Volume 99 — Maryland Reports

<p>Taxation — Shares of Stock Liable to Taxation Only in Counties Where ■ Owners Reside — Invalidity of Statute Giving to a County Where Corporation was Created the Tax on Shares Owned by Non-Residents of the County.</p> <p>Shares of stock in Maryland corporations are personal property belonging to the respective shareholders, and such property, when owned by residents of this State, can be made liable to taxation only in the counties where the owners reside under Constitution, Art. 3, sec. 51, which declares that personal property of residents in this State shall be subject to taxation in the county or city w'here the resident resides for the greater part of that year for which the tax may be levied and not elsewhere except goods and chattels permanently located.</p> <p>Code, Art. 81, sec. 2, directed that shares of stock in corporations created under the laws of this State shall be assessed for the purposes of taxation to the owners thereof in the county or city in which they re- •. side, and under sec. 141 the corporations were required to pay the taxes on the shares of stock to the State and to the different municipalities where the owners reside and charge the same to the shareholder?. The Act of T900, ch. 579, provided that the corporations of Allegany County shall paythe State and county taxes levied upon the assessed \ value of their capital stocks held by stockholders resident or non-resident of that county but the holders of said stock shall not be liable to taxation upon the stock owned by them. Held, that the purpose of the. Act of 1900 is to give to Allegany County all the local taxes on all of the’stock of its corporations no matter where owned, and consequently repeals by implication as to these corporations the above-mentioned provisions of the Code.</p> <p>Held, further, that the Act of tgoo is invalid because it violates the Constitution, Art. 3, sec. 51, which prescribes that the personal property of residents of this State shall be subject to taxation in the counties where they reside.</p> <p>Held, further, that the Act of 1900 is in violation-of Constitution, Art. 3, sec. 33, which declares that the General Assembly shall pass no special law for any case for which provision has been made by a general law, because, although professing to be a local law for Allegany County, said Act operates in every county where a stockholder of an Allegany County corporation resides and withdraws from these counties by a special provision the tax upon such shares.</p>

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

<p>Promise to Pay Specialty Debt Barred by Limitations — Proof of Claim Against Decedent's Estate — Competency of Witness.</p> <p>When the right to sue on a promise under seal to pay a sum of money has become barred by the Statute of Limitations, and thereafter the specialty debtor makes an express promise to pay the obligation, or the part thereof remaining unpaid, an action of assumpsit can be maintained upon such promise and the specialty is admissible as evidence of the consideration therefor.</p> <p>In 1882, one Miller, executed a single bill promising to pay a sum of money to the trustees of a church one year after date with interest. Miller died in 1902 without having paid any part of the principal sum, but having paid the interest in full to 1896 and having made part payment of the interest down to the time of his death. The decedent’s real estate was sold in an equity proceeding for the payment of his debts and the Trustees of the church asked for the payment of the single bill out of the proceeds of sale. The distributees of the estate relied upon limitations against this claim under Code, Art. 57, sec. 3, which provides that no specialty shall be good and pleadable, etc., after the debt is above twelve years’ standing. The evidence in the case showed that in 1901 the obligor, Miller, said to the officers of the church that the note with interest was due to the church and that he wanted to sell a farm and pay the debt off; also on another occasion that he would pay the note so as to prevent any trouble. Held, 1 that this evidence shows such an express promise to pay the debt asv removes the bar of the Statute of Limitations.</p> <p>After the specialty was filed as a claim in the above mentioned equity case and testimony was taken, an agreement of counsel was made that the testimony and all papers filed with the Examiner “shall be considered in the determination of the matter of said note, all informalities being waived.” Held, that this agreement dispensed with the necessity, if any existed, of first establishing the right of the trustees to recover m a Court of law, or of presenting their claim in any special manner.</p> <p>The trustees as parties to the note were competent witnesses to prove the new promise although the obligor was then dead, since under the Act of 1902, ch. 495, the incompetency of one party to a contract to testify when the other is dead was removed.</p>

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

<p>Action of Assault and Battery Against Superintendent of House of Correction by Prisoner Who Had Been Flogged — Evidence—Photograph.</p> <p>While plaintiff was serving a term of imprisonment in the House of Correction he was brought before the Superintendent one morning and charged with disorderly conduct during the preceding night. The Superintendent directed an employee to punish plaintiff for the offence in the manner prescribed by the rules of the institution. This employee gave plaintiff five lashes with a cat-o’-nine-tails on the bare back. In an action against the Superintendent for assault and battery, plaintiff testified that the punishment was inflicted in a cruel and brutal manner, which caused severe injuries. The defendant was not present when plaintiff was flogged and gave no other order concerning the punishment than that above mentioned. Held, that, even assuming that plaintiff was punished in a malicious and unusual manner, yet there is no evidence that such assault was authorized by the defendant and consequently the case was properly withdrawn from the jury.</p> <p>.In an action to recover damages for an assault and battery, a photo- .. graph of plaintiff alleged to have been taken soon after the assault is not admissible in evidence when unaccompanied by any proof of the correctness thereof.</p> <p>In an action against the Superintendent of the House of Correction for alleged excessive corporeal punishment inflicted upon plaintiff, the latter may be asked on cross-examination what he was doing in the House of Correction, and how long he had been there.</p>

<p> Devise of Vested Remainders After a Life Estate to a Class Including the Life Tenant. </p> <p>When there is a devise for life to one of the testator’s children followed by a limitation in remainder to all of the testator’s children, the general rulé is that the tenant for life takes a vested remainder in the property together with the other children of the testator.</p> <p>A testarix, who left surviving her six children, devised to her son James, for his natural life, the Homestead farm. By other clauses of her will shé bequeathed the residue of her personal property to her six children equally, naming all of them, and also directed the residue of the real estate to be sold and the proceeds divided equally “amongst my said six children.” The will then provided that after the death of James, the said Homestead farm “shall be equally divided amongst my said six children.” James died leaving a will by which he gave his interest in the farm to his sister. Held, that there is nothing in the will to show that the devise of the remainder in the farm to the six children of the testatrix was a mistake and that she intended to give the remainder to her five other children because she knew that James would be dead when the time for the distribution of the farm arrived; that the will does not evince an intention on the part of the testatrix to make an exactly equal division of her property among all her children, and that therefore, James took a vested remainder in one-sixth of the Homestead farm which passed under his will.</p>

<p>Injury to Passenger in Street Car From Projecting Article in Passing Wagon — Contributory Negligence.</p> <p>Plaintiff, a passenger on defendánt’s street railway, was sitting at the rear of the car by an open window with his arm resting on a rail which ran between the windows, but with his elbow entirely within the car. The car overtook and passed a wagon loaded with slabs of marble one of which came so near the car that it struck each window post as the car moved along, making a loud noise. Plaintiff testified that he did not hear this noise, or see the approaching danger and that the projecting marble slab struck his arm and caused the injury to recover damages for which this action was brough.t Held, that the occurrence of the injury under these circumstances to the plaintiff, a passenger inside the car, raised a presumption of negligence on the part of the defendant, and it was error to instruct the jury that the plaintiff’s contributory neg-</p> <p>ligence was such in law as to bar his right to recover, but that the questions of defendant’s negligence and plaintiff’s contributory negligence should have been left to the jury.</p>

<p>Cross Appeals from Circuit Court No. 2, of Baltimore City (Dobler, J.)</p>

<p> Removal of Cause by One of Several Defendants. </p> <p>Where an action is brought against several defendants, the cause cannot be removed to another jurisdiction for trial upon the application of one of the defendants when the removal is opposed by the co-defendants, because under Constitution, Art. 4, sec. 8, which empowers “either of the parties to'the proceedings” to have a cause removed for trial to another Court upon suggestion under oath that he cannot have a fair trial in that Court, the word “parties” is to be taken in a collective sense, ■and the application is made on behalf of all the persons appearing either .as plaintiffs or defendants.</p>

<p>Municipal Corporations — Effect of Blank Ballot in Election of Officer-Invalidity of Usage as to Counting Blank Ballots— Ordinance as to Time of Filing Bond.</p> <p>When a municipality is empowered by charter to provide for the appointment of certain officers, and an ordinance provides that these officers shall be chosen by ballot, then, acccording to the principles of the common law, a blank ballot cannot be counted in estimating the total number of votes cast; and the municipality has no power to declare by resolution, or adopt by usage, as a rule of procedure, that in the election of officers a blank ballot shall be counted as a vote.</p> <p>Those who are present at a meeting of a corporate body and refrain from voting, or cast blank ballots, ought to be considered as acquiescing in the result declared by the majority of those who do vote.</p> <p>The Mayor, Counsellor and Aldermen of Annapolis constituting the City Council and numbering in all eight members, met and agreed by resolution, to proceed to the election of a Market Master, by ballot. S then received four votes, M three votes and there was one blank ballot.</p> <p>. Held, that S was elected.</p> <p>The City Code of Annapolis requires that the Market Master give bond, etc., to be approved by the Mayor, within ten days after his election. When the above-mentioned election was held the Mayor declared that there was no election and, consequently, S did not give bond within ten days, but after a judicial decision had been rendered the Mayor agreed to accept S’s bond, and it was then tendered. Held, that under these circumstances, S had -not forfeited his right to the office by failure to ' give bond within ten days after his election.</p>

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

<p>Ordinance Prescribing Rates to be Charged by Telephone Company as Condition of Grant of Franchise — Contract Between Telephone Company and Municipality not Governed by General Statute as to Telephone Companies — Right of Citizen to Enforce Rates Prescribed by Ordinance — Meaning of word Telephone in Ordinance Not Determined on Demurrer to Bill — Multifariousness.</p> <p>When a municipality has the power to regulate the use of its streets by public service corporations such as a Telephone Company, it has the right to require the company to agree to furnish service to the public ,at a specified rate, as a condition of the grant of the right to use its streets.</p> <p>When a Telephone Company has accepted the ordinance and agreed to furnish the service at the rate therein mentioned, it cannot afterwards be heard to say that the rate was not reasonable.</p> <p>A citizen of the municipality has the right to institute suit against a Telephone Company to enforce its duty to comply with its contract under the ordinance regulating the rates to be charged.</p> <p>Although there be in force a general law prescribing the maximum rates to be charged by Telephone Companies in the State, yet, a municipality, authorized to regulate the use of its streets, may require a Telephone Company to furnish the service for a less rate than the statutory one, as a condition of the grant of the right to use the streets for its wires, and if the company accepts the ordinance with the condition .a contract is made between the company and the municipality, for the benefit of the public, which is enforceable at the instance of the latter.</p> <p>In 1896 the defendant Telephone Company was authortzed by an ordinance of the Mayor and City Council of Baltimore to use the streets of the city and certain conduits for its wires, upon the express condition that the price to be charged by the company should not be more than $4 per month for telephones furnished to business offices and not more than #3. per month for telephones furnished at dwelling houses, within the corporate limits of the city. The company formally accepted the terms of the ordinance. Plaintiffs in this case allege that prior to 1903, they had contracts with the company for telephone service with the metallic circuit for the price mentioned in the ordinance; that the company now demands $72 a year for that service and threatens to remove the instruments from their places of business, unless this rate, in excess of that prescribed by the ordinance, is paid. The bill asked for an injunction to restrain this threatened action. The defendant demurred to the bill on various grounds, among others, that by the true construction of the ordinance it is not obliged to furnish service of the kind mentioned in the bill at the rate claimed by the plaintiffs. The Acts of 1892, ch. 387 and 1894, ch. 207, prescribed the maximum rates to be charged for the use of telephones and defined what the word telephone, as therein used, should be construed to include. This definition applied to what is known as the grounded circuit service, but authorized other contracts for special forms of service. Held, that assuming that the Act of 1892 refers only to the grounded service, that statute does not require the ordinance to be construed as referring only to that kind of service, and it did not prevent the defendant company from agreeing to furnish a better telephone service for a rate less than the maximum rate allowed by the statute.</p> <p>The kind of telephone service the defendant company agreed, under the ordinance, to supply, at the rate there mentioned, is to be ascertained, not by a reference to the Act of 1892, but from the contract itself, and the circumstances under which it was made. The ordinance uses the word telephone generally, without specifying any particular kind of serice. The natural construction to be given to the word is the telephone with all improvements essential to make it most effect.</p> <p>In this case the defendant contended in support of its demurrer, that under the ordinance it is bound to furnish only the grounded service and the plaintiffs contend that they are entitled to the metallic circuit. Held, that since there is nothing n the case to show the difference between these two kinds of service and nothing to enable the Court to say whether it is more probable that one or the other was contemplated at the time the contract was made, this question cannot be determined upon the demurrer, but the facts must be brought to the knowledge of the Court by evidence before a decision can be made.</p> <p>Under its charter the city of Baltimore has full power to regulate the use of its streets by telephone wires, and the condition in the said ordinance, regulating the rates to be charged by the defendant company for the use of telephones, was fully within this power. The ordinance, in this respect, was not a legislative regulation of a corporation, but a voluntary contract by the corporation with the city.</p> <p>A bill to enforce the obligation of a telephone company to furnish the service at the rate prescribed by an ordinance is not made multifarious by the fact that the plaintiffs have different contracts with the company, since they have a common interest in requiring the defendant to perform its duty.</p>

<p>Bill to Enjoin Erection of a Stable — Permit Authorized by Ordinance Not Revocable by Resolution of the City Council — Stable in a City Not a Nuisance per se— Insufficiency of Evidence to Show Special Injury From Erection of Stable.</p> <p>Under City Code of Cumberland, ch. 2, sec. 1, it is unlawful to erect in that city any stable or other building without first obtaining from the City Engineer a permit therefor in accordance with the terms of the application. Sec. 12 forbids the erection of a stable on any lot fronting on any street, within thirty feet of the line of the street. Ch. 3, sec. 22, provides for an appeal when a permit for a building is refused, but no appeal is given when a permit is granted. Defendant, who owned a lot fronting on an alley, applied for a permit to erect thereon a building to contain a coal-house, feed-room, stable and carriage-house. The permit, as issued authorized the erection of a metal clad carriage-house and coal-shed, in accordance with the terms of the application, but omitted the word stable. After the grant of this permit the City Council passed a resolution, declaring it cancelled. Plaintiff filed the bill in this case alleging that the proposed stable would be erected about 12 feet 8 inches from the kitchen in the rear of his lot; that the stable would be a nuisance to plaintiff and to the neighborhood, by reason of the bad odors from it and the danger from fire, etc., and asked for an injunction to restrain the erection. Held, that the permit as granted is to be construed in connection with the application: that the word stable was inadvertently omitted, but its construction was authorized under the permit.</p> <p>Held, further that the subsequent attempt to cancel the permit by the resolution of the City Council was ineffectual, because it was issued under an ordinance genarally applicable and the resolution attempted arbitrarily, to deprive plaintiff of the rights given to all other property holders.</p> <p>A stable in a city is not per se a nuisance and the evidence in the case does not show that this stable, when completed, will be a nuisance, in fact, to the plaintiff, or cause him any special injury. The proximity of dwellings to disagreeable structures is an inevitable incident of city life. If the stable should become a nuisance from the manner in which it may be managed, the municipal ordinances provide a remedy by fine and abatement of the nuisance. Consequently in this case the plaintiff is not entitled to an injunction forbidding the erection of the stable.</p> <p>Neither increased danger of fire, nor increased insurance rates, nor depreciation of property, by the erection of a neighboring lawful building, entitles a party to' an injunction restraining the erection of such building.</p> <p>When a citizen is entitled to certain rights under a general municipal ordinance he cannot be deprived of them by a resolution of the City Counciil, which excepts him from the operation of the ordinance but leaves it in force.</p>

<p>Intoxicating Liquor — Statute Prohibiting the Giving Away of Liquor— Negativing Exceptions in Indictment.</p> <p>The Act of 1902, ch. 265, made it unlawful for any person in a certain country district to sell or give away any spirituous or fermented liquor. Held, that the Act is not unconstitutional, although it does not in express terms except from its operation the giving of liquor by a private citizen in his own house to a guest or member of his family. The Act is not to be construed as prohibiting such giving away of liquor.</p> <p>A subsequent section of the above-mentioned Act prohibiting the sale or giving away of liquor, declared that it should not be construed to prevent the sale of liquor for medicinal purposes by a regular licensed pharmacist. Held, that in an indictment for the violation of the statute by the defendant, it is not necessary to aver that he was not a licensed pharmacist, because the general rule is that when a criminal statute contains an exception in a clause thereof subsequent to that containing the prohibition, the indictment need not negative the exception, but that is matter of defense.</p>

<p>Appeal from the Circuit Court for Baltimore County (Burke, J.)</p> <p>Plaintiff's 1st Prayer. — If the Court shall find from the evidence that subsequent to the condemnation proceedings in the case of The Baltimore and Ohio Railroad Company v. The Canton Company of Baltimore et al., the Baltimore and Ohio Railroad Company entered into the agreement dated January 6th, 1890, with the Baltimore Belt Railroad Company, a certified copy of which has beon offered in evidence, and that in accordance therewith and subject to the conditions thereof, the Baltimore and Ohio Railroad Company now ships and causes to be transported and carried and has since the year 1895 shipped and caused to be transported and carried over the line of the Baltimore Belt Railroad Company its passenger and freight traffic passing between Baltimore aad its Philadelphia division (with the exception testified to by the witness Potter), and that none of the said traffic has been or is transported over the parcel of land described in the declaration, and that the legal title to the parcel of land described in the declaration is and has been since the execution of the patent from the State of Maryland offered in evidence, in the plaintiff, and that on or about the 15th day of April, 1900, the defendant entered the said parcel of land in the manner described in the declaration and in the evidence, then the plaintiff is entitled to a verdict and to a judgment for the recovery of the said parcel of land and for the damages by it sustained from the wrongful acts of the defendant aforesaid. (Refused.)</p> <p>Plaintiff's 2nd Prayer. — The plaintiff prays the Court, sitting as a jury, that if it believes from the evidence in this cause, that the property described in the declaration was condemned by the defendant under the condemnation proceedings offered in evidence, for the purposes in said condemnation proceedings set out, and that the right of way over said property so condemned remained unused for railroad purposes for ten or more years after such condemnation, the plaintiff prays the Court to find that the said right of way was abandoned by the defendant, and its title to the same, as derived through said condemnation proceedings, has lapsed. , (Refused.)</p> <p>■ Plaintiff’s jrd Prayer. — The plaintiff prays the Court, sitting as a jury, that if it finds that the defendant condemned, under the condemnation proceedings offered in evidence, an easement or right of way over the property described in the declaration, for the purposes of a railroad, and at the time of such condemnation the property in question' belonged to the plaintiff, in fee-simple, and shall further find that the plaintiff had not at the time of the institution of this suit sold or otherwise disposed of any of its rights, title or interest in and to said property, and has not since done so, and that since such condemnation, the defendant has adopted another and different route for the transportation of its freight and passengers, and has never completed its railway over the property so as aforesaid condemned, then the plaintiff prays the Court to find that the right of way so as aforesaid condemned was abandoned by the defendant, and that all rights of the defendant so acquired by such coridemnation have reverted to the plaintiff; and if the Court shall further find that the defendant has entered upon said property and now occupies the same, without other claim of title than that derived through said com demnation proceedings, then the plaintiff is entitled to recover the possession of said property named in this suit, together with such damages as the Court may find the plaintiff to have suffered by reason of such entry and occupation. (Refused.)</p> <p>Plaintiff's 4th Prayer. — If the Court shall find from the evidence that subsequent to the condemnation proceedings in the case of the Baltimore and Ohio Railroad Company v. The Canton Company of Baltimore ct al. The Baltimore and Ohio Railroad Company entered into the agreement dated January 6th, 1890, with the Baltimore Belt Railroad Company, a certified copy of which has been offered in evidence, and that none of the passenger or the freight traffic passing between Baltimore and the Philadelphia division of the defendant, has been or is transported over the parcel of land described in the declaration, and that the legal title to the said parcel of land is and has been, since the execution of the patent from the State of Maryland offered in evidence, in the plaintiff, and that on or about the 15th day of April, 1900, the defendant entered the said parcel of land in the manner described in the declaration and in the evidence, then the plaintiff is entitled to a verdict and to a judgment for the recovery of the said parcel of land and for the damages by it sustained from the wrongful acts of the defendant aforesaid. (Refused.)</p> <p>Defendants 1st Prayer. — The defendant prays the judgment of the Court that the plaintiff has offered no evidence legally sufficient to enable it to recover under the pleadings in this cause, because it has shown no abandonment of the intention to use the land in controversy for the purpose for which it was condemned, and therefore the finding of the Court sitting as a jury should be in favor of the defendant. (Refused.)</p> <p>Defendants 2nd Prayer. The defendant prays the Court to rule as matter oflaw, that if the Court sitting as a jury shall find from the evidence in the case that the land described in the plaintiff’s declaration is a portion of the land described in the condemnation proceedings given in evidence, and that upon judgment being given upon the award for damages given by the jury in such condemnation proceeding, the Baltimore and Ohio Railroad Company did satisfy such judgment by paying to the then owner of the land so condemned, towit, the plaintiff in this case the full amount so awarded by the jury, and that the defendant has all the time since held the title to said land so acquired, then the plaintiff is not entitled to recover in this action although the Court may further find as matter of fact that the defendant has never utilized or used said land for railroad purposes, provided the Court shall find that such nonuser for railroad purposes was not in pursuance of an intention on the part of the defendant company to abandon the land so acquired under said condemnation proceeding. (Granted.)</p>

<p>Bill io Vacate Alleged Fraudulent Conveyance — Parties—Allegation-of Indebtedness to Plaintiff — Limitations—Demurrer—Abatement and Revivor — Death of Defendants — Bringing in Representative by Petition — Laches.</p> <p>Upon a bill to vacate a conveyance on the ground that it was fraudulent, as against the plaintiff, the general rule is that the only necessary parties defendant, are the grantor and grantee in the deed.</p> <p>When such a bill avers that the defendant grantor became indebted to the plaintiff in a certain sum, which indebtedness still remains unpaid and unsatisfied, there is a sufficient allegation of an existing indebtedness and it is not necessary that the evidence of the indebtedness should be specifically set out.</p> <p>A bill to vacate a fraudulent conveyance filed in 1901, averred that the defendant grantor became indebted to the plaintiff in 1885 in a certain sum which remains unpaid. Held, that the bill does not show on its face, that the claim was barred by limitations, since it does not appear when the indebtedness became due and that, consequently, a demurrer to the bill, for this reason, should be overruled.</p> <p>When the grantee, in a deed, is the sole heir-at-law of the grantor, a suit to vacate the same because fraudulent, as against the plaintiff a creditor of the grantor, does not abate upon the death of the grantor, leaving the other defendant as the sole heir.</p> <p>Under Code, Art. 16, séc. 146A, when a party to a suit in equity dies before the final decree, his heir-at-law or legal representative may be brought in upon petition filed in the cause. By this section, a bill of revivor is no longer necessary, but under Art. 16, sec. 12, resort may also be had to that mode of bringing in the personal representative of a deceased party.</p> <p>After the institution of a suit to vacate a fraudulent conveyance, the property in question was conveyed by the defendant grantee to a purchaser and afterwards this defendant died and before final decree. Held, that the purchaser pendente lite is not a necessary party and that under Code, Art. 16, sec. 146A, he is not the representative of the deceased defendant who should be made a party in his place; moreover, that when such purchaser has been made a party to the cause upon his own petition he is not entitled to object that he should have been made a party upon the petition of the plaintiff.</p> <p>Neither affidavits and exhibits filed with the answer, nor the answer itself, can be considered upon a demurrer to the bill.</p> <p>A bill to vacate a conveyance from a mother to her son was filed against them in 1901, by the creditor of the mother and both defendants answered. In the same year defendant suggested the death of plaintiff and alleged that this caused the suit to abate. In 1902 the administrator of the plaintiff was made a party plaintiff. The grantee in the conveyance assailed conveyed the property to W., who conveyed it to the A. Company, which was made a party defendant on its petition. Plaintiff suggested the death of both defendants, mother and son, intestate, the former dying first, by which the estate passed to the other defendant and asked that the latter’s only child be made a defendant, which was done. Plaintiff administrator, then filed a bill of revivor to which the A. Companyjdemurred on. various grounds, among others that the bill and proceedings showed that the plaintiff had been guilty of laches. Held, that neither the failure of the plaintiff prior to the ‘ ' death of the grantor defendant, to take notice of her affidavit filed in the answer of the other defendant, nor the failure to take notice of the " suggestion that the suit abated by the death of the original plaintiff, nor the failure to suggest the death of the grantor defendant and to make the purchaser pendente lite a party, nor the deaths of the original defendants constituted laches. None of these things show a neglect by the plaintiff to do something which he pught to have done thereby causing prejudice to the defendant. The delay in making the administrator of the original plaintiff a party is shown to have been occasioned by a caveat to her will and there is nothing in the case to show that the plaintiff’s claim was a stale one when the bill was filed.</p>

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

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

<p>'Perpetuities — Rules of Interpretation — Remainders too Remote— When ■ Remainders After Life Estate May be Rejected — Power of Appointmentby Will — Validly Exercised in Part Only — Disposition of the Unappointed Portion of Settled Property — Election Between Legacies — Bequest of a Remainder to the Next of Kindred of the Life I enant — Life Estates Valid and Remainders Limited After Invalid - Termination of Trust Estate — Appointment of Trustee to Preserve Remainders — Interest on Legacy.</p> <p>The rule against perpetuities is a rule of law and not one of interpretation.</p> <p>A will must be construed in the first instance without reference to the rule against perpetuities and the real intention of the testator thus as- ■ certained. Then the rule should be applied to determine the validity of the dispositions made.</p> <p>Whenever by deed or will property is rendered inalienable or its vesting is deferred fora longer period than a life or lives in being at the time the deed or will takes effect and twenty-one years thereafter, the devise or grant creates a perpetuity and is void.</p> <p>When a will is made in execution of a power of appointment conferred by another will, the validity of the appointment made by the former, so far as concerns the rule against perpetuities, is to be ascertained by reading them as if contained in the will of the donor of the power.</p> <p>When remainders after a life estate are given to vest upon a contingency which might or might not happen during a life or lives in being at the time of the gift and twenty-one years thereafter, then the contingency is too remote and remainders fail to take effect. In determining the question of remoteness, regard is to be had to possible and not merely to actual events. It is not to be determined by looking back on events which have occurred and seeing whether the estate has extended beyond the prescribed limit, but by looking forward from the time the limitation was made and seeing whether, according to its terms, there was then a possibility that it might so extend.</p> <p>Where an absolute estate has been clearly given and subsequent repugnant limitations, cutting it down to a life estate, have been added and these limitations are void for remoteness, they will be disregarded and the absolute estate upheld.</p> <p>But this principle is not applicable when the void limitations are added to the gift of an estate for life only, with remainders to others in fee.</p> <p>When a testator, in exercising a power of appointment over settled property under which he may create such estates as he chooses, makes certain limitations of the property which are valid and others which are void because in conflict with the rule against perpetuities, then the failure to execute, effectually, the entire power of appointment does not operate to divest those appointments that were validly made.</p> <p>When an estate is devised to one for life, followed by limitations to others which are void because creating perpetuities, then the devise for life is valid and the remainders are treated as stricken out.</p> <p>When such devise is made in the execution of a power of appointment, then the void remainders pass as directed by the donor of the power in the event of its non-execution.</p> <p>A will, which conferred upon the devisee a power to appoint by will the settled property among a class of persons, also provided that in the event of a failure to exercise the power, the property should be divided among certain persons. The donee of the power made a will giving a portion of the property to A., which was a valid execution of the power. Other parts of the property were given upon void limitations so that these parts, being undisposed of, passed to the class of persons designated in the will of the donor of the power to take in the event o its non-execution. A. was one of this class. Held, that A. is not required to elect between these two gifts, but is entitled to both.</p> <p>Property was given by will to trustees with directions to pay the income thereof to A. for life then to divide the principal among A.’s children, and if she died without issue, then among her brothers and sisters, and if none such living, then to divide the same among A.’s “next of kindred.’’ A. died leaving no issue and no living brother or sister, but a nephew and a niece and certain grandnephews and grand nieces. Held, that A’s nephew and niece are entitled to the property to the exclusion of the grandnephews and grandnieces.</p> <p>The will of George B., who died in 1859, gave a certain share of his residuary estate to trustees for the benefit of his daughter, Grace, during her life and in the event of her death, without leaving descendants, then to hold the property for such of the other children of.the testator, or their descendants and for such estates therein and with such - limitations as the daughter Grace, may, by last will, name and appoint to take. In case of her failure to execute the power of appointment, then the. trustees were to hold the property for all of the testator’s other chil- .. dren, or the descendants of those who may be dead at that time, all to take per stirpes. Testator’s daughter, by a will probated in 1903, disposed of the property so held in trust, as follows: She gave a certain sum to her niece, Mrs. W., absolutely. By the second clause she gave other property to a grandniece, Isabella, the income only to be paid to her for life, with the remainder over to her descendants in fee. Other shares were given to two other grandnieces The will then provided by the fifth clause that the residue of the property should be divided into eight equal parts, and directed that one of said parts be allotted to each of the eight named children of her nephew, G. B., the income only, therefrom, to be-paid respectively to each said child during his or her natural life, with the remainder over to her or his descendant, if only one, or descendants, if more than one, in equal parts, in fee. Held, that the limitations over to the descendants of Isabella and to the descendants of the eight children of G. B., all nine legatees being great-grandchildren of the donor of the power, are void for remoteness under the rule against perpetuities, because as none of these nine persons were in being when the testator, George B., died, and as it is possible that moré than twenty-one years and a fraction, may expire since the death of the testatrix Grace before the termination of the life estates created- by her will and the vesting of the remainders, that possibility renders them void.</p> <p>Held, further, that although the above-mentioned remainders are void, the intervening life estates given to the said great-grandchildren are valid, because these estates were given to persons capable of taking at the death of the testatrix, and having .vested within the time allowed by the rule against perpetuities, they cannot be divested by the void limitations engrafted upon them.</p> <p>Held, further, that the remainders, so held to be void, being an unap- ' pointed portion of the settled property, must be disposed of as di- ' rected by the will of the donor in the event of a failure to execute the power and vest subject to the life estates in the descendants of George B., per slirpes.</p> <p>Held, further, that Mrs. W., who thus receives a share of the void remainders and to whom a part of the settled property was also given, absolutely, by the testatrix, is entitled to take both parts and the doctrine of equitable election is not applicable.</p> <p>In a supplementary judgment held,</p> <p>That the above-mentioned life estates so held to be valid are legal and not equitable estates, because under the will of George B., the trustees to whom the settled property was given had no active duties to perform after the death of his daughter, the testatrix, but they were merely directed to hold the property to or for the persons named in the execution of the power of appointment, or for the descendants of the testator.</p> <p>That since these life tenants are also entitled to vested remainders in a portion of the unappointed property, the two estates coalesce and they take absolute estates in this portion.</p> <p>That with respect to that part of the property given to the life tenants, in which they have no remainders, but which passes after the termination of the life estates to other persons under the will of George B-, the trust also ceases. But these remaindermen may procure the appointment of a trustee to preserve the fund and pay the income to the life tenants.</p> <p>That to preserve equality among the remaindermen, the trustees appointed for the preservation of the remainders should apportion the investments in which the trust funds constituting that part of the remainders may be invested into as many equal parts as there are life estates.</p> <p>That the persons to whom the testatrix allotted sums of money, absolutely, out of the settled property, are entitled to interest on these legcies from one year after her death.</p> <p>When an estate is given to trustees to pay the income to a person for life and at his death merely to hold the same for the use of other persons named, the trust ceases upon the death of the life tenant for the reason that it remains no longer an active trust. The Statute of Uses in such cases immediately executes the use in those who are limited to take the estate after the death of the life tenant.</p>

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

<p>Corporations — Action by Receiver of Foreign Corporation to Recover Unpaid Stock Subscriptions — Limitations.</p> <p>In 1890 defendant subscribed for certain shares of stock of the Lexington Company, a Virginia corporation, and agreed to- pay $1.00 per share at the time of subscription and $1.00 at the call of directors and #1.00 per share every sixty days thereafter if needed, until the whole amount be paid. The subscription referred to the prospectus which stated that the installments would be payable “until by a sale of the lots of the company such payments shall be declared unnecessary by the Board of Directors,” and that it was “not believed that more than five calls can be necessary.” Defendant paid five installments as called for, the last on June 20th, 1891, and none afterwards because the directors then issued a circular to the stockholders saying, “it is confidently believed that the stock can be paid up by dividends from the earnings of the company.” In 1893 a creditor filed a bill against the company m Virginia, but not against the stockholders, and under-that bill a receiver was appointed who was authorized and directed to collect all the assets of the corporation. Under the Virginia statute, while the Chancery Court has jurisdiction to make assessments upon stockholders, the receiver is required to bring suit in a Court of law to recover them. The receiver brought this action to recover the balance due on defendant’s subscription to the stock’ in July, 1900. Held, that according to the terms of defendant’s subscription his liability to pay the installments every sixty days continued “until by the sale of the lots such payments should be •declared unnecessary by the board,” and since no such declaration was ever made defendant was liable to pay without the necessity of any call by the corporation, and that the Statute of Limitations began to run against the claim for the subscription as said installments respectively matured, and since the last installment of defendant’s subscription matured on April 20th, 1892, and this action was not brought until more than eight years thereafter, the statute is a bar.</p> <p>Held, further, that the filing of the creditor’s the bill against the corporation did not arrest the running of the Statute of Limitations because it was not an institution of a suit against the subscriber.</p> <p>Held, further, that under the decree appointing the receiver in July, 1893, he was authorized to institute suits to recover unpaid subscriptions, and neither his failure to do so nor the appointment of a subsequent receiver with enlarged powers arrested the running of the statute against the claim sued on in this case.</p> <p>In 1892 there was a legislative amendment of the charter of the company declaring its stock paid up and non-assessable when 50 per cent had been paid thereon, provided “the holders of such certificates shall not be liable for further assessment thereon for the debts of the company contracted after the passage of this Act.” Held, that this statute did not change defendant’s liability for the claim of then subsisting creditors, nor postpone the time when limitations began to run against the claims of such creditors.</p>

<p>Bill for an Injunction to Protect a Contract With a Municipality — Ordinance Pepealing Part of an Appropriation— When Money Appropriated in Ordinance of Estimates and Unexpended Does Not go into Sinking Fund, Under Charter of Baltimore City.</p> <p>Certain officials of Baltimore City, in pursuance of their authority, agreed to purchase from the plaintiff 114 acres of land as the site of a new reservoir. Plaintiff offered the land in his own right as to 92 acres, as the agent of A as to 12 acres, and as the agent of B as to ro acres. As to the 92 acres plaintiff had only an equitable title under an option from a trustee in an equity proceeding, and when, after making the contract with the city, he closed this option, exceptions to the sale were filed in the equity cause which were there sustained and the sale set aside. Plaintiff’s appeal from this order is still pending. Subsequently the city passed an ordinance repealing the appropriation for the purchase of a reservoir site. Plaintff’s bill in this case stated that the repealing ordinance is void, and that as soon as the exceptions to the sale of part of the land to him are disposed of, he will be able to convey a good title. The bill prayed for injunction restraining the city from doing anything under the repealing ordinance until the determination of the appeal from the order setting aside the sale of said land to plaintiff, and that the repealing ordinance be declared void. Held, that upon the plaintiff’s own showing he is not now entitled to maintain a bill for specific performance of the contract, and it does not appear with reasonable certainty that he ever will be so entitled, and not having shown a clear prima facie right he is not entitled to an injunction to protect such doubtful right as he does possess to compel specific preference at some future time.</p> <p>The Ordinance of Estimates of Baltimore City of 1903 contained an appropriation, in pursuance of an Act of the Legislature, of $350,000 to be taken from a loan, for the acquisition of land and construction of a new reservoir. The stock authorized to be issued to raise this sum has not been issued and the ordinance was repealed as to fhe part of the appropriation. City Charter, sec. 36, provides that “in case of any surplus arising in any fiscal year by reason of any excess of income received from the estimated revenue over the expenditures for such year the said surplus shall be credited to the general sinking fund.” Held, that the proceeds of the loan thus dedicated to a particular use, under an Act of the Legislature, does not come within the description of “estimated revenue” as used in sec. 36, and even if the stock had been sold, the proceeds in the hands of the agents of the city could not be turned into the sinking fund.</p>

<p>Sales— When no Implied Warranty Against Latent Defects — Bloody Oysters — Caveat Eniptor.</p> <p>In the absence of an express warranty, the seller of goods, who is not the manufacturer thereof, is not liable for latent and hidden defects, which develop after the goods have been inspected and accepted by the buyer.</p> <p>Plaintiffs, dealers in oysters which they purchased from dredgers, agreed to sell and ship to the defendant shucked oysters during a certain season. The oysters were shipped in plaintiffs’ kegs, emptied by defendant into his own vessels and by him re-sold. This action was brought to recover the price of two shipments for which defendant refused to pay on the ground that these oysters were unmerchantable. The oysters in question when shipped by the plaintiffs and when received by the defendant appeared to be in good condition. They were re-packed by the defendant and shipped to distant parties by whom they were rejected because they had become “red” or “bloody” oysters. The evidence showed that in many cases this defect or disease does not develop until some days after the oysters are shucked, and that a comparatively small number of red oysters will infect all the others packed with them in a pail, also that defendant had included in these shipments some oysters not purchased from the plaintiffs. Held, that under these circumstances there was no implied warranty by plaintiffs that the oysters sold by them, being merchantable at the time of delivery, were free from latent defects, and that since defendant had accepted these oysters after inspecting them he is liable for the price thereof.</p>

) The bought and sold notes referred to in the opinion of the Court were as follows: Baltimore, Jan. 5th, 1900. Sold for account of Kirwan & Riggs, city, to W. W. Roberts, city. 700,000 Standard No. 2 and No. 3 cans, full complement of caps and the usual guarantee against leaks, specifications at buyer’s option at the following prices : No. 2 small hole, $1.85; No. 2 peach hole, $1.90; and No. 3 extra peach hole, $2.35.

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

<p>Restraint on Alienation — Constructon of a Devise — Precatory Trust.</p> <p>Conditions or limitations in restraint of alienation cannot be validly annexed to a grant or devise of an estate in fee, because such limitations are repugnant to the inherent nature of the estate granted and tend to public inconvenience.</p> <p>A testatrix gave the residue of her estate “to all my children absolutely share and share alike equally to be divided between them.” By a subsequent paragraph of the same clause the testatrix declared as follows: “It is my will and direction that my property hereby given to my said children shall not be sold for the purpose of division of proceeds of sale ámong them until the end of ten years from the time of my death, unless all my said children agree that such sale and division shall be made between them before that time ; and in case all of them do thus agree in writing to maké such sale or division of my property, before said period'of ten years, then I do authorize them to make said sale or partition of my property, so that each one may receive his or her share. I express the wish that my children shall continue to live together as they now do, and use the income of my property for their support until the expiration of said ten years from my death.” Held, that the second paragraph imposes a restraint upon the alienation of the property absolutely given to the childien in the first paragraph since under it the property cannot be sold for the purpose of partition for ten years without unanimous consent of all the devisees and that this restraint upon alienation is contrary to the policy of the law and void.</p> <p>Held, further, that the language of the second paragraph cannot be construed so as to create a precatory trust but merely expresses the wish of the testatrix as to the manner in which the devisees should enjoy the property absolutely given to them.</p>

<p>Appeal from the Circuit Court for Washington County (WlTZENBACHER, J.)</p> <p>The cause was submitted to' the Court on briefs by:</p>

<p>Use of City Street by Abutting Owner — Obstruction of Sidewalk by Erection of Platform Over it For Loading Wagons — Party Suffering Special Damage From Obstruction of Highway Entitled to an Injunction — Invalidity of Permit of Board of Estimates Authorizing Erection of Permanent Obstruction in Street.</p> <p>The streets of a city are designed primarily for use by the public for the purpose of travel and transportation. A merchant or manufacturer whose place of business fronts on a street may temporarily obstruct the sidewalk in the process of loading or unloading his merchandise, provided he does not in so doing unreasonably encumber the foot-way or interfere with the reasonable enjoyment of the adjacent property. If the adjacent owner suffers special loss from an unlawful obstruction of a public sidewalk, he can maintain an action for damages, or a bill for an injunction if the nature of his damage be such as to make an injunction appropriate.</p> <p>The extent of the right of an abutting owner to obstruct the sidewalk in front of his lot is not to be determined by the necessities of his business but by the public convenience. An abutting owner cannot supply the deficiencies of his own premises by taking in the highway.</p> <p>Sec. 37 of the Charter of Baltimore City authorizes the Board of Estimates to grant upon such terms, as it may think proper, the right to use the streets for “bow or bay windows, hitching posts, area ways, steps, planting of trees, storm-doors, drains, or other such temporary or similar uses.” Held, that this section does not authorize the Board to grant a permit to build a platform over a part of the sidewalk and remove the kerb and lower the grade so that wagons may be backed up to the platform for loading, since such use of the street is neither similar to the uses enumerated in sec. 37, nor temporary in its nature; and it makes no difference that the permit was revocable at the pleasure of the Board.</p> <p>Plaintiff owns two stores on E. Street in Baltimore City used for retail business. The defendant company owns the adjoining lot. The centre of E. street is at that point occupied by a railway freight track, and the side of the street opposite to plaintiff is occupied by a freight warehouse. There is on that side no foot pavement, and the only pavement for pedestrians is in front of plaintiff’s and-defendant’s lots. Defendant, being engaged in the manufacture of ice, obtained a permit to erect upon the sidewalk of E. street, in front of its building and adjoining plaintiffs lot, a platform 3yi feet high, and 4 feet wide and 52 feet long for the purpose of loading the ice manufactured by it into wagons, and also to remove the kerb and lower the sidewalk in front of the platform so as to allow wagons to back up against it over the sidewalk. Plaintiff filed a bill alleging that the proposed platform would obstruct the use of the sidewalk, divert travel from the street, and cause special injury to him by depriving him of custom in his business. The evidence showed that the street in front of plaintiff’s property is frequently congested with traffic, and that defendant company proposes to deliver ice to wagons standing on the sidewalk at the rate of 100 tons a day. Held, that the proposed platform and its use will exclude pedestrians from the sidewalk in front of defendant’s factory and convert the same into a loading yard for ice wagons during several hours each day to such an extent as to lead pedestrians to avoid the use of that portion of the street and seek other avenues of passage; that this will cause special injury to the retail business carried on in plaintiff’s buildings immedidiately adjoining the platform, since diversion of trade inevitably follows diversion of travel, and that plaintiff is entitled to an injunction to restrain the erection of the platform, and if the same has already been erected, the plaintiff is entitled to a mandatory injunction requiring it ■to be removed and the sidewalk and kerb restored to their .former grade and condition.</p> <p>When a defendant admits that he is about to do an act which if done would entitle the plaintiff to an injunction restraining its continuauce, then the plaintiff is entitled to an injunction without Waiting until the wrongful thing is actually done.</p>

) Plaintiff’s ist Prayer. — If the jury believe from, the evidence that the plaintiff on October 4th, 1901, sent to the defendant the sales memorandum bearing that date, which has been offered and read in evidence, and that the ■ defendant in reply thereto sent to the plaintiff the letter bearing date of October 5th, 1901, which has been offered and read in evidence, and that the plaintiff in reply thereto wrote and sent to the defendant the letter dated October 7th, 1901,…

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

<p>Insufficiency of Verbal Order For an Appeal Not Given in Open Court —Orders of a Judge Not Sitting in Open Court — Correction of Court Records.</p> <p>The sittings of a September Term of a Circuit Court ended on October 7th, when the jurors were finally discharged. On October 16th, the Judge before whom this case had been tried at that term overruled a motion for a new trial while in his private office and not in the presence of the clerk of the Court. The appellant’s counsel said that he would appeal. The Judge gave the papers in the case to this counsel directing him to hand them to the clerk and to direct the clerk to enter upon the docket the motion for a new trial overruled, judgment for the defendant and an appeal by the plaintiff. The appellant’s counsel carried out his instructions and on 1hat day verbally instructed the clerk to enter an appeal. The clerk did not then make the entry. The term of office of the Judge before whom the case was tried ended in November. In the following April another Judge of the Court passed an order directing the clerk to enter an appeal in this case as of October 16th, and the following entry was made: “April nth, 1904. Prayer for appeal by plaintiff in open Court to the Court of Appeals from judgment of October 16th, 1903, filed as of October 16th, 1903, per order of Court.” Held, that the verbal order for an appeal was not given in open Court and was not entered within the time limited by statute and did not constitute the taking of an appeal.</p> <p>Held, further, that although a correction of the record by order of the trial Judge imports absolute verity, yet.that principle is not applicable in this case because the order of April correcting the record was not made by the trial Judge but by another Judge who cannot be presumed to know best what occurred at the trial.</p> <p>Verbal orders may be given to the clerk in open Court tp be then entered upon the. docket. An open Court contemplates the presence of the Judge and the clerk of the Court or a deputy, the regular opening and closing of the Court and the presence of the clerk’s docket upon which should be entered, under the eye of the Court, the successive steps taken in open Court in each case. Such steps as may be taken in recess should be evidenced by the written order of the Court noted upon the docket.</p> <p>A Judge has full power to correct the record of the proceedings before him so as to make it a full and true acco'unt of what actually occurred. The correction of the record rests in the sound discretion of the trial Judge and its use cannot be reivewed on appeal. But this principle is not applicable to the correction of a record made by another Judge of the Court before whom the proceedings were not conducted.</p>

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

<p> Estoppel by Judgment in Suit Between Other Parties. </p> <p>The North German Lloyd having agreed to transport a certain quantity of corn from Baltimore to Europe sent a scow or lighter belonging to the Chesapeake Company to bring the com from an elevator across the harbor to the Lloyd ship. The scow was upset when near the vessel and the cargo of com lost. The owner of the cargo was paid the amount of his loss by a company in which he had insured it and this company then, as assignee of his rights, filed a libel in Admiralty in the United States Court against the North German Lloyd. That Court held the Lloyd Company to be liable upon the ground that the scow or lighter was a substitute for the vessel, ifelivery to the scow being delivery to the vessel; that the scow was not seaworthy when the risk began, and hence the loss was not from a excepted peril of the sea. The Chesapeake Company, the owner of the scow, had the cargo insured in the defendant insurance company. After the libel was filed the Chesapeake Company notified the defendant company that the North German Lloyd would look to it, the Chesapeake Company, as owner of the scow, for indemnity, and that the Chesapeake Company would be entitled to a renumeration from the defendant company as insurer, which was therefore requested to defend said suit. The defendant company took no part in the trial of the Admiralty libel. The Chesapeake Company, having paid the loss to the North German Lloyd,, sued the defendant on its policy of insurance. The defendant alleged' that the unseaworthiness of the scow at the time of the beginning of the risk was a defense to the action, and also that the finding of the fact of such unseaworthiness in the Admiralty suit was conclusive upon the plaintiff in this action. Held, that the defendant company is not es-topped by the Admiralty decree, because it was not a party or privy to that suit, and it could not have properly intervened therein; and since the defendant is not bound by that decree, and estoppels must be mutual, it cannot rely upon the decree as an estoppel to prevent the plaintiff company from alleging in this action that the scow insured by the defendant was seaworthy.</p>

<p>The legal estate of a trustee under a voluntary deed of trust does not last-longer than is necessary to effect the objects of the trust, and when these objects have been accomplished the trust is al an end.</p> <p>A surviving husband, who was entitled as such to a life estate in certain farms, the remainder in fee being vested in his children, conveyed to a trustee “all that life estate in said farms,” with directions to manage the same and pay over the net income to the grantor, because, by reason of bodily infirmities, he had become incapable of managing his affairs. The deed provided that the trust should be irrevocable. Subsequently, one of the remaindermen filed a bill in equity asking for a sale of the .farms for purposes of partition. The life tenant was made a party defendant and filed an-answer consenting to the sale of the land free from his life interest, provided he be allowed from the proceeds of sale a sum of money equivalent to the value of his life estate. A sale was made and the trustee under the deed of trust, who had not been made a party to the cause, excepted to the ratification of the sale. Held, that the equitable interest of the life tenant, after the making of the deed, was alienable by him and that his consent to 1he sale'operated to end the trust, and the trustee, having no longer any duties to perform with respect to the property, has no standing in Court to except to the ratification of the sale.'</p> <p>When a party to a cause in which a decree directing a sale of land to be. made answered the bill and 'consented to the decree, he cannot after-wards, upon exception to the sale, be heard to deny the jurisdiction of the Court to make the decree.</p> <p>A decree directed that three weeks notice of a partition sale be given. The sale was advertised on November ioth, to take place on December xst. Held, that in the absence of any evidence that injury resulted, therefrom, the sale so made will not be set aside on the ground that the prescribed notice was not given.</p> <p>When land sold at a judicial sale is represented as being in fee-simple, a purchaser is entitled to have mortgages thereon satisfied from the proceeds of sale, or to be released from his purchase.</p>

<p>Negligence of Fellow Servant — Notice of Approaching Danger to Workmen Under Car — Assumption of Risks.</p> <p>Plaintiff’s deceased son was at work under a car in defendant’s repair yards when other cars arriving on the same track were pushed against the former, setting it in motion and running it over the deceased. In an action to recover damages for the death so caused, the evidence showed that it was the duty of defendant’s yardmaster to designate the tracks upon which incoming cars should go and to give warning to any men working under cars of the approach of a train, and this custom was known to the deceased who had been employed at defendant’s works for two years. At the time of the occurrence of the accident the yardmaster neglected to give the usual warning. Plaintiff’s testimony showed that it is customary in many railway repair shops to use a blue flag as a signal to protect men working under cars. Held, that the yardmaster was a fellow servant with the deceased and since the injury resulted from the negligence of a fellow servant the plaintiff is not entitled to recover.</p> <p>Held, further, that the personal warning of an approaching train which it was the duty of the yardmaster to give to men working under cars was as effectual a method of protecting them as the use of a blue flag, customary in some shops, and even if it were not, yet the deceased had knowledge of defendant’s method of carrying on its business and assumed the obvious risks incident to that method as well as the risk of the negligence of a fellow servant not proved to have been incompetent.</p>

<p>Negligence — Master and Servant — Falling Through Open Elevator Door.</p> <p>A boy about twelve years old was employed in defendant’s store to deposit waste paper in a room in front of the door of a freight elevator. The space in front of the elevator was dimly lighted and the door of the elevator was out of order. The boy was killed either by falling from the floor, to the basement through the door which had been left open after the elevator had ascended, or by falling from the elevator to the floor and then through the open doorway to the basement. In an action to recover damages for the death so occasioned, held, that the evidence of defendant’s negligence was legally sufficient to go to the jury.</p>

<p>Taxation — Machinery of a Manufacturing Corporation Not Assessable as Part of its Real Estate — Mandamus to Strike Out Illegal Assessment — Demurrer.</p> <p>The machinery of a domestic manufacturing corporation is not subject W taxation as part of the real estate, when the shares of stock are taxed.</p> <p>Under Code, Art. 81, sec. 141, etc , the real estate owned by a corporation is assessed for taxation by the County Commissioners of the county where it is situated, who transmit a copy of the assessment to the State Tax Commissioner. The aggregate value of all the shares of a corporation, as derived from all of its property, is determined by the State Tax Commissioner, and from this he deducts the assessment so placed on its real estate. The residuum constitutes the valuation of the shares subject to taxation in the municipalities where the owners reside. The personal property of the corporation is not separately assessed. Held, that under these provisions the machinery of a manufacturing corporation is valued for taxation by the State Tax Commissioner as constituting part of the aggregate value of the shares of stock and cannot be valued by the County Commissioners as constituting part of the real, estate to which it is annexed.</p> <p>When the County Commissioners have improperly assessed for taxation machinery as being part of the real estate of a corporation, a writ of mandawms is the proper remedy to cause them to strike from their books the illegal assessment.</p> <p>Code, Art. 81, sec. 184, providing for the filing of a petitition to correct an improper assessment after the return by the Board of Control, is not applicable to this case ; and moreover, that section was simply a part of the machinery of the first assessment under the Act of 1896, and having been completely executed is now without effect</p> <p>The answer to the petition for a mandamtis did not aver that the machinery of the manufacturing establishment was real estate, but argued' that it was because permanently annexed to the building. Held, that since a demurrer admits only facts well pleaded and not conclusions of law, a demurrer to the answer does not admit that the machinery is real estate.</p>

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

<p>Municipal Corporations — Power to Impose License Fees — Charter of Cambridge.</p> <p>A municipal corporation is not authorized to impose license fees or taxes upon particular trades or industries, unless the power so to do has been conferred upon the municipality by the State.</p> <p>The Charter of Cambridge empowered the Commissioners to require licenses to be obtained by the parties therein enumerated carrying on certain designated industries. Water companies and water-plugs are not mentioned in this enumeration. Another section of the charter conferred the power to regulate water-pipes, plugs, etc. An ordinance of Cambridge required all parties using or maintaining fire-plugs in any street of the town to pay annually a certain fee for each plug. Held, that this ordinance is invalid, because the power to impose a license fee upon parties maintaining fire-plugs was not given to the municipality either " expressly or by implication, and that the tax is not a regulation of water-pipes or an exercise of the police power.</p>

<p>Writ of error to the Circuit Court for Allegany County.</p>

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

<p>Trustee's Sale — Failure to Exercise Due Diligence to Obtain the Best Price.</p> <p>Certain trustees who were managing the trust estate under the direction .of a Court of equity owned a tract of land which was traversed by a deep ravine and which was well adapted for use as a site for a reservoir. The officials of Baltimore City were contemplating the construction of a new reservoir when this site was proposed to the water board by one C. who informed the trustees of what he had done. In April, 1902, the Legislature passed an Act authorizing the city to issue a loan for the purpose of building a new reservoir. In May, 1902, the trustees sold land near the site in question at auction for $700 per acre. In November, 1902, the trustees gave to C. an option to purchase 92 acres, including the said reservoir site, for $700 per acre, the option to be exercised within six months. The equity Court passed an ex parte order authorizing the option so given. The owners of twenty-two acres adjoining this property empowered C., as their agent, to sell their land to the city for $2,000 per acre. In May, 1903, C. offered to sell to the city for a reservoir site the said 92 acres in his own right and the twenty-two acres adjoining, as the agent of the owners, all for the sum of $2,000 per acre. This offer was accepted by the municipal authorities. In June, 1903, C. accepted the above-mentioned option given to him by the trustees. Afterwards the trustees reported to the Court the sale to C. of the ninety-two acres at $700 per acre. Upon exception to the sale by parties in interest. Held, that the trustees had not exercised due-diligence and discretion to obtain the best price to be had for the property, since they made no effort to sell directly to the city although they knew that the city was seeking a reservoir site, but disregarding the-peculiar availability of the property for such use, they treated it as unimproved land cut by deep ravines and gave to C. the opportunity of making a sale to the city without incurring any liability if he did not effect the same, and that therefore the exceptions to the sale by the trustees to C. should be sustained and the sale set aside.</p> <p>Held, further, that the trustees cannot be required to report the sale as made to the city through C. as their agent for $2,000 per acre, because the city is a not a partv to the proceedings and C. in making the sale acted in his own right and not as agent of the trustees, and the city cannot be compelled to accept the position of a purchaser from the. trustees.</p>

The last paragraph -of the agreed statement was as follows: “It is further agreed that the Court shall draw from the foregoing facts hereby agreed to, all inferences of fact or law which the Court might or could draw, were the said facts offered in evidence before the Court, sitting as a jury; and it is further agreed that the Court shall enter judgment for the plaintiff or for the defendants, in accordance with the opinion of the Court upon the said facts, with the right to…

<p>Appeal from Baltimore City Court (Dennis, J.)</p> <p>The cause was. argued before McSherry, C. J., Fowler, Briscoe, Page, Boyd and Schmucker, JJ.</p>

) Defendant Novak's Prayer. — That by the theory' of the plaintiffs’ case the injury to their property was occasioned by the failure of the said defendant to properly perform a contract entered into between the plaintiffs and said Novak, for 'the protection of their property, that the declaration in this case is in tort, and therefore the verdict of the jury must be for the defendant, Novak.

<p>Appeal — Judicial Notice — Right of Western Md. R. Co. to Construct ' Bridges over the C. & O. Canal.</p> <p>When an Act of the Legislature changes the law in a certain respect after the making of the decree appealed against, the cause on appeal must be decided according to the law as changed.</p> <p>The Court will take judicial notice of an Act of the Legislature authorizing a railway company to construct bridges over the Chesapeake and • Ohio Canal in which the State is financially interested.</p> <p>The possession of the Chesapeake and -Ohio Canal Co. was placed by a Court of equity in the hands of trustees. The Western Maryland R. Co. was authorized by an Act of the Legislature to extend its road to Cumberland and to condemn the easement of crossing the canal, and it filed a petition in the equity case in which the trustees of the canal company were appointed setting forth that the extended road proposed to cross the canal at seven places and asked leave to submit the plans of bridges to the Board of Public Works as required by Code, Art. 23, sec. 177, relating to the construction of bridges by railway companies.</p> <p>' This leave was granted and the Board of Public Works after hearing the parties and the report of engineers approved the construction of certain bridges according to designated specifications. This action was set forth in another petition to the equity Court which, against the objection of the trustees of the canal company, passed an order giving to the railroad company leave to erect said bridges subject to the payment , of such damages as the canal company might sustain by reason of such construction. Upon appeal from this order, held, that it was not necessary for the Court before passing the order to ascertain whether the proposed crossings, if made in conformity with the plans, would interfere with the operation of the canal; since the order merely gave to the railroad company the right to condemn property which was in the custody of the Court, and the objection that the projected bridges will obstruct the canal as a water-way must be made in the condemnation proceedings.</p>

<p>Validity of Deed — Intoxication— Undue Influence— Grantor Estopped ter Impeach Fraudulent Conveyance.</p> <p>A woman alleged that she had been induced to execute a deed while in such a condition of intoxication as to be incapable of making a valid deed, and also because of undue influence exerted over her by her attorney. Held, that the evidence in the case fails to establish the truth of either allegation.</p> <p>When a party executes a deed for the purpose of defrauding his creditors . .he cannot be allowed to impeach the instrument.</p>

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

<p>Action on Sheriff's Bond — Evidence—Exemption From Execution— When Party Entitled to Amount of Exemption From Proceeds of Sale — Authority of Attorney At Law.</p> <p>In an action on a sheriff’s bond to recover the amount of the exemption allowed to a party at an execution sale of his property, the plea alleged that the defendant — “sheriff did perform all the conditions in his bond required by him to be performed.’’ The trial Court refused to grant a prayer that “there is no evidence in this case legally sufficient to en-</p> <p>title the plaintiff to recover.” Held. that the judgment will not be reversed upon the sole ground that the record does not set out in detail the evidence to show that the defendant was sheriff or that the sale was made by his authority, especially when the advertisement of the sale, which is in the record and uncontradicted, professes to be signed by the defendant as sheriff.</p> <p>When it is shown that an attorney at law appears at a sale being made by a sheriff and gives him notice of the claim of the exemption allowed to the defendant by law, then if the authority of the attorney to act for that defendant is to be questioned so as to be passed upon by this Court, it must be done by some more direct way than by a general prayer that the plaintiff’s evidence is not legally sufficient to entitle him to recover in an action on the sheriff’s bond for failure to accord the exemption.</p> <p>Code, Art. 83, secs. 8-10, provides that $100 in property of every defend, ant shall be exempt from execution, the property to be appraised at the time of levying the execution, and if the property cannot be divided so as to set apart a portion ofit of the value of $100, then the whole shall be sold and the defendant shall have-$ico of the proceeds in money ; this section only to apply to cases where a single parcel of land or single article of personal property is levied on. In this case an execution was levied on defendant’s equity of redemption in two tracts of land, both subject to mortgages. Before the sale he notified the sheriff that he claimed the exemption. No appraisers were summoned. Held, that the defendant was entitled to $100 of the proceeds of sale and the sheriff ’s bond is liable therefor.</p>

<p>Elections and Voters — Power of Board of Supervisors of Elections in a County to Change the Boundaries and Polling Places of Election Precincts.</p> <p>The Act of 1872, ch. 77, authorized the Commissioners of Calvert County , to re-district or increase the number of election precincts in said county. , In that year the Commissioners established two voting precincts in the ' first district of the county with a certain division line between the two. Code, Art. 33, sec. 117A, authorizes the Board of Supervisors of Elections of the several counties, at their discretion, to subdivide any of the election districts or precincts having more than 600 voters, to establish the boundaries of the subdivisions with new or separate polling places, ' and then provision is made for the preparation of registry books con- ■ taining the names of the voters in two new precincts. It is also provided that the Board of Supervisors shall appoint the place of registration and the polling place in each precinct of their county. The Supervisors of Elections of Calvert County passed an order subdividing the first election district of that county into two new precincts, differing a little in size and shape from the two precincts which had composed that district since 1872, by changing the division line between the two and designating a new polling place, the boundaries of the election district as a whole being left undisturbed, and directed their clerk to prepare a registry book for each of the new precincts: Held, that under the Code the supervisors are authorized not only to subdivide election districts by providing for additional precincts, but also to change the area and boundaries of those already in existence and to establish new poll- ' ing places'and to have new registry books prepared for the new precincts, and that this authority conferred by the Code is a continuing one to be exercised from time to time as public convenience may require.</p>

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

)' : Plaintiff's 2nd Prayer. — If the Jury find for the plaintiffs under their first prayer, then in estimating damages they may allow to the plaintiffs such amount as they find from the evidence will compensate them for the destruction of such portion of their buildings as the jury may find was destroyed by the defendant, and such further sum as will compensate the plaintiffs for the damage (if any) done by the defendant to the other portions of said buildings not torn down…

<p>Negligence- — Invitation to Passenger to Alight at Dangerous Place on Electric Railway’s Private Right of Hay — Contributory Negligence.</p> <p>When a suburban electric railway runs upon its own private right of way it is bound to exercise the highest care in providing passengers with safe premises upon which to alight from the cars.</p> <p>Plaintiff was a passenger on defendant’s open car which had a footboard on the side from which it was necessary to alight. The car ran for some distance on defendant company’s private right of way in the rear of certain cottages,' and the defendant had there erected or adopted a number of platforms along side of the tracks at which it was customary to stop to let off passengers. Plaintiff notified the conductor of her car that she wished to get off at a certain platform. The car did not stop there, but stopped at a point further on, where there was no platform, when the conductor looked directly at plaintiff as she was standing up in the car, and when she stepped upon the running board to descend. The ground at that point was covered with high grass and weeds and appeared to be safe, but in the act of getting off and while plaintiff was holding to the handle bar with her left hand, her foot failed to reach the ground, and she fell down a declivity concealed by the weeds and grass, breaking her grasp of the bar, and she sustained the injuries to recover for which this action was brought. The declivity at this point was over six feet and abrupt and the track was more than four feet above the base of the slope. Held, that there was prima facie evidence of negligence on the part of the defendant in the invitation \ to the plaintiff to alight at a place on defendant’s own premises which was not safe, and that therefore there was error in directing a verdict for the defendant on the ground that there was no evidence of its negligence. , , i</p> <p>Held, further, that the plaintiff was not guilty of contributory negligence as matter of law in getting off the car at a place'where she was invited to get off, although not a customary stopping place, since the dangerous character of the ground there was not obvious, and the question whether she saw, or with ordinary care should have seen, that she must step upon a steep declivity beyond the reach of her foot is a matter for the jury.</p>

<p> Voluntary Deed of Trust to be Held Irrevocable. </p> <p>A young widow with two children, when contemplating a second marriage, executed a voluntary deed conveying certain real estate to a trustee in trust to permit her to hold the property for her sole use during life, free from the control or interest therein of any future husband, and upon her death to convey the property to her two named children, or their issue, etc., with cross remainders. The deed was also signed by the trustee, recorded and then returned to the grantor who kept it in ' her possession. Eighteen years afterwards she filed the bill in this case ; praying that the deed be vacated and alleged that she did not know when she executed it that it could not be revoked; that her mother had unduly influenced her to make the same; that she had not delivered • the deed to the trustee, and had always herself exercised exclusive con- . trol over the property. Held, that the absence of a power of revocation in the deed was not due to any mistake on the p'art of the grantor; the attorney who drew the instrument having fully explained to her that it was irrevocable; that such power would have been inconsistent with her purpose in the creation of the trust which was to protect the property from the consequences of the contemplated second marriage and secure the remainder to her children; that no undue influence had been exerted upon her; that the signing and acknowledgment of the deed by the trustee was an acceptance of the trust and the execution and recording affords a presumption of delivery in which she has acquiesced for more than twenty years; that her control of the property was in accordance with the terms of the deed, and that therefore she is not now • entitled to have the trust so created annulled.</p>

<p>Appeal from a decree of the Circuit Court of Queen Anne’s County (Mártin and Brown, JJ.), dismissing the bill of complaint.</p> <p>The cause was submitted to the Court on briefs by:</p>

<p>Rights of Assignee of Non-Negotiable Bill of Lading — Purchase in Good Faith From Party Who Obtained the Goods by Fraud — Evidence — Instructions,</p> <p>When there is no evidence to the contrary it will be presumed that the common law prevails in another State of the Union.</p> <p>At common law a bill of lading was a negotiable instrument in only a qualified decree, and even that negotiability could be taken away by writing upon the face of the instrument the words “Not negotiable.”</p> <p>A non-negotiable bill of lading may be assigned like any other chose in action, and the assignee takes it, and the property represented by it, subject to the equities between the original parties of which he has notice.</p> <p>A bill of lading represents the goods described in it and the indorsement and delivery of the bill by the holder to a bona fide purchaser for value divests the lien of the seller against the holder for the price, and his right, upon rescinding the sale for fraud, to retake the property.</p> <p>When the buyer of goods on credit obtains possession and ships them by a common carrier, receiving a non-negotiable bill of lading to his order the party to whom he transfers that bill of lading, who takes the same bona fide and for value, acquires a valid title to the goods although the buyer may have obtained them by fraud or shipped them in violation of his agreement with the seller, since the bill of lading represents the property described in it.</p> <p>A sold and delivered a quantity of lumber in Virginia to DeC who loaded it on a car. A alleged that the agreement was that the lumber was to remain his property until a post dated check on a bank at another place which DeC gave for it was paid. DeC shipped the car and received a bill of lading, marked across its face “non-negotiable‘” in his own name. He then obtained from the plaintiff bank the discount of the draft on a party in Baltimore, with the bill of lading attached thereto as collateral and endorsed by him. DeC represented to the bank that he was the owner of the lumber and it was on the faith of the bill of lading in his name that the bank discounted his draft. DeC drew out the proceeds of the discount and afterwards the draft was returned unpaid, together with the bill of lading. The check given by DeC to A, the seller, was not paid and the latter came to Baltimore and obtained possession of the carload from the Railroad Company after giving it a bond of indemnity. Then the bank holding the bill of lading after .making a demand for the lumber, brought this action against the Railroad Company. Held, that the bill of lading contained nothing to put the bank upon inquiry as to whether other persons than DeC had any rights in the property; that evidence was admissible to show that A had sold and delivered the lumber to DeC and accepted his check in payment; that if the bank was the bona fide purchaser or pledgee of the lumber from DeC its right thereto is superior to that of the vendor, whether the title was acquired by DeC by fraud or not, and ■ that since A’s delivery of the lumber to DeC enabled him to deal with it as his property the loss in this case must fall upon A.</p> <p>A prayer is erroneous which does not submit to the finding of the jury certain facts of which there is evidence which, if found to be true, would authorize a conclusion different from that which the prayer requires the jury to find.</p>

) Plaintiff's ist Prayer. — If the Court, sitting as a jury, find from the evidence that the plaintiff was a solicitor or sub-agent of the Bankers’ Life Insurance Company of New York, and that his work was the procuring cause leading to the application for a policy of $20,000 by one J. W. Middendorff, then its verdict must be for the plaintiff for the amount of commissions provided in his contract as sub-agent or solicitor, namely, 50 per cent of commissions for premiums on…

<p>Appeal from a decree of the Circuit Court for Anne Arundel County (Revell, J.)</p> <p>The cause was submitted to the Court on briefs by:</p>

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