Volume 98 — Maryland Reports

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

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

<p> Partnership—Distribution of Losses Among Partners—Insufficient Proof of Alleged Agreement by Partner Contributing the Capital to Bear Certain Losses—Secondary Evidence of Contents of Lost Account Books—Estoppel—Interest. </p> <p>When there are no articles of copartnership between partners and the entries on the firm’s books show that the profits were equally divided between them, the presumption is that losses should be borne equally, and the evidence to establish a different rule for their distribution should be clear and convincing.</p> <p>Entries on the books of a firm distributing shares of profits and losses, when acquiesced in are as conclusive of the rights of the partners as if they had been prescribed in a regular contract.</p> <p>When after dissolution of a firm one of the partners writes letters acknowledging an indebtedness on his part to the firm and also offers to pay such indebtedness to the executor of a deceased partner, as shown by a trial balance produced by him, he is estopped, in the absence of any evidence of mistake, to say that the trial balance was erroneous and that he did not owe the debt with which he was charged.</p> <p>When the defendants in their answers to a bill for an account of partnership affairs admitted that they did not have the books of the firm in their possession and did not know where they were, it is not necessary for the plaintiff to give them notice to produce the books, in order to lay the foundation for secondary evidence as to their contents.</p> <p>When it is proved that the account books of a firm have been lost and not found after diligent search for them at the place where last seen, trial balances and balance sheets taken from the books and shown by the testimony of the person who made them to be accurate, are admissible as secondary evidence to prove the contents of the lost books.</p> <p>A father contributed the entire capital of a firm in which he and his two sons were the partners. No articles of copartnership were signed. The books of the concern were kept upon the theory that profits and losses were to be equally divided among the three partners. The firm was dissolved early in the year 1888 by the withdrawal of the father and upon his death subsequently the bill in this case was filed by his executor for an account of the partnership affairs. Trial balances taken from the books by the firm’s book-keeper at the end of 1887 showed that both of the sons were indebted to the firm on account of losses but the ' books themselves could not be found. The defendants alleged in their answers that their fa‘ her had orally agreed that the profits of the business should be equally divided among the three partners, but that each of the sons should be entitled to draw $2,500 annually and that losses which would reduce their share of the profits below that sum should be charged to and borne by him. The firm’s book-keeper testified that the senior partner showed him in 1885 or 1886 an unexecuted paper providing that each of his sons should receive $2,500 per annum from the business, without liability on their part for its losses, but the father directed him to continue to keep the books as formerly, by which method the sons were charged with their proportion of losses. By his will made in 1886, the father provided that such sums of money as his sons might owe to him should constitute a part of the principal of his estate and that no payments should be made to either of them until the same should be paid. There was no evidence that either of the sons objected to the mode in which the books were kept by which all of the partners were charged with losses in equal proportions. One of the sons after his father’s death acknowledged the accuracy of the charge against him as shown by the trial balance and offered to pay the same, and the other son made no objection during the continuance of the partnership to the state of the firm’s books upon which he was charged with his withdrawals of money and with one-third of the losses. The sons did not attempt to support by their own testimony the agreement with their father as set forth in their unsworn answers. Held, that the evidence fails to establish the agreement set up in the answers or to overcome the presumption that the losses were to be borne equally by the partners, and that the executor of the deceased partner is entitled to a decree against the defendants for the sums shown by the last trial balance to be due to the deceased, but in view of the circumstances of the case interest will not be charged thereon.</p>

<p> Sufficiency of Declaration Charging Defendant with Negligence Causing Death—Amendment of Declaration not Changing Cause of Action does not Authorize Plea of Limitations to Amended Declaratwn. </p> <p>The declaration in an action to recover damages for the death of plaintiff’s husband, averred that the deceased was a fireman on a train of the defendant company, and that by the want of diligence on the part of the officials or some one of the employes of the defendant, and especially by the want of due care and diligence of those in charge of the local train of the defendant which was running from the opposite direction, by the negligence of the employes of the defendant or the officers of the defendant, a collision occurred, through no want of care on the part of the deceased, and the latter received the injuries which caused his death. Held, upon demurrer, that the disjunctive or must be taken as indicating that the words officers and officials were used in the same sense as the word employes, according to the rule that when á pleading is ambiguous its averments must be construed against the pleader ; that so construed the declaration avers that the injury complained of was caused by the negligence of the fellow-servants of the deceased, and since it does not allege that the defendant was negligent in selecting said fellow-servants or in retaining them in its employment after their incompetency became known, the declaration fails to show any breach of its duty by the defendant and a demurrer thereto was properly sustained.</p> <p>In the said action an amended declaration was filed more than twelve months after the death of the deceased the first count of which was the same as that above set forth, and the second count alleged that the negligence of the defendant consisted in its failure to use due care in selecting the fellow-servants by whose carelessness the death of the plaintiff’s deceased was caused. Code, Art. 67, sec. 3, provides that an action to recover damages for a death caused by negligence must be brought within twelve months thereafter. The defendant pleaded to said second count that the cause of action did not accrue within twelve months before the filing of the amended declaration. To this plea plaintiff demurred. Held, that the amendment did not change the cause of action ; that the original declaration was founded upon the alleged negligence of the defendant through its agents, and though it was insufficient in law on account of the failure to allege that the defendant was negligent in the selection of its agents, yet that defect did not prevent the suit from being a pending action charging the defendant with negligence ; that the amendment which made a correct statement of the cause of action did not constitute a different suit, since the cause of action itself, the defendant’s negligence, was the same, and that therefore the defendant was not entitled to plead the Statute of Limitations to the amended declaration.</p> <p>The institution of a suit arrests the running of the Statute of Limitations, and a mere amendment of the declaration in that suit, when the cause of action remains the same, does not entitle the defendant to plead limitations to the amendment, although the statutory period arrived after the bringing of the suit and before the amendment was made.</p> <p>But a new suit is begun when the amendment of the declaration is such as to change the cause of action, and if the period of limitations has supervened before the date of such amendment, the statute may be pleaded to the new cause of action first set up by such amendment.</p>

) There have been many fine distinctions drawn, and many contradictory decisions have been arrived at in the various Courts upon this point as to whether the boy, Frederick Wad-dell,’ on the occasion in question was in the employment of his father, the appellee, or of Samuel Johnson, and upon this Court’s view of that single point the result of this appeal must rest. The question has never been passed on in this Court.

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

) In Maryland the electoral franchise is conferred by the Constitution of the State upon male citizens of Maryland over the age of twenty-one years, who, among other things, have been such citizens for one year.

) The order of the Circuit Court was outside of and beyond the special, limited jurisdiction conferred upon it by the statute under which these proceedings were instituted, and, therefore, an appeal lies to this Court. Acts 1894., ch. 380, sec. 46; Webster v. Cockey. 9 Gill, 93; Kimmear v. Lee, 28 Md. 488; Mears v. Remare, 33 Md. 246; Herzberg v. Adams, 39 Md. 312; Consumer's Ice Co. v. State, 82 Md. 132; Darrell v. Biscoe, 94 Md. 684.

<p>Appeal from the Circuit Court for Dorchester County (Holland and Lloyd, JJ.)</p> <p>The cause was submitted to this Court on briefs by:</p>

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

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

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

) The sole cause of action set out in the declaration is'that plaintiff was deprived of his land by the acts of the defendant set out therein, viz: ist, not delivering for record a deed; 2nd, delivering for record an erroneous deed. How the plaintiff was “deprived of his land ” by the acts complained of, there is no attempt to show. The fact that the plaintiff was deprived of his land at all, nowhere appears in the evidence.

The following facts are stated in the declaration and admittted by the demurrer: (i) That the defendant is a railroad corporation engaged in operating its road through Carroll County in transporting passengers and freight; (2) that on the morning of the 28th of June, 1901, George W. Mummaugh, a small farmer shipper of Carroll County, Maryland, took to “Carrollton,” a station of defendant’s road in Carroll County, a calf for shipment by it from said station to the city of…

J. and Brown, J.) The following instruction was given as a substitute for the plaintiff’s first and second prayers.

) Whatever may be the rule in other States, it has been definitely settled in Maryland that a grand juror is competent and will be allowed to testify concerning proceedings in the jury . room whenever the ends of justice zvill be subserved thereby. The rule imposing secrecy on a grand juror is one of public policy only tó subserve the ends of justice, and yields where it would ‘ be ,to.defeat justice to seal his lips.

<p>Validity-of Order of County Commissioners Directing Collectors of . Taxes to Pay a Sum of Money—Levy of Tax For a Particular Purpose Part of General Fund—Liability of Surety on Bond of Collector.</p> <p>An order signed by the Clerk of a Board of County Commissioners, issued in pursuance of a verbal order of the board, directing a collector of taxes to pay a certain sum of money to a designated person, is valid, although no entry concerning such order was made on the records of the board.</p> <p>When a collector of taxes has received and recognized such order and promised to pay it from funds collected by him.for the county, but fails so to do and misappropriates the money, the surety on his bond is liable therefor.</p> <p>Under Code, Art. 25, sec. 7, money levied by County Commissioners under estimate for a particular purpose (other than educational) is a part of the general fund and may be used for other lawful purposes.</p> <p>Code, Art. 25, sec. 7, requires County Commissioners to make a tax levy by estimate of a sufficient sum to discharge all lawful claims against the county, and Art. 81, sec. 44, provides that every collector shall collect the amounts levied and pay the same to the Commissioners or their order, and that money levied for educational purposes shall be levied separately from the other items and be payable to the School Commissioners. In this case the County Commissioners directed a collector of taxes to pay a certain sum to a named party “on account of Insane Pauper fund for 1900.” The collector promised to pay the sum to the payee of the order but failed to do so nor did he pay the amount thereof, which he had collected, to the County Commissioners. In an action on his bond which was conditioned to pay to the Commissioners or their order the several sums of money which he should receive, held, that the amount levied for insane paupers was a part of the general levy and subject to disbursement by the Commissioners, and the order in question was valid, although actually made payable to a person having a claim against the county not connected with the support of the insane, and that since the collector has failed to pay the money collected by him as ordered by the Commissioners', the surety on his bond is liable for such default.</p>

<p>Appeal— Vacating Administrator's Account.—Issues From Orphans' Court to Court of Law Not to be Sent After Beginning of Trial in Orphans' Court.</p> <p>When there are cross appeals and the record has been duly transmitted and printed, it is no ground for dismissing one of the appeals that the appellants therein had not paid for any part of the record.</p> <p>When an administrator’s account has been passed making certain allowances for preferred claims paid by the administrator for which claims proper vouchers were not produced, the order ratifying the account should be rescinded.</p> <p>A petition was filed in an Orphans’ Court alleging that a certain administrator’s distribution account had been improvidently passed and that certain allowances therein were improperly made and asked that the order passing the account be rescinded. Answer was filed and trial of the issues was begun before the Orphans’ Court when one of the parties asked that the case be sent to a Court of law for trial. Held, that having elected to try the issues before the Orphans’ Court and the trial having actually begun, a party is not entitled to stop the proceedings there and require the issues to be transmitted to a Court of law under Code, Art. 93, sec. 250, which provides that the Orphans’ Court shall direct an issue or issues to be made up and sent to a Court of law for trial when either party to any contest upon a plenary proceeding shall require.</p>

J.) According to the custom of this bucket-shop business,whenever a customer gives- an order for the purchase of certain stocks, he is required to pay the broker or proprietor of the shop $2 for each share of stock so ordered to be purchased.

<p> Construction of Acts of Assembly Relating to the Md. Agricultural Association. </p> <p>The Act of 1867, ch. 128, incorporated the Maryland Agricultural Association and appropriated $25,000 for the purchase of land to be held by trustees for its use and provided that upon the dissolution of the Association, or if it should hold no exhibition on said land for three successive years, then the trustees should convey the land so purchased to the State. Subsequently the city of Baltimore and other parties contributed to the funds of the Association, and the Act of 1870, ch. 89, provided that these contributors should participate with the State in the distribution of the proceeds of the sale of the land of the Association in the event of its dissolution, and that such sale should be made by the trustees in case of such dissolution. The bill in this case was filed by the State and alleged that the Association had held no exhibition upon said land for more than three years, and asked that a decree be made directing a sale of the land and distribution of the proceeds. The bill alleged that there had been a non-use by the Association of its corporate franchises but did not allege that it had been dissolved. Upon demurrer, held,</p> <p>1st. That the Act of 1870’repealed so much of the Act of 1867 as directed a conveyance of the land to the State in the event either of a dissolution of the corporation or of a failure by the Association to hold exhibitions on the land for three successive years.</p> <p>2nd. That under the Act of 1870 a sale of the land was authorized only after dissolution of the Association and not upon failure to hold exhibitions, and since the bill does not allege that the corporation has been dissolved, the demurrer thereto was properly sustained.</p>

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

) The evidence is abundant and convincing that from 1855 until Burke built up his fence in 1901, the occupants of the premises now belonging to Vandegrift, crossed the Burke lot to get to the eight-foot alley.

) The Mayor and Councilmen are the judges of what obstructs and constitutes a nuisance of the public streets and their action is not reviewable by the Courts and especially true is that principle of law in this case. The whole street is used for public travel and the trees are on that portion of the street that is most traveled and almost the center of the business portion of the main business street in the town.

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

J., Martin and Brown, JJ.) The cause was submitted to the Court on briefs by : It is against the policy and practice of Courts of equity to specifically enforce contracts relating to personalty. The exceptions are founded principally upon the inadequacy of the remedy at law in the particular case, or the special and peculiar nature and value of the subject-matter of the contract. Miller's Equity, sections 664 and 665 and cases cited. Pom. Specif. Perform., section 2.

) The plaintiffs seek in this bill, the reformation of a deed upon the ground of mistake, an injunction to restrain an alleged nuisance and also full compensation for such damages as they may have suffered. The bill is multifarious where the defendant is sued in regard to several distinct matters which have no connection with each other. Miller's case, 52 Md. 644.

<p> Mandamus—Appe,al—Construction of Charter of an Academy. </p> <p>Upon appeal from an order granting or refusing a mandamus relating to an office, this Court is not restricted to a review of the rulings of the trial Court upon the instructions, but determines, on an inspection of the whole record, whether the order appealed against is correct or not.</p> <p>The Act of 1835, ch. 204, incorporating the Upper Marlboro Academy as a public school provided that an election for trustees thereof should be held every January and that at such election every citizen of the county entitled to vote for Delegates to the Legislature should be entitled to vote for trustees if he shall have contributed to the building or support of the Academy to the amount of not less than five dollars, or if at the time of the election he shall send a pupil to the Academy. Held, that under the plain language of the charter citizens who had at any time prior to an election contributed five dollars to the support of the Academy are entitled to vote for trustees, although they may not send pupils to the school, and that therefore trustees elected by the votes of such persons are entitled to the offices.</p>

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

<p>Appeal from the Circuit Court for Howard County (Jones, C. J.)</p>

J., Martin and Brown, JJ.) A part of the answer of Willie Wickes to the petition of the purchaser is as follows : 4. Held: in the view of a Court of equity, not adverse to, but under the rightful holder, to-wit, this respondent, to whom the said Charlotte always remained liable to account for such profits. II.

) 1. The stream in question is a water-course. 2. As to the easement of the flow of water therein, the land of the appellants is the dominant, the lands of the appellees to the eastward are the servient heritages.

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

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

<p>Appeal from the Baltimore City Court (Dennis, J.)</p> <p>The cause was submitted to the Court on briefs by:</p>

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

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

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

) Defendant’s 5th Prayer.—If the jury find from the deeds offered in evidence, that one Ellen M. Smith prior to 4th May, 1872, owned a large tract of land of which that mentioned in the narr. was a part and that on said date she conveyed to one James H. Wheeler, a certain portion “reserving however, the privilege of using the water from the spring in the lot of ground” thereby conveyed; and that subsequently to wit: on the 18th day of August, 1874, the said Ellen M. Smith…

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

<p> Accident at Railway Crossing—Safety Gates Open—No Evidence of Contributory Negligence. </p> <p>When the plaintiff in this case approached the grade crossing of defendant’s railroad at night he found the safety gates open and no watchman at the watch-box between the tracks. A large building on the corner intercepted in part the illumination of an electric light and threw a' shadow upon a portion of the six tracks. Plaintiff testified that before •crossing he stopped and looked, but neither saw nor heard a train; that when half way across he heard a bell in one direction, but was struck by a train coming from the other direction which was running backwards and gave no signal of its approach by either a bell or U light. Held, that under these circumstances the plaintiff was not guilty of contributory negligence.</p>

<p>Appeal from Baltimore City Court (Sharp, J.), where there was a verdict and judgment for the plaintiff against both defendants for $7,000.</p>

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

) The questions involved are substantially two, namely: (1) Did Seth H. Whiteley acquire a statutory curtesy in an undivided one-third of the lands passing to his wife under the will of her grandfather. (2) If he did, is the right of his creditors to levy on this estate affected by the “ante-nuptial contract,” filed as an exhibit with his and his wife’s answer.

) Plaintiff's Second Prayer.—If the jury believe from the evidence that plaintiff offered defendant, John Baker, money sufficient to pay for a telephone or telegraphic message to Sheriff Patterson of Frederick County, Maryland, Mayor William F. Chilton of Frederick City, Maryland, or Murray Brish and at the time of said offer, told John Baker that any one of them would prove his innocence, and that said John Baker refused to accept said money or to allow him to send a…

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

<p>Appeal from the Circuit Court for Wicomico County (Page,' C. J., and Holland, J.)</p>

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

<p>Appeal from Circuit Court No. 2, of Baltimore City (Harlan, C. J.)</p>

<p>Appeal from the Superior Court of Baltimore City, (Phelps, J.)</p> <p>Defendant's ist Prayer.—In order to entitle the plaintiff to recover in this case, the jury must find from the evidence that the defendant, with a view to induce the plaintiff to purchase stock of the South Baltimore Bank, made representations set forth in the declaration in this case, which representations were false in fact when made, and the defendant had no reasonable ground to believe the same to be substantially correct when made; and also that the same were made with the fraudulent intent to cheat and deceive the plaintiff and that the plaintiff had not at hand the means of verifying the truth of such rep-/ reservations, and that in purchasing said stock the plaintiff relied on such representations, and would not have made such purchase except upon the faith of the same, and that in consequence thereof he was misled and injured. (Refused.)</p> <p>Defendant’s 2nd Prayer. —Even If the jury find that the representations alleged in the declaration, or any of them, were made by the defendant, and that such representations were untrue in fact, yet their verdict must be for the defendant, unless they further 'find that the defendant fraudulently intended to deceive the plaintiff; and in making up their minds upon the question of fraud, the jury are instructed that fraud is not to be presumed, and that the burden of proof is upon the plaintiff to overcome such legal presumption by evidence satisfactory to the jury. (Refused.)</p> <p>Defendant’s 3rd Prayer.—The plaintiff is not entitled to recover on account of any representations they may find the defendant to have made to the plaintiff that the South Baltimore Bank was doing nicely, or had a prosperous business, or was a good investment, and the jury must exclude such representations from their consideration as constituting of themselves a basis of recovery in this action, and under the issue joined on the pleadings herein. (Refused..)</p> <p>Defendant's 6th Prayer.—The uncontradicted evidence showing that Mr. Campen one of the directors, tried to buy stock of the South Baltimore Bank at twenty dollars per share, in the presence of the plaintiff, after he bought the stock from the James Clark Company, and that sales of the South Baltimore Bank w7ere made to other directors with the knowledge of the plaintiff at twenty dollars per share, after he had bought the stock from the James Clark Company, in no event can a verdict be given for a greater sum than three dollars and fifty cents per share with interest thereon in the discretion of the jury. {Refused.')</p> <p>Defendant’s 8 1-2 Prayer.—Even if the jury should find a verdict for the plaintiff, it can be for no greater or larger amount than would have been the loss of the plaintiff, if he had made every endeavor to reduce his loss, which he could have made by the excercise of reasonable efforts, after he learned, or by the exercise of reasonable diligence could have learned that a deceit had been practiced upon him by the defendant, with interest on the amount of such loss from the time it would have been made, in the discretion of the jury. {Granted.)</p> <p>The Trial Court's Instruction.—If you find affirmatively, and by a preponderance of proof, that at and before the sale by the defendant to the plaintiff of the 30 shares of stock in the South Baltimore Bank, the defendant being a director and president of the bank, and a member of its finance and book committees, as an inducement to the plaintiff to buy said stock, made representations to the plaintiff concerning the then existing actual financial condition and soundness of said bank, and consequent value of its stock, or as to the real- ownership of said 30 shares, substantially as charged in the declaration, which representations, in whole or in material part, were false in fact, and were either known to the defendant to be false, or by the exercise of ordinary care (that is, such care as might reasonably be expected of an ordinarily prudent and intelligent bank president under the circumstances), ought in your judgment to have been known by him to be false; and if you further find, as aforesaid, that the defendant at the time of making such false representations (if you find the same), either willfully intended to deceive the plaintiff, or was recklessly indifferent as to whether the plaintiff would be deceived or not; and if you further find, as aforesaid, that in buying said stock the plaintiff was induced to rely upon the supposed truth of such misrepresentations, in whole or in any material part, to such extent that, but for the same, the deal, in your judgment, would not have been made; and if you further find, as aforesaid, that the plaintiff had not, and could not, in the exercise of ordinary care on his part (that is, such care as might reasonably be expected of an ordinary prudent and intelligent buyer of stock under the circumstances), have had the means at hand to verify the truth of said representations; and if you further find, as aforesaid, that, as a direct consequence of the premises, the plaintiff has sustained loss; then the plaintiff is entitled to recover such amount as will compensate him for such loss, with interest from the time thereof, not exceeding C per cent, in your discretion.</p> <p>You are also instructed that fraud is never to be presumed, but must be clearly proved, and if you fail to find all the propositions set forth substantianially as stated, or if, after due consideration, your minds are still in a state of equipoise or balance as to any one or more of them then the defendant is entitled to your verdict.</p> <p>By the word “material” as used above you are to understand such representations of the character mentioned as you may find were intended by the defendant to influence and did influence the plaintiff to such an extent that, but for the same, the deal in your judgment would not have been made.</p>

<p>Unlawful Detention of Passenger by Railway Conductor—Assault— Punitive Damages.</p> <p>When a wrongful act is committed in the honest assertion of a supposed right or in the discharge of a duty, or without any evil intention, there is no ground upon which exemplary or punitive damages can be awarded.</p> <p>Plaintiff, a woman peddler carrying a small pack containing her merchandise was a passenger on defendant’s railway. When the conductor took up her ticket he demanded twenty-five cents additional for her pack. A similar demand had previously been made upon her and she had twice complied with it, but on the occasion in question she declined to do so. When the train arrived at its destination the conductor and brakeman refused to allow the plaintiff to get off until she had made the payment demanded and pushed her back when she attempted to alight, but she was finally permitted to go without paying. There had previously been posted in the railway stations a notice signed by defendant company’s agents to the effect that peddler’s packs or baskets would be charged for at regular excess baggage rates, no amount being collected less than twenty-five cents. In an action against the railway company for assault, the trial Court instructed the jury that if the conductor detained the plaintiff in the car by force and violence, she was entitled to recover and that in assessing damages the jury might award reasonable compensation from a consideration of the nature of the force applied and plaintiff’s sense of indignity and humiliation. By another instruction the jury were told that if the conductor acted willfully and with intent to inflict pain and humiliation upon the plaintiff, then they may award her exemplary or punitive damages as a punishment to the defendant for such wrongful act. Held, that the conductor was seeking to enforce a regulation of the company, and since there is no evidence of malice or evil motive on his part, the instruction authorizing the jury to award punitive damages was erroneous.</p>

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

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

<p>Appeal from the Court of Common Pleas (Harlan, C. J.)</p> <p>The cause was submitted to the Court on briefs by:</p>

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

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

<p> Equitable Set-Off—Estoppel. </p> <p>The receiver of a bank filed a bill in equity alleging that a sum of money deposited m the bank in the name of a certain person as trustee, was really owned by parties who were indebted to the bank; that the trustee had brought suit against the receiver and recovered a judgment for the amount of the deposit because the Court of law had refused to allow the claim of the bank against the real owners of the deposit to be used as a set-off. The bill prayed that this set-off be established in equity and that the execution of the judgment be restrained. Held, that the receiver is entitled in equity to set-off against the claim of the trustee the indebtedness to the bank of the persons entitled to the sum so deposited in trust.</p> <p>Held, iurther, that the ruling of the law Court in the action by the trustee • against the receiver does not estop the latter from asking fon the relief sought in this suit against all the parties in interest.</p>

<p>Injury to Passenger Getting off Car in a Tunnel—Contributory Negli- • g , gence.</p> <p>Plaintiff, a passenger, on defendant’s railway, wished to get off at the Penn. Ave. Station which was at an opening about 300 feet long in a tunnel. When the train neared the station the conductor came into the car where the plaintiff was and called twice in a hurried manner “All out for Pennsylvania Avenue Station,” and went into the next car. The train slowed up and plaintiff went on the platform and saw the conductor on the bottom step of the next car. When plaintiff was sátisfied that the train had stopped he got on the bottom step of the car which was still in the tunnel where it was dark. Then there was a sudden movement which caused plaintiff to lose his footing and hold and threw him off. Held, that it was for the jury to determine whether the plaintiff was misled by the announcement of the conductor and believed that the station and place for alighting had been reached and whether he acted carelessly in standing on the step at the time he did, and that consequently the questions of defendant’s negligence and plaintiff’s contributory negligence could not be determined by the Court as matters of law.</p>

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

) where -there was a verdict and judgment for the plaintiff for $>1,750. Held: Although the husband's negligence cannot be imputed to’ wife, the circumstances were such as to require ordinary care on her part. The driver’s negligence would not relieve her of this. Otherwise, the result would be that in this case a recovery is had in the absence, whatever of ordinary care on her part.

<p>Appeal from Circuit Court No. 2, of Baltimore City (Dobuer, J.)</p>

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

<p> Production and Sale of Electricity—Right to Use of City Streets for Transmitting Electricity a Franchise—Electrical Commission oj Baltimore City Not Authorized to Rent Space in City Conduits for Electric Wires Except to Those Having Special Authority to Use City Streets. </p> <p>The right to produce and sell electricity as a commercial product is open to all persons without legislative authority.</p> <p>But the right to use the streets of a city for the purpose of transmitting electricity with wires is not common to all citizens, but is a franchise which can be granted only by the State or by the municipality acting under legislative authority.</p> <p>An ordinance of the city of Baltimore made in pursuance of legislative authority provided for the construction, under the streets of the city, of conduits and directed that all wires used in transmitting electricity should be placed in said conduits, and an Electrical Commission was thereby constituted and directed to rent space in the conduits to any applicant complying with the conditions of the ordinance and those prescribed by the Commission. Section 6 of the City Charter (Code Public Local Laws, Art. 4) empowered the city to regulate the use of the streets by electric and other wires, etc. Section 8 delegates to the Mayor and City Council the power to grant specific franchises in the highways of the city. Section 10 provides that the grant of any such franchise shall be embodied in the form of an ordinance, which must be advertised, and under section 37 such ordinance must be referred to the Board of Estimates which shall ascertain the adequacy of the compensation proposed to be paid for the franchise to the city. The petitioner in this case alleged that as an individual he was engaged in producing and selling electricity and asked for a mandamus to compel the Electrical Commission to issue to him a permit to use a duct in certain conduits of the city. No ordinance or Act of the Legislature granting him a right to use the streets for his wires had ever been passed. Held, that the Electrical Commission is authorized to rent space in the conduits only to such applicants as have obtained by ordinance or Act of the Legislature some special authority to use the streets for their wires and consequently the petitioner not having such franchise is not entitled to place his wires in the conduits.</p> <p>Held, further, that under the City Charter the compensation which must be paid by a party asking for some special privilege in the city streets is one which must be ascertained in the precise manner directed after advertisement, etc., and is distinct from the rental charged for space in the conduits which may be, and has been, fixed by municipal ordinance at a certain sum per duct for all applicants.</p>

) The controlling question in this case is the constitutional validity of ch. ioi of the Acts of 1902.

) The rights of the petitioner, if he has any, arise out of a contract with a private corporation, and cannot be enforced by the action of mandamus. 19 A. & E. Ency. Law, (2 ed.) 742; Clark v. Md. Institute, 87 Md. 643.

,) where there was a verdict and judgment for the plaintiff for $1,000.

<p>Appeal from the Superior Court of Baltimore City (Wright, J.)</p> <p>The description of the ring was indefinite and uncertain. Art. 21, secs. 45 and 41 of the Code, p. 262, requires that all chattel mortgages and bills of sale shall contain a description of the articles conveyed. Where a statute requires that a mortgage shall contain the description of the property, it necessarily means an efficient and full description, so that the same may be easily and readily known or distinguished from, other property of the same kind. Fersner v. Bradley, 87 Md. 489.</p> <p>There is no evidence in the record to show that the ring which the appellants received from Linthicum in pawn answers the description of the ring covered by the chattel mortgage. There is no evidence to show the weight of the diamond, or that the ring ever had any marks on it. That it is the same, ring purchased by Linthicum from the appellees, may be conceded, but unless the ring is shown to have borne marks and to have been of the precise description as set out in the mortgage, the appellants were not bound by constructive notice. There is not only no attempt to show that it answered the description of the ring mentioned in the mortgage, but on the contrary, it was conclusively shown that there was no mark of identification on the ring in controversy by which anyone dealing with it could have known that it was the identical ring referred to in the .chattel mortgage.</p> <p>{5) An article of wearing apparel, or an ornament which adorns the person, and which attends the person in his daily walks of life, is not the subject of a chattel mortgage. For to-hold otherwise, it might be the means of perpetrating a fraud upon innocent purchasers for value. A person dealing with another who is in possession and apparent ownership, has a perfect right to believe him to be the true owner.</p> <p>(c) The mortgage is invalid as to third persons, because of the absence of an affidavit of the mortgagee’s, endorsed thereon that the mortgagor was not required to pay the tax levied upon the interest. Art. 81, sec. 146-d-i, Code Supplement.</p> <p>The evidence to show that the acquisition by the appellees of Linthicum’s equity of redemption, and the assumption by them of Linthicum’s debt to the appellants, and the ratification by the appellees of the pledge of the ring by Linthicum to the appellants, should have been admitted.</p> <p>There was a complete novation. Linthicum ovved the appellees $52, having paid $68 on account of the $120, and he owed to the appellants $65. The appellees could well afford to pay to the appellants their advances to Linthicum, as they amounted to less than what Linthicum had already paid to them, the appellees. That is to say, had the appellees paid to the appellants the $65 due them by Linthicum, the appellees would have become entitled to the ring plus $3, being the amount paid to them by Linthicum in excess of the $65 necessary to redeem the pledge. Having, in fact, received from Linthicum the pawn ticket, which was by its terms transferable (6) upon the faith of their promise to redeem the pledge, and to cancel the mortgage from them to Linthicum the appellees thereby became liable to the appellants for the advances from the appellants to Linthicum, and, at the same time,' ratified the pledge. George v. B. S. Andrews, 60 Md. 33; Stokes & Haines v. Detrick & Bradley, 75 Md. 261.</p> <p>It is settled that where a mortgagee of chattels, with knowledge that they have been sold by the mortgagor for their full value, accepts the proceeds of a sale, and credits the same on the mortgrge debt, he is estopped from asserting any right to the property under the mortgage. Field v. Doyon, 64 Wis. 560. So again, if the owner of a chattel, which has been sold on credit as the property of another, accepts and collects for his own benefit a promissory note, known by him to have been given by the vendee for the purchase-money, he is thereby estopped from asserting title as against the vendee. Moore v. Hill, 85 N. C. 218.</p> <p>The mortgagees (appellees) having received the sum of $68 from Linthicum on account of the purchase-money for the ring, and also the pawn ticket, or receipt, with the express understanding that they were to pay to the appellants the amount of the advance, and the mortgage was to be considered extinguished, ought not in equity arid good conscience be permitted to violate their agreement. The consideration for the promise was the surrender of the pawn ticket for the pledge and the right to retain the difference between Linthicum’s payments to them and the amount necessary to be paid by them to redeem the pledge. McFadden v. O' Donnell, 18 Cal. 160; Herzogy. Sawyer, 61 Md. 344; Ackla v. Ackla, 6 Penn. 228; Wallis v. Long, 16 Ala. 738.</p> <p>In general, any personal property which is capable of being sold may be mortgaged. 5 Am. & Eng. Ency. of Law, 2 ed. 974; Jones on Chattel Mortgages, sec. 114; Lawson's Rights, Remedies, &c., vol. 6, sec. 3079; Herman on Chattel Mortgages, sec. 36.</p> <p>The evidence as to the agreement between Linthicum and the appellees was inadmissible (a) because the alleged promise was made without any consideration moving to the appellees, the mortgagees, and was, as far as they are concerned, a nudum pactum. Linthicum, in giving up the pawn ticket simply did less than what by the law and by his contract, he was obliged to do. It is a well-settled rule of law that neither the promise to do a thing nor the actual doing.of it, will be a good consideration, if it be the thing which the party is bound to do by •the general law or by a subsisting contract. 6 Am. & Eng. Ency., 750, 756.</p> <p>“The almost uniform current of authority in this country is, that neither performance nor promise of performance of what one is already bound to do by contract with a third person, is a sufficient consideration to support a promise.” 8 Harvard Law. Rev. 38. The following cases furnish practical illustrations of the application of the rule. Wendover v. Baker, 121 Mo. 294; Crosby v: Wood, 6 N. Y. 369; Vanderbilt v. Schreyer, 91 N. Y. 392; Hamer v. Sidzvay, 124 N. Y. 548; Robinson v. Jewett, 116 N. Y. 40; Hill v. Beebe, 13 N. Y. 556; Withers v. Ewing, 40 -Ohio St. 406,407; Esterly Harvesting Machine Co. v. Pringle, 41 Neb. (1894), 265; Alien v. Plasmeyere, 90 N. W. 1125 (Neb. 1902); Lingenfelder et al. v. Wainwright, 103 Mo. 578; Conover v. Stillwell, 34 N. J. L. 54; Ritenour v. Mathews, 42 Ind. 7, 14; Schuler v. Myton, 48 Kan. 282; Westcott v. Mitchell, 95 Me. 377; Ayres v. A. A. /. dr A. A. A. 52 Iowa, 478; Martin v. Armstrong, 62 S. W. Rep. 83; Holmes v.Boyd, Cashier, 90 Ind. 332; Morgan v. Hodges, 15 L. R. A. 438; Seyboldt v.N. Y. L. E. A. A 95 N. Y. 575; Abbott v. Doane, 163 Mass. 433; is reported in 34 L. R. A., p. 33. This decision is contrary to the great weight of authority and the editor of the notes to this very case expressly so states.</p> <p>At the period covered by the rejected proffer, Linthicum was in default. He had parted with the possession of the ring, he had removed it from 703 Portland street, and for this reason and also under the insecurity clause of the mortgage, the appellees were entitled to possession at that time. If the Castelberg’s had then taken possession of the ring, Linthicum could not have successfully sued them in an action at law. Jamieson v. Bruce, 6 G. & J. 72.</p> <p>(b) The evidence sought to be admitted under the proposed proffer, would have contradicted and varied the mortgage, which is an instrument under seal. It is contradictory to the clause at the conclusion of the mortgage, which states that “No stipulation herein contained shall be deemed rescinded as against the mortgagees unless such rescission is in writing and signed by the mortgagee.” Harvey v. McAdams, 32 Mich. 472; State, use Barnard, v. Gott, 44 Md. 342, 346, 347; Zihlman v. Cumberland Glass Co., 74 Md. 303, 310, 311; Connor v. Groh, 90 Md. 674, 683, 684; Dixon v. Clayville, 44 Md. 573, 578, 579; Natty v. Long, 71 Md. 585. 587; Abbott v. Gatch, 13 Md. 315, 330, 331; Patchin v. Pierce, 12 Wend. (N. Y.) 61; Jones 071 Chattel Mortgages, 4 ed.,secs. 67, 91; Farrow v. Hayes, 51 Md. 498—505; Cassard, 7ise of 0eli7n, v. McGlannan & Hall, 88 Md. 168; Blackistone v. Geinnan Bank, 87 Md-302.</p> <p>Parol evidence is not admissible to contradict the terms of a mortgage, (Jones 077 Chattel Mo7'tgages, secs, 64, 67), nor to substitute different conditions. Ibid, sec. 91.</p> <p>(c) Salabes, the appellant, was not a party to the agreement set out in the proffer and there is no privity between Salabes and the appellees, and there never was any duty or obligation whatsoever, owing by the appellees to the appellant.</p> <p>The correct modern rule is laid down by the Court of Appeals of New York, cited by the Supreme Court of the United States in Constable v. National Steamship Co., I 54 U. S. 51, where it is said: “It is by no means a universal rule that a person may sue upon a contract made for his benefit, to which he was not a party, Hendrick v. Lindsay, 93 U. S. 143; National Rank v. Grand Lodge, 98 U. S. 123; Keller v. Ash-ford, 133 U. S. 610; Cragin v. Lovell, 109 U. S. 194; Willard v. Wood, 135 U. S. 309. * * * * As observed by the Court of Appeals of New York in Simpson v. Brown- 68 N. Y. 355. ‘It is not every promise made by one to another, from the performance of which a benefit may enure to a third, which gives a right of action to such third person, he being neither privy to the contract nor to the consideration. The contract must be made for his benefit, as its object scad he must be the party intended to be benefited.’ See also Natoinal Bank v. Grand Lodge, 98 U. S. 123; Garnsey v. Rodgers, 47 N. Y. 233. See also Durnherr v. Ran, 135 N. Y. 219; Haifimon on Contracts, sec. 332, p. 674; Brantly on Contracts, ch. 8; Meecli v. Ensign, 49 Conn. 191; Mellin, Admr., v. Whipple, 1 Gray (Mass.), 317.</p>

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

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

2, of Baltimore City (Dobler„ J.) 1. The part of the testator’s property, of which the appellants, his granddaughters; by the eighth clause of the will,… Held: no ademption of the legacy. It was urged for the plaintiffs, the nephews and nieces, leg atees, that it was impossible to infer an intention to adeem; for the bill was paid in the usual course in which the company paid these bills in rotation. For the defendant it was urged that it was a specific legacy and adeemed.

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

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

<p> Compensation of Treasurer of Harford County for Collection of State Taxes. </p> <p>Under local Code, Art. 13, sec. 262Q and the general provisions of Code, Art. 81, the Treasurer of Harford County is required to pay over to the State the full amount of State taxes collected by him, and his commissions for collecting the same are payable by said county and not by the State.</p>