receipts of certain corporations, including guaranty and fidelity companies, incorporated by the State and doing business herein. Held, that a guaranty company, incorporated by this State, is liable for the tax only upon the gross receipts from its business in this State and not upon the gross receipts from its business beyond the State.</p>

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

<p> Bill by Married Woman to Enjoin Seizure of Her Property Under Execution Against Her Husband—Sufficiency of Evidence to Establish Ownership by the Wife. </p> <p>A judgment creditor of a husband issued an execution and seized under it certain merchandise in a shop where the judgment debtor’s wife and another woman were carrying on a business, the creditor claiming that the property had been purchased with money belonging to the husband. Upon a bill to'enjoin execution of the judgment. Held, that the evidence establishes that the property had been purchased with money earned by the wife, and that it is not liable for her husband’s debts.</p>

<p>landlord and Tenant—Apportionment of Ground Rent—Charging Rent Upon Part of the Demised Premises Without Consent of Owner— Estoppel—Distraint for Rent—Replevm atid Avowry—Pleading and Evidence—Statute of Limitations.</p> <p>When a tract of land has been leased for ninety-nine years, subject to the payment of a ground rent, it is not competent for the lessee or his assigns to charge the entire rent upon one part of the demised premises so as to release the other part from liability for the rent, without the assent of the owner of the reversion.</p> <p>When the assignee of a lot of ground, the whole of which is subject t the payment of a certain rent, assigns a part thereof, and charges the payment of rent upon that part, the conduct of the owner of the original rent in collecting the same for a number of years from the owner of the part of the lot so made subject to its payment, does not operate to release the other part of the lot from liability for the rent.</p> <p>The owner of a ground rent which was charged upon a tract of land by lease for ninety-nine years, levied a distraint to enforce payment upon chattels located upon one of the parcels into which the tract had been sub-divided. The chattels seized were replevied, and the landlord—the defendant in the replevin—instead of making a general avowry under the statute of xi George II, that the tenant of the land on which the distraint was made held under alease during the time when the rent dis-trained for accrued, pleaded in his avowry that the lease was made to the plaintiff for one year from January i, 1899, and so on. Plaintiff pleaded that the avowant did not demise the premises to the plaintiff and that plaintiff did not hold as a tenant under a demise from the avowant. At the trial the avowant offered in evidence the original lease creating the ground rent and its assignment to him. Held,</p> <p>1st. That under this state of the pleadings, the original lease was not admissible in evidence if objection had been made thereto, but since no objection was made, full effect must now be given to it.</p> <p>2nd. That a prayer denying the legal sufficiency of the evidence to entitle the avowant to recover was properly rejected, since it makes no reference to the pleadings, but is a demurrer to the evidence, and the evidence did show a lease under which it was competent for the avowant to make the distraint under which the chattels were taken.</p> <p>In replevin for chattels taken under a distraint for rent, where defendant avowed, etc., one of the plaintiff’s pleas alleged that the “avowant’s cause of action did not accrue within three years before the bringing of this suit.” Held,, that the plea is defective, because the validity of the distraint, so far as the Statute of Limitations is concerned, depended upon whether the rent distrained for became due within three years before the levy of the distress, and not upon the time of the institution of the replevin suit.</p>

<p>No Final Decree Should be Passed on Motion to Dissolve an Injunction— Power of Road Commissioners of Prince George’s County to Select Certain Roads for Improvement Under the Act of jpoo, ch. 346.</p> <p>When a cause is set down for hearing on motion to dissolve a preliminary injunction it is error to pass a final decree upon such hearing.</p> <p>The Act of 1900, ch. 346, created a Board of County Road Commissioners for Prince George’s County invested with general control over all the public roads. The Board was authorized to use a certain fund “in the construction of permanent highways, beginning at the line of the District of Columbia and at the end of some highway therein, and building out into the county upon existing public roads.” The Board appropriated the said sum to the improvement of two of the principal roads, beginning at the line of the district. Plaintiffs filed a bill to restrain this appropriation, alleging that the fund should be applied to the improvement equally of all of the roads leading from the district, denying the right of the Board to select'certain roads for improvement, and alleging that two of its members were interested in property through which the selected roads ran. Defendants answered denying the allegation of bad faith and setting forth that they had exercised their discretion to select roads for improvement by the selection of the two most important and travelled roads in the county connecting with highways in the District of Columbia. Held,</p> <p>1st. That under the Act the Board had the power to select for improvement certain roads from the whole number connecting with the district and was not required to apportion the fund equally to the improvement of all such connecting roads.'</p> <p>2nd. That the Court will not interfere with the exercise in good faith of ■ the discretion vested in the Board.</p> <p>3rd. That the answer of the defendants as to their bona fides being responsive to the allegations of the bill, it is evidence for. the defendants upon motion to dissolve and the injunction granted should be dissolved.</p>

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

Five appeals from a pro forma order of the Circuit Court of Baltimore City.

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

<p>Impeaching Witness in Criminal Case—General Reputation for Verac- , ity—Evidence.</p> <p>It is not competent to impeach a witness by evidence that he was in the habit of getting drunk, and when in that condition of accusing people of stealing from him, because the veracity of a witness can only be attacked by proving that his general reputation for truthfulness is bad, and the fact that when drunk he accused people of stealing from him does not tend to show that the accusations were false.</p> <p>Upon the trial of an indictment for stealing money from one Ward, who was not a witness in the case, the traverser offered to prove that Ward’s general reputation was that of a man who got drunk and then accused people of stealing from him. Held, that the evidence is not admissible since Ward’s reputation for veracity was not involved, as he was not a witness.</p>

<p> Privity of Contract—Agency—Right of Party Professing to Act as Agent to Recover on Contract Against Party Knowing Him to be the Principal. </p> <p>When a person makes a contract, professing therein to act as agent for a designated principal, but in reality exceeding his authority and being himself the real principal, and the other party to the contract knows who the real principal is and accepts performance of the contract, then this latter party is liable in an action by the former on the contract.</p> <p>Plaintiff, a merchandise broker, was requested by defendant to obtain a contract for a certain quantity of soda ash. He communicated with a manufacturer who refused to sell to defendant, but offered to sell to plaintiff directly, and this offer was accepted. In plaintiff’s contract with defendant, he represented himself as selling for the manufacturer, but defendant afterwards had knowledge of the facts and that plaintiff was the real vendor, and defendant announced that it would hold plaintiff liable under the agreement. In an action to recover the contract price of goods subsequently delivered to the defendant by the plaintiff who had paid the manufacturer for them. Heldthat the defendant cannot set up as a defense that its contract was with the manufacturer, but is liable to the plaintiff.</p>

J.) The jury returned a verdict for the plaintiff for $4,000, on which judgment was entered.

) The plaintiff’s first prayer, which was conceded, was : “If the jury find that on or about the loth day of July, 1899, the plaintiff was injured .by the locomotive or cars of the. defendants, while operated by its agents on its road, and that said injury resulted directly from the want of ordinary care and prudence of the agents of the defendants, and not from the want of ordinary care and prudence on the part of the plaintiff, directly contributing to the injury, then the…

<p> Effect of Statement of Fact in Order Appealed Against—Hearing of Motion to Dissolve Injunction Upon Bill and Answer—Finality of Order—Bill to Restrain Execution Sale. </p> <p>The statement of counsel on appeal that an order dissolving an injunction was passed without notice, will not be allowed to prevail against the statement in the order itself that it was passed after a hearing.</p> <p>When the sworn answer to a bill for an injunction is responsive thereto, denying the allegations upon which its equity rests, and the cause is; heard upon bill and answer, a preliminary injunction, previously granted, should be dissolved.</p> <p>Upon a bill to restrain the execution sale of certain goods upon the ground! that the goods were the property of the plaintiff in the bill and not of the defendant in the execution, the Court passed an order dissolving a preliminary injunction and directing the sheriff to sell the goods but to> retain the proceeds of sale to abide the further order of the Court, the-goods in question being liable to depreciation by delay. Held, that no> appeal lies from this order, since it does not finally determine the rights of the parties.</p> <p>Plaintiff’s bill alleged that the defendants had seized under an execution against a third party certain goods which'had been conveyed to plaintiff by bill of sale. A large part of the goods seized were not covered by the bill of sale. Held, that a preliminary injunction restraining the-sale generally was properly dissolved when the motion to dissolve was heard upon bill, exhibits and answer.</p>

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

Any person violating any of the provisions of this section shall be fined not less than five nor more than ten dollars and costs for each offense, and in default of payment of said fine and costs, shall be sentenced to the county jail for a term not exceeding fifteen days or until said fine and costs are paid.”

<p> Bills of Exception—Wills—Testamentary Capacity—Admissibility of Evidence—Opinions of Witnesses—Attempted Suicide Not Evidence of Insanity. </p> <p>When the answer to a question, which a witness is allowed to answer after objection, is not set forth in the bill of exception, this Court will not pass upon the competency of the question, since it cannot determine whether the appellant was injured by the ruling of the trial Court or not.</p> <p>When one bill of exception states that an objection to a question asked a witness was made and overruled and an exception noted, and the fol. lowing bill of exception states that “the witness then in answer to the said interrogatory excepted to replies,” etc., the two bills of exception are sufficiently connected, and the second will be referred to for the purpose of ascertaining the answer to the question contained in the first.</p> <p>Upon the trial of an issue relating to the mental capacity of a testator, a witness who had known him for many years, was asked if he considered the testatator to have been competent to execute a valid deed or contract. Held, that the question is objectionable in form, since it should have related to the capacity of the testator at the time he executed the will in controversy.</p> <p>A witness who had known the testator for fifty-five years, and had seen him frequently during that period, was asked upon the trial of a caveat whether the testator ever made any admissions as to his treatment of his wife on the first night after they were married. Held, that the question was competent in connection with other evidence as to the character of the testator.</p> <p>One who is neither an expert nor an attesting witness to the will is not competent to express an opinion as to the mental capacity of the testator without first stating facts upon which his opinion may be adequately founded.</p> <p>A witness stated that in response to testator’s request to shoot him, “I shot at him with both barrels, the shot hitting about six inches above his head ; he never flinched, but said, ‘Dick Sellman, I believe you are fool enough to kill me.’ ” The witness also stated that about twenty-five years before the will was made, the testator stabbed himself with a knife, and that the witness had noticed peculiarities about him. Held, that these facts are not sufficient to justify the admission of the testimony of the witness that in his opinion the testator was mentally incompetent.</p> <p>The mere fact that a man attempted to commit suicide years before he made his will is not sufficient foundation for the opinion of a witness that he was mentally unsound at the time of the execution of the will, but evidence of the attempt is admissible in connection with other proof of incompetency.</p> <p>Testimony reflecting upon the mental condition of the testator before and after he executed the will is admissible in connection with other evidence showing his condition at the time the will was made.</p> <p>Evidence as to the religious belief of a testator is not generally admissible upon the question of his mental capacity, but in some cases is competent when it shows a vacillating, flighty mind.</p> <p>Testimony that in conversation with the witness, the testator said he wished he was dead or could die, is admissible in connection with other evidence as to his psychological condition.</p> <p>A witness stated that he had once on a road met the testator, who grabbed his horse and asked him what he was doing for his soul, saying that he himself was converted and invited the witness to dismount and pray ; that afterwards the decedent denied that this incident had occurred ; that on another occasion he asked the witness to kill him, saying that he would make a will leaving everything tp witness and signed a paper exonerating him from blame, and that when witness refused to kill him, he burst out crying and said he had nothing to live for. Held, that this evidence, if the incidents referred to took place about the time the will was executed, is sufficient, in connection with the impression made by the demeanor of the testator upon the witness, to entitle him to give his opinion as to the testator’s sanity.</p> <p>When a question is asked that may elicit a relevant and material answer, but the answer in fact made is irrelevant, the proper course is then to ask the Court to strike out the question and answer and to instruct the jury not to consider them.</p>

) At the trial the following prayers were offered: Plaintiff’s 1st Prayer.—If the jury shall find that the plaintiff rendered valuable personal services to and for the benefit of the late Catherine L. Staylor during her lifetime, at her request, and shall further find that said Catherine L. Staylor, in consideration of said services, promised to reward the plaintiff for said services and did not perform said promise, then the jury shall find for the plaintiff against the…

<p> Corporations—Preferred Stock—Construction of Certificate and Agreement Authorizing Issue—Rights of Holders of Preferred Stock in the Balto. & Ohio R. Co. Under the Reorganization. </p> <p>The rights of holders of preferred shares of stock in a corporation depend upon the terms of the contract, or of the statute, under which such shares were issued.</p> <p>The agreements of the parties and resolutions of the corporation which authorized the issue of preferred stock may be considered in ascertaining the rights of the holders of such stock and the construction to be placed on the stock certificates.</p> <p>When the certificates of preferred stock refer to the resolutions of the corporation authorizing its issue, and these to a plan of reorganization, they are all to be construed together as being in pari materia.</p> <p>The Baltimore and Ohio R. Co. was placed in the hands of receivers in 1896. A plan for its reorganization was devised in 1898, which provided for the issue of mortgage bonds, and non-cumulative preferred stock and common stock, with which to liquidate the indebtedness of the company. The stockholders assented to the proposed plan and it was carried out. The previously existing preferred stockholders were entitled, according to the language of their certificates, to a “perpetual dividend of six per centum per annum and no more.” The reorganization plan and resolution of the corporation provided for the issue of preferred stock as follows : “$40,000,000 four per cent non-cumulative preferred stock. This stock will be entitled to receive non-cumulative dividends at the rate of four per cent per annum before the payment of any dividends on the common stock.” The certificates issued for such stock set forth : . “The holders of preferred stock to the amount now issued and such additional amounts as may be lawfully issued from time to time by the President and Directors of the company, pursuant to the resolutions of the stockholders duly adopted April nth, 1899, are entitled to receive in each year out of the surplus net profits of the company for the current year such yearly dividend (non-cumulative) as the Board of Directors of said Railroad Company may declare, up to, but not exceeding four per centum, before any dividends shall be set apart or paid upon the common stock.” Held, that the preferred stockholders, after receiving a dividend of four per cent in any one year, are not entitled to share with the common stockholders in the distribution of the residue of the net earnings, either equally or after the payment of a similar dividend to such common stockholders, but the preferred stockholders are entitled to a dividend of four per cent and no more, before the payment of any dividend to the holders of the common stock.</p>

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

<p>Liability of a Mortgagor Under His Covenant to Pay the Debt Not * Affected By Mere Delay of the Mortgagee to Foreclose, After Assignment of the Premises by Mortgagor.</p> <p>When a mortgagor has assigned the mortgaged premises subject to the ■ mortgage, he became a surety for the debt, and mere delay by the mortgagee in foreclosing the mortgage does not release the mortgagor from liability under his covenant to pay the debt; and although a larger sum would have been obtained if the premises had been sold when the default under the mortgage first occurred than was subsequently obtainable, yet the mortgagor is liable to the full extent in an action on the covenant, in the absence of any contract by the mortgagee to use , diligence in foreclosing the mortgage.</p>

<p> Insufficient Allegations of Bill to Restrain Action of Ejectment—Invalid Parol Agreement Relating to the Use of Land. </p> <p>Plaintiff filed a bill alleging that he was the owner of a certain patent and that a verbal contract was made between him and the defendant, by which the defendant agreed to take charge of the sale of the patent 1 rights and to furnish money for the support of the plaintiff in consider- . ation of a future assignment of a. part interest in the patent; that at plaintiff’s suggestion and “as part of said business affairs,” defendant purchased a certain tract of land, taking the deed in his own name, with the understanding that plaintiff would pay for the same with money to be thereafter realized from sales of the patent; that plaintiff took up his residence on the land, and that the defendant had brought an action of ejectment for the same against the plaintiff. The prayer of the bill was for an injunction to restrain prosecution of the ejectment suit and for a decree declaring the land to be held in trust for the plaintiff, and . for certain other relief. Neither the patent nor any other exhibit was filed with the bill. Held, that these allegations do not entitle plaintiff to the injunction asked for, since defendant’s purchase of the land with his own money did not create a resulting trust in plaintiff’s favor, and the agreement alleged relating to its use was not only without consider- . ation, but was also invalid under the Statute of Frauds, and because copies of the patent and of the assignments and of the deed to the land ■ were not filed as exhibits with the bill.</p>

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

<p> Highways and Streets—Right of Abutting Owners to Light and Air From the Street—Injunction to Restrain the Erection of a Covered Way Across a Street—Nuisance—Invalidity of Municipal Ordinance Giving Private Right to Obstruct a Street—Estoppel. </p> <p>The owner of a lot abutting on a city street has an easement in the light and air afforded by such street, and is entitled to an injunction to prevent the erection of a structure across the street which materially diminishes the supply of light and air to his lot, although such structure is authorized by a municipal ordinance, because such an ordinance, made for the benefit of an individual, is invalid.</p> <p>The control over streets which is vested in the Mayor and City Council of Baltimore can lawfully be exercised only for the benefit of the public, and the municipality has no power to authorize an individual, for his own interest, to obstruct the light and air afforded by a street to the property of abutting owners.</p> <p>Plaintiffs are the owners of a large building used as a manufactory, running back to a narrow street with windows opening thereon. Defendant owns a building about thirty feet distant from plaintiffs’ on the same side of said street, and also buildings opposite thereto on the other side of the street. Under the authority conferred by a municipal ordinance, defendant constructed a tunnel under the street and began the erection of a structure across the street beginning about seventeen feet above the ground, and three stories in heighth to connect his two buildings. Plairttiffs filed a bill for an injunction alleging irreparable injury to their lot by the obstruction of the light and air caused by the defendant’s structure. Held,</p> <p>ist. That the plaintiffs, as abutting owners, are entitled to the enjoymen* .of light and air from the public highway ; that the defendant’s structure materially interferes with this right and constitutes a nuisance ; that the injury suffered by the plaintiffs is different in kind from that suffered by the community generally and entitles them to relief by injunction, and they are not merely remitted to a right to sue for consequential damages.</p> <p>2nd. That the municipal ordinance authorizing the defendant to erect the superstructure was passed for his benefit and not for that of the public and is consequently invalid.</p> <p>3rd. That the plaintiffs are not estopped to ask for relief either because they did not object to the passage of the ordinance or because they did not make known their objections until the superstructure was nearly completed.</p> <p>4th. That since the plaintiffs have not been injured by the construction of the tunnel under the street between defendant’s buildings, they are not entitled to prevent its maintenance.</p>

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

<p> Marketable Title—Specific Performance—Laches in Failing to Renew Lease After Expiration. </p> <p>In 1771, the owner of a lot of ground leased the same for ninety-nine years with a covenant for renewal during the continuance of the demise. In 1802,• the owner of the leasehold conveyed it in trust for the use of his wife for life, and after her death for the use of their children. Emeline, one of these children, died intestate in 1838, leaving a husband and three infant children. The life-tenant died in 1852, and a bill in equity was filed in that year for the sale of this and other property. The three children of the life-tenant and the children of Emeline were parties to the bill, but not the latter’s husband who was then a non-resident of the State. He appeared as guardian ad litem of his children, but there was nothing to show that he knew that the suit concerned the property of his wife. In 1853, the said leasehold property was conveyed under a decree in the cause to the plaintiff’s predecessor in title, and has ever since been in the possession of the plaintiff and those under whom it claims. The original lease expired in 1870, and was renewed in 1886 by the plaintiff. In 1897, the plaintiff redeemed the rent and acquired the fee. Defendant agreed to purchase the property and upon a bill for the specific performance of the contract objected that the plaintiff was unable to convey a good marketable title in fee and alleged that a fourth interest was outstanding in the heirs of the husband of Emeline. Held,</p> <p>1st. That an undivided fourth interest in the equitable leasehold interest vested in Emeline and upon her death intestate in 1838, the same passed absolutely to her husband as the law then stood.</p> <p>2nd. That the husband of Emeline was not bound by the proceedings for the sale of the property instituted in 1852, since he was not a party to the suit and neither knew nor had an opportunity to know that his rights were involved.</p> <p>3rd. That upon the expiration of the original lease in 1870, the leasehold interest was extinguished, except in so far as a Court of equity would relieve the lessee from the forfeiture resulting from the non-renewal of the lease during its continuance.</p> <p>4th. That the neglect of the heirs and distributees of the husband of Emeline to make any claim themselves to renew the lease, orto compensate those who had paid the rents, or to make any claim to the property, for more than thirty years against the persons having open and exclusive possession, constitutes such laches as would bar them from obtaining any relief.</p> <p>5th. That the plaintiff’s title to the property is consequently a marketable title, free from any reasonable doubt, and such as the defendant should be required to accept.</p>

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

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

<p>Liability of Carrier for Assault Committed by Disorderly Passenger— Sufficient Evidence of Carrier’s Negligence—Instructions to the Jury.</p> <p>When the servants of a carrier know or have the means of knowing that a disorderly passenger is likely to commit an assault, it is their duty to control or eject him, when they have the means of doing so, and the neglect of this duty, resulting in injury to another passenger, constitutes actionable negligence.</p> <p>A drunken and disorderly man was a passenger on defendant’s street railway car, and assaulted a passenger on the rear platform. He was put off by the conductor and motorman, but was allowed to get on again as the car started, and no attempt was again made to eject him, notwithstanding his continuous violent and disorderly conduct. Shortly afterwards, and without any provocation, this man struck another passenger in the eye causing the rupture of a cerebral blood vessel, and thereby producing paralysis and death. In an action by the widow and children of the deceased to recover damages, held, that the evidence of defendant’s negligence was sufficient to take the case to the jury, because the defendant’s servants knew that this turbulent and drunken man was likely to injure some of their passengers and they failed to remove him, their ability to keep him off being shown by their having once put him off.</p> <p>In the above case, the defendant asked for an instruction that the plaintiffs were not entitled to recover unless the jury found that after the drunken man re-boarded the car and took a seat near the deceased, the defendant’s servants knew or should have known of the danger to the deceased and by the exercise of proper care and the agencies at its disposal could have prevented the blow. Held,, that this instruction was properly refused, first, because it ignored what had happened before the disorderly man returned to the car, although that threw light upon what was likely to happen and did happen after his entrance ; secottd, because it limited the consideration of the jury to the danger to the deceased, though the defendant’s liability depended upon the circumstance that any passenger and not merely that particular individual was in peril.</p>

<p> Taxation of Tracks of Street Railway Company Within the Territory Annexed to Baltimore City Under the Act of 1888, ch. g8. </p> <p>The Act of 1888, ch. 98, by which certain territory then comprised within the limits of Baltimore County was annexed to Baltimore City, enacted that until the year 1900 the rate of taxation on all property within the annexed district should not exceed the then existing tax rate of the county, and that from and after the year 1900 the property within said territory should be liable to taxation in the same manner as similar property within the city limits. But it was also provided that the county rate of taxation shall not be increased on any landed property within said territory until streets shall have been opened and constructed through the same, nor until there shall be upon every block of ground so to be formed at least six dwellings or stores ready for occupation. An electric railway company was assessed for taxation upon its tracks in the annexed territory at the city rate. About' fifteen miles of these tracks ran through land where no streets were constructed by the city, nor were there ready for occupation, six houses upon each block through which said fifteen miles of track extended. The railway company claimed an exemption from taxation at the city rate under the proviso of the Annexation Act. Held.</p> <p>1st. That said railway tracks are not exempt from city taxation as being landed property through which no streets have been constructed, etc. because the exemption contained in the proviso contemplated only property through which streets may be constructed, out of which city blocks can be formed, and upon which houses can be erected.</p> <p>2nd. That it is immaterial that the real estate immediately contiguous to these fifteen miles of track is taxed at the county rate, because under the statute any exemption from the city tax rate depends upon the condition of the particular property itself and not upon the condition of the adjoining property.</p> <p>3rd. That since the city rate of taxation could be imposed upon property in the annexed district only after the year 1900, and the railway company had paid that rate for the year 1900 under protest, it is entitled to be repaid the excess over the county rate of taxation.</p>

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

<p> Fraudulent Conveyances—Insufficient Evidence to Show Fraud. </p> <p>A conveyance of land in this State was made by a husband and wife to three of their children for an expressed consideration of $5,000 at a time when there was a judgment against the grantors in another State. Upon a bill by the creditor to vacate the conveyance because fraudulent as to him the plaintiff alleged inadequacy of consideration for the property conveyed, continued occupancy thereof by the grantors, and that the grantors were left without visible means to discharge their indebtedness to the plaintiff. Held,</p> <p>1st. That the burden of proof is upon the plaintiff to show that the conveyance was not made upon a valuable consideration, or that, if there was a consideration, the conveyance was made with intent to delay and defraud the creditors of the grantors and that this intent was known to and participated in by the grantees.</p> <p>2nd. That the plaintiff’s evidence failed to establish the allegations of the bill and to countervail the defendants’ evidence which tended to show that the grantees acted in good faith, that the consideration expressed in the deed was the fair value of the property and was paid, and that consequently the bill should be dismissed.</p>

<p>Negligence—Master and Servant—Injury to Inexperienced Employee Ordered to Operate Machine When no Instruction or Warning of Danger is Given— Work Ordered Outside of Scope of Employment— Defective Machinery—Instructions to the fury.</p> <p>It is the duty of an employer who directs an inexperienced employee to operate a machine to give the employee warning of the danger involved in its operation and such instruction in its use as will enable him to operate it safely by the use of reasonable care : and this duty on the part of the employer becomes more imperative when the hazard to which his order subjects a youthful employee is not within the contemplation of the contract of service.</p> <p>When an employee is ordered to operate a machine and this work is outside of the scope of his employment, the master is liable for an injury caused by the defective condition of the machine, although he may have used due care in procuring safe machinery and had no knowledge that the machine was out of repair.</p> <p>Plaintiff, a boy fourteen years old, employed in defendant’s factory, was ordered to operate a machine for making the thread upon screw caps for tin cans, and a few minutes after beginning this work his hand was caught in the machinery and injured. The'plaintiff's evidence showed that when he first went to the factory a year before the accident, it was agreed between his mother and defendant’s superintendent, that plaintiff was not to be employed to work at any machine ; that before the day of the accident plaintiff had been required to do handwork only ; that no instruction as to the use of the threading machine was given to him before being put to work upon it; that two or three days were needed to teach a boy to use such machine properly, and also that the machine was out of repair on the day of the injury. Much of this evidence was contradicted by the testimony on the part of the defendant.Held, that the jury was properly instructed that if they found that the plaintiff, a boy of fourteen years, was put to work at the machine without previous knowledge of the mode of operating it, and without warning as to its dangerous character, and was injured while operating it, without fault on his part, and that the work of operating machines was excluded by the contract of employment made with the plaintiff’s mother, then the plaintiff is entitled to recover.</p>

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

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

), by which it was adjudged that the residuary clause referred to in these proceedings is a valid devise and bequest and that the Baltimore Monthly Meeting of Friends “is entitled to receive the rest and residue of said estate to be held by it for the purposes set forth in said residuary clause.” According to the allegations of the bill of complaint the value of the property passing under the residuary clause was about $33.000.

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

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

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

<p> Elections and. Voters—Registratio7i of Voter at aTi l7itennediate Sitting Upo7i Certificate of Removal—Mistake of Registers—AgreemeTit of Comisel as to Facts Camiot Take the Place of a Bill of Exceptio7is. </p> <p>When a man applies to be registered as a voter at an intermediate sitting of the registers, upon presenting a certificate of removal from another precinct in which he had formerly been registered, it is the duty of the registers, under the plain language of Code, Art. 33, sec. 26, to interrogate" the applicant under oath in the same manner as if he had then first presented himself for registration, and the certificate of removal does not operate as a transfer of the registration.</p> <p>In this case the registers to whom a certificate of removal of a voter was presented did not interrogate the applicant as directed by Code, Art.- 33, sec. 16, in the case of new voters, but after examining him as to the truth of the statements endorsed on the certificate, registered him on the books. A petition filed in the Circuit Court asked that the name so entered be struck from the list of voters. Held, that the respondent should be allowed to show in this proceeding that he was entitled to be registered as a voter, and if so entitled his name should not be struck from the list on account of the mistake of the registers in dealing with his application.</p> <p>When the facts upon which the trial Court decided the case are not contained in á bill of exceptions signed by the Judge below, but, after the order appealed from, the record contains an agreement, signed by counsel, setting forth certain facts, and it does not appear that the case was tried upon such agreed statement, the appeal will be dismissed.</p>

<p> Executors and Administrators—Claim Against the Estate Denied by One Executor and Admitted by the Other—De:visee of Land Subject to Mortgage Not Entitled to Compel Assignment by Mortgagee. </p> <p>When one of two executors denies the validity of a claim against the decedent’s estate which had been passed by the Orphans’ Court, the'other ' executor cannot require the passing in that Court of an account allowing the claim, but the party making it must have it established by a proceeding at law or in equity.</p> <p>The devisees of land subject to a mortgage may extinguish it by payment, . but they cannot compel the mortgagee to sell or assign it.</p>

<p> Obligation Under Seal Acknowledging an Indebtedness Payable After Maker's Death. </p> <p>An instrument under seal by which the obligor declares that a certain sum is due to the obligee but making the sum payable after his death by the obligor’s executor is a valid obligation binding on the estate of the maker, since, it creates a debitum in prcesenti.</p> <p>Defendant’s testator executed and delivered to the plaintiff the following instrument under seal: “Due D. H. F. the sum of $204.68, with interest . froth date, and said sum is not to be paid during my life-time, but to be paid by, my executor out of my estate within one year after my death and said sum is due and owing by my son E. D. F. to said D. H. F. I bind my executor to pay the siim out of my estate as aforesaid, and then to be deducted of the distributive share coming to my son E. D. F. out of my estate.” ■. In an action by the obligee, held, that the instrument creates a valid obligation binding on the estate oí the obligor, and the direction to deduct the sum from the distributive share of E. D. F. does not relieve the obligor from the indebtedness.</p>

Petition of Etta H. Maddox by her attorney Howard Bryant, for an order directing her to be admitted to practice law if certified to be qualified by the State Board of Law Examiners.

<p> Taxation of the Northern Central Ry. Co. </p>

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

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

<p> Bill to Vacate Deeds—Insufficient Evidence. </p>

<p> Taxation in the Annexed District of Baltimore City. </p>

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

<p>Appeal from the Circuit Court for Anne Arundel County (Revell, J.)</p>

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