Volume 95 — Maryland Reports

<p> Mortgage Bonds—Payment or Sale of Coupons—Rights of Holders of Detached Coupons. </p> <p>When the holders of coupon bonds secured by a mortgage present to the mortgagor the interest coupons for payment and receive the checks of a third party therefor, such coupons will be treated as paid and cancelled so far as the bonds and mortgage are concerned and the party who paid the coupons is not entitled to the security of the mortgage as against the bondholders, unless it be shown that the holders intended to sell the coupons.</p> <p>The holders of certain bonds issued by a corporation and secured by mortgage presented the overdue interest coupons for payment at the office of the company and received thereior checks signed by a firm who were the fiscal agents of the corporation. Some of these holders expressly notified the company that they did not sell the coupons but presented them for payment and none of the holders intended to sell. The bonds from which these coupons were detached were subsequently bought by the appellant who had no notice that the detached coupons had not been paid. Upon sale under the mortgage the proceeds were insufficient to pay the bonds in full. The appellee as owner of the coupons so paid, by assignment from said fiscal agents, claimed the right to share in the distribution of the proceeds of sale equally with the holders of the bonds. Held., that the coupons had not been sold by the original holders, since they did not intend to make a sale when they presented the coupons for payment, and that the party paying them and his assignee are not entitled to share with the bondholders in the distribution of the proceeds of sale.</p>

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

<p> False Statement in Trade-Mark Disentitles the Owner to Equitable Remedies For Infringement. </p> <p>Equity will not restrain the infringement of a trade-mark when it contains a false statement designed to deceive the public.</p> <p>Consequently, when the label on a bottle of alleged medicine contains the statement that it is “the great small pox cure” and “cures the worst cases without marking, ” and that statement is shown to be false, the owner of such trade-mark will be denied any relief not only against persons infringing the same but against one who sells the medicine made according to plaintiff’s receipt, but without using the entire label.</p>

<p> Negligence—Injury to Boy on Roof of House From Electric Light Wire—Contributory Negligence—Imputation of Negligence to Infant. </p> <p>Plaintiff, a boy six years of age, was taken by his mother to the roof of their house at night to look into an adjoining theatre. Defendant’s electric light wire ran about eighteen inches from the cornice. When some of the persons there present touched this wire plaintiff’s mother warned them of the danger of doing so. The wire was brought within reach of the plaintiff, who touched it at an exposed point and was severely burned. The wire was in the same position when plaintiff’s family moved into the house. In an action to recover damages, Held,, that whether the defendant was negligent or notin maintaining the wire at a place where persons were not likely to come in contact with it at a time when charged, yet the plaintiff’s contributory negligence in touching the wire is such as to bar a recovery, if he was old enough to know better ; and if he was too young to know the dangerous nature of the wire, then his mother’s negligence in taking him to a place of danger must be imputed to him.</p>

<p> Auditor's Accounts—Res Adjudicata—Distribution of Trust Estate. </p> <p>A fund was bequeathed to a trustee with directions to pay the income to certain parties during their minority and to distribute the fund among them when the youngest should come of age. The trust was administered in a Court of equity. By certain auditor’s accounts, which were duly ratified after notice to the c. q. t., some of whom were then of age and others were represented by a guardian ad litem, the trustee was charged with a certain cash balance on hand of principal and was credited with an overpayment of income, the last amount being the same as the sum allowed him as commissions. Upon the death of this trustee, another one was appointed whose accounts took no notice of said debit and credit balances. Upon the distribution of the estate at the termination of the trust, the c. q. t. excepted to the payment to the executor of the deceased trustee of the sum allowed to him in the former accounts, upon the grounds that he had agreed to administer the trust without compensation; that there had been an adjustment of the matter between the parties in the lifetime of the deceased trustee, and that the claim in question was barred by laches. Held, that the evidence fails to establish these grounds of exception or to show that the auditor’s accounts were inaccurate, and that, since the same parties are the owners of both the principal and income, the two funds should in the final settlement be treated as one fund, and that the executor of the deceased .trustee is entitled to receive the difference between the debit and credit established in his favor by the auditor’s accounts.</p> <p>An order finally ratifying an auditor’s account is a decretal order and it constitutes an adjudication as to all matters of defense which were available against the account.</p>

<p>Surviving Husband Renouncing Interest in Wife’s Will Entitled to Statutory Share of Her Estate Clear of Costs in Caveat Proceeding— Appeal by Administrator.</p> <p>The Act of 1898, ch. 331, provides that a husband who survives his wife shall be entitled to the same interest in .her estate that a wife who survives her husband is entitled to in his estate. Under Code, Art. 93, . sec. 292, a widow who renounces the provision made for her in her husband’s will is entitled to one-third of his personal estate remaining after payment of debts. In this case a surviving husband renounced all interest under his wife’s will and claimed his statutory share of the estate. A caveat to the will was filed by other persons—the husband not being a party—which was successfully defended by the executor. Held, that the costs and counsel fees in the caveat proceedings should be paid wholly out of the estate passing under the will, and that the husband of the testatrix is entitled to his statutory share of her estate clear of such costs.</p> <p>An administrator pendente lite is not authorized to appeal from an order of the Orphans’ Court, directing the costs of a caveat proceeding to be paid out of the estate passing under the will and not in part from the share distributable to the husband of the testatrix who renounced the will.</p>

<p>Appeal from the Circuit Court for Washington County (Stake J.)</p> <p>Plaintiff's ist Prayer.—If the jury find that ice had accumulated in large quantities in the public footway, gutter and street on the south side of West Washington street between High and Foundry streets, in the city of Hagerstown, covering portions of said street and gutter in such a manner, as greatly to obstruct, inconvenience and endanger the public in walking across said West Washington street and along the said sidewalk, and if the jury further find that the said obstruction could have been removed, or the danger and inconvenience therefrom remedied by the use of proper care and diligence on the part of the defendant, or its proper agents appointed for that purpose; and if the jury further find from the evidence that the defendant and its proper agents, aforesaid, had notice, or might by care and diligence have obtained notice, of such obstruction by ice, as aforesaid, a sufficient time to have removed the same before the occurrence of the injury complained of, then it was the duty of the said defendant or its agents, to have removed the said obstruction in a reasonable time after notice thereof, or after they might have obtained notice thereof, by the use of ordinary care and diligence; and if the jury further find that the plaintiff while exercising ordinary care and diligence on his part received the injury complained of by falling on said obstruction by ice and that such injury occurred after the lapse of a sufficient time for the notice of such obstruction to the defendant, or its said agents, or from the period when the defendant or its agents might have obtained notice thereof, by the exercise of ordinary care and diligence, then the plaintiff is entitled to recover such damages by reason of his injury as the jury may think he has sustained under the circumstances. {Rejected.)</p>

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

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

<p> Appeal from Assessment of Property for Taxation—Record Insufficient to show Question of Law Decided Below. </p> <p>An appeal in matters relating to the assessment of property for taxation from the action of the assessors to the Baltimore City Court is provided for by Code Public Local Laws, Art. 4, sec. 170. It is provided that that Court shall have full power to decide the questions raised on such appeal, and an appeal lies from its decision to this Court. Members of the Baltimore Stock Exchange were assessed for taxation on their membership therein and appealed from the assessment to the City Court alleging that such membership is not property liable to taxation. That Court passed orders vacating the assessment upon the ground that the question involved had been decided by that Court in a previous case. Upon appeal to this Court the record did not set forth the facts upon which the judgments of the City Court were founded, nor did it contain any evidence to show what are the incidents of membership in the Stock Exchange. Held, that since the record fails to show what question of law was determined by the trial Court and discloses nothing as to which error can be assigned the judgments appealed against must be affirmed.</p>

<p> Criminal Law—Competency of Evidence to Prove Identification of Traverser at a Certain Place at Night. </p> <p>Upon the trial of an indictment for assault with intent to kill, a witness who had testified that he knew the county road where the assault took place and that at night the woods there made it very dark, was asked if he thought that a man standing on the west side of the road could recognize a man standing on the east side in the shade of the trees, on a moonlit night, and about twenty-five feet away from him. Held, that an objection to this question was properly sustained, first, because there is nothing in the record to show that the assault for which the traverser was indicted was made under the conditions set forth in the question, and secondly, because it does not appear that the witness had ever ascertained by actual experiment, under these conditions, whether or not he could identify a person at the place mentioned.</p> <p>Another witness in the case was asked to state whether from his knowledge of the locality and his experience in driving over the road by day and night he thought that a man standing on the west side of the road could recognize a colored man standing on the east side at a point about twenty-five feet distant on a moonlit night. The witness answered that it would be difficult under these conditions to distinguish the color of the man, but that his motions could be detected. Upon cross-examination tlie witness was asked whether if the moon was shining down the road and the man was not under the shadow of a tree he thought it possible for one who had known a man for ten or fifteen years to tell him at a distance of twenty-five feet. Held., that this question was proper, since the Court will not assume that there was nothing in the testimony offered by the State to warrant it, and that testimony is not in the record, and also because, being a question on cross-examination, it was proper as tending to test the correctness of the opinion expressed by the witness on his examination in chief.</p>

<p> Life Insurance—Policy Payable to a Beneficiary or Legal Representatives Creates Vested Right in the Beneficiary or His Executor—Estoppel—Insurable Interest—Endowment Policy. </p> <p>When a man takes out a policy of insurance on his life payable to his mother or her legal representatives, and she dies in the lifetime of the insured, the proceeds of the policy are payable to her executor or administrator and not to the legal representatives of the insured, since a policy of life insurance in favor of a designated beneficiary creates a vested right in such beneficiary which cannot be impaired by any act ot the insured or of the insurer without the consent of the beneficiary.</p> <p>The above-mentioned insured, after the death of his mother, wrote to the insurer requesting that the policy be changed so as to make the same payable to his heirs. This was not done and additional premiums were thereafter paid. In an action on the policy by the administrator of the insured, held, that the insurer is not estopped to deny the right of the plaintiff to maintain the action, since the company had no legal right to change the beneficiary of the policy ; and it makes no difference that the legal representatives of the beneficiary may have no insurable interest in the life, or that the insured was under no obligation to continue the payment of the premiums.</p> <p>The rule that the beneficiary designated.in a policy acquires a vested right f, at the time of the formation of the contract between the insurer and the insured is applied to endowment as well as to ordinary policies.</p>

) The case of The State v. C. A. Crandall, involving the same question as this case was argued with it and the judgment therein was reversed for the reasons assigned in this case.

<p> Sufficiency of an Indictment for Larceny of Money. </p> <p>Among the essential requisites of an indictment for larceny is a sufficient allegation of the ownership of the property stolen.</p> <p>In an indictment charging that the defendant stole “twenty-six dollars current money of the goods and chattels of one J. L.,” the words “goods and chattels” may be rejected as surplusage and then the indictment sufficiently alleges the ownership of the money by J. L.</p>

<p> Trading Stamps-- Gift Enterprise—Lottery—Police Power. </p> <p>The Act of 1898, ch. 207, prohibits the giving of a trading stamp or check by sellers of goods to the purchasers thereof which stamp may be presented to other parties than the seller and entitles the holder to receive therefor any gift or anything uncertain or unknown to the purchaser 01 the goods at the time of the purchase. Upon demurrer to an indictment for violation of the statute, held,</p> <p>1st. That since the transaction prohibited by the statute is in the nature of a lottery, the statute is a constitutional exercise of the police power.</p> <p>2nd. That if the stamp entitles the holder to something which is uncertain and unknown at the time of the purchase, it matters not whether the seller of the goods or some other person redeem it.</p> <p>3rd. That in so far as the statute prohibits the giving of a stamp to be redeemed at a place other than that where the sale is made, it is invalid, provided no element of chance is involved.</p>

<p>Construction of a Will—Erroneous Statement of Title to Property— Misdescription of Lot of Ground Devised—Marketable Title.</p> <p>The will oí a married woman bequeated all of her property to her husband for life with power to dispose of the same by his will among her next of kin. The estate of the testatrix did not embrace any landed property in Baltimore County, but her husband owned in his own right a fee-simple estate in three acres of land in said county lying on B. lane. The husband survived his wife and in his will after reciting that he held a life estate in certain property named in his wife’s will and in a lot of three acres on B. lane, he proceeded to devise and bequeath all the said property to a trustee to carry out the provisions of the will of his wife and then provided : “The residue and remainder of said property I give and bequeath to my nephew, W., together with my personal estate.” Upon a bill for the specific performance of a contract to purchase the three-acre lot. from an alienee of the residuary devisee, it was contended by the purchaser that the same did not pass under the will. Held,</p> <p>ist'. That the recital in the introductory clause of the will describing tes'tator’s estate in the lot as a life estate derived from his wife is a mistake and must be rejected in order to carry out his intention.</p> <p>2nd. That the lot in'question passed under the residuary clause of the will by which the testator intended to dispose of his own property after having in the preceding clauses exercised the power of appointment over his wife’s property conferred by her will.</p> <p>A testator was seised of a lot of three acres of land in Baltimore County lying on B. lane and of no other land there. In his will he devised a lot of three acres situated at the corner of B. lane and Rolling road. His lot was not, in fact, at the corner of that road. Held, that this misdescription did not defeat the devise, but that the testator intended to devise the particular lot owned by him lying on B. lane.</p>

<p>Bill in Equity for Discovery of Fire Insurance Policy Withheld by Mortgagee in Collusion With• Insurer and for Relief After Loss— Parties.</p> <p>A bill in equity charged that the plaintiff obtained a policy of fire insurance on certain property, which property was subsequently mortgaged to a building association and that the policy was assigned ■ to the association to secure it against loss with the assent of the Insurance Co., and also in trust for the plaintiff or the purchaser of the property ; that the property was sold under foreclosure and bought by the plaintiff; that a part of it was destroyed by fire after the sale and before final ratification thereof and notice of the loss given to the Insurance Co.; that the policy has since been withheld from plaintiff by the Building Association in collusion with the Insurance Co., with intent to defeat the remedy of the plaintiff against the Insurance Co.; that it was the duty of the Building Association to collect the loss under the policy as trustee for the plaintiff, but it neglected so to do and that both companies have refused to disclose to plaintiff the contents of the policy. The prayer of the bill was that the Building Association be required to produce the policy ; that both companies be required to bring the amount of. the loss under the policy into Court to be paid to the plaintiff, etc. The trial Court required the plaintiff to elect between an action at law against the Insurance Co., and the suit in "equity and the plaintiff elected to proceed at law. The Building Association demurred to the bill. Held. •</p> <p>xst. That the demurrer should be overruled and that the plaintiff is entitled to relief if the allegations of the bill be sustained by proof.</p> <p>2nd. That the Insurance Co., was a proper party to the suit and it was error to require the plaintiff to make said election between remedies.</p>

<p> Practice Act of Baltimore County—Entry of-Judgment for Want of Plea Duly Filed and Verified. </p> <p>The Act of 1894, ch.’ 631, relating to practice in actions at law in Baltimore County and the rules of the Circuit Court made in pursuance thereof provide that in any suit on a contract when the declaration is verified by affidavit and accompanied by the account sued on the plaintiff shall be entitled to judgment on the first day of the next term unless the defendant files a plea containing a good defense and verified by affidavit within fifteen days after the return day to which he was summoned. It is also provided that the Clerk shall file any plea offered if sworn to and that the sufficiency of such plea shall be determined by the Court. In this case the defendants in such an action filed pleas more than a month after the expiration of the time limited and these pleas were not verified by affidavit. Two days afterwards there was an entry of judgment ■by default for the plaintiff for want of sufficient pleas. Upon motion to strike out the judgment. Held, that the affidavit to the pleas was requisite in order to entitle the defendant to file them ; that the defendants were in default both as to the time of filing their pleas and as to the absence of an affidavit supporting the same, and the plaintiff was entitled to the judgment under the statute.</p> <p>There is nothing in the nature of a plea of discharge in insolvency which can take it out of the operation of the above-mentioned Practice Act, but such plea must be pleaded in the same manner as other pleas.</p>

<p> Bill by Minority Stockholders Asking for the Appointment of a Receiver for a Corporation Alleged to Have Been Mismanaged. </p> <p>A bill filed by a small minority of the stockholders of a corporation alleged that the directors had mismanaged its affairs and been guilty of various acts of negligence ; that the property of the corporation was depreciating in value and that it was in danger of becoming insolvent. The prayer of the bill was for the appointment of a receiver, the dissolution, of the corporation and the sale and distribution of its assets. There was. no fraud or illegality charged against the directors and the testimony-showed that the corporation was fully solvent although its management had not been as successful as in previous years. Held, that the bill should be dismissed since the right of the majority of the stockholders to control the business and policy of the corporation will not be interfered with by the Court at the instance of minority stockholders unless the officers do some act that is fraudulent, illegal or ultra vires.</p>

<p> Rights of Bona Fide Holder of Promissory Note Insufficiently Stamped Under the Act of Congress of 1898—Notice of Defect in Title of Endorser—Demurrer. </p> <p>At a time when the Act of Congress of June 13th, 1898, requiring internal revenue stamps to be affixed to promissory notes, etc., was in force, a note insufficiently stamped was made by the defendant and delivered to the payee who, acting beyond his authority, transferred the same to the plaintiff. There was no consideration for the note between the original parties. The plaintiff took the note in the usual course of business, before maturity, for a valuable consideration and without actual notice of the defect in the payee’s title. The omission of the proper amount of revenue stamps was through inadvertence, without any intent to defraud the revenue, and when plaintiff took the note he was not aware that it was insufficiently stamped. Subsequently the proper amount of stamps was affixed to the note in accordance with the statute. Held, that the fact that the note was insufficiently stamped did not operate to charge the plaintiff with notice of the equities attaching to the note in the hands of the payee, but that the plaintiff being a bona fide holder for value is entitled to recover against the maker, the note having been admitted in evidence without objection.</p> <p>In an action on a promissory note not properly stamped under the Act of Congress of 1898, requiring internal revenue stamps to'be affixed to notes, a demurrer to the declaration does not raise the question as to the right of the plaintiff to maintain an action on such note.</p>

J.) The plaintiff’s first prayer, as modified by the Court, instructed the jury as follows : That if they find that the plaintiff was in possession of the land described in the plaintiff’s declaration at the time the acts of trespass complained of in plaintiff’s declaration are alleged to have been committed and claiming the title thereto under the two deeds from Deborah A. Baile, offered in evidence, and if the jury shall further find that the acts of trespass alleged in…

<p> Negligence—Injury Caused by Hlevator to Person Standing on Platform Over it—Inspection by Jury of Premises Where Accident Occurred. </p> <p>Defendant’s hydraulic elevator was so constructed that in ascending it lifted the platforms or trapdoors covering the hatchways at each floor, . carrying them up, and in descending it left these coverings at their appropriate places on each floor thus closing the apertures. The opening on each floor was protected by a railing around it, removable on one side so as to allow access to the elevator. Plaintiff’s decedent had been a customer of the defendant for some years and was well acquainted with said elevator and the mode of its operation. On the day of the accident which caused his death he was taken on the elevator to a room on the fourth floor of defendant’s building for the purpose of inspecting certain goods which he wished to buy. He was left there alone with directions to shake the signal rope of the elevator when he wished to be brought down. The room in question was well lighted. The signal was given some time afterwards, and when the porter in response thereto took the elevator to that floor he found the guard of the railing. down but the deceased was not visible, and it was soon discovered that he had gotten upon the platform over to the elevator and had been carried up by it and crushed against the rafters above. No one witnessed the accident and no explanation was offered of how or why the deceased opened the rail and stood upon the covering of the elevator after giving the signal. Neither the elevator nor the machinery operating it was defective or out of repair. Held., that these facts do not constitute a proper case for the application of the maxim, res ipsa loquitur, and that since there was no evidence that the injury was caused by anything hidden or in the nature of a trap, or that the defendant was guilty of any negligence, the plaintiff is not entitled to recover.</p> <p>Code, Art. 75, sec. 93, provides that it shall be lawful for the Court in any action at law, upon application of any party thereto, to make any order for the detention-, preservation 'or inspection of any property being the subject of such action, to authorize any person to enter upon‘any land or building in the possession of any party- to the action, to authorize any observations to be made or experiments to be tried which may seem expedient for the purpose of obtaining full information or evidence. In an action to recover damages for an injury caused by the elevator in defendant’s building, the plaintiff asked the Court to send the jury to inspect the building and the elevator. To this the defendant objected. Held, that the said statute does not give to the Court power to direct the jury to inspect the premises, and that such inspection, in a case like this, is allowed only with the consent of both parties.</p>

2, of Baltimore City (Harlan, C. J.) The prayer of the bill was for a writ of injunction against The Mayor and City Council of Baltimore> Thomas G. Hayes, Mayor of the city of Baltimore, and Thomas F. Farnan, Deputy Marshal and Acting Marshal of Police of the city of Baltimore and enjoining them and each of them and each and all of their subordinates, agents and officers from preventing, obstructing or in any way interfering with the construction by your orator or its…

<p> Life Insurance—Waiver of Forfeiture of Policy for Noji-Paymetit of Premiums—Collection of Premiums After Default—Knowledge by Insurer of Cause of Forfeiture. </p> <p>In some instances the payment and acceptance of premiums after a default operates to waive a forfeiture of a policy of life insurance arising from such default, but when the policy provides that the payment of an overdue premium shall not be treated as a waiver of a forfeiture, then such payment is not a waiver, unless the stipulation against giving it such effect is itself waived.</p> <p>An industrial life insurance policy provided for the payment of certain premiums on each and every Monday during the life of the insured. A condition in the policy stipulated that if the weekly premiums should be due for more than four successive Mondays, then the policy would thereby become lapsed and could be revived only by the payment in full of all premiums due and the passing by the insured of a medical examination, and that payment without such examination after a lapse would only entitle the policy holder to a return of the same. Another condition prohibited all agents, other than directors of the society, from altering contracts or waiving forfeitures. At a time when more than four weeks premiums were due, an agent of the company together with a superintendent called upon a policy holder and collected the premiums upon giving the assurance that “it would be all right.” Notwithstanding this default collections of premiums from the insured continued to be made, and the reports of the inspectors made to the officers of the company showed that these collections had been made after the arrearages, alleged in the suit on the policy to have caused the forfeiture, had been settled. Held,,</p> <p>ist. That the act of the insurer in sending its agents to make collections of premiums from the policy holder after the instalments which had been in default had been paid up is evidence to show that the premiums were collected with a view of keeping a live policy in force ; that the insurer considered that there was an obligation on the part of the insured to pay , and that such act constitutes a waiver of all the provisions relating to the forfeiture of the policy.</p> <p>2nd. That an instruction to the jury declaring that there was a waiver of the forfeiture if the officers of the company knew or could have known that they continued to collect dues on the policy after the insured had once been more than four weeks in arrear, is not open to the objection that the evidence does not show actual knowledge by the officers of the existence of the causes producing a forfeiture, because the evidence does show that the inspectors’ reports settingforth the times of payment were returned weekly 1o the officers of the company and it was their duty to know the tacts of the case.</p>

) The issue raised on the plea to the jurisdiction was tried before Harlan, C. J. In the first count of the declaration the actionable words were alleged to be that “he (meaning the plaintiff) stole my coal.” The second and third counts were abandoned at the trial. The plaintiff obtained a judgment on verdict for $1,000.

<p> Instruction as to Legal Sufficiency of Evidence—Agreementby Endorser to Waive Notice of Protest. </p> <p>An instruction to the jury asked by a defendant to the effect that under the pleadings and evidence in the cause there is no legally sufficient evidence to entitle the plaintiff to recover, is not too general, but is a demurrer to the evidence and raises the definite question of the right of the plaintiff to recover, assuming all of the evidence offered by him to be true.</p> <p>Defendant, who was an endorser of several promissory notes made by a third party and held by the plaintiff, one of which was then overdue, signed an agreement by which he waived “notice of protest” upon the designated notes. In an action against him as endorser, the plaintiff offered no evidence of a protest or demand. Held, that the agreement amounted to a waiver of protest itself and consequently of demand and presentment.</p>

<p> Opening County Roads Upon Petition—County Commissioners Cannot be Required to Condemn Public Land—Appeal. </p> <p>Code, Art. 25, provides for the opening of roads in counties 'upon the petition of citizens alleging the new road to be required by the public convenience. The County Commissioners are authorized to contract with the owner of the land through which the proposed road is to run or to appoint examiners to ascertain the damages of the land-owner, subject to the review and judgment of Commissioners. Held, that the statute does not authorize the opening of a road in this manner through land already owned by the County Commissioners and that consequently the Circuit Court was without jurisdiction to require the Commissioners to open a road through such property.</p> <p>Upon appeal to the Circuit Court under Code, Art. 25, from the refusal of the County Commissioners to direct a new road to be opened, the Circuit Court upon reversing their judgment has no power to appoint examiners to view the property and to ascertain the damages.</p>

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

<p> Divorce—Power of Court to Elicit Evidence on Its Own Motion. </p> <p>Under a bill for a divorce filed by a husband and a cross-bill by the wife5 each charging the other with adultery, it was held by the trial Court that both parties were guilty and that consequently neither was entitled to a divorce, and this ruling was affirmed on appeal. Afterwards the wife filed a bill against her husband for a divorce on the ground of adultery committed after the decree in the former case, to which however no reference was made in the proceedings. The evidence established the charge and no defense was made. The trial Judge on his own motion caused the fact to be brought out that the parties were the same as in the former case and dismissed the bill. Held, that since it is the duty of the Court to refuse a decree of divorce to a party not entitled to it although no defense he made, the bill was properly dismissed.</p>

<p> Devise and Legacy—Gift of Annuity Payable out of Income. </p> <p>A testator gave a life annuity of a certain sum to his sister and directed his trustees “to pay the same to her from the income of my estate in equal quarterly payments as long as she shall live.” By a subsequent clause of the will the testator gave to his grandsons the residue of his estate including the portion “set aside in trust for the benefit of my relations after the 1rust shall have been accomplished.” The annuity from the estate proved to be insufficient to pay the annuity and a bill was filed asking for a sale of the principal for the purpose of paying the same. Held., that it was the intention of the testator that the annuity should be paid only from income and the gift is dependent upon the receipt of income.</p>

) The plaintiff obtained a judgment on verdict for $ 10,000.

<p> Sufficiency of Evidence to Establish a Trust of Personal Property. </p> <p>S. E. placed certain railway mortgage bonds in the possession of one R. who signed a paper certifying that he had received the bonds from S. E. “ to be held in trust for children of Mary E. The interest collected to be remitted to S’. E. The above conditions to be observed and carried out until otherwise ordered and directed.” This paper was delivered by R., the trustee, to Mary E. The creator of the trust S. E., lived abroad, and in a letter written by him some years afterwards to Mary E. he referred to the bonds still held by R. and said that the interest thereon “I must have until my death,; after that the interest may be paid to. you, but I must be assured that * * your life and that of your children.” After the. death of S. E. the bonds were claimed by his executor. Held, that this evidence establishes the creation of a valid trust in favor of the persons named in the written declaration of the trustee.</p>

J.) Plaintiff's 1st Prayer. That by the uncontradicted evidence in this case, the United Milk Producers’ Association of Baltimore City was a corporation of such a nature that it could not be. fairly presumed by any stockholder that it would not begin business until all the authorized increase in capital stock had been subscribed for and that therefore, the defense attempted to be interposed by the'defendant bearing upon the alleged non-subscription for the full amount of…

<p>Redemption of Ground Rents—Notice—Bill in Equity to Redeem— Rents Held by Testamentary Trustee—Construction of Will.</p> <p>When the owner of leasehold property is entitled to redeem the ground rent thereon under Code, Art. 21, sec. 85, he may maintain a bill in equity to enforce his right against a testamentary trustee who holds the rents and the cestuis que trustent, under which bill the Court will construe the will to ascertain the parties necessary to the conveyance, provided the owner of the leasehold has given, before filing the bill, the statutory notice of six months of his intention to redeem.</p> <p>A testamentary trustee was directed to hold a certain fund for the benefit of testator’s children living at the time of his death and for his widow and to divide the property among the children when the youngest child should attain the age of twenty-one or when the testator’s widow should die or remarry. The widow remarried and some of the children are still under age. A part of the fund was invested in certain ground rents which the owner of the leasehold was entitled to redeem, under Code, Art. 21, sec. 85, at a capitalization of six per cent upon giving six months notice to. the owner of the fee. Plaintiff, the owner of the leasehold, filed the bill in this case against the trustee, the testator’s widow and his adult children and the guardian of the infant children, alleging his desire to redeem the rents, that he was in doubt as to the proper person upon whom the six months notice prer scribed by statute should be served, and asking the direction of the Court in the exercise of his right to redeem the rents. Upon demurrer, held,</p> <p>1st. That although the language of the will is inartificial, yet the inten tion of the testator appears to be that the fund should be held by the trustee until his youngest child should arrive at twenty-one years of age, when the corpus was to be distributed among them, and that the children took vested interests in their respective shares of the estate at the death of the testator.</p> <p>2nd. That since some of the testator’s children are infants and the trustee still holds the legal estate in the rents, the plaintiff would be compelled to resort to a bill in equity in order to procure a conveyance of the reversion.</p> <p>3rd. That since the plaintiff had not given the statutory notice of his intention to redeem he was not entitled to maintain the bill, such notice being a condition precedent to the exercise of the right.</p> <p>4th. That the plaintiff is not entitled to a mere declaratory decree under Code, Art. 16, secs. 26-31, since he was able to seek further relief than a mere declaration and omitted to do so.</p>

<p>Invalidity of Municipal Ordinance Authorizing a Permit for.a New Building to be Refused at the Discretion of a Municipal Agency— Charter Powers of Baltimore City to Regulate Buildings—Mandamus—Effect of New Charter on Existing Ordinances.</p> <p>An ordinance of Baltimore City provides that no person shall erect a new building in that city without first obtaining a permit therefor from the Appeal Tax Court, after filing a plat and description of the building, and that “no such permit shall be granted unless in the judgment of the said Judge of the Appeal Tax Court or a majority of them, the size, general character and appearance of the building to be erected will conform to the general character of the buildings previously erected in the same locality, and will not in any way tend to depreciate the value of the surrounding improved or unimproved property.” In this case the petitioners’ request for a permit to erect a designated building having been refused by the Appeal Tax Court they applied for a mandamus to compel its issue, alleging that they had complied with all the formalities prescribed by the ordinance and that the Appeal Tax Court had refused the permit on the ground that, in its opinion, the proposed building did not conform to the gene-al character of the buildings in that locality and that it was to be used as a Zoo which use would tend materially to depreciate the value of the surrounding property. Held,</p> <p>ist. That a citizen has a common law right to build upon his land in such manner as he chooses without regard to whether his building will conform to the general character of the buildings in that locality.</p> <p>2nd That this right cannot be abridged by a municipal ordinance.</p> <p>3rd. That there is no provision in the charter of Baltimore City which authorizes it to confer upon an agency like the Appeal Tax Court a power so vague and undefined in its scope and so arbitrary in its character as that contained in this ordinance.</p> <p>4th. That the charter power to regulate buildings in said city is limited to regulations guarding against dangers arising from unsafe construction or from the use of inflammable materials, or some similar exercise of the police power.</p> <p>5th. That the part of the ordinance conferring the discretionary power upon the Appeal Tax Court is void, but the remainder of the ordinance is valid, and that the mandamus asked for should be granted.</p> <p>6th. That whether the use to which the proposed building may be put will constitute a nuisahce or not, is a question not before the Court in this case.</p> <p>The new charter of Baltimore City (Act of 1898, ch. 123) which continued in force, until repealed, all the then existing municipal ordinances, did not have the effect of giving validity to an invalid ordinance, but continued the existing ordinances with the same effect and no more as if the change in the charter had not been made.</p>

<p> Illegal Assessment of Property for Taxation—Statutory Remedy—Injunction—Notice of Increased Assessment—Remanding Cause for Amendment of Bill Without Affirmance or Reversal—Costs. </p> <p>Equity will not interfere by injunction to restrain the collection of a tax illegally assessed when the revenue statute provides an adequate remedy for the party aggrieved by such assessment.</p> <p>But if the assessment of property for taxation has been increased without previous notice thereof to the property owner, as is required by the statute, then, since he is unable to appeal under the statute, he may maintain a bill to restrain the collection of the tax, alleging the failure to give notice.</p> <p>Plaintiff filed a bill in 1900 to restrain the collection of a tax on his land in the annexed district of Baltimore City, alleging that the assessment thereon had been illegally increased. Under a decree pro confesso the collection of the taxes for that year was enjoined. In 1901 the plaintiff filed the bill in this case to restrain the collection of taxes on said land for 1901 alleging that the increase in the assessment over that of former years was illegal and that the decree under the former bill had established that illegality. Section 170 of the City Charter provides that any party aggrieved because of any assessment may appeal to the City Court which shall ascertain the proper assessment. Section 164A of the City Charter gives to the Appeal Tax Court power at any time to increase or diminish the valuation and assessment of property for taxation upon giving five days’ notice to the owner of the property. Held,</p> <p>1st. That the decree under the first bill relating to taxes for the year 1900 is not concl usive as to the legality of the assessment for the year 1901 under the present bill, the subject-matter of the two suits not being the same.</p> <p>2nd. That if the assessmeut of plaintiff’s property was increased for the year 1901 without notice thereof to him, the injunction asked for would be granted, but if such notice was given then the plaintiff’s only remedy would be by an appeal to the City Court as provided in said section 170 ; and since the bill in this case does not allege that the prescribed notice was not given it fails to state a ground for the injunction and must be dismissed.</p> <p>Upon motion for re-argument, held,</p> <p>1st. That since the plaintiff now alleges that notice of the increase in the assessment was not given, he should be allowed an opportunity to establish that fact by an amendment of his bill and the production of evidence.</p> <p>2nd. That the cause will consequently be remanded to the Court below under Code Art. 5, sec. 36, without affirming or reversing the decree appealed against to the end that plaintiff’s bill may be amended and such further proceedings had as may be necessary for determining the cause upon its merits.</p> <p>3rd. That since this course of procedure has been rendered necessary by plaintiff’s failure to make the proper averments in his bill, he should bear the costs up to this stage of the case.</p>

<p> Crossing Tracks of a Steam Railroad Company in a City Street by Tracks of a Street Railroad Company—Liability For Cost of Construction And Maintenance—Rights of the Intersecting Companies. </p> <p>When the tracks of a steam railroad have been laid in a city street under a license from the municipality, and a street railway company under a similar license is authorized to cross these tracks, the street railway company must bear the expense of constructing the crossing and of subsequently keeping it in repair; and since the steam road requires' more substantial construction than the street railway, it is proper that the steam road company should determine the time and mode of making repairs to the crossing.</p> <p>In such case it is the duty of the steam railroad company to maintain the safety gates and other appliances demanded for the protection of the public, and cannot require the street railway company to bear any part of the cost thereof.</p> <p>When a new road is made to cross a previously established road, the owner of the new road must pay, first, the cost of the construction and maintenance of the crossing, including the necessary structural changes in the old road, and, second,, the value of the easement or property of the old road which may be impaired or appropriated by the new one.</p> <p>But when a street railway crosses an existing steam railroad in the bed of a city street, the secoud of these two elements of damages does not exist, because the rights of the steam road company are subject to the right of the public to use the street, and the street railway is a public use and not an additional burden.</p>

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

The Exhibit B referred to in the opinion of the Court is as follows : The petition of Sarah C. Hemphill and John W. Hemp-hill,- her husband, Nancy E. Izer and Charles B. Izer, her husband, Arthur P. Gorman Shipley, Lewis G. Stanhope Shipley and Lester Shipley, respectfully represents to your Honors: ist.

<p>Taxation of Shares of Stock— Valuation by State Tax Commissioner Binding on Municipalities—Notice of Assessment or of Increase— Mode of Entry of Assessment Against Shareholders—Reduction of Assessment on Appeal Prom Tax Commissioner—Distilled Spirits.</p> <p>Municipal taxes upon shares of stock in corporations of this State can be levied only upon the valuation thereof by the State Tax Commissioner under Code Art. 81, sec. 141, as amended by the Act of 1896, ch. 120, and a municipal corporation has no power either to increase or to diminish such valuation.</p> <p>Under Code Art. 8r, secs. 132, 141, taxes are leveid upon shares of stock of corporations by the various municipalities according to the valuation of such shares by the State Tax Commissioner unless that valuation be changed on appeal by the Comptroller and Treasurer of the State ; and the shareholders are assessed in the places of their residence with the shares so valued although the obligation to pay the tax is imposed upon the corporations. The holders of most of the stock of the defendant corporation resided in the city of Cumberland and the assessment of the stock stood at $20,000 until the year 1900, when the State Tax Commissioner increased the valuation to $90,000, which was duly reported in pursuance of the statute to the County Commissioners. Plaintiff, the said city, entered that increased valuation on the tax books under the name of the corporation followed by the names of the shareholders there resident and the amounts of stock respectively owned by them. At the same time, a notice of the increase was given by the city to the corporation. Afterwards, upon appeal from the State Tax Commissioner, the assessment of the stock at $90,000 was reduced to $75,000. In an action by the city to recover the municipal tax on said shares at the valuation of $90,000. Held,</p> <p>1st. That a notice by the city to each shareholder of the increase in the assessment was not only unnecessary but would have been nugatory, because in the valuation of shares the corporation is treated by the statute as representing the shareholders, and has notice of, and a right to appeal from, the assessment, and also because the city had no power to increase or diminish the assessment made by the State Tax Commissioner.</p> <p>2nd. That the statutory provision that the shares be assessed against the shareholders is substantially complied with by an entry of the names of the shareholders and number of shares held by them grouped together under the name of the corporation by which the tax is payable.</p> <p>3rd. That if in point of fact certain distilled spirits owned by the defendant company were valued as part of the value of the shares and not as personal property as required by the Act of 1892, ch. 704, that was an error which should have been corrected by an appeal from the State Tax Commissioner and cannot be availed of in this action to cause a reduction in the valuation.</p> <p>4th. That since the declaration shows that the valuation of $90,000 had been lawfully reduced to $75,000, the right of the city to collect taxes from the defendant was restricted to the reduced valuation, and consequently an instruction to the jury which permitted a recovery upon the valuation which had been abrogated was erroneous.</p>

<p> Negligence-Starting Street Car While Passenger is Alighting—Contributory Negligence—Instructions. </p> <p>Plaintiff, a passenger on an open car of defendant’s electric railway, testified that she signalled to the conductor to stop at a certain corner and when the car stopped she got upon the foot-board and while holding to the hand-rail with one hand and in the act of putting her left foot to the ground the car started again and she was thrown to the ground and injured ; that she was somewhat lame from rheumatism and could not move with agility. She was the only witness to the accident. Upon cross-examination she seemed to say that she began to step off the foot-board after the car started. Held,</p> <p>1st. That these facts constituted legally sufficient evidence of negligence on the part of the defendant to go to the jury.</p> <p>2nd. That taking the whole testimony of the plaintiff together it would be giving a forced meaning to her testimony on cross-examination to treat her as saying that at the time the car started she was in a safe position on the foot-board and voluntarily left such place of safety and stepped from the car while it was in motion.</p> <p>3rd. That plaintiff was in a position of danger on the foot-board, owing to her lameness, and the degree of care she was bound to observe in. order to avoid the consequences of defendant’s negligence was only ordinary care, and she was not bound to show an absolute necessity for the action she took ; and that consequently instructions to the jury that there was such contributory negligence on the part of the plaintiff as precludes a recovery or that if the plaintiff voluntarily and without necessity stepped from the foot-board to the ground while the car was in motion the verdict must be for the defendant, were both properly refused.</p>

) ' * Plaintiff’s ist Prayer.—If the jury find that the State Tax Commissioner on or about the 28th day of February, 1901, made return to the County Commissioners of Baltimore County of the number of barrels of spirits and the valuation set thereon by said Tax Commissioner held by the defendants, or in their custody on the first day of January, 1900, as appears by the return offered in evidence and that the County Commissioners of Baltimore County in making their levy for…

<p> Stale Claims—Sum Awarded by Unratijied Auditor's Account—Presumption of Payment. </p> <p>Certain real estate was sold, under a decree in an equity suit, for division among the heirs of the deceased owner. Before distribution one of the sons of the decedent died leaving an infant daughter. Two auditor’s accounts were stated in the cause in one of which a sum of money was awarded to this daughter as her share of her fattier’s interest in the land, and in the other account the same sum was awarded to the administrator of her father. Neither account was ever ratified ; the trustee who made the sale died and no further steps regarding these accounts were taken for twenty-three years, when this daughter, more than ten years after coming of age, filed a petition in the cause asking that the executor of the deceased trustee be required to pay the sum awarded to her in one of the auditor’s accounts. The evidence showed that the petitioner’s lather had executed an equitable mortgage on his interest in the land to secure an indebtedness in part contingent, but the exact amount of the final indebtedness was not clearly shown, al- . though some payments on account of it were proved to have been made by the trustee to the mortgagee. Held, that the petition has failed to establish a right to the sum mentioned in one of the auditor’s accounts and that the evidence as a whole and the great lapse of time justify the presumption that her father’s interest in the land had been applied to the satisfaction of his mortgage debt.</p>

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

<p>Appeal from the Court of Common Pleas (Dobler, J.), where there was a judgment on verdict in favor of plaintiff for $900.</p>

<p>Appeal from the Baltimore City Court (Sharp, J.), where there was a judgment on verdict for the plaintiff for $500.</p>

Two appeals from the Circuit Court No. 2, of Baltimore City (Stockbridge, J.), where the following decree was made.

J.), where there was a verdict for the plaintiffs for $250. In the first exception, the defendant offered in evidence a copy of docket entries from the Criminal Court of Baltimore, showing that one H. D. Thayer had been indicted for false pretenses and that a stet had been entered by the State on payment of costs. Plaintiffs' ist Prayer.

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

<p> Mortgage to Secure Future Advances Not Made in Conformity With Code, Art. 66, sec. 2—Pretended Indemnity Mortgage—Bonus Advances to a Bttilder—Mortgages by a lessee and Contract of Guaranty Constituting Fictitious Transactions—-Right of Party Supplying Materials For Houses to Have Invalid Mortgages Thereon Vacated —Notice to Assignee of Real Nature of Transaction—Conveyances Tending to Delay Creditors. </p> <p>A mortgage professing on its face to be made to secure a present indebtedness and also to indemnify the mortgagee against loss under a guaranty of a third party’s debt, but which is in reality designed to secure future advances only, there being no present indebtedness and no real contract of indemnity, is invalid under Code, Art. 66, sec. 2, which provides that no mortgage to secure future advances shall be valid, unless the amounts of the same and the times when they are to be made shall be specifically stated in said mortgage ; this not to apply to mortgages to indemnify the mortgagee against loss from being endorser or security.</p> <p>A subsequent creditor of the mortgagor may maintain a bill to vacate such a mortgage to secure future advances not executed in conformity with Code, Art. 66, sec. 2, when the same was made for the purpose of hindering and delaying the creditors of the mortgagor who furnished materials used in the improvement of the property mortgaged.</p> <p>The advice of counsel that certain mortgages and leases were regular in form does not relieve the client from the imputation of the knowledge of facts affecting the validity of the mortgages, etc., of -which he had actual notice.</p> <p>The plaintiff company supplied the bricks used in the erection of forty-nine houses on leasehold lots of ground and not having been paid therefor filed the bill in this case to vacate certain mortgages of the interest of the owner of the leasehold which appeared to constitute first liens on all of the property for more than its value. Plaintiff company alleged that these mortgages were fraudulent as against it because tending to delay and hinder creditors of the mortgagor, and also that they were invalid under the provisions of the Code relating to mortgages to secure future advances. The evidence in the cause established the following facts : The owners of a tract of land, desiring to improve and market the same, made an agreement with one A, according to w'hich leases for 99 years were to be made of the land divided into 49 lots. A was to build a house on each lot and the owners of the fee agreed to give him a certain sum as a bonus to induce him to build on the lots subject to the large ground rents created by the lease, and also agreed to advance to A additional sums to be used in the purchase of material. This latter loan was to be secured by mortgages to the land owners on the leasehold interest. The law giving to material men a mechanics’ lien for supplies was then in force and the object of the parties was to make a mortgage on the leasehold interest to secure these future advances which should have priority over any liens that might be filed. Code, Art. 66, sec. 2, provides that no mortgage to secure future loans or advances shall be valid unless the amount or amounts of the same and the times when they are to be made shall be specifically stated in said mortgage; this not to apply to mortgages to indemnify the mortgagee against loss from being endorser or security. A, the party with whom the landowners made the above-mentioned agreement, did not become the lessee of the lots himself, but he procured one D a carpenter in his employment working for daily wages to act in that capacity and the plan adopted to carry out the agreement was as follows : The owners of the land executed leases of the lots to the said D for 99 years in the usual form, reserving the rents agreed upon. Then there was (x) an agreement between D and the land owners by which the latter were to advance the stipulated bonus in instalments and D was to erect the houses, and A guaranteed performance by D; (2) an agreement by A to sell to D the necessary material; (3) a guaranty from the land owners to A of payment by D for the materials ; (4) an order on the owners from D directing payment to A of all sums to be advanced to him on account of the houses; (5) mortgages of the leasehold interests from D to the land owners. These mortgages, which the bill in this case sought to have annulled, recited'a present indebtedness from D to the mortagees of a specified amount payable one year after date, and also professed to indemnify the mortgagees against loss under their guaranty to A of payment for the building materials to be sold by him to D.. The evidence showed that D signed these papers without knowing anything about them and in pursuance of A’s orders and that D had no interest in any of the property. The money paid out by the mortgagees was all paid directly to A and D was ignored throughout the transaction. The contract for the sale of its bricks by the plaintiff company was made with A who represented himself as being the builder and that the property was subject to ground rents, but the plaintiff company did not have notice of the real agreement between the parties. Held,</p> <p>1st. That the original leases of the lots to D are valid, but in equity A must be regarded as the real owner of the leasehold and the builder of the houses.</p> <p>2nd. That the mortgages of the leasehold by D are invalid as against creditors, whether regarded as indemnity mortgages or mortgages to secure future advances. If the latter, they are invalid because they do not comply with Code, Art. 66, sec. 2, as they specify neither the times nor the amounts of the sums to be advanced ; and if the former, they are invalid because the alleged purchase of materials from A by D and the guaranty of payment therefor by the mortgagee were purely fictitious transactions, and no actual loss was suffered by the mortgagees under their guaranty, but the sums paid by them under the mortgages were in reality future advances to A m pursuance of the agreement, and the mortgages are consequently not liens for the sums paid.</p> <p>3rd. That the natural result of the conduct of A in retaining title to the lots in D and causing the latter to create mortgages thereon for a feigned consideration, was to hinder, delay and defraud creditors like the plaintiff from whom A purchased materials used in the improvement of the lots.</p> <p>4th. That the plaintiff company, although a subsequent creditor of A is entitled to maintain this bill to vacate said mortgages upon the two grounds of their being in violation of the statute regulating mortgages for future advances and of their tending to delay and hinder creditors of the real mortgagor, since plaintiff had no notice of the facts of the case when it became the creditor of A.</p> <p>5th. That the land owners and mortgagees are not personally liable to the plaintiff company as partners with A in the scheme for developing the land, nor are the leases void as being part of a fraudulent scheme.</p> <p>In the above case, after the advances to A had been partly made, one of the said mortgagees assigned his interest therein to one S who agreed to make the subsequent advances to A that the assignor would be called upon to make and S did accordingly make some advances thereafter. He had ample notice of the true character of the transaction between the original parties. Held,</p> <p>1st. That S is not entitled to be treated as a purchaser for value of one-half interest in the mortgages without notice, but is an original creditor of A in the same manner as his assignor.</p> <p>2nd. That the fact that S was advised by counsel that the mortgages were legal does not relieve him from the imputation of a knowledge of the real facts of which he had sufficient notice, and which showed that the guaranty set forth upon the face of the mortgages was a fictitious transaction.</p> <p>Before the final hearing of this cause in the trial Court, an agreement was made between the parties by which both the fee and the leasehold estates in the 49 lots were released from the lien of the lis pendens and a bond was filed by the defendants conditioned for the payment of the plaintiff’s claim if it should be decreed that the designated defendants are personally liable or that the mortgages are invalid as against the plaintiff Held, that a personal decree will not be entered against the defendants mentioned, since the agreement does not authorize it, and the bond stipulates for the payment of the plaintiff’s claim in the event of the mortgages being declared void.</p>

<p> Fraudulent Conveyances—Deed by Husband to Wife for Simulated Consideration in Fraud of Existing Creditors. </p> <p>A man who was indebted to different persons to a greater amount than he was able to pay conveyed certain real estate to his wife by a deed reciting a consideration of “eight hundred dollars cash in hand paid, the receipt whereof is hereby acknowledged !” A bill in equity was filed by a creditor of the husband to vacate the deed because made in fraud of the subsisting creditors of the grantor. The answer of the defendants alleged that the grantor had borrowed certain sums of money from his wife at different times amounting in all to about $561, and that the deed was made to secure to her the payment thereof. The property conveyed was worth twice as much as the consideration set up in the answers and attempted to be sustained by evidence. The wife died after the institution of the suit. Held,</p> <p>1st. That the evidence establishes that the deed was not made in good faith, but with intent to hinder and delay the creditors of the grantor and is invalid as to them.</p> <p>2nd. That the decree oí the lower Court annulling the deed and directing the property to be sold for the payment of the debts of the grantor is affirmed, and that in the distribution of the proceeds of sale the representatives of the wife will have a right to show, if they can, that at the time the grantor obtained money from her he promised to repay the same and thus created the relation of debtor and creditor, entitling her representatives to share in the distribution of the proceeds of sale after satisfying prior liens.</p>

<p> Des Adjudicata—Decree Enforcing Mechanics' Lien Against Property Not an Adjudication as to Ownership of Land. </p> <p>In 1899 certain parties filed mechanics’ liens against designated houses alleging that one H. was the owner or reputed owner of the land and one E. the builder., A bill in equity to enforce the lien claims alleged that H. was the owner or that he with others were the owners or reputed owners. In H’s answer he asserted that he was the owner and E’s answer made no statement as to ownership. In that case some of the lien claims were enforced and others were disallowed, but the question of the ownership of the land was not in issue, and the final decree made no mention of it, although it was assumed in the opinion of the Court that H. was the owner. H. appeared upon the land records to be the owner. Code, Art. 63, sec. 19, provides that in lien claims the name of the owner or of the reputed owner must be stated, and the proceeding to enforce a lien under the statute is in rem. Some of the defeated lienors in that case filed the bill in this case to vacate as fraudulent the conveyance of the land to H. and to have the property adjudged to belong to E. and for a sale of it for distribution among the creditors of E. Held, that the precise issue in the former case was whether the claimants were entitled to liens on the property and not whether it was truly owned by H.; that the decree therein was not an adjudication as to title and the plaintiffs are consequently not precluded by that decision from maintaining the bill in this case.</p> <p>Code, Art. 63, sec. 19, provides that a mechanic’s lien claim shall set forth the name of the owner or reputed owner of the building. Section 11 provides that when the contract for work or materials shall have been made with a person other than the owner of the lot, notice must be given to the owner of the intention to claim a lien. Held, that these sections must be construed together and that a lien is not invalid because the notice was given to a person described as the reputed or ostensible owner.</p> <p>When such notice is given to a person who appears from the land records to be the owner the lien is not lost because it is subsequently ascertained that some other person is the real owner.</p> <p>Under a bill to enforce a mechanic’s lien, after notice to the reputed owner of the building, the subject-matter adjudicated is the lien upon the rem. but the ownership of the property is not necessarily determined.</p>

<p> Highways—Dedication to Public Use and Acceptance—Electric Railway on County Road Not an Additional Servitude. </p> <p>A county road was straightened by substituting a cut-off thirty feet wide and five hundred feet long across an adjoining tract of land, and this substituted road was afterwards used for years by the public without objections by the owner of the land who had full knowledge thereof. The new road was kept in repair by the County Commissioners, and the land owner conveyed abutting property by a deed describing said road as a county road. Held, that the evidence in the case shows that the new road had been dedicated by the owner to public use and ac- ■ cepted by the County Commissioners.</p> <p>The construction of an electric passenger railway on a county road with' the consent of the County Commissioners and in such a way as to preserve a part of the road for ordinary travel does not impose an additional burden for which the owner of the road-bed is entitled to compensation.</p>

), where there was a judgment for plaintiff for $2,500. At the close of plaintiff’s evidence the defendant offered the following prayer : “The defendant prays the Court to rule, as a matter of law, that upon the pleadings and evidence in this case, the plaintiffs are not entitled to recover.” But the Court refused to grant said prayer. . Plaintiff’s 1 st Prayer.

<p> Judgment by Default Not Stricken Out For Clerical Errors in Docket Entries. </p> <p>A judgment rendered under an inquisition against a defendant who was duly served with summons but failed to appear in person or by attorney will not be struck out afterwards merely on account of unimportant clerical errors in the docket entries, such as the formal entry of the appearance of the defendant on September 2nd, instead of September xst, or the failure to enter on the docket “rule plea” after the declaration was filed. The defendant was in no manner prejudiced by such errors, and if he had a valid defence to the action he should have appeared according the notice served upon him.</p>

<p> Rule Security For Costs in Equity Cases—Appeal. </p> <p>When an equity suit is brought by a non-resident against a resident of this-State, the defendant does not waive his right to require the plaintiff to., give security for costs by answering the bill, since Code, Art. 16, sec. 152, provides that in all cases in cháncery a rule security for costs may be laid at any time before final decree passed.</p> <p>An appeal liéis from an order refusing to require a non-resident plaintiff' to give security for costs. ■</p>

<p> Spendthrift Trust—Restraint on Alienation—Attaching Creditor. </p> <p>A testatrix bequeathed property to a trustee with directions to pay the income thereof to her son George “as it shall accrue and not by way of anticipation to my said son for the support of himself and his family, the receipt of my said son to be a sufficient acquittance to my said trustee therefor, but my will is that my said son shall have no power to charge, encumber or anticipate the said income.’’ Held, that a spendthrift trust was created by this clause of the will, and that the interest of the cestui que trust in the income is not liable to attachment by his creditors.</p>

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

J., Martin and Brown, JJ.), where there was a judgment for plaintiff for $ I ,ooo. Defendant?s 3rd Prayer.

J., and Burke, J.) The second clause of the will is as follows : Second : I give, devise and bequeath unto my beloved wife, Mary Power, to have, hold, use, occupy, possess and enjoy during her natural life, as long as she shall remain unmarried all the land and premises with the improvements thereon and the rights arid appurtances thereto belonging or in any wise appertaining, situate in Baltimore County, near to Mt. Washington, and now occupied by my said wife and me, more…

<p>Pleading-^Statutory Liability of Stockholders of Bank to Creditors— What Indebtedness of the Bank to the Stockholder May be Set Of Against Creditor's Claim—Limitations.</p> <p>A replication is demurrable which does not raise a question of fact upon which issue can be joined but presents only a conclusion of law.</p> <p>Defendant was a stockholder in a bank and liable under the charter for its debts to the amount of the par value of his shares. Shortly before the insolvency of the bank and the appointment of receivers for it, a promissory note of the bank upon which defendant was one of the endorsers was paid by the bank. This payment was held to be an illegal preference and the defendant was required to repay to the receivers the amount of the preference. It was also held in a prior case that in a suit by a creditor of the .bank to enforce the statutory liability of a stockholder the latter is entitled to set off against the claim an indebtedness of the bank to him. In this action by a creditor of the bank to enforce defendant’s statutory liability as a stockholder, Held,</p> <p>ist. That although the defendant paid the amount for which he was adjudged to be liable hot directly to a creditor of the bank but to the receivers, yet that sum having been distributed through them to the creditors, the defendant is entitled to plead set off against the plaintiff’s claim.</p> <p>2nd. That the defendant did not become a creditor of the bank when he endorsed the note but when his liability was enforced against him, and his payment having been made within three years before the filing of the plea of set off, the statute of limitations is not a bar to the plea.</p>

<p> Building Associations—Usury—Premiums For Advances to Members. </p> <p>The grantee of land subject to a usurious Building Association mortgage, who did not agree to pay the specific mortgage debt but only the encumbrances on the property, may set up the defence of usury against the Association.</p> <p>Code, Art. 23, sec. 98, authorizes Building Associations to charge their members such premium as may be agreed upon for lending to them the matured value of their shares of stock, and that the borrower may agree to pay such premium in instalments to be secured in the mortgage to the Association. Held, that the premium which may be so charged must be a definite and fixed sum agreed upon by the parties and not a certain amount to be paid monthly when the number of such payments to be made is uncertain because dependent upon the success of the Association.</p> <p>A subscriber to twelve shares of the stock of a Building Association of the par value of one hundred dollars applied for an advance of $1,200, offering to pay a premium of fifty cents per month per share in addition to six per cent interest on the money to be advanced. In the mortgage to secure the loan of $1,200, the borrower agreed to pay $19.20 per month until the maturity of the stock, not exceeding 84 months, after which interest at six per cent only was to be paid until maturity. This amount was made of $7.20 dues and $12, interest and premium, monthly. A by-law of the Association provided that the rate of interest on advances shall be six per centum per annum with such monthly premium as may be bid therefor. After a number of payments had been made the mortgagor assigned his interest to other parties. Upon a sale under the mortgage after a default exceptions were filed by the original mortgagor and the assignee to the claim of the Building Association to be paid the stipulated premium. Held, that the monthly sum of fifty cents per share which the mortgage provided for, in addition to six per cent interest on the sum advanced, was not such a premium as the Association is authorized under Code, Art. 23, sec. 98, to charge because that is not a fixed and definite sum but the amount ultimately payable as premium is uncertain and that consequently such premium is a usurious charge which should not be allowed to the Building Association out of the proceeds of the sale.</p>

At an election held in the city of Cumberland on May 19th, 1902, W. T. Coulehan and W. C. White were opposing candidates for the office of Mayor. The return of the Board of Canvassers showed that Mr. White had received a majority of sixteen votes and was elected.

<p> Payments Alleged to Have Been Made on Account of a Mortgage Debt After Assignment by the Mortgagee. </p>

<p>Appeal from an order of the Circuit Court for Anne Arun-</p> <p>del County (Revell, J.)</p>

<p>Appeal from the Orphans’ Court of Washington County.</p>

<p> Exceptions to Ratification of Mortgage Sale—Loss of Promissory Note Secured by Mortgage—Assignment of Mortgage by Executor—Affidavit to Mortgage Claim. </p>

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

<p> No Contract is Made by the Acceptance of an Offer Which Was Not Intended to Create Legal Relations And Mias Indefinite. </p>

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

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

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

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