Volume 94 — Maryland Reports

) The plaintiffs’ fifth prayer, which was rejected, was that “ if the jury shall find in favor of the plaintiffs under the instruction given, then they may allow such amount as they may believe will compensate the plaintiffs for the injury done them by and in consequence of the wrongful acts complained of and the loss thereby caused them from the time of the doing of such acts by the defendant to the time of the trial of this case, except such damages as the plaintiffs could…

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

<p>Negligence—Injury from Wagon to Pedestrian on Side of Highway— Evidence of General Competency of Driver—Instructions.</p> <p>In an action to recover damages for an injury alleged to have been caused by the negligence of the driver of defendant’s wagon, evidence that the driver was competent generally in that capacity is not admissible, for the question is whether he was guilty of negligence on the occasion complained of, and not as to his competency in general.</p> <p>Plaintiff, a boy nine years old, was walking along a very dusty country road when he met defendant’s wagon, which was being driven rapidly, raising such a cloud of dust that the driver could not distinctly see pedestrians. The wagon was on the wrong side of the road and partly on the foot-path, and plaintiff, in order to escape it, was forced from the path among certain small bushes next to a fence. The wagon swerved to that side and plaintiff was knocked down and injured. Held,</p> <p>1st. That a prayer of the defendant was properly refused which instructed the jury that if they should find that the plaintiff was guilty of want of care in hiding in the weeds on the side of the road when the wagon was approaching then he cannot recover unless the jury find that the driver could have avoided the injury after he saw plaintiff’s peril. 2nd. That another prayer offered by the defendant, founded upon the hypothesis that the driver was not bound to anticipate the likelihood of the plaintiff’s being hidden among the weeds, and that it was not negligence not to see plaintiff so hidden, was also properly refused, because it likewise assumes as a fact that the plaintiff was hiding in the weeds to escape observation and fails to require the jury to find whether the driver was free from negligence in driving through the blinding dust, on the foot-path of the highway where pedestrians were accustomed to walk.</p>

) Plaintiff's ist Prayer.—That if the jury shall find from the evidence that the defendant is an incorporated Railroad Company owning a railroad running through Worcester County from Pocomoke City in said county, southwardly through certain swamps and erected embankments and laid down its tracks thereon, and cut the ditches on either side of said tracks and cut out and enlarged a small ditch upon the land lying west of and adjoining said railroad tracks, and thereby greatly…

<p> Negligence—Fall of Roof of Building in Course of Construction—Independent Contractor—Fellow Servants—Sufficiency of Declaration —Amendment of Pleading—Evidence—Instructions. </p> <p>A declaration is sufficient in law which sets forth that plaintiff was employed to work in defendant’s saw mill and while so engaged and using . due care he was injured by the falling upon him of the roof of a building being erected by the defendants over the mill in consequence of its insufficiency, and that defendants did not exercise due care in the premises.</p> <p>The amendment of pleadings in an action at law is a matter within the discretion of the trial Judge, and no appeal lies from his refusal to allow a plea to be amended in a particular manner.</p> <p>In an action against two persons to recover damages for an injury alleged to have been caused by their negligence, the declaration described the defendants as partners, but did not allege that on account, of the partnership either was liable for an injury caused by the other. Held, that evidence that the defendants were not partners at the time of the injury was properly rejected since the question of partnership vel non was not material to the issue made by the pleadings.</p> <p>A man employed to assist in the operation of a saw mill is not a fellow-servant with a carpenter employed to erect a shed over the mill.</p> <p>Plaintiff while at work in defendant’s saw mill was injured by the fall of the roof of a shed which defendants were erecting over the mill. The carpenter who built the shed was not shown to have been an independent contractor. In an action to recover damages, held,</p> <p>ist. That the jury was properly instructed at the instance of the plaintiff that if the fall of the roof was occasioned by the want of ordinary care in its erection, then the plaintiff is entitled to recover if he was free from negligence.</p> <p>2nd. That prayers instructing the jury that if defendants employed a competent carpenter to erect the shed they are not liable for the injury to the plaintiff were properly refused because they are defective in not requiring the jury also to find that the shed was erected by a competent builder under an independent contract giving him exclusive control over the work and also because they apply to defendants’ duty to furnish to plaintiff a reasonably safe place in which to work, the same limitations which would affect defendants’ liability to third persons if any such had been injured by the fall of the roof.</p> <p>3rd. That a prayer instructing the jury that if the plaintiff’s injury was caused by the negligence of other servants of the defendants in constructing the shed, he is not entitled to recover unless they find that the defendants did not use reasonable care in selecting the other servants, was,1 properly refused because the evidence did not show that the other servants whose negligence caused the injury were fellow-servants with the plaintiff and engaged in the same general business.</p> <p>4th. That the fact that the roof fell while the building was being constructed, was until otherwise explained, prima facie evidence of negligence, and therefore the evidence was legally sufficient to take the case to the jury.</p>

<p>Evidence is admissible to show that a signed memorandum of a sale of goods does not contain all of the terms verbally agreed upon by the parties, not for the purpose of contradicting the written agreement, but to show that it does not fulfill the requirements of the seventeenth section of the Statute of Frauds.</p> <p>The memorandum of a sale under the Statute of Frauds need not state a time for the delivery of the goods sold, if no time was fixed in the parol agreement of the parties, because in such case the law implies a delivery within a reasonable time or according to the usage of the particular trade if there be one. But if the parties did, agree upon a time of de-' livery, then it must be set forth in the memorandum.</p> <p>If the time and mode of payment be agreed upon, then the memorandum of sale must state these terms; otherwise it is insufficient under the statute.</p> <p>When one of the terms of sale is that the goods should be “as per sample delivered,” that must be set forth in the memorandum as a delivery of goods corresponding with the sample is a performance of the contract.</p> <p>A memorandum of sale signed by the parties was as follows : “Sold to F. & Son 600 cases, 2nd June peas, Andrews brand, at 62JS4 per doz. del. in Baltimore, packing of 1899, shipment to be made as soon as ready.” Defendant shipped the peas and sent a draft for the price attached to the bill of lading, which plaintiff refused to pay and the peas were then sold to another party. In an action for breach of the contract plaintiff testified that the above-mentioned writing embraced all of the terms of sale verbally agreed upon between the parties and also offered evidence to show a custom among merchants to allow an inspection of peas sold before payment therefor and also a custom as to time of payment when the contract is silent as to this matter. The defendant testified that the agreement between them was for payment “net cash on delivery f. o. b. Baltimore,” and that before signing the memorandum several cans were opened and that those to be delivered were to be equal in quality with these samples then opened and delivered to the buyer. A prayer offered by the plaintiff instructed the jury that if they found that no agreement was made as to the right of the buyer to inspect the peas before payment and that the memorandum of sale was silent on that point, then if the jury found the existence of a usage among merchants in Baltimore to allow such inspection, the plaintiff was entitled to make the same. Held,</p> <p>ist. That this prayer should have been granted without a modification requiring the jury also to find that the written memorandum embraced all the terms of sale, because evidence as to a usage relating to inspection was admissible, and the plaintiff was entitled to have the jury instructed on that subject.</p> <p>2nd. That a prayer to the effect that if the jury found there was no agreement between the parties as to when payment was to be made, then a general custom on the subject would be controlling, should not have been modified by adding “ provided they shall find that the written memorandum offered in evidence embraced all the terms of sale.”</p> <p>In an action by the buyer against the seller for non-delivery of certain cases of canned peas, when the plaintiff has offered evidence as to the value of certain peas which he alleged were similar to those defendant agreed to sell him, the defendant is entitled to show, as affecting damages, that the peas actually bought by plaintiff by sample, but subsequently delivered to another purchaser, were not of the same quality as those referred to in the plaintiff’s evidence.</p> <p>When a bill of exceptions sets forth that certain exceptions to the rulings of the Court were taken, it will be assumed that they were seasonably taken, at the trial of the cause, and not afterwards.</p>

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

<p>Appeal from the Circuit Court for Prince George’s County (Merrick, J.)</p>

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

<p> Striking Out Judgment. </p> <p>A judgment will not be stricken out upon the mere ex parte affidavit of the defendant. The motion to strike out must be supported by clear and convincing proof of the facts relied upon.</p>

<p> Appeal by Trustee—Allowance of Counsel Fees Out of Proceeds of Sale of Infant’s Land. </p> <p>A trustee may appeal from an order which requires him to account to the distributees of the estate for the amount of a fee paid by him to counsel under an auditor’s account.</p> <p>A bill was filed for the sale of land, which had descended to certain infants, on the ground that it was not susceptible of partition. After the sale was made, creditors of the deceased owner of the land intervened. their claims were satisfied out of the proceeds of sale, and the balance distributed to the widow and children of said owner. The trustee paid the fee which was audited to the solicitor who had filed the bill and conducted the proceedings, but subsequently the Court, refusing to ratify the audit disallowed the fee and directed the trustee to pay the amount thereof to the distributees of the estate. Held, that the allowance of the counsel fees out of the amount payable to the infants was proper and that the audit as reported by the auditor should be ratified.</p>

<p> Sales—Memorandum Under Statute of Frauds Cannot be Altered by Parol Agreement Changing Time of Delivery—Rescission of Contract for Failure of Seller to Deliver Instalments—Evidence. </p> <p>When the written memorandum of a contract for the sale of goods within the Statute of Frauds mentions a time for delivery, a subsequent agreement between the parties, not in writing, substituting a different time for delivery is not binding, and evidence of such parol agreement changing the written contract is not admissible.</p> <p>In an action for breach of a contract to buy goods the plaintiff is not entitled to recover unless it be shown that he was ready and willing to make delivery as required by the contract, and consequently evidence relating to such readiness is admissible.</p> <p>The question whether defendant had waived strict performance of a contract of sale is a question of law and not of fact.</p> <p>When a contract for the sale of goods provides for the delivery of specified quantities per month during six months, beginning in November, to be paid for as delivered, and the buyer receives and pays for the November delivery, but the seller fails to make any delivery in December and January, declaring his inability to make deliveries as promised, then the buyer is entitled to rescind the contract.</p>

<p>Re-incorporation Under Code of Corporations Previously Formed—Construction of the Code—Change in Name of the New Corporation— Name of Situs of Corporation—Assignment of Mortgage and Power of Sale—Proceedings Under Mortgage Power of Sale.</p> <p>Corporations created before 1888 under the Act of 1868, ch. 471, are entitled to be re-incorporated under the provisions of the Code of 1888, Art. 23, secs. 81 et seq., which codify said Act of 1868, and provide for the re-incorporation of corporations “heretofore formed.”</p> <p>The Code of Public Laws adopted in 1888 is not merely a revision or arrangement of the laws then in force, but is a substitute for them, and is primarily to be construed according to the natural meaning of its own language. Provisions relating to time found in the Code are not necessarily to be referred to the dates of the enactment of the laws therein codified.</p> <p>When a mortgage containing a power of sale is assigned by a corporation to an individual, the power may be exercised by the assignee.</p> <p>When a mortgage has been assigned by the executor of the mortgagee, and the assignee makes a sale of the mortgaged property under Code, Art. 66, sec. 7, it is not necessury to file in the proceedings, before the sale, a certificate of the grant of letters testamentary to the executor.</p> <p>Art. 23, sec. 81 of the Code, adopted in 1888, is a codification of the Act of 1868, ch. 471, and, in the language of that Act, provides that “any corporation heretofore formed under the general laws of the State or under any special Act ” may cause itself to be incorporated under this Article. Sec. 83 directs that the certificate of re-incorporation shall state both the proposed name of the new corporation and the former name of said corporation. Sec. 84 provides that when the new certificate shall have been duly certified and recorded, the former charter shall be deemed to be surrendered and all the property belonging to the former corporation shall be devolved upon the new one, which shall be regarded as substituted therefor. The Westminster Savings Institution was incorporated in 1869 under the said Act of 1868. After the adoption of the Code, containing the above-mentioned provisions, that . corporation was re-incorporated thereunder as the Westminster Savings Bank. The former corporation was the holder of a mortgage which was subsequently assigned by the Savings Bank to a purchaser. Upon exceptions to a sale made by the assignee under the mortgage, it was objected that the Savings Institution was not authorized to be re-incorporated under the Code, and that the Savings Bank did not become entitled to the mortgage. Held,</p> <p>ist. That the provisions in section 81 of Article 23 of the Code, authorizing corporations heretofore formed to be re-incorporated, is not limited to corporations formed before the passage of the Act of 1868, codified in that section, but is applicable to the Savings Institution which was incorporated in 1869 prior to the adoption of the Code.</p> <p>2nd. That when a company is re-incorporated it is not bound to continue to use identically the same name it originally bore, and the change of name of said corporation from the Westminster Savings Institution to the Westminster Savings Bank is valid.</p> <p>3rd. That the addition of the words “of Carroll County” to the name of the new corporation was not necessary, since the name Westminster (a city in Carroll County) answers the purpose of the provision of Code, Art. 23, sec. 83, directing that the name of the new corporation shall include the name of the county or city in which it may be formed.</p> <p>4th. That the title to the said mortgage passed to the Savings Bank and from it to the assignee together with the power of sale, which was validly exercised.</p>

<p> Action on Contracts for Different Kinds of Work—Prayer Denying All Right of Recovery—Verdict for Amount Below furisdiction of the Court. </p> <p>Plaintiff sued to recover compensation for building a dam and for other work done for defendant. Evidence offered by the latter tended to show, that the dam was not properly constructed ; that it leaked and was afterwards rebuilt by the defendant. It was conceded that a certain sum was due to the plaintiff for work other than that of making the dam. A prayer of the defendant asked the Court to rule that if the dam was constructed in such an inefficient manner that it would not hold water or fulfil the purpose for which it was designed, then the plaintiff is not entitled to recover unless the defendant prevented the plaintiff from carrying out the contract. Held, that this prayer was properly refused since the plaintiff was entitled to recover for the amount proved to be due for the work other than that on the dam, and although that amount was below the jurisdiction of the Court, yet the verdict and the judgment of non pros, thereon is made, by Code, Art. 26, sec. 17, conclusive evidence of the debt.</p>

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

<p> Change itt Grade of Highway—Consequential Damages to Abutting Owner—Pleading. </p> <p>When a municipal corporation, in pursuance of its statutory authority, authorizes a change in the grade of a public road by a passenger railway company, an abutting owner is not entitled to recover damages because such change renders access to his land more difficult.</p> <p>The Act of 1898, ch. 257, empowered certain County Commissioners to maintain a road with a grade not to exceed six feet in the hundred and authorized them to permit the construction of a passenger railway on the road. In pursuance of authority given to it, a railway company laid its tracks on the road and changed the grade thereof to three feet in the hundred, which resulted in making the road seven feet below the level of the lot of the plaintiff who was an abutting owner. In an action against the County Commissioners to recover damages for being deprived of free access to his land, held, upon demurrer.</p> <p>1st. That the provision in the statute relating to the grade of the road did not compel the defendants to maintain a grade of not less than six feet in the hundred, but only restricted them from allowing a steeper grade than that mentioned.</p> <p>2nd. That since the change in the grade of the road was made in pursuanee of the power vested in the defendants, they are not liable to the plaintiff for the consequential damages arising therefrom.</p> <p>A declaration alleging that the defendant unlawfully deprived the plaintiff of convenient access to his land states a sufficient cause of action under Code, Art. 75, sec 23.</p>

<p> Liability of Surety on a Replevin Bond—Entry of Suit on Bond to the Use of a Party Not Named as Obligee—Different Persons in the Eye of the Law. </p> <p>A surety in a replevin bond is not liable thereon to any other person than the obligees named therein, who are the persons with whom the contract is made, and when an action on the bond is entered to the use of a third party, such party can recover only such damages as were sustained by the obligee and not the amount of loss suffered by himself, since the assignee of a bond can have no greater rights against the surety than the assignor had.</p> <p>When a replevin bond is given to an individual and an action thereon is entered to his use as trustee under a deed, the trustee is not the same person in the eye of the law as the individual, and cannot recover from the surety on the bond a greater amount than the individual would be entitled to recover.</p> <p>After making a purchase of goods on credit, the purchaser, A., became insolvent and made an assignment for the benefit of his creditors to B. The seller of the goods brought an action of replevin and the goods were delivered to him under the writ. The replevin bond, which was executed by the defendant as surety, named A. and B. in their individual capacities as the obligees. The replevin suit resulted in a verdict in favor of the defendants for a return of the property replevied or a certain sum of money being the value thereof. The action in this case was brought by A. and B. to the use of B. as trustee of A. against the surety on the replevin bond to recover the value of the property and there was a judgment by default for want of a plea. Upon empanel-ling a jury to assess damages, the evidence showed that neither A. nor B.' claimed or possessed any interest in the goods in their individual capacities, but that the entire property was claimed by B. as trustee for the creditors of A. Held,</p> <p>ist. That since B., as trustee, was not named as obligee in the bond and the same was executed to A. and B. individually and was merely a bond of indemnity, they could not recover more than nominal damages, under the default, as they had no personal interest in the property replevied.</p> <p>2nd. That B., as trustee for the creditors of A., is in law a different person from B. as an individual, and the fact that the suit on the bond was to the use of B. as trustee, when he was not in that capacity an obligee, does not authorize him to recover more damages than he could have recovered as an individual.</p>

Cross-appeals from the Orphans’ Court of Baltimore City. The will and codicils referred to in the opinion of the Court . are as follows: The Will of Elizabeth Blincoe Hooff. John M. Johnson, ' Mrs. E. B. Hooff Attorney at law. Alexandria, Va., December 15, 1888.

) The indictment in this case was as follows : “The jurors of the State of Maryland for the body of the city of Baltimore, do on their oath present that Michael J. Fox, late of said city, on the twenty-fourth day of September, in the year of our Lord, nineteen hundred, at the city, aforesaid, unlawfully did have in his possession with intent to sell within this State and unlawfully did offer and expose for sale and exchange, and unlawfully did sell and exchange to and with…

) The agreement referred to in the opinion of the Court is as follows : Know all men by these presents, that whereas I, the undersigned have agreed to employ and do hereby employ and constitute W. Roy Stephenson and the firm of Harrison & Byrd my legal counsel and attorneys in fact, to represent and for me and in my name to institute and conduct for me such suit or suits, and to defend me in any suit or suits, and take such other action for me as may seem to my said legal…

J.), where there was a judgment on verdict for the plaintiff for $500.

<p>Appeal from the Superior Court of Baltimore City (Dobler, J.), where there was a verdict for the plaintiff for $ i ,000.</p>

<p>Appeals from a decree and orders of Circuit Court No. 2, of Baltimore City (Dennis, J.)</p>

<p> Devise of a Fee-Simple Estate Defeasible Upon Death of Devisee Without Issue. </p> <p>A testator devised the residue of his estate to his wife Catherine and his son William during their natural lives to be equally divided between them, and also provided that in case Catherine should survive William and the latter should die without issue, then the property given to William should be divided among the children of testator’s daughters, and that in case William should survive Catherine then “whatever remains of the property bequeathed to her during her life, shall then descend to my said son William, and" in case of his death without children the whole to be equally divided ” among the children of testator’s daughters. William survived Catherine and died leaving issue, having previously conveyed to defendant part of the land passing under the residuary clause of the will. Plaintiff, one of the children of William, brought an action of ejectment for the said land alleging that William took under the will a life estate only. Held, that William, upon the death of Catherine, took a fee-simple estate in the land defeasible upon the contingency of his dying without children and that since he left issue the plaintiff is not entitled to recover.</p>

<p> Libel—Pleas of Justification—Privileged Communications—Publication of Charges Against Public Officer—Evidence—Aggravation of Damages—Republication of Libel—Opinion of Trial Court Misleading to Jury. </p> <p>A publication defamatory of a public officer is not privileged although made in good faith, and in an action against the person making such publication he must either prove the truth thereof or answer in damages.</p> <p>In an action for a libel which charged that the plaintiff “has no moral character,” a plea alleging that the plaintiff was the agent of a company to sell certain articles, collect the money therefor and return it to the company, and that plaintiff received articles from the company, and had not returned the same or the value thereof, is insufficient as a plea of justification, since it does not allege that the plaintiff collected the money for the articles sold.</p> <p>Where the libel charged that the plaintiff was a man that “can be induced to perpetrate any crime in politics that would pay him ” the defendant cannot justify by showing that plaintiff bribed a voter at an election held after the date of the publication of the libel.</p> <p>When the defendant m an action of libel pleads the truth of the matter charged by way of justification and fails to maintain the plea by proof, then such plea is evidence of malice and an aggravation of the wrong.</p> <p>During a political campaign in which the Governor of the State was a candidate for re-election on the Republican ticket, the defendant, who was a prominent Republican, wrote to the Chairman of the Democratic State Central Committee, the manager of the campaign against the Governor, referring to the Governor’s appointment of the plaintiff as a supervisor of elections, and stated that this man (the plaintiff) “ was a Justice of the Peace under Democratic rule and at that time kept a speak-easy where he sold whiskey and then as Justice fined the men for disorderly conduct. He helped stuff the ballot-box at the Republican primary in V. District two years ago,” etc., etc. “I shall therefore support Col. Smith and hope all Republicans and Democrats who believe in the purity of elections will do the same.” In an action of libel, held,.</p> <p>ist. That defendant’s letter was not a privileged communication, as being made in pursuance of a public duty and without express malice.</p> <p>2nd. That the plaintiff is entitled to recover punitive damages in the discretion of the jury.</p> <p>3rd. That the jury was properly instructed that the defendant’s unsustained plea of justification is in the nature of a repetition of the libel and is to be taken as evidence tending to show express malice in the original publication and is therefore a matter in aggravation of damages.</p> <p>4th. That a circular containing defendant’s letter which was publicly distributed is not admissible in evidence unless it is shown that either the defendant or the person to whom the letter was sent was connected with the publication of the circular, so as to make this re-publication a natural consequence of the original libel.</p> <p>5th. That it was for the jury to determine whether the re-publication of the letter in the circular was a natural consequence of defendant’s writing of it, and a statement by the trial Judge upon ruling the circular to be competent evidence to the effect that the publication in the circular was such a natural consequence, constitutes reversible error, since the jury would be led to think that this question had been determined by the Court.</p> <p>A statement made by a trial Judge in ruling upon the admissibility of evidence which is calculated to lead the jury to think that the evidence admitted proves a certain fact which it was within the province of the jury to find, is error.</p>

<p> Trusts—Discretion of Trustee to Make Extra Allowances When Necessary for the Support of a Cestui que Trust—Rights of Creditors of a Cestui que Trust. </p> <p>When a trustee is authorized by a will to make an extra allowance when necessary in his opinion for the support of a cestui que trust, to whom no absolute right to demand the same is given, it is not a proper exercise of the discretion to make an extra allowance in favor of a commercial creditor of a cestui qtie trust.</p> <p>An estate was devised to trustees with directions to divide the net income thereof equally among the six children of the testatrix. A subsequent clause of the will directed the trustees “to pay to each of my three youngest children, Levi, Samuel and Bella, the sum of $500 per annum before making any distribution * * * so long as and whenever such extra allowance may in the judgment of my said trustees be necessary for the proper support of those young children or any one or more of them.” Samuel became indebted to one J. C. m the course of a business carried on by him, and the trustees proposed to pay over to J. C., in pursuance of the above mentioned power, a part of the income of' the estate in settlement of the debt before making distribution among the other children. Held, that the trustees were empowered to make an extra allowance only when necessary for the support of one of the persons named ; that the payment of Samuel’s business debts was not necessary for his support within the meaning of the will and that such application of the income was not a proper exercise of the discretion vested in the trustees.</p>

<p> Res Adjudicata—Effect of Ratification of Auditor's Account Making Allowances. </p> <p>The receivers of an insolvent corporation collected sums of money from various sources and under an Auditor’s Account distributing the same a certain sum was allowed for taxes for five years on the real estate of the corporation. This account was finally ratified without exception being taken to the payment of taxes from that fund. Subsequently the real estate of the corporation was sold and an account was stated distributing the proceeds thereof among the preferred stockholders of the company, the preferred stock being a statutory lien on the real estate and certain other property. General creditors of the corporation alleged that the payment of the taxes had been erroneously allowed out of the funds distributed in the first account and that the amount thereof should now be deducted from the proceeds of the sale of the real estate and distributed among the general creditors. Held, that the order finally ratifying the first account in which payment of the taxes was directed, from which order no appeal was taken, constituted an adjudication of all the questions that might arise thereunder, and that the general creditors cannot now claim that the taxes were not properly payable from the fund distributed in that account.</p>

<p> Guaranty—Original or Collateral Undertaking—Notice of Default to Gtiarantor—Listructions to the ftiry. </p> <p>Defendant wrote.to the plaintiff as follows : “Mr. S., who is building a number of houses on ground I leased him, tells me you have agreed to furnish him 100,000 bricks on the following terms. * * You can furnish Mr. S. on these terms and if he does not pay you, I will.” The bricks were delivered to S. by the plaintiff and one-half of them were not paid for. In an action on the guaranty the evidence was conflicting as to whether the sale to S. had been made on the faith of the guaranty or afterwards. Defendant was not notified of S.’s default until nearly three years after 'it occured and after he had paid certain sums of money to S. Held,</p> <p>1st. That the language of the guaranty could be construed as creating either an original or collateral undertaking on the part of the defendant, and it should receive that construction which will carry out the intention of the parties as shown by the evidence.</p> <p>2nd. That if the guaranty was an original agreement by the defendant, he was not entitled to notice of the default of S. in the matter of payment, but if it was collateral to S.’s previously made contract for the purchase of the bricks, then defendant was entitled to notice within a reasonable time of the default, and if such notice was not given, defendant would be released from liability under the guaranty to the extent of any loss suffered by him on account of the failure to receive such notice.</p> <p>3rd. That it was error in the trial Court to rule as matter of law that the guaranty was a collateral undertaking and that the defendant was entitled to notice of S. ’s default in making payment.</p> <p>4th. That the jury should have been instructed that if it was found that the bricks were sold in reliance upon the guaranty and the credit of the defendant, his undertaking was original, but if the sale had been upon the credit of S., then it was merely a collateral guaranty.</p>

<p> Contributory Negligetice of Passenger Standing on Step of Street Car. </p> <p>Plaintiff, a passenger on a car of defendant’s street electric railway, notified the conductor to stop at the next cross street and then took up a position on the lower step of the platform. He was thrown off from that position by a sudden jolt while the car was moving rapidly. Signs in the car warned passengers not to stand on the steps and not to leave . the car while in. motion, and there was ample room for the plaintiff to stand on the platform. Held, that the plaintiff was guilty of such com tributary negligence by standing in a dangerous position as is a bar to ' an action against the defendant to recover for the injuries suffered by being thrown from the car.</p>

<p> Mtmicipal Contracts—Award to Lowest Bidder—Requirements of Advertisement for Bids—Specifications Must Contain All the Essentials of the Contract Proposed—Injunction to Restrain Execution of Proposed Contract—Ratificatio?t. </p> <p>When a municipal board is directed by statute to advertise for proposals for doing certain work, and to award the contract to the lowest bidder, the advertisement, or the specifications referred to in it, must set forth definitely all the essential elements of the contract as the common basis for the bids asked for, so that there may be competitive bidding for the same work.</p> <p>When a municipal board advertises, in pursuance of such statutory authority, for proposals for collecting and disposing of the garbage, etc., in the city, and each bidder is required by the specifications to submit with his bid a scheme for the disposal of the garbage, with such information as may be necessary to enable the Commissioner to determine the feasibility of it, no contract can lawfully be made under such an advertisement, because each bidder is allowed to submit his own plan for the disposal of the garbage, and there is consequently no definite basis for competition among the bidders, common to them all.</p> <p>In the letting of a municipal contract by competitive bidding, the provisions of the statute relating thereto must be strictly observed.</p> <p>When a municipal Board of Awards has made a contract in violation of the statute relating to the matter, the contract is ultra vires and void and cannot be ratified by the municipal government.</p> <p>A taxpayer is entitled to file a bill to enjoin the execution of a void contract entered into by a municipality, and the motives of the plaintiff in bringing the suit are immaterial.</p> <p>The charter of Baltimore City provides that in contracting for any public work involving a certain expenditure proposals for the same shall be advertised for and the contract for doing the work shall be awarded by the Board of Awards to the lowest responsible bidder. In pursuance of this power, the Commissioner of Street Cleaning advertised for proposals for the collection and disposal of garbage, etc., in the city, according to specifications obtainable in his office. These specifications provided that ‘ ‘ each bidder must submit with his bid the scheme of garbage disposal he proposes to establish * * including such plan, specification and other information as may be necessary to enable the said Commissioner to determine the feasibility of it.” R. submitted a bid in which he proposed to remove the garbage to a suitable place in or out of the city and there reduce it by the method now in use at Syracuse, or with such modification thereof as shall be approved by the Commissioner, or to reduce the garbage by the use of such other method as shall be agreed upon by him and the Commissioner. Each of the other bidders proposed a different plan for the reduction and disposal of the garbage. The contract was awarded to R. and the plaintiff, as a taxpayer, filed a bill to restrain the execution of the contract on the ground that the above mentioned requirements of the charter had not been observed in awarding the contract. ®Held,</p> <p>ist. That all the essentials of the contract proposed to be made must be placed before the bidders in the advertisement with such precision that nothing will remain to be done except to ascertain the lowest responsible bidder, and the Board of Awards has no power except to award the contract to such bidder.</p> <p>2nd. That the scheme or plan for the disposal of the garbage was an important feature of the contract designed to be made in this case, but the specifiations were defective in that they failed to indicate any particular plan with reference to which bids were to be made.</p> <p>3rd. That the absence of any definite basis for competition among the bidders; the allowing of each bidder to submit his own independent proposal as to what would form an important element of the contract, and the reservation of a discretion to be exercised in an essential matter by the Commissioner after the bids had been submitted render the contract awarded to R. one made in violation of the intent of the statute as well as of real competitive bidding and the same is consequently void and its execution should be enjoined.</p>

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

<p> Eminent Domain—Power of Railway Company to Condemn Land to a Certain Extent Not Exhausted by First Condemnation of a Pari Thereof—Appeal. </p> <p>When a railway company is authorized by its charter to condemn land necessary for the construction and repair of its road, not exceeding one hundred feet in width, without any limitation of time for the exercise of the right, and the company first condemns a strip of land seventy feet wide, the power of condemnation is not thereby exhausted, but the company may subsequently condemn adjoining land to the extent of thirty feet in addition.</p> <p>When the charter of a railway company requires it to construct its road within ten years, and power is conferred to condemn land not exceeding one hundred feet in width, the company may, after having condemned land for its roadbed seventy feet wide and after the expiration of the ten years, condemn land thirty feet in width in addition to the original taking.</p> <p>The action of the Circuit Court is exclusive and final in cases relating to> the condemnation of land under the power of eminent domain, and no. appeal lies to this Court from its action in confirming an inquisition, except in cases where no right to condemn exists and the Circuit Court is without jurisdiction.</p> <p>Appeal and writ of error from the Circuit Court for Harford County (Watters, J.)</p>

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

J.), dismissing the bill of complaint. The form of the certificates referred to in the opinion of the Court is as follows : T3 ■ W ^' ' PQ No. Office of County Commissioners of Anne Arundel County. Annapolis,. This is to certify, That.............................................................. has the sum of.............................................dollars standing to his credit on the books of this office, on account of roads, D. 8, to be levied for in the levy of 1901.

<p> Constitutional Law—Right of Importer to Sell Oleomargarine in the Original Package—Imitation of Yellow Butter—Plea in Avoidance. </p> <p>Code, Art. 27, see. 88, as amended by the' Act of 1900, ch. 496, prohibits the sale, or the having in one’s possession with intent to sell, within this State, oleomargarine, a compound of fats or oils, made in imitation of yellow butter produced from milk or cream. Under an indictment for violation of the statute the defendant pleaded, and offered to prove, that the oleomargarine which was in his possession was made in another State, and was retained by him in the original package unbroken in which it was shipped from that other State ; that it was a pure article of commerce as defined in the Act of Congress of August 2, 1886, and was colored in imitation of yellow butter, but that the defendant had not offered such oleomargarine for sale as butter. Held, that these facts constitute a good defense to the indictment, since, under the rulings of the Supreme Court of the United States, it is not competent for a State to prohibit the sale of pure oleomargarine, shipped from ajiother State, in the original package; and it makes no difference that the oleomargarine was colored in imitation of yellow butter, unless it be alleged and proved that the coloring matter is impure and injurious to health.</p> <p>A plea setting forth the above defense is not bad as amounting to the general issue but is good because it admits the facts set forth in the indictment and avoids their legal effect by alleging that the oleomargarine in defendant’s possession, was an article of commerce as recognized by the Act of Congress ¡.that defendant possessed and offered it for sale in the original package in which it had been received from another State, and that defendant did not represent that it was butter.</p>

) Plaintiff's ist Prayer.—If the jury find that the plaintiff and defendants entered into the written contract of Nov. 29, 1899, and thereafter the plaintiff proceeded to erect in the basement of defendants’ premises at the corner of Lombard and Hanover Sts. the steam plant contemplated therein and employed skilful and competent workmen in and about the construction and erection of the same, and delivered and set up the boiler and engine in good faith believing the same to…

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

<p>Appeal from an order of the Circuit Court for Anne Arundel County (Revell and Reifsnider, JJ.)</p>

<p> Board of County School Commissioners Not Liable in Action of Tort for Negligence Causing Injury to Pupil. </p> <p>A quasi corporation or governmental agency, such as a Board of School Commissioners having charge of the public school in a county, is not liable to an individual in an action of tort for negligence, unless such liability is imposed by statute.</p> <p>Under Code, Art. 77, secs. 3, 19, etc., the local management of the public schools in each county is placed under the control of a Board of. County School Commissioners, which is declared to be a body corporate with power to sue and be sued. The daughter of the equitable plaintiff in this case, while a pupil in a public school under the control of the defendant, the Board of School Commissioners for that county, was fatally injured by running against, and being thrown down by a wire which was stretched across the grounds- around the school, and the plaintiff sued to recover damages alleging negligence of the defendant in allowing the wire to remain in a position where it is likely to cause injury. Upon a demurrer to the declaration, Held, that the action is not maintainable since under the statute the defendant is liable to suit only with respect to such things as it is empowered to do, and the defendant has no funds with which to pay damages for a tort, all of its funds being appropriated by law to specific purposes, and the Constitution, Art. 8, sec. 3, provides that the school fund shall be kept inviolate and applied only to purposes of education.</p>

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

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

<p> Order of Orphans' Court Requiring Executors to Return Debts as Sperate—Appeal. </p> <p>When executors, who are presumed to be fully acquainted with the condition of the estate of their decedent, report an inventory to the Orphans’ Court showing that certain debts due it are desperate and uncollectible on account of. the insolvency of the debtors or because barred by limitations, the Orphans’ Court has no power, without any evidence on the subject being adduced, to require the executors to return such debts as sperate and charge themselves therewith.</p> <p>On June nth, 1901, an Orphans’ Court passed an order directing executors to adopt and return an account prepared for them by an auditor, the executors then filed a different account, but on August U3th, filed the account required by the order of June nth. Held, that an appeal taken within the statutory period after August 13th, was taken in due time, and since the order appealed against was passed without any testimony being taken, no notice of a request that the testimony be reduced to writing was necessary.</p>

<p> Benefit Societies—Membership Not Forfeited When Failure to Pay Dues Was Caused by Wrongful Act of Local Lodge—Constitution of Order —Local Lodge Agent of Grand Lodge—Instructions to fury. </p> <p>A member of a beneficial association received a certificate entitling the plaintiff in this case, his wife, to a certain sum of money upon his death, if he was then a member in good standing. The association was composed of a grand lodge and subordinate lodges, and its constitution provided that a failure to pay the dues at certain designated times should operate to terminate the membership of the defaulting party. It was also provided that when a member moved to another place where the association had a lodge he should receive a transfer card expiring with the month in which issued and that “if not accepted by the lodge where deposited, a brother holding such transfer card retains his membership in the lodge issuing the card.” Plaintiff’s husband removed from Baltimore, where his dues were fully paid, to Oil City, and received a transfer card. He presented the card to the lodge there and offered to pay his dues, but no meetings of that lodge were held for five months, although the constitution prescribes that each subordinate lodge shall hold two meetings per month. During the fifth month he was informed by that lodge that his dues could not be there accepted because the transfer card had expired by lapse of time. He then offered to pay his dues to the Baltimore lodge, which refused to receive them on the ground that he was a member of the other lodge. Soon afterwards he died and this action was brought against the Grand Lodge to recover the sum mentioned in the certificate. Held,</p> <p>1st. That although the defendant’s constitution provides that in insurance matters the subordinate lodges shall not act as agents of the Grand Lodge, yet this provision is nugatory because the whole scheme of the organization is at variance therewith and shows that the local lodges are in fact the agents of the Grand Lodge, and consequently if the failure of the plaintiff’s husband to pay his dues resulted wholly from the wrongful act of the local lodge in not holding meetings as required by the constitution, the Gramd Lodge cannot avail itself of that wrong in order to resist payment of the certificate.</p> <p>2nd. That according to the true construction of defendant’s constitution, the transfer card must be presented within the month in which it was issued, and if so presented is a proposition for membership and the card continues in force until acted on by the lodge to which presented, and that if the transfer card be rejected, then the applicant retains his membership in the lodge which issued the card, but until such affirmative rejection his dues are not payable in this latter lodge.</p> <p>3rd. That the jury should have been instructed that if they found that plaintiff’s deceased husband presented his transfer card to the Oil City lodge and it was not acted on because of the neglect of that lodge to hold meetings in obedience to the laws of the order; that he offered to pay his dues there and subsequently, when informed that the transfer could not there be accepted, tendered the dues to the Baltimore lodge, then the defendant is precluded from claiming that he was expelled from the order for non-payment of dues and the plaintiff is entitled to recover.</p>

<p> Executors and Administrators—Rescinding Account Allowing Counsel Fees to Administrator. </p> <p>An administrator passed an account in the Orphans’ Court in which certain sums were allowed for judgments and costs in suits against the administrator. The vouchers filed with the Register of Wills showed that part of the costs consisted of fees paid by the administrator to his counsel. A petition was subsequently filed alleging that these fees had been improperly allowed and that the Court had been deceived. At the hearing of this petition the Court refused to allow the administrator to oifer evidence as to the value of the services to the estate rendered by his counsel and passed an order rescinding the ratification of the account and directing the administrator to restate the same and omit all allowance for counsel fees. Held, that it was error to annul the previously stated account without permitting the administrator to prove the value of the counsel’s services and the propriety of the allowance of fees therefor.</p>

<p> Sufficiency of Indictment for Conspiracy to Defraud—Constitutional Law—Party Indicted for Fraud Cannot Be Compelled to Produce His Books in Evidence Against Himself—Competency of Evidence to Show Conspiracy to Defraud—Summary of Documentary Evidence. </p> <p>An indictment charged that the defendants did unlawfully conspire and agree together by means of divers false pretenses and representations, and subtle means and devices to obtain goods and chattels of certain named persons and others and to cheat and defraud such persons, etc. Held, that this indictment is sufficient in law, and it is not necessary to specify the particular means by which the fraud was perpetrated.</p> <p>The constitutional provision that no man ought to be compelled to give evidence against himself in a criminal case, operates to prohibit the prosecution from compelling a man to produce in evidence his private books and papers for the purpose of establishing a criminal charge against him.</p> <p>The traversers, who had been partners in carrying on a business, were indicted for a conspiracy to defraud their creditors. Previously thereto receivers for the firm had been appointed by an equity Court, who took possession of the partnership books and papers. Held, that upon the trial of the indictment these books and papers are not admissible in evidence against the objection of the traversers, because under the Constítution no man can be compelled to give evidence against himself in a criminal case, and the books were not voluntarily given to the receivers, but were taken possession of under an order of Court, and the appointment of receivers did not contemplate a criminal prosecution.</p> <p>Upon an indictment for conspiracy to defraud, the evidence showed that the defendants were partners in business ; that the mother and sister of two of them and the wife of the bookkeeper of the firm kept shops in different parts of the city for the sale of goods ; that shortly before its failure the firm bought a quantity of goods on credit and that a large part thereof was carried away from the firm’s store before the appointment of the receivers. Held,, that evidence is admissible to show that these goods were taken to the shops kept by the women relatives of the defendants, and were there offered for sale in some instances at a price below cost, since it is pertinent to ascertain whether the goods removed from defendants’ store were sold in good faith or were merely moved to other stores controlled by them, or sold at nominal prices, in pursuance of the fraud charged.</p> <p>Upon the trial of this indictment all the papers in the equity case relating to the appointment, of receivers and the claims of creditors filed therein were admitted in evidence without objection. Held, that a witness, who was counsel for the receivers, may testify that a paper produced in. evidence is a correct summary of the claims proved in the equity case, as tending to establish the amount of the indebtedness thereby indicated.</p> <p>Where partners have been indicted for conspiracy to defraud their creditors, a statement made by a partner to a mercantile agency concerning the firm’s financial condition is not admissible in evidence for the prosecution without proof that the statement was made with intent to use the mercantile agency as an instrument in perpetrating the fraud charged.</p> <p>When the fact offered to be proved is the general result, reached by calculation, of numerous documents already in evidence, a witness who has examined them may state the result of such examination.</p>

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

J., and Lloyd, J.) Caveator's ist Prayer.—That if the jury find from the evidence that the testator, Benjamin I. Jones, for many years after his marriage exhibited no unusual signs of mental disorder, beyond high temper, and further that afterwards as far back as ten to fifteen years or more, he began to show signs of unusual mental disturbance, possessed of delusions that his children were robbing him, and that his wife was aiding and abetting them, and further find that…

<p>Mortgage Sales— When and by Whom Exceptions May be Filed—Exceptions Need Not be Signed by a Solicitor—Resale at Risk of First Purchaser—Ratification of Sale While Exceptions Pending.</p> <p>A person interested in property sold under a power of sale in a mortgage has a right to file exceptions to the sale in his own name, without having the same signed by a solicitor of the Court.</p> <p>When a mortgage sale is reported to a Court of equity for ratification as directed by statute, exceptions thereto may be filed at any time before the sale is ratified, although after the day fixed in the order of ratification nisi for showing cause against the sale.</p> <p>A party interested in property sold under a mortgage, who has voluntarily withdrawn exceptions filed by him to the ratification of the sale, has the right to renew his objections by subsequently filing exceptions at any time before the final ratification of the sale.</p> <p>When the purchaser of property at a mortgage sale makes default in payment and the property is resold, under an order of Court, at his risk, he is entitled to any excess in the proceeds at the resale just as he is responsible for any deficiency, and being therefore a person interested in the property is entitled to file exceptions to the resale as reported.</p> <p>And upon such resale the original mortgagor has no interest in the property and is not entitled to except to the ratification of the sale.</p> <p>Property mortgaged by Fred. G. A. was sold under foreclosure to George C. A., and upon his default in making payment, a resale was ordered to be made at his risk. Upon the resale Fred. G. A. excepted to its ratification and Geo. C. A. also filed exceptions. These latter were withdrawn. The exceptions of Fred. G. A. were overruled, but the sale was not then ratified. Subsequently and before the ratification the exceptions of Geo. C. A. were again tendered to the Clerk of the Court, who at first refused to accept them on the ground that they were not signed by a solicitor, but afterwards, and on the same day on which the sale was ratified, they were accepted by the Clerk. Upon a petition filed within thirty days to vacate the order of ratification. Held,</p> <p>ist. That the petitioner and exceptant is not precluded from renewing his objections to the sale merely because he had once withdrawn them after being filed, and his rights could not be passed upon under the exceptions filed by Fred. G. A.</p> <p>2nd. That the order of ratification should be annulled so that the questions raised in the exceptions offered by the petitioner before the order was passed may be adjudicated.</p>

<p> Criminal Law—Verdict of Guilty Upon Some Counts of Indictment Without Negativing Other Counts—Sealed Verdicts in Criminal Cases—Correction of Verdict. </p> <p>The first and second counts of an indictment charged the traverser with the crime of receiving stolen goods knowing them to be stolen, and the third and fourth counts charged him with being accessory before the fact to the larceny. The verdict of the jury found the traverser guilty on the first and second counts and was silent as to the third and fourth. Held, that the verdict is valid and is equivalent to a verdict of not guilty upon the third and fourth counts.</p> <p>Except in capital cases and those punishable by imprisonment for life, the Court has the power to allow the jury after reaching an agreement to sign and seal their verdict and then separate, a verdict being after-wards rendered in open Court in accordance with the verdict so signed and sealed.</p> <p>The right to amend or correct a sealed verdict should be limited to such correction or amendment as will make the oral verdict given in Court correspond substantially with the sealed verdict.</p> <p>Upon the trial of an indictment charging the traverser in the first and second counts with receiving stolen goods and in the third and fourth counts charging him with being an accessory before the fact to the larceny, the jury rendered a sealed verdict of guilty on the first and second counts but made no mention of the third and fourth. When this verdict was opened by the trial Judge and before the same was recorded, the Judge, against the objection of the traverser, allowed the jury to add to their sealed verdict the words “not guilty on the third and fourth counts,” Held, that the verdict was valid before the words were added to it and was not rendered bad by the amendment, since such . amendment did not add anything to the legal effect of the sealed verdict.</p> <p>The case of State v. Sutton, 4 Gill, 494, holding that upon an indictment other than for murder containing more than one count, a verdict of guilty upon some counts without negativing the others is bad, overruled.</p>

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

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

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

J.), by which it was directed that the funds representing the real and personal estate of the testatrix be distributed among such of the children of the brothers and sisters of the testatrix as were surviving at her death by a per stirpes distribution.

<p> Construction of a Will—After Acquired Real Estate Not Disposed of by Will—Disinheriting Heir—Introductory Clause of Will. </p> <p>G. L. by her will gave to her brother for life, with remainder over, “all the land belonging to me being my part which I obtained from my father, and adjoining the lands ” of certain parties. There was no residuary clause in the will and its introductory clause professed to dispose of all the estate of the testatrix. Her brother’s will made on the same day, devised his land to her. He died during her life and she acquired the land belonging to him as the sole devisee thereof. Upon her death the land so acquired was claimed by the remainder-man named in her will as above set forth. Code, Art. 93, sec. 321, provides that every last will shall pass all the real estate which the testator had at the time of his death. Held,</p> <p>1st. That Code, Art. 93, sec. 321, does not operate to pass under a will all the real estate of a testator when that was not his intention, and his heir at law will not be disinherited unless the estate is given to some one else.</p> <p>2nd. That in construing a will resort may be had to the introductory clause only when the intention of the testator does not clearly appear from the words used in the clause under consideration.</p> <p>3rd. That the language of the will in this case clearly shows that it was the intention of the testatrix to devise only the land she owned when the will was made and which she described as having been obtained from her father, and that therefore the real estate subsequently devised to her does not.pass under her will and she died intestate thereof.</p>

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

<p> Decision on Former Appeal Between Same Parties Binding on This Appeal—Rights of Bondholders of Chesapeake and Ohio Canal Co. </p> <p>It was held on former appeals in this case that the trustees for the mortgage bondholders of the Chesapeake and Ohio Canal Co., possessing a lien only on the tplls and revenues of the canal, were entitled to operate the canal until it should appear that no revenue could be derived therefrom applicable to the payment of the bonded indebtedness and that not until then could the canal be sold under another mortgage to the State upon the corpus of the property. In this case the trustees for said bondholders ask for an extension of time for further operation of the canal, and show that it is capable of producing revenue applicable to the payment of their claims. Held, that the decision on the former appeal holding that no sale of the property should be ordered until it clearly appears that the liens of the bondholders are valueless is conclusive of this case and that the trustees should be allowed to continue the operation of the canal for a further period of four years upon the terms formerly imposed.</p>

) The plaintiff’s first prayer, which was granted, declared that if it should be found as facts that the plaintiff, as sheriff, under the instruction of the defendant, levied the writ of fi. fa. on the growing crops of the execution debtor, Wilson, the defendant agreeing that he would- order and arrange for the hands and teams to gather the crop of peaches, and that before the day fixed by defendant for gathering the peaches, the defendant instructed plaintiff to release the…

2, of Baltimore City (Sharp, J.), dismissing the bill of complaint. The prayer of the bill was : 1st. That a writ of injunction issue against all the defendants prohibiting them from causing, allowing or effecting a transfer upon the books of the defendant corporation of the aforesaid 20 shares of stock to the name of William W. Boyce as owner. 2nd.

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

<p> Negligence—Sufficiency of Evidence—Inexperienced Workman Directed to Assist in Launching a Boat. </p> <p>Plaintiff was employed as a general laborer at defendant’s shipyard, but on the day the injury was caused for which this action was brought defendant directed him to assist in launching a scow. The deck of the scow was encumbered with lumber and while plaintiff was engaged with other men in paying out a rope which regulated the movement his foot was caught in a kink or coil and his leg was crushed against a post around which the rope was passed. There was evidence that the place in which plaintiff was directed to work was dangerous because there was not sufficient room for handling the rope, and also that the - work itself was such as to be dangerous to a person unacquainted with it. No warning of the danger was given to plaintiff and he had not previously assisted in launching boats. Held, that the evidence justified the submission to the jury of the question whether the defendant was not negligent in failing to provide a safe place for plaintiff’s work, or in not giving him warning of the danger involved in the work ordered to be done.</p>

<p> Appeal by Plaintiff and Defendant fointly in an Equity Cause—Party Appearing in Different Capacities in Suit—French Spoliation Claim. </p> <p>A fund was brought into a Court of equity for distribution under a bill filed by the plaintiff in her individual capacity and also as administratrix of two parties entitled to shares of the fund. The defendants were other persons entitled to parts of the fund or claiming to be entitled. From the final decree adjudicating the rights of the claimants and making distribution an appeal was taken jointly by the plaintiff in her individual capacity and as administratrix of one party and by one of the defendants, leaving plaintiff as administratrix of another party to appear as an appellee. Upon motion to dismiss the appeal. Held,</p> <p>ist. That under Code, Art. 5, sec. 24, which provides that an appeal shall be allowed from any final decree by any one or more of the parties to the suit with or without the joinder of plaintiffs or co-defendants, the appeal was properly taken by the-plaintiff and one of the defendants.</p> <p>2nd. Thát since the plaintiff appeared in her individual right and also as administratrix of two different parties, she is entitled to appeal in one or more of these capacities without uniting them all in the appeal.</p> <p>The decision in Patterson v. Buchanan, 92 Md. 334, determining the rights of the parties to a fund paid under an Act of Congress relating to French Spoliation Claims re-affirmed.</p>

<p>Provision Providing for Avoidance of Policy if Property be Levied Upon or Taken Into Possession Under Legal Proceedings— Temporary Appointment of Receiver for a Farm not a Levy— Waiver of Proof of Loss—Insurer Estopped by Misleading Conduct From Setting up as Defense That Proof of Loss Was not Made According to Policy—Parties to Bill in Equity to Discover and Enforce Lost Policy.</p> <p>A policy of fire insurance on certain farm buildings provided that the insurance “shall cease at and from the time the property hereby insured shall be levied on or taken into possession or custody under any proceeding in law or equity.” By an endorsement on the policy the loss was made payable to a mortgagee. The mortgage debt being overdue, the mortgagee filed a bill to forclose, and before sale a petition was filed in the case setting forth that it was for the interest of all parties that the farm should be cultivated for the ensuing season, and upon this petition an order was passed appointing a receiver to rent the farm to the tenant who was then occupying it, which was accordingly done. The dwelling house on the farm having been thereafter destroyed by fire, the insurer alleged that the policy was avoided under the'above-mentioned clause. Held, that the terms, “levied on or taken into possession and custody,” as used in this clause, mean that some step in a proceeding has been taken which, if perfected, will take from the insured, or affect him in, his title and possession, and do not contemplate such a taking into custody as resulted from the appointment of the receiver in this case, which could not have any ultimate effect upon the title and posession of the insured and was designed only to make temporary provision for the care of the property.</p> <p>A provision of the policy was that “said company shall in no case be deemed to have waived a full, literal and strict compliance with, and performance of, each arid every of the terms, provisions, conditions and stipulations in this policy contained and hereto annexed, to be performed and observed by and on the part of the insured * * unless such waiver be expressed and manifested in writing under the signatures of the president and secretary of said company.” Held, that this stipulation refers to the conditions which go to the making of the contract of insurance, and not to provisions relating to the proof of loss which are to be performed in the event of a loss, and consequently this stipulation does not operate to prevent the company from making a waiver of proof of loss by conduct or otherwise than by an express agreement.</p> <p>One of the conditions in a policy of insurance on certain farm buildings, the loss being made payable to the mortgagee, provided that persons suffering a loss must give notice thereof in writing to the secretary of the company and within thirty days deliver a copy of the written part of the policy, accompanied with an affidavit as to the circumstances of the loss, etc.' Another condition was that in case loss under the policy is made payable to a third party, then the assured party and not the- assignee or third party must make the requisite proofs of loss. One of the buildings covered by the insurance was destroyed by fire and at that time the policy was lost or mislaid. The plaintiff herein, the mortgagee, notified defendant’s agent of the loss on the day of its occurrence, August, 8th. The agents replied on the next day that they had reported the loss to the company and that the claim of the mortgagee would be preferred to that of the assured. Subsequently defendant’s general agent promised to examine the premises. On August 14th, the defendant company was directly notified by letter of the fire. On August 25th, in an interview between plaintiff’s attorney and defendant’s general agent the latter referred the attorney to the policy and said that the claim must be made within six months, but did not offer a copy of the policy which he knew was lost. On August 27th, plaintiff’s attorney wrote to the defendant setting forth the nature of his claim as mortgagee, the number of the policy and alleging a total loss.' The defendant answered saying that they had no such numbered policy in force and if it had it would be obligatory for the assured party to make the proofs of loss. On September 27th, plaintiff sent to the company a sworn statement of his loss and in October the company denied its liability under the policy and sent a printed form thereof. Held, that the statement of defendant’s agent that plaintiff’s claim could be made within six months when plaintiff did not have the policy and defendant did not offer to furnish a copy was misleading, and the retention of plaintiff’s proofs of loss so that he could . not make affidavit to them until after the expiration of thirty days to- ■ -gether with the misleading and temporizing answers of the defendant to the plaintiff’s letters, constitute such conduct on the part of the de- • ifendant as estops it from setting up the defense that the proofs of loss were not furnished in strict compliance with the terms of the policy.</p> <p>A policy of fire insurance was made payable to the mortgagee, without naming him. When a loss occurred the policy could not be found and the mortgagee filed a bill in equity for a discovery of the terms of the ' policy and' the payment of the loss. Defendant’s answer alleged that ■ the name of the plaintiff nowhere occurs in the policy issued by it and that there is no privity of contract between it and the plaintiff. Held, that the mortgagor, the assured, was not a necessary party to the bill; that the mortgagee had a right to institute the suit and the fact that he was not expressly named in the endorsement on the policy made by defendant’s agent does not affect his rights.</p>

<p> Specific Performance—Enforcement in Equity of Oral Agreement Relating to Land Mortgaged by Plaintiff, Bought by Defendant at Mortgage Sale and Remaining in Possession of Plaintiff. </p> <p>A bill in equity alleged that the plaintiff had mortgaged certain land to a third party and the defendant, the attorney named in the mortgage, being about to sell the property upon a default, it was orally agreed between plaintiff and defendant that the defendant should purchase the property at the sale, and hold the same in trust for the plaintiff, and upon the condition that whenever plaintiff should pay to the defendant the amount paid by the latter for the property together with another sum owing by plaintiff to the defendant, then defendant would convey said land to the plaintiff, and that it was also agreed that plaintiff should remain in possession of the land and pay to the defendant in lieu of interest the value of one-half of the crops raised on the land. The bill further charged that at the sale under the mortgage it was generally known that the defendant was buying the property for the plaintiff and competition was thereby prevented ; that after the sale to defendant, the plaintiff remained in possession of the land under said agreement which was thereafter recognized by the defendant as being in force; that subsequently plaintiff tendered to defendant the amount due to him and requested a conveyance of the property which defendant refused to make, but conveyed the land to another defendant who had full knowledge of said agreement. The bill prayed for a decree vacating the last-named deed and permitting the plaintiff to redeem the property according to the agreement. Held, upon demurrer, that these allegations, if established by the evidence, entitle the plaintiff to the relief asked for, and that it makes no difference that a definite time for the performance of the agreement by the plaintiff was not fixed, since a reasonable time is implied in law, and the defendant, shortly before the filing of the bill, acknowledged the existence of plaintiff’s right in the premises.</p>

), where there was a judgment on verdict for the plaintiff for $2,500. At the trial the defendant offered the following prayers: 1st. That there is no legally sufficient evidence in the case that the injury to the plaintiff was directly caused by the negligence of the defendant corporation and their verdict must therefore be for the defendant. {Refused.) v 2nd.

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

<p> Elections and Voters—Application for Mandamus to Compel Judges of Election to Assist Eliterate Voter—Repeal of Law Providing for Assistance—Removal of Case from Court of Law to Equity. </p> <p>The Act of 1901, ch. 2, enacted that voters not disabled by blindness or physical injury from marking their ballots shall not be entitled to assistance in so doing, and repealed that part of the Act of 1896, ch. 202, which had provided that voters who had been previously registered as unable to read or write should be entitled to the help of the Ballot Clerks in marking their ballots. The petitioner in this case asked for a writ of mandamus to compel the Judges of Election and the Ballot Clerks in the precinct in which he was registered to take his affidavit that he could not read or write and give him assistance to enable him to mark his ballot as an illiterate voter at the election to be held on November 5th, 1901, or at any other election to be held during the ensuing year. This petition was dismissed by the lower Court on November 25th, after the election referred to. Held, that the writ was properly refused not only because it would have been nugatory and of no avail if issued, but also because, even if the Act of 1901 had not been passed, there was and had been no statute which authorized or required the Judges of Election to take petitioner’s affidavit when he offered to . vote that he was illiterate and to 'assist him in marking his ballot, or which authorized the clerks to mark the ballot unless the person asking for such assistance had been previously registered as an illiterate voter.</p> <p>Code, Art. 26, sec. 42, authorizes the removal of cases from a Court of. law to a Court of equity and vice versa in the discretion of the Judge presiding in the Court in which the suit is pending. Held, that no appeal lies from a refusal of a trial Court of law to direct the removal of the case to a Court of equity.</p>

<p>Elections and Voters—Mandamus to Prohibit Supervisors of Election from Printing on Ballot Name of Candidate Nominated by Alleged Insufficient Certificate— Writ Not to be Issued When Nugatory—Dis cretion op Board of Supervisors.</p> <p>Code, Art. 33, secs. 38, 424 provides for the nomination of candidates to be voted for at an election and the printing of their names upon the official ballot by means of a certificate of nomination signed by a designated number of voters according to the office to be filled, as well as by regular party conventions. It is provided, among other things, that each signer shall append to his signature his residence, occupation and place of business, and that such certificate of nomination shall be filed with the Board of Supervisors of Election not less than ten days before the day of election. The petition in this case filed by a taxpayer of Prince George’s County and the candidate of the Republican party for County Commissioner, set forth that a certificate of nomination of a certain person as a “Reform Republican” candidate for the office of County Commissioner, to be voted for at an election to be held on November 5th, 1901, was handed to one of the Supervisors of Election on October 25th, 1901, and on the next day—October 26th—was produced at a meeting of the Board of Supervisors ; that the certificate was not signed in the manner required by law by the requisite number of voters ; that the party designation of the person so pretended to be nominated was misleading, etc., and that the certificate was not filed within the time required by law. The petition prayed for a writ of mandamus commanding the Board of Supervisors to treat said certificate of nomination as void and to omit the name of the nominee therein from the official ballot to be used at the election on November 5th. On October 30th, a demurrer to the petition was sustained and the same was dismissed. Upon appeal, Held,</p> <p>1st. That even if the judgment of the lower Court was erroneous, it would now be futile and nugatory to revesre the same and order a writ of mandamus to be issued.</p> <p>2nd. That apart from this consideration, the petition does not state a case justifying the issue of mandamus, since the Board of Supervisors in passing upon the sufficiency of a certificate of nomination does not exercise a clear ministerial function but, according to the allegations of the petition itself, the Board makes inquiry into, and passes judgment upon, questions of law and fact, and since the exercise of such a discretionary power by the Board cannot be controlled by mandamus the action of the trial Court in dismissing the petition was right.</p> <p>3rd. That the Court will not determine in this proceeding whether the certificate of nomination referred to was legally sufficient or not, since it would in so doing pass upon the rights-of parties who are not before the Court, but the petitioner must be remitted to other proceedings to contest the election, if the result thereof was adverse to him and he was injured by illegal action of the Board.</p>

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

<p> Mistake of Law—Property Voluntarily Transferred to a • Claimant Thereof Under a Mistake of Law Common to Both Parties Cannot be Recovered Back—Admissions as to Advancement Made in Equity Case by a Distributee of the Estate—Estoppel. </p> <p>When a part}' pays money or transfers property under a claim of right thereto made by another, with knowledge of the facts, but under a mistake of law, the money or property so paid or delivered cannot be recovered back, although the mistake was mutual and the claim made was not legally enforceable.</p> <p>A testator directed that the residue of his estate, including advances made to his children, should be distributed equally among them. Appellant, one of testator’s sons, was charged on the books of the testator with $35,000 including shares of stock in a certain corporation valued by the testator at $5,000 and stated on his books to be a loan. The executor of the estate claimed that these shares of stock belonged to the estate. At that time both the executor and the appellant were of the opinion that the charges on the testator’s books against his children were debts due by them, but it was subsequently adjudicated in equity that according to the true intent of the will they were to be put on the footing of advancements, although not technically such. Before this decision was made appellant had transferred the shares of stock to the executor and the charge against him was then reduced from $35,000 to $30,000, and he had admitted in an answer in the equity case that the shares were held by the executor for general distribution. The amount distributable to each child was about $30,000, and in this case the appellant now claims that said shares of stock do not belong to the estate, but were advanced by the testator to him, the effect of which claim would be to increase the share of the estate distributable to him. The evidence showed that the stock was originally transferred to the appellant to enable him to become a director in the company. Held, that the appellant cannot now annul his transfer of the shares to the executor and repudiate his admissions that they belonged to the testator’s estate, although when that was done he erroneously thought that the advances referred to in the will were debts due by him ; that this was a mistake of law from which he cannot be relieved, and that moreover the shares were never given to him absolutely.</p>

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

<p> Allegations of Petition for Mandamus Must be Proved—Sheriffs—Constitutional Law—Legislature May Take from Sheriff Custody of fail—Appointment of Board of Visitors of fail by fudges a Nonfudicial Function and Board so Appointed Not Entitled to Mandamus. </p> <p>Before issuing the prerogative writ of mandamus the Court must be satisfied that the allegations of the petition therefor are true, and a demurrer to the petition does not establish the facts alleged. But when the trial Court' states in its opinion that at the hearing the questions of fact at issue were waived or admitted, it will be considered that the allegations of the petition were established. . • ■</p> <p>Constitution, Art. 4, sec. 44, provides for the election of a Sheriff in each county of the State, and directs that he shall “exercise such powers and perform such duties as now are or may hereafter.be fixed by law.’.’ At common law the Sheriffs were entitled to the custody of the jails and the care of prisoners therein. Held, that under the Constitution the Legislature has the power to change or abridge the rights and duties of a- Sheriff, who is a mere ministerial officer, and. that an Act taking from a Sheriff the control and supervision of a county jail and vesting the same in a properly appointed Board of Visitors would be constitutional.</p> <p>The Act of 1901, ch. 15, provided that the control and supervisión of the jail of Anne Arundel County and of the prisoners therein should! be taken from the Sheriff of the county and committed to a Board of Visitors who should appoint a warden, etc. The Act provided for the appointment of three visitors by the Judges of the Circuit, who together with the State’s Attorney for the county should appoint a physician andl that these five persons should constitute the board. Held, that the appointment of Visitors by the Judges is a non-judicial function, andl the provision of the Act requiring such appointment to be made is unconstitutional because in violation of the Declaration of Rights, Art. 8, ordaining that no person exercising the functions of a legislative, executive or judicial department shall assume or discharge functions of another department, and that consequently a Board of Visitors appointed by the Judges of the Circuit under the Act of 1901, is not entitled to a mandamus compelling the Sheriff to surrender to them the custody of the jail.</p>

<p> Carriers of Passengers—Coupon Detached From Book of Tickets By Holder Not Valid When Contract Provides for Detachment by Conductor—Passenger Offering Such Detached Coupon and Refusing to Exhibit Book May be Ejected Without Second Dematidfor Fare. </p> <p>A condition printed on a reduced rate railway ticket to the effect that a coupon affixed thereto shall be invalid, unless detached by the conductor is a reasonable regulation; an attempt to use a previously detached coupon and a refusal to exhibit the book from which it had been taken, forfeits the right of the. holder to travel on the car, and unless he offers to pay the fare he may be lawfully ejected.</p> <p>A book of tickets issued by an Electric Railway Company provided on its face that each undetached coupon entitled the purchaser or member of his family to travel over certain lines and that the coupons would not be good unless detached by the conductor. Plaintiff boarded a car of the company and in response to a demand for his fare offered to the conductor a coupon which he had previously detached from such a book of tickets, the book itself not being then in his possession. The conductor received the coupon and rang up the fare, but immediately required the plaintiff to show the book. Plaintiff replied that he could not show it and upon his repeated refusal so to do, the conductor put him off the car. In an action to recover damages for such expulsion. Held,</p> <p>xst. That under the contract embodied in the ticket plaintiff had no right to travel on a detached coupon, and it made no difference that the conductor rang up the fare before requiring the book to be exhibited.</p> <p>2nd. That upon plaintiff’s failure to produce the book of tickets he was under the legal obligation to pay the fare in money, and it was not necessary for the conductor to make a second demand for plaintiff’s fare before ejecting him from the car, since the offer of a worthless coupon was not a compliance with the original demand for the fare.</p>

), where there was a verdict for plaintiff for $500. The defendant filed the following pleas : 1. For a first plea to the plaintiff’s amended declaration filed the 15 th day of March, 1901, the defendant says: It did not commit the wrong alleged. 2. And for a second plea to the plaintiff’s said amended declaration, the defendant says that the cause of action therein mentioned did not accrue within three years before the bringing of this suit. 3.

<p> Replevin by Justice of the Peace—Fictitious Appraisement of the Property at Less Than its Value in Order to Give Jurisdiction to Magistrate—Motion to Quash Writ of Replevin—Appeal From Circuit Court in Magistrate Case. </p> <p>Code, Art. 52, sec. 6, gives to Justices of the Peace jurisdiction in actions of replevin when the value of the thing in controversy does not exceed fioo which value shall be ascertained by appraisers summoned and sworn. A Justice of the Peace issued a writ of replevin for a horse which was returned by the constable with an appraisement in which the horse was valued at $90. Upon motion by the defendant to quash the writ he offered evidence to show that the plaintiff and the appraisers as well as the magistrate knew that the horse was worth more than $100 and that the appraisement was placed at $90 solely for the purpose of giving to the justice jurisdiction to try the case. Held, that this evidence was admissible and if found to be true, the writ should be quashed.</p> <p>An appeal lies to this Court from the Circuit Court on appeal to it from a Justice of the Peace, when the judgment of the Circuit Court involves the question of the jurisdiction of the justice.</p>

<p>Land Office—Patent for Vacant Land—What Constitutes a Caveat— When Land Commissioner Acts Judicially—Appeal from Commissioner.</p> <p>When a patent for land alleged to be vacant has been issued under the great seal in the manner prescribed by statute, and no caveat was previously filed in the Land Office to the issue of such patent, the authority of the Land Commissioner is then at an end and the grantee in the patent is enabled to contend at law for the land thereby conveyed.</p> <p>A caveat against the issue of a patent need not be in any special form, but it must so describe or identify the tract of land in question as to constitute notice to the Land Commissioner of the particular tract intended to be affected by the caveat, and enable him in consequence of the notice to withhold a patent which would otherwise be granted.</p> <p>L., who was the attorney for the appellant, wrote in his own capacity a a letter to the Land Commissioner saying “ I hereby wish to make protest against the issuance of a patent to J. M. M. for land on Swan Creek, Harford Co.” Held, that this letter cannot be construed as a caveat to the issue of a patent for land on Swan Creek to V. B.</p> <p>An oral notice to the Land Commissioner not to issue a patent is not a caveat since the Land Office is a Court of record and its proceedings cannot rest in parol.</p> <p>Code, Art. 54, requires the issue of a patent for land in all cases when the formalities of the law have been complied with and no caveat has been entered, and it is also provided that when there is a dispute concerning the issue of a patent, the Land Commissioner shall hear and determine the question. Code, Art. 5, sec. 79, gives a right of appeal to all parties aggrieved by any judgment of the Land Commissioner. In this case an appeal was taken from the action of the Commissioner in issuing a patent for alleged vacant land when no caveat had been filed against the issue. • Held,</p> <p>1st. That in certifying a patent as proper to be issued in an undisputed case the Commissioner acts ministerially, and that he acts judicially only in determining a disputed case.</p> <p>2nd. That since no caveat had been entered so as to commence a judicial proceeding, the appellant is not a party entitled to appeal.</p> <p>3rd. That although the evidence in certain cases heretofore in this Court tended to show that the appellant and those under whom he claims had been in possession for more than fifty years of the land covered by the</p> <p>' patent in question, yet that claim was not established in those cases,' which were not before the Commissioner, and it will be permissible for the appellant to show in ejectment proceedings that he had such possession of the land as will bar any right under the patent issued in this case.</p>

<p> Elections and. Voters—Cross-mark 071 Ballots Must Be Wholly Within the Square—Ballots Not Folded as Directed by Statute to be Rejected—Ballots ContaÍ7iÍ7ig Votes for too Many Ca7ididates Bivalid— Sufficiency of Petition to Contest Election. </p> <p>Code, Art. 33, sec. 49-51, as amended by the Act of 1901, ch. 2, provide for the form and arrangement of the ballot to be used at elections and prescribe that ballots shall be so printed as to give to each voter a clear opportunity to designate by a cross CXI in a square at the right of the name of each candidate his choice of candidates ; and that the voter shall prepare his ballot by marking with an indelible pencil after the name of every person for whom he intends to vote and to the right thereof in the blank space provided therefor a cross—for example (X). Section 66 provides that the Judges of Election must reject all ballots upon which there shall be any mark other than the cross-mark in a square opposite to the names of the candidates. Held, that the voter must place his cross-mark wholly within the square, and that if the mark be partly without the square no discretion is given to the Judges of Election to determine that it is substantially written within the square or to ascertain the intention of the voter otherwise than by his exact compliance with the provisions of the statute, and since these provisions are mandatory, a ballot upon which the cross-mark of the voter extends beyond the square must be rejected.</p> <p>Section 52 of said Article provides that the ballots shall be so folded in marked creases that no part of the marks or printing thereon except that upon the back and outside shall be visible, and that the voter shall fold his ballot without displaying the marks thereon and in the same way it was folded when received by him so that the initials of the judge from whom he received it and the name and number on the coupon but nothing else thereon may be seen. Section 66 provides that the Judges of Election must reject all ballots deceitfully folded together. Held, that ballots not folded in the same way they were when received by the voters are illegally and therefore deceitfully folded and must be rejected in the count, although so folded as not to display the marks thereon.</p> <p>Under the clear language of Section 66 of said Article, ballots on which voters have marked more names than there were persons to be elected to certain offices must be rejected altogether and cannot be counted in part for other offices.</p> <p>A petition alleged that although another person was returned as having been elected to a certain office yet the petitioner had in fact received a plurality of the lawful ballots cast at the election for that office; that between five hundred and a thousand legal ballots cast for the petitioner were not counted for him because the Judges of Election rejected the same for certain designated but insufficient reasons, and that if said ballots had been counted for petitioner the result would have been different. Held, that the averments of the petition are sufficiently definite and precise to put in issue the accuracy of the return of the Election Judges.</p>

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

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

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

<p>Appeal from order of the Baltimore City Court (Stock-bridge, J.)</p>

<p>Appeal from the Baltimore City Court (Stockbridge, Ji)</p>

2, of Baltimore City (Dennis, J.), directing specific performance of the contract to purchase the land in question. The “ Trustees of the Samuel Ready Asylum for Female Orphans ” were incorporated by the Act of 1864, ch. 102, and the corporate name was changed by the Act of 1894, ch. 135, to “The Trustees of the Samuel Ready School for Female Orphans.” Mr. Ready died in 1871, leaving the will referred to in the opinion of the Court.

<p> Police Force of Baltimore City—A de Facto Officer on the Force When Act of igoo, ch. 42s, Was Passed Cannot be Removed on Ground of Irregularity of Appointment. </p> <p>The Acts of 1900, ch. 16 and ch. 425, regulating the police force in Baltimore City provide that all appointments to, and promotions in, that force shall be made by the Police Commissioners from graded lists furnished to them by the Board of Examiners; that all police officers other than surgeons, etc., shall be retained on the force during good behavior and may be removed only after written charges and a trial, and it is also provided that these Acts should not be construed to legislate out of office any police officer then on the force. In 1897, the petitioner in this case was appointed a Captain of Police and continued to act as such until September 13th, 1901, when he was removed by the Board of Police Commissioners, without charges, and upon the ground that his original appointment was void because he was then ineligible and because one of the Commissioners voting for him had sent in his vote by mail. Upon a petition for a mandamus to compel his restoration to the office of captain of the permanent police force. Held, that whether the original appointment of the petitioner was irregular or not, he was at all events a de facto officer, and under the Acts of 1900, being then on the force, he was entitled to retain the office and was protected from removal except upon charges and a trial, and that consequently the writ of mandamus asked for should be issued.</p>