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md/1024343.json

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+"{\"id\": \"1024343\", \"name\": \"SEA WATCH STORES et al., v. COUNCIL OF UNIT OWNERS OF SEA WATCH CONDOMINIUM\", \"name_abbreviation\": \"Sea Watch Stores v. Council of Unit Owners of Sea Watch Condominium\", \"decision_date\": \"1997-11-12\", \"docket_number\": \"No. 77\", \"first_page\": \"622\", \"last_page\": \"623\", \"citations\": \"347 Md. 622\", \"volume\": \"347\", \"reporter\": \"Maryland Reports\", \"court\": \"Court of Appeals of Maryland\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-10T21:13:48.715844+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"SEA WATCH STORES et al., v. COUNCIL OF UNIT OWNERS OF SEA WATCH CONDOMINIUM.\", \"head_matter\": \"702 A.2d 260\\nSEA WATCH STORES et al., v. COUNCIL OF UNIT OWNERS OF SEA WATCH CONDOMINIUM.\\nNo. 77,\\nSept. Term, 1997.\\nCourt of Appeals of Maryland.\\nNov. 12, 1997.\\nMary T. Keating, Baltimore, for Petitioners.\\nLee H. Ogburn and Kevin F. Arthur, Kramon & Graham, P.A., Baltimore, for Respondent.\\nSubmitted before BELL, C.J., and ELDRIDGE, RODOWSKY, CHASANOW, RAKER and WILNER, JJ.\", \"word_count\": \"131\", \"char_count\": \"784\", \"text\": \"ORDER\\nThe Court having considered the respondent's motion to dismiss the writ of certiorari on the ground of mootness, it is this 12th day of November, 1997,\\nORDERED, by the Court of Appeals of Maryland, that the motion to dismiss be, and it is hereby, denied, and it is further\\nORDERED, that the writ of certiorari be, and it is hereby, dismissed with costs, the petition having been improvidently granted.\"}"

md/1043473.json

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+"{\"id\": \"1043473\", \"name\": \"William Smith vs. State of Maryland\", \"name_abbreviation\": \"Smith v. State\", \"decision_date\": \"1887-12-16\", \"docket_number\": \"\", \"first_page\": \"168\", \"last_page\": \"170\", \"citations\": \"68 Md. 168\", \"volume\": \"68\", \"reporter\": \"Maryland Reports\", \"court\": \"Court of Appeals of Maryland\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-10T20:31:30.363698+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"William Smith vs. State of Maryland.\", \"head_matter\": \"William Smith vs. State of Maryland.\\nLottery ticket\\u2014Sec. 171, of Art. 72, of the Revised (Jode\\u2014 Indictment\\u2014Evidence.\\nSection 171 of Article 72, of the Revised Code, enacts that the Courts shall construe liberally the provisions relating to lotteries, \\u201c and shall adjudge all tickets, parts of tickets, certificates, or any other device whatsoever, by which money or any other thing is to be paid or delivered on the happening of any event or contingency in the nature of a lottery, to be lottery tickets.\\u201d Under an indictment charging the traverser with having sold a lottery ticket, evidence that he had sold to the person named in the indictment, pieces of paper commonly known as \\u201cpolicies,\\u201d that entitled the purchaser to receive a specified sum of money on the happening of the contingency of certain numbers being drawn in a lottery of the same date, is relevant to the issue and admissible.\\nAppeal from the Criminal Court of Baltimore.\\nThe case is stated in the opinion of the Court.\\nThe cause was argued before Alvey, C. J., Yellott, Robinson, Irving, Bryan, and McSherry, J., for the appellant, and submitted on brief for the appellee.\\nW. Hollingsworth Whyte, for the appellant.\\nCharles B. Roberts, Attorney-General, for the appellee.\", \"word_count\": \"777\", \"char_count\": \"4560\", \"text\": \"Yellott, J.,\\ndelivered the opinion of the Court.\\nThe appellant was indicted and tried in the Criminal Court of Baltimore City ; the first count in the indictment charging him with having sold a lottery ticket to one William Bailey. On this count there was a verdict of guilty. At the trial the State offered to prove by said Bailey \\\" that he had played policy on the defendant,\\\" and that he paid for and received pieces of paper which are commonly known as policies, and which, on the happening of the contingency of certain numbers being drawn in a lottery of the same date but in another State, would entitle him to the sum of one dollar and eighty cents.\\nThe evidence offered was objected to, but the Court \\u2022ruled that it was admissible, and the traverser excepted to the ruling and took an appeal. The appellant contends that the evidence was not relevant to the issue, because he was indicted for selling a lottery ticket, and, coming into Court to defend himself against this charge., had to encounter evidence tending to show that he had committed another and a different offence. In other words he assumes that the sale of slips of paper commonly known as policies is not the sale of lottery tickets. And he relies on the case of Stewart vs. State, 62 Md., 412, as authority in support of this assumption. But there is an apparent distinction between the case referred to and that presented by this record. In Stewart vs. State the indictment charged the traverser with stealing \\\"certain promissory notes for the payment of money.\\\" The State offered in evidence a \\\" silver certificate,\\\" and this Court decided that a \\\"silver certificate\\\" issued by the United States is not a promissory note within the meaning of section 101, of Article 30 of the Code. But in this case we are relieved from the difficulty of construction, as the legislative enactment, in unambiguous terms, clearly indicates how the statute shall be construed. Sec. 171, Article 72, of- the Eevised Code reads thus:\\n(Decided 16th December, 1887.)\\n\\\"The Courts- shall construe the foregoing provisions relating to lotteries liberally, and shall adjudge all tickets, parts of tickets, certificates, or any other device whatsoever by which money or any other thing is to be paid or delivered on the happening of any event or contingency in the nature of a lottery, to be lottery tickets.\\\"\\nIt is plainly apparent, from the statutory provision thus transcribed, that it is the duty of this Court to decide that any device whatsoever, by which money or any other thing is to be paid or delivered on the happening of any event or contingency in the nature of a lottery, to.be a lottery ticket.\\nThe traverser was indicted for selling a lottery ticket. The proof offered was that he had sold to the person named in the indictment pieces of paper commonly known as \\\" policies,\\\" which entitled the purchaser to receive money on the happening of a certain contingency dependent upon the drawing of numbers in a lottery. The Code designates any such device as a lottery ticket. It is so declared to be by statute. The evidence offered was therefore relevant to the issue and admissible. As the Court below committed no error in the ruling which forms the foundation for this appeal,, its ruling should be affirmed.\\n. Ruling affirmed, and cause remanded.\"}"

md/1204795.json

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+"{\"id\": \"1204795\", \"name\": \"Henry J. KROLL v. Kenneth NEHMER\", \"name_abbreviation\": \"Kroll v. Nehmer\", \"decision_date\": \"1998-02-11\", \"docket_number\": \"No. 53\", \"first_page\": \"616\", \"last_page\": \"632\", \"citations\": \"348 Md. 616\", \"volume\": \"348\", \"reporter\": \"Maryland Reports\", \"court\": \"Court of Appeals of Maryland\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-10T17:25:04.204849+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Henry J. KROLL v. Kenneth NEHMER.\", \"head_matter\": \"705 A.2d 716\\nHenry J. KROLL v. Kenneth NEHMER.\\nNo. 53,\\nSept. Term, 1997.\\nCourt of Appeals of Maryland.\\nFeb. 11, 1998.\\nAlfred E. Clasing, III (Cannoles and Clasing, Chartered, on brief), Baltimore, for appellant.\\nBrice Dowell, Towson, for appellee.\\nArgued before BELL, C.J., ELDRIDGE, RODOWSKY, CHASANOW, RAKER and WILNER, JJ., and ROBERT L. KARWACKI, J. (Retired, Specially Assigned).\", \"word_count\": \"5445\", \"char_count\": \"31902\", \"text\": \"WILNER, Judge.\\nMargaret Binco died on December 19, 1994, leaving four wills\\u2014one dated July 24, 1980, a second dated April 12, 1985, a third dated June 28, 1990, and a fourth dated October 27, 1994. We are concerned here only with the second will\\u2014the 1985 will.\\nThe 1980 will, it appears, had been altered, and, although it was at one time offered for probate, no one now contends that it has any validity. When Ms. Binco drew the 1990 will, she wrote on the back of her 1985 will \\\"VOID\\u2014NEW WILL DRAWN UP 6-28-90.\\\" The 1990 and 1994 wills, all parties agree, are ineffective because they lack the signatures of attesting witnesses, as required by Maryland Code, Estates and Trusts Article, \\u00a7 4-102. Accordingly, if the 1985 will was effectively revoked by Ms. Binco, she would have died intestate, in which event appellant, her brother and closest surviving relative, who was not named as a beneficiary under the 1985, 1990, or 1994 wills, would inherit. The dispute now before us is therefore between appellant, urging that the 1985 will had been revoked, and appellee, the person who offered that will for probate and who was appointed as personal representative to administer the estate under the will, who contends that the 1985 will had not been effectively revoked.\\nOver appellant's objection, the Orphans' Court for Baltimore County, apparently applying the doctrine of dependent relative revocation, admitted the 1985 will to probate, notwithstanding its apparent revocation by Ms. Binco. The Circuit Court for Baltimore County affirmed that decision. We granted certiorari on our own initiative before any proceedings in the Court of Special Appeals to consider whether the lower courts erred in applying the doctrine and finding the 1985 will to be valid. We believe that they did err and shall therefore reverse.\\nDependent Relative Revocation\\nSection 4-105 of the Estates and Trusts Article permits a will to be revoked by \\\"cancelling . the same, by the testator himself____\\\" It is clear, and neither party now suggests otherwise, that, by writing on the 1985 will \\\"VOID\\u2014NEW WILL DRAWN UP 6-28-90\\\" and retaining the will, so marked, among her papers, Ms. Binco intended to revoke that will and that, unless saved by the doctrine of dependent relative revocation, that will was effectively revoked.\\nAs we indicated in Arrowsmith v. Mercantile-Safe Deposit, 313 Md. 334, 343, 545 A.2d 674, 679 (1988), no reported Maryland appellate decision has ever applied that doctrine. The doctrine, in its most general form, is described in 2 William J. Bowe & Douglas H. Parker, Page on the Law of Wills \\u00a7 21.57 at 446 (rev. ed.1960):\\n\\\"In general the doctrine of dependent relative revocation applies to invalidate the revocation of a will where it is shown that the revocation was conditioned on the occurrence of certain facts which never came to pass or upon the existence or nonexistence of circumstances which were either absent or present contrary to the condition.\\\"\\nAs most commentators, including the revisors of Page's opus, point out, in applying the doctrine, courts often speak in terms of a conditional revocation, regarding the revocation as conditioned on the existence of a set of facts or circumstances that the testator assumes to exist, when, in reality, the revocation is itself unconditional but is rather based on a mistaken frame of mind\\u2014a mistake of either fact or law. They give as an example of a mistake of fact the circumstance in which a testator physically destroys his will believing that the document he is destroying is not his will but some other instrument. In that circumstance, they suggest, the necessary intention to revoke the will is clearly lacking, and a \\\"mistake of this sort prevents revocation, although all the other elements are present.\\\" Id. at 448. There is no need in that situation to construe the revocation as a \\\"conditional\\\" one\\u2014 the presumed condition being that the document being destroyed is not the testator's will\\u2014for a mistake of that kind suffices on its own to justify granting relief.\\nThe more troublesome branch of the doctrine is where the mistake is not in the act of revocation itself but in the inducement for the act, arising from facts or circumstances extrinsic to the instrument revoked. This often takes the form of a mistake of law or of legal consequences. The most common instance of this form is \\\"where a testator revokes a later will in the belief that he can thus put a prior will into effect, or where he revokes a prior instrument thinking that a later instrument has been executed in due form and that no other facts exist which will prevent such instrument from operating as a later will.\\\" Id. at 448. See also Joseph Warren, Dependent Relative Revocation, 33 Harv. L.Rev. 337, 342 (1920).\\nIt is possible, of course, for a testator to make clear that his revocation of an existing will is conditioned on the legal validity or effectiveness of some other instrument, but, as the Page authors note, in most instances the testator has simply assumed that state of affairs and has articulated no such condition. In such cases, the revocation is really less of a conditional one than one based on a mistake of law which, if regarded in that manner, would not normally suffice to avoid an otherwise deliberate act. Some courts, in an effort to effectuate what they presume would have been the testator's intent had he known the true circumstances, have thus constructed the fiction of a conditional, or dependent relative, revocation, as a more plausible theory upon which to provide relief. See George E. Palmer, Dependent Relative Revocation and its Relation to Relief for Mistake, 69 Mich. L.Rev. 989-90 (1970-71):\\n\\\"The one part of the law of wills in which courts often do give relief for mistake is in connection with revocation by holding that an apparent revocation was ineffective because of mistake in underlying assumptions. Rarely, if ever, however, does a modern court rest its decision squarely on its power to relieve for mistake. Instead, the testator's intent to revoke is regarded as conditioned upon the truth of the matter in question; since the condition has not been met the conclusion is reached that there was no revocation for lack of the requisite intent. This is the doctrine of dependent relative revocation. It rests upon an analysis that, with few exceptions, is found nowhere else in the law relating to mistake in underlying assumptions.\\\"\\n(Emphasis added.)\\nThis theory, almost peculiar to revocations of wills, gained initial currency in English decisions. Joseph Warren, Dependent Relative Revocation, supra, 33 Harv. L.Rev. at 337. As Page, and increasingly many courts, have warned, however, the testator's true intentions in a mistake of law-implied condition context are often ambiguous\\u2014harder to discern \\\"with real clarity and authority\\u2014and, before applying legal fictions based on undocumented presumptions to accept as valid a will that has otherwise been facially revoked in accordance with all legal prerequisites, courts need to examine the circumstances with great care and caution. We shall turn now to those circumstances, as they appear in this case.\\nThe Four Wills and the Proceedings Below\\nWhen Ms. Binco died, her only heir was her brother, Henry J. Kroll, the appellant. Mr. Kroll was not mentioned as a beneficiary in any of the three later wills; the 1980 will is not in the record before us, but, from a comment made during the hearing in the circuit court, it appears that he was left a car in that will. The 1985 will was drawn by an attorney and made a complete disposition of Ms. Binco's estate. She left her jewelry, furs, and furniture to five individuals\\u2014Charmaine Kilmartin, Esther Strebech, Betty Ball, Joan Romanowski, and Phyllis Butler; a credit union account was left to a sixth individual; AT & T stock was bequeathed equally to two charities\\u2014First Church of God and Lutheran Social Services of Maryland; and Standard Oil Company stock was left to Spay and Neuter All Pets, Inc. St. John's Lutheran Church, the First Church of God, and Spay and Neuter All Pets, Inc. shared equally in the residuary bequest. Ms. Romanowski was named as personal representative.\\nThe 1990 will, which was handwritten and contained a number of margin notes and interlineations, had no residuary clause, so it is not clear whether that will made a complete disposition of Ms. Binco's estate. None of the individuals mentioned in the 1985 will were included in the 1990 will. Some of the beneficiaries are referred to only by their first names\\u2014Ms. Binco's house and certain stock, for example, is left to \\\"Richard and Sharyn\\\"; clothing is left to \\\"Chris\\\"; mink stoles are left to \\\"Bea\\\" and \\\"Pat.\\\" Other bequests suggest that \\\"Richard\\\" is Richard Kroll, appellant's son and Ms. Binco's nephew. In a Notice of Hearing sent later by the Register of Wills, \\\"Sharyn\\\" is identified as Sharyn L. Trent, but it is not clear from the record what, if any, relationship she has with Richard Kroll or with Ms. Binco. Pat Sonneborn, Bea Reynolds\\u2014possibly the \\\"Pat\\\" and \\\"Bea\\\" named as legatees\\u2014along with a \\\"Hank,\\\" who might be appellant, are listed as executors. The First Church of God is mentioned in the will, but it is not at all clear what, if any, bequest is made to that charity. One or more of the interlineations appear to have been made after the initial will was written. A provision stating \\\"Pay Norman Lauenstein\\u2014Atty,\\\" for example, is crossed out, and, in the margin is written \\\"Paid Him.\\\"\\nThe 1994 will is also a handwritten document, containing no residuary clause. At the top, Ms. Binco declares it as her Last Will and Testament and states that she \\\"would like to designate the following items to those mentioned below.\\\" Her car, which in the 1990 will went to Richard Kroll, was given to Pat Sonneborn. Her house, which was formerly to go to Sharyn and Richard, was left to Beate Reynolds. With the exception of a bedroom set and table that were left to Pat Sonneborn, the furniture in the house was left to Ms. Reynolds as well. A credit union account was left to Ms. Sonne-born and a Rosedale Federal account was left to Ms. Reynolds. Certain stock was bequeathed 50% to Richard Kroll, 25% to Ms. Sonneborn, and 25% to Ms. Reynolds. One thousand dollars of insurance was left to the First Church of God, and another $1,000 was left to Friends of Animals. Ms. Sonneborn and Richard Kroll were designated as executors.\\nNeither the 1990 will nor the 1994 will make any reference to any earlier will, and, as noted, neither contains the signatures of any attesting witnesses, although the 1990 will has a place designated for witnesses.\\nUnfortunately, the record of proceedings in the orphans' court transmitted to this Court does not constitute the complete file and is somewhat difficult to follow, although we can piece together essentially what occurred from what we have and from what the parties assert in their briefs. At some point after Ms. Binco's death, Richard Kroll presented the 1990 will for judicial probate. Subsequently, appellee presented the 1980 will for judicial probate. At a hearing held on March 14, 1995, appellant produced the 1985 will which, over his objection, was admitted to probate. Appellee, identified as the Pastor of St. Johns's Lutheran Church, was appointed as personal representative. Appellant then filed a caveat to the will contending, among other things, that Ms. Binco did not have sufficient mental capacity to make that will, that the contents of the will had not been read or explained to her, that the will was procured by fraud and undue influence, and that it had, in any event, been subsequently revoked. In an amended petition and caveat, he asked that those issues be tried in the circuit court. On August 9, 1995, the orphans' court dismissed appellant's amended petition and caveat, without assigning any reasons. In that same order, the court formally rejected the 1990 will on the ground that \\\"it does not satisfy the statutory requirement of a valid will and is not in good form.\\\"\\nAppellant noted an appeal to the circuit court but in that court effectively abandoned any complaint with respect to Ms. Binco's testamentary capacity or to any fraud or undue influence. The sole question presented to the circuit court was whether the orphans' court erred in applying the doctrine of dependent relative revocation and admitting the 1985 will to probate, notwithstanding its apparent revocation. After a brief evidentiary hearing, the court entered an order affirming the admission of the 1985 will to probate. The basis of its ruling was that \\\"the revocation of the April 12, 1985 Will was so related to the making of the June 28, 1990 Will as to be dependent on it. Therefore, since the June 28, 1990 Will was invalid, the April 12, 1985 Will, whose contents can be ascertained, should be given effect.\\\"\\nApplication of Dependent Relative Revocation\\nAt issue here is the branch of the dependent relative revocation doctrine that, in effect, disregards conduct otherwise qualifying as a revocation of a will when that conduct, in the court's view, was based on an assumption by the testator that the will being revoked would be immediately replaced by a valid new will. It is the \\\"mistake of law\\\" branch of the doctrine. Two overlapping and confluent assumptions underlie the theory. One was expressed in a 1929 Annotation, A.G.S., Effect of Testator's Attempted Physical Alteration of Will After Execution, 62 A.L.R. 1367, 1401 (1929):\\n\\\"It is based upon the presumption that the testator performed the act of revocation with a view and for the purpose of making some other disposition of his property in place of that which was canceled, and that there is, therefore, no reason to suppose that he would have made the change if he had been aware that it would have been wholly futile, but that his wishes with regard to his property, as expressed in his original will, would have remained unchanged, in the absence of any known and sufficient reason for changing them.\\\"\\nSee also the 1952 update of that Annotation, L.S. Tellier, Effect of Testator's Attempted Physical Alteration of Will After Execution, 24 A.L.R.2d 514, 554 (1952).\\nA second, or perhaps simply a different articulation of the same, theory offered in support of the doctrine comes into play when, as is often the case, the effect of not disregarding the revocation is for the decedent's estate, or some part of it, to pass intestate. See In re Macomber's Will, 274 A.D. 724, 87 N.Y.S.2d 308, 312 (1949): \\\"The rule seeks to avoid intestacy where a will has once been duly executed and the acts of the testator in relation to its revocation seem conditional or equivocal.\\\" See also Goriczynski v. Poston, 248 Va. 271, 448 S.E.2d 423, 425 (1994). The law disfavors intestacies and requires that, whenever reasonably possible, wills be construed to avoid that result. Crawford v. Crawford, 266 Md. 711, 719, 296 A.2d 388, 392 (1972). Courts have made it clear, however, that the law's preference for a testate disposition is always subordinate to the intention of the testator, whether ascertained or presumed. See Charleston Library Soc. v. Citizens & Southern Nat. B., 200 S.C. 96, 20 S.E.2d 623, 632 (1942).\\nAlthough, as noted, this Court has never applied the doctrine, we have discussed aspects of it in three cases. In Semmes v. Semmes, 7 H. & J. 388 (Md.1826), the testator had a will leaving his entire estate to his wife, in trust for herself and his infant son until the child reached 21, at which point one-half of the personal property was to go to her absolutely. When his wife predeceased him, the testator used a pen to obliterate his signature and those of the attesting witnesses and to write on the bottom of the will, \\\"In consequence of the death of my wife, it is become necessary to make another will.\\\" Id. at 389. Unfortunately, he died before making another will. The orphans' court refused to probate the existing will, and this Court affirmed that judgment. Our predecessors discussed the doctrine of dependent relative revocation as it had been applied in some English cases, notably Onions v. Tyrer, 1 P. Williams, 343 (1717), characterizing the doctrine as based on a mistake principle:\\n\\\"The cancelling of a will is said to be an equivocal act, and not to effect a revocation, unless it is done animo revocandi. And where it is a dependent relative act, done with reference to another, which is meant and supposed to be good and effectual, it may be a revocation or not, as to that to which it relates is efficacious or not. As where a man having duly executed one will, afterwards causes another to be prepared, and supposing the second to be duly executed, under that impression alone cancels the first. In such case it has been held, that on the second turning out not to have been duly executed, the cancelling the first, being done by mistake and misapprehension, would not operate as a revocation.\\\"\\n7 H. & J. at 390-91.\\nHaving so characterized the doctrine, the Court made clear that the doctrine would never apply \\\"where a man has deliberately and intentionally cancelled his will, as in this case, in the entire absence of all accident or mistake, notwithstanding he may, at the time, have intended to make another will.\\\" Id. at 391. We accepted, from the evidence, that the testator did not intend to die intestate but held that \\\"however that may be, we cannot make a will for him.\\\" Id. On its facts, Semmes was similar to the situation in In re Ememecker's Estate, supra, 218 Pa. 369, 67 A. 701, where the revocation also was not actually accompanied by the preparation of a new, albeit ineffective will..\\nOur second brush with the doctrine was in Safe Dep. & Trust Co. v. Thom, 117 Md. 154, 83 A. 45 (1912), which presented somewhat the same situation as Semmes, although with different facts. The testatrix, who had five children, had signed a valid will in March, 1907. Item I of that will left $10,000 in cash to four of the children; Item II left $10,000 in trust for the fifth child, who apparently was mentally disabled. After providing for some additional small bequests, the testatrix left the residue of her estate in trust, with one-fifth of the income to be paid quarterly to each of the five children during their lives (the disabled son's share to be paid to his trustee), and a one-fifth share of the corpus to be paid to the children of any deceased child. In April, 1910, the testatrix informed her attorney that she wanted to change her will to leave the one-fifth shares to the four competent children outright and not in trust and to make a number of other minor bequests. She said that she would prepare and send to the lawyer a list of those bequests. In June, 1910, she informed him that she had rubbed out the first provision in her will, leaving the competent children $10,000 each, since they would be getting their full one-fifth share absolutely. The lawyer stated that he told the testatrix not to attempt to change the will in that manner.\\nThe testatrix died without ever making a new will or sending the lawyer the list of new bequests. Among her papers was the 1907 will on which the names of the four children in Item I had been rubbed but the letters then relined or retraced in pencil. Accompanying the will, in a sealed envelope, was a letter to the lawyer containing the list of bequests. With the agreement of all parties, the trustee named in the will offered the will for probate, following which two of the competent children petitioned the orphans' court to declare the will cancelled and revoked by reason of the erasure. The court, over objection, granted the petition and denied probate. We reversed.\\nAlthough, as in Semmes, we discussed the doctrine of dependent relative revocation, that was not the basis for our decision. Rather, we concluded from the evidence that there was no revocation of the will in the first instance. The act that might be regarded as a revocation\\u2014the attempt to obliterate a provision\\u2014was incomplete, \\\"not in the sense that the clause was not entirely rubbed out or obliterated, but in the sense that that which was begun was not finished and was abandoned.\\\" Id. at 163, 83 A. 45. Before completing any obliteration, we noted, the testatrix changed her mind and retraced the letters rubbed, thereby indicating an intent not to revoke the instrument.\\nOur most recent consideration of the doctrine came in Arrowsmith v. Mercantile-Safe Deposit, supra, 313 Md. 334, 545 A.2d 674. The testator there left three relevant wills, drawn, respectively in 1966, 1976, and 1982, the earlier wills each being expressly revoked by a provision in the next succeeding will. All three wills purported to exercise a power of appointment given to the testator through a 1953 deed of trust from his mother. When the testator died in 1983, a question was raised whether the appointment in the 1982 will violated the rule against perpetuities. Indeed, the circuit court held that there was such a violation, a conclusion that we affirmed. The power as exercised in the 1966 will did not present a perpetuities problem, and, in an effort to save the testamentary disposition and not have the property distributed under the 1953 deed of trust in default of an appointment, the parties who would be benefited by that approach asked the court to sustain the 1966 provision under a theory of dependent relative revocation. The theory seemed to be that, had the testator been aware that his exercise of the power in the 1976 and 1982 wills would be ineffective, he would not have revoked the 1966 provision.\\nAs was the case in Semmes and Safe Dep. & Trust Co., it was not necessary for us in Arrowsmith to determine whether we would accept the doctrine in any of its manifestations, for even if accepted into Maryland law, it could not be applied as urged. At 345, 545 A.2d 674, we noted that \\\"[pjlucking the perpetuities saving clause from the 1966 will and inserting it in the 1982 will is inconsistent with the theoretical justification for the doctrine.\\\" Harking back to what the Court said in Semmes, Judge Rodowsky pointed out that \\\"this Court is neither empowered to write a will for [the testator] nor structure a will that differs from any will which [the testator] ever executed.\\\" Id. at 350, 545 A.2d 674.\\nThis case presents for the first time a situation in which the doctrine might be applied and in which other courts have applied it. It is not a situation, however, in which we believe it appropriate to apply the doctrine.\\nIt is important to keep in mind that, in the context now before us, the doctrine rests on a fiction that is, in turn, supported only, by an assumption as to what Ms. Binco would have done had she known that her 1990 will was invalid. As Professor Warren observed in his law review article, \\\"[t]he inquiry should always be: What would the testator have desired had he been informed of the true situation?\\\" Joseph Warren, Dependent Relative Revocation, supra, 33 Harv. L.Rev. at 345. The most rational and obvious answer to that question, of course, is that the testator would have desired to make the new instrument effective, and, if presumed intent were to control, the court would simply overlook the statutory deficiency and probate the new will, rather than overlook the legal effect of an otherwise deliberate revocation and probate the old one. That is an option the law does not permit, however. We thus must look for secondary, fictional intentions never actually possessed by Ms. Binco. The real question is what Ms. Binco would have wanted to do if she had been told that she was unable to make a new will: would she have preferred her estate to pass under the existing (1985) will to persons she had decided to remove as beneficiaries, or would she have preferred that her estate pass intestate to her brother?\\nIn attempting to arrive at a reasonable answer to that kind of question, courts have considered all of the relevant circumstances surrounding the revocation\\u2014the manner in which the existing will was revoked, whether a new will was actually made and, if so, how contemporaneous the revocation and the making of the new will were, parol evidence regarding the testator's intentions, and the differences and similarities between the old and new wills. The courts recognize that the question is always one of presumed intent. In many cases, because the other evidence is either inconclusive or nonexistent, the principal focus is on the differences and similarities between the two instruments. In that regard, the courts have generally refused to apply the doctrine unless the two instruments reflect a common dispositive scheme. See In re Lubbe's Estate, 142 So.2d 130 (Fla.Dist.Ct.App.1962), overruled on other grounds by In re Estate of Johnson, 359 So.2d 425 (Fla.1978); In re Heazle's Estate, 72 Idaho 307, 240 P.2d 821 (1952); Wallingford's Ex'r v. Wallingford's Adm'r, 266 Ky. 723, 99 S.W.2d 729 (1936); In re Houghten's Estate, 310 Mich. 613, 17 N.W.2d 774 (1945); Watson v. Landvatter, 517 S.W.2d 117 (Mo.1974); Guardianship & Conserv. of Estate of Tennant, 220 Mont. 78, 714 P.2d 122 (1986); Matter of Estate of Patten, 179 Mont. 299, 587 P.2d 1307 (1978); Flanders v. White, 142 Or. 375, 18 P.2d 823 (1933); In re Dougan's Estate, 152 Or. 235, 53 P.2d 511 (1936); In re Crooks' Estate, 388 Pa. 125, 130 A.2d 185 (1957); Chambers v. Chambers, 542 S.W.2d 901 (Tex.Civ.App.1976); and cf. Ruth v. Ruth, 123 A.2d 132 (Del.Ch.1956); but compare Carter v. First United Methodist Church, 246 Ga. 352, 271 S.E.2d 493 (1980) and In re Macomber's Will, 274 A.D. 724, 87 N.Y.S.2d 308 (1949).\\nConversely, courts that have applied the doctrine have looked to the similarity of the new and old dispositive schemes as a basis for concluding that the testator indeed intended the revocation to be conditional and that he would have preferred to have his estate pass under the old .will rather than through an intestacy. See In re Kaufman's Estate, 25 Cal.2d 854, 155 P.2d 831 (1945); In re Cuneo's Estate, 60 Cal.2d 196, 32 Cal.Rptr. 409, 384 P.2d 1 (1963); La Croix v. Senecal, 140 Conn. 311, 99 A.2d 115 (1953); In re Nutting's Estate, 82 F.Supp. 689 (D.D.C.1949); In re Jones, 352 So.2d 1182 (Fla.Dist.Ct.App.1977); Blackford v. Anderson, 226 Iowa 1138, 286 N.W. 735 (1939); In re McKay's Estate, 347 Mich. 153, 79 N.W.2d 597 (1956); Charleston Library Soc. v. Citizens & Southern Nat. B., 200 S.C. 96, 20 S.E.2d 623 (1942); Bell v. Timmins, 190 Va. 648, 58 S.E.2d 55 (1950).\\nIn the case before us, Ms. Binco indicated a clear intent to revoke her 1985 will by writing VOID on the back of it. Unlike the situation in Safe Dep. & Trust Co., supra, 117 Md. 154, 88 A. 45, there is nothing ambiguous about her intent to revoke that will. Also unlike that case and Semmes, however, she did contemporaneously handwrite a new will, thereby indicating with some clarity that her act of revocation was based on her mistaken belief that the new -will was valid and would replace the old one. The confluent inference, that she intended to revoke the 1985 will based on her belief that it would be superseded by the 1990 will, does not alone justify application of the doctrine of dependent relative revocation. We must still search for that fictional presumed intent of what she would have done had she been informed that she could not make a new will. There was some evidence that Ms. Binco did not have a good relationship with her brother and would not have desired that he take any part of her estate. That evidence was contradicted, however, by testimony that appellant and his sister did have a cordial relationship.\\nWe turn, then, to a comparison of the 1985 and 1990 wills and, as noted, we find two very different dispositive schemes. Apart from the fact that the 1990 will did not contain a residuary clause and may not have effected an entirely testate disposition, the fact is that, with the possible exception of the First Church of God, whose status under the 1990 will is, at best, unclear, none of the beneficiaries under the 1985 will were named in the 1990 will. The 1990 will replaced them all, indicating that Ms. Binco did not wish any of them (again with the possible exception of the First Church of God) to be benefitted. The effect of applying the doctrine and disregarding her revocation, however, is precisely to do what she clearly did not want done\\u2014to leave her estate to people she had intended to disinherit. We cannot fairly presume such an intent on her part; nor should the lower courts have done so.\\nWe need not decide in this case whether the doctrine of dependent relative revocation, as articulated above, is part of Maryland law and, if it is, the circumstances under which it may properly be applied. It cannot be applied under the circumstances of this case.\\nJUDGMENT REVERSED; CASE REMANDED TO CIRCUIT COURT FOR BALTIMORE COUNTY WITH INSTRUCTIONS TO REVERSE ORDER OF ORPHANS' COURT ADMITTING 1985 WILL TO PROBATE; APPEL-LEE TO PAY THE COSTS.\\nELDRIDGE, J., concurs in the result only.\\n. In the orphans' court, appellee, who offered the 1985 will for probate and who was appointed as personal representative under that will, denied that the handwritten statement purporting to revoke the will \\\"was that of the decedent.\\\" In a memorandum filed in the circuit court, he assumed, for purposes of the memorandum, but did not concede, that the writing was that of Ms. Binco. In his brief in this Court, however, he acknowledges that she wrote those words. We shall take that as a belated, but nonetheless effective, judicial admission.\\n. In his law review article, Professor Palmer notes that the doctrine has generally not been applied \\\"where the revocation was not connected with some alternative plan for succession to the decedent's estate or a part of it, and the plan failed to take effect.\\\" Dependent Relative Revocation and its Relation to Relief for Mistake, supra, 69 Mich. L.Rev. at 991. Even with that \\\"outer limit,\\\" he notes that, in most cases where the doctrine has been applied, the testator actually attempted to make a substitute disposition by will and that an \\\"area of doubt\\\" lies \\\"between the frustrated attempt to dispose and the uncompleted plan to dispose which had not reached the stage of an attempt.\\\" Id. at 991. See, for example, Semmes v. Semmes, 7 H. & J. 388 (Md.1826), In re Emernecker's Estate, 218 Pa. 369, 67 A. 701 (1907).\\n. In the 1980 will which, as noted is not in the record before us but which is in that part of the official file that was retained by the Orphans' Court for Baltimore County and not sent to the circuit court, Ms. Trent is identified as Ms. Binco's niece.\\n. The manner in which the existing will was revoked can be significant in determining whether the testator actually intended a revocation, whether conditionally or unconditionally. See In re Roeder's Estate, 44 N.M. 578, 106 P.2d 847 (1940).\\n. Courts generally will not apply the doctrine to save a revoked will when the testator, notwithstanding his announced intention to do so, in fact fails to make a new will. See Roberts v. Fisher, 230 Ind. 667, 105 N.E.2d 595 (1952); Matter of Estate of Cox, 190 Mont. 436, 621 P.2d 1057 (1980); Matter of Estate of Ausley, 818 P.2d 1226 (Okla.1991); In re Estate of Hall, 7 Wash.App. 341, 499 P.2d 912 (1972); In re Rauchfuss' Estate, 232 Wis. 266, 287 N.W. 173 (1939). As noted, we followed that approach in Semmes v. Semmes, supra, 7 H. & J. 388.\"}"

md/12315155.json

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+"{\"id\": \"12315155\", \"name\": \"JAMES, Demarco G. v. STATE of Maryland\", \"name_abbreviation\": \"James v. State\", \"decision_date\": \"2017-06-21\", \"docket_number\": \"Pet. Docket No. 79\", \"first_page\": \"367\", \"last_page\": \"367\", \"citations\": \"453 Md. 367\", \"volume\": \"453\", \"reporter\": \"Maryland Reports\", \"court\": \"Court of Appeals of Maryland\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-10T22:30:00.215805+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"JAMES, Demarco G. v. STATE of Maryland\", \"head_matter\": \"162 A.3d 843\\nJAMES, Demarco G. v. STATE of Maryland\\nPet. Docket No. 79,\\nSept.Term, 2017\\nCourt of Appeals of Maryland.\\nJune 21, 2017\", \"word_count\": \"43\", \"char_count\": \"251\", \"text\": \"Opinion of the Court of Special Appeals unreported (No. 272, Sept. Term, 2015).\\nPetition for writ of certiorari denied\"}"

md/12489537.json

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+"{\"id\": \"12489537\", \"name\": \"Grant Agbara LEWIS v. STATE of Maryland\", \"name_abbreviation\": \"Lewis v. State\", \"decision_date\": \"2017-04-24\", \"docket_number\": \"No. 61, Sept. Term, 2016\", \"first_page\": \"982\", \"last_page\": \"1004\", \"citations\": \"158 A.3d 982\", \"volume\": \"158\", \"reporter\": \"West's Atlantic Reporter, Third Series\", \"court\": \"Court of Appeals of Maryland\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-27T20:57:14.014548+00:00\", \"provenance\": \"Fastcase\", \"judges\": \"\", \"parties\": \"Grant Agbara LEWIS\\nv.\\nSTATE of Maryland\", \"head_matter\": \"Grant Agbara LEWIS\\nv.\\nSTATE of Maryland\\nNo. 61, Sept. Term, 2016\\nCourt of Appeals of Maryland.\\nApril 24, 2017\\nArgued by John N. Sharifi, Assigned Public Defender (Law Offices of John N. Sharifi, LLC, Rockville, MD), on brief, for Petitioner.\\nArgued by Sarah Page Pritzlaff, Asst. Atty. Gen. (Brian E. Frosh, Atty. Gen. of Maryland, Baltimore,. MD), on brief, for Respondent.\\nArgued before: Barbera, C.J., Greene, Adkins, McDonald, Watts, Hotten, Getty, JJ.\", \"word_count\": \"12256\", \"char_count\": \"72808\", \"text\": \"Watts, J.\\nThe Maryland Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings authorizes a Maryland trial court to certify that a person outside Maryland is a material witness in a pending criminal case in Maryland, and directs that such a certification be presented to a judge in another State. See Md. Code Ann., Cts. & Jud. Proc. (1973, 2013 Repl. Vol.) (\\\"CJ\\\") \\u00a7 9-303(a). A provision of the Act, CJ \\u00a7 9-304(a), provides for exemption from arrest or service of process for such an out-of-State witness as follows:\\nExemption of person coming into State to attend and testify. -If a person comes into this State in obedience to a summons directing him [or her] to attend and testify in this State he [or she] shall not while in this State pursuant to such summons be subject to arrest or the service of process, civil or criminal, in connection with matters which arose before his [or her] entrance into this State under the summons.\\nThis case requires us to determine whether an out-of-State witness who enters Maryland pursuant to a summons, and is then charged with crimes, waives the issue of a violation of CJ \\u00a7 9-304(a) by failing to raise the issue before trial.\\nHere, Grant Agbara Lewis (\\\"Lewis\\\"), Petitioner, a Colorado resident, entered Maryland pursuant to a summons to testify at the murder trial of Alexander Bennett (\\\"Bennett\\\"). On the day that his trial was scheduled to begin, Bennett entered into a guilty plea agreement, pursuant to which he made a proffer inculpating Lewis in the murder of Heidi Bernadzikowski (\\\"Bernadzikowski\\\"). Afterward, Lewis was arrested in Maryland and, in the Circuit Court for Baltimore County (\\\"the circuit court\\\"), the State, Respondent, charged Lewis with crimes that were related to the murder.\\nAt no point did Lewis assert the issue of a violation of CJ \\u00a7 9-304(a) in the circuit court. Instead, Lewis raised the issue for the first time on appeal. The Court of Special Appeals held that Lewis waived any issue as to a violation of CJ \\u00a7 9-304(a). We agree, and hold that an out-of-State witness who enters Maryland to testify at a trial in a criminal case pursuant to a summons under the Maryland Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings, and who is arrested and charged with a crime in Maryland, waives the issue of a violation of CJ \\u00a7 9-304(a) by failing to raise the issue pretrial as required by Maryland Rule 4-252, which governs mandatory pretrial motions and matters that are capable of determination before trial, without trial of the general issue. We decline to exercise our discretion pursuant to Maryland Rule 8-131(a) to review the matter.\\nBACKGROUND\\nState v. Bennett and Filings in the Colorado Court\\nThe facts and circumstances giving rise to this unusual case are summarized below.\\nIn the circuit court, the State charged Bennett with first-degree murder of Bernadzikowski and other crimes. In State v. Bennett , the State filed an \\\"Application to Secure Attendance of a Person Outside the State as a Witness in a Criminal Action in the State\\\" under CJ \\u00a7 9-303, seeking to secure the attendance of Lewis, a Colorado resident, as a witness at Bennett's trial. The circuit court issued a \\\"Certificate for Attendance of Witness from Colorado State,\\\" certifying that Lewis was a material witness in State v. Bennett .\\nIn the District Court of City and County of Denver, Colorado (\\\"the Colorado court\\\"), the District Attorney for the Second Judicial District of Colorado filed a \\\"Motion for Hearing and Appearance of Witness for Witness To Testify in Another State,\\\" advising the Colorado court of the attempt to secure Lewis's presence as a witness in Maryland and noting that, under Colorado law, Lewis had a right to a hearing to determine whether he was a material and necessary witness in State v. Bennett and whether it would cause undue hardship to be compelled to testify at Bennett's trial. In the motion, the District Attorney stated that Lewis would be required to attend Bennett's trial for two days, and possibly afterward if the circuit court so ordered; and the District Attorney requested that the Colorado court issue a summons ordering Lewis to testify at Bennett's trial.\\nThe Colorado court issued an \\\"Order for Hearing and Appearance of Witness, and for Contingent Summons for Witness to Testify in Another State[.]\\\" In the order, the Colorado court scheduled a hearing, at which Lewis would be required to show cause why he should not be compelled to testify at Bennett's trial; and ordered that the show cause hearing would be vacated if the District Attorney filed an Acceptance of Service and Waiver of Hearing signed by Lewis. The Colorado court found that Lewis was a material and necessary witness in State v. Bennett , and that compelling Lewis to testify at Bennett's trial would not cause undue hardship. The Colorado court ordered Lewis to testify at Bennet's trial and stated:\\n[T]he laws of the [S]tate in which the prosecution is pending, and of any other [S]tate through which [Lewis] may be required to pass by ordinary course of travel, will give to [Lewis] protection from arrest and service of civil and criminal process in connection with matters which arose before entering into that [S]tate under this summons[.]\\nIn the Colorado court, the District Attorney Investigator filed a \\\"Certificate of Service,\\\" averring that he had served on Lewis, among other documents, the Motion for Hearing and Appearance of Witness for Witness To Testify in Another State, the Order for Hearing and Appearance of Witness, and for Contingent Summons for Witness to Testify in Another State, the Application to Secure Attendance of a Person Outside the State as a Witness in a Criminal Action in the State, and the Certificate for Attendance of Witness from Colorado State.\\nIn the Colorado court, Lewis filed an \\\"Acceptance of Service and Waiver of Hearing,\\\" in which he acknowledged service of the above-listed documents, waived his right to a show cause hearing, and agreed to testify at Bennett's trial. On March 18, 2014, the day on which Bennett's trial was scheduled to begin, Bennett pled guilty in exchange for a sentence of life imprisonment with all but thirty years suspended. On the same day, Bennett agreed to testify about his involvement in the murder and made a proffer in which he implicated Lewis as an accomplice to Bernadzikowski's murder. On March 19, 2014, after an investigation, Lewis, who had been in Maryland to testify against Bennett, was arrested. At the time of his arrest, Lewis did not assert the exemption from arrest under CJ \\u00a7 9-304(a).\\nCircuit Court Proceedings in Lewis v. State\\nIn the circuit court, the State charged Lewis with first-degree murder of Bernadzikowski and conspiracy to commit first-degree murder of Bernadzikowski. The evidence adduced at trial showed that Bennett and Lewis had been childhood friends in Colorado and attended the Denver School of Performing Arts together. In 2000, the two devised a plan to make money that involved placing online advertisements for \\\"cleaning services,\\\" a cover term for contract killings. According to Lewis, the pair planned to defraud potential customers by taking money and not actually performing any murders. By contrast, according to Bennett, there was no intent to deceive; he and Lewis intended to commit murder in exchange for payment.\\nSpecifically, at trial, as a witness for the State, Bennett testified that Lewis was responsible for designing and placing the online advertisement. In or before Spring 2000, as a result of the internet advertisement, Stephen Cooke (\\\"Cooke\\\"), a man living in Dundalk, Maryland contacted Lewis and requested a contract killing of Bernadzikowski, who was his roommate and girlfriend, for $60,000. Cooke wanted Bernadzikowski's death to look like an accident so that he would be able to collect the proceeds from an insurance policy on Bernadzikowski's life. Cooke provided his address to Lewis, who gave Bennett a map from Baltimore/Washington International Airport (\\\"BWI\\\") to Cooke's and Bernadzikowski's house. Natalie Ott (\\\"Ott\\\"), one of Bennett's high school classmates, drove him and Lewis to an airport in Colorado. Using a ticket that Lewis had bought, Bennett flew from Colorado to BWI. Because he had no money, Bennett started walking from BWI to Dundalk. While Bennett was walking along a highway, a law enforcement officer stopped him. Bennett told the law enforcement officer that he was stranded, and the officer gave him a ride to Dundalk.\\nBennett stayed in Dundalk for weeks, stealing food and sleeping at a bus stop, in a van, or wherever else he could find a place to sleep. Two or three times a day, Bennett called Lewis via pay phones, asking whether Cooke had e-mailed Lewis, or whether Lewis had any information to share. One day, Cooke e-mailed Lewis to arrange a meeting with Bennett. At the meeting, Cooke told Bennett that, at some point, he would leave a key outside the house so that Bennett could enter the house and kill Bernadzikowski. On another day, Cooke and Bennett met again; Bennett asked for an up-front payment; and Cooke said that he would not have any money until he collected the proceeds from the insurance policy on Bernadzikowski's life.\\nA day or two after Cooke's and Bennett's second meeting, Bennett telephoned Lewis, who said that Cooke had e-mailed him, stating that he would drop off Bernadzikowski in about twenty minutes and that a key was outside of the house. Bennett went to Cooke's and Bernadzikowski's house, found the key, entered the house, and waited. Within three or four minutes, through the window, Bennett saw Cooke drive up outside the house, and saw Bernadzikowski get out of the car. Bennett waited behind the front door. Bernadzikowski entered the house, and Bennett put his hand over her mouth and unsuccessfully tried to break her neck. Then, Bennett put his hand around Bernadzikowski's throat and started choking her. Bernadzikowski struggled and scratched Bennett's face, but she eventually became unconscious. To make sure that Bernadzikowski was dead, Bennett cut her throat with a knife.\\nTo make it seem as though a burglary had occurred, Bennett went upstairs and ransacked the bedroom. To confuse law enforcement officers, Bennett used Bernadzikowski's lipstick to write \\\"Number 1\\\" on the wall. Bennett waited approximately thirty to thirty-five minutes, left the house, and threw the key and knife into a dumpster. Bennett telephoned Lewis and informed him that he had killed Bernadzikowski. Lewis told Bennett that he was using a satellite to ensure that no law enforcement officers were in the area. After returning to Colorado, Bennett told Lewis about the killing in more detail. According to Bennett, Cooke never paid him, and Bennett and Lewis had never discussed simply stealing money from Cooke without killing Bernadzikowski.\\nAs a witness for the State, Sergeant Alan Meyer (\\\"Sergeant Meyer\\\") of the Baltimore County Police Department testified that, on April 20, 2000, Sergeant Meyer responded to 2008 Codd Avenue in Dundalk to investigate Bernadzikowski's death. An investigation revealed that Bernadzikowski's boyfriend, Cooke, had taken out a $700,000 insurance policy on Bernadzikowski's life, and that she was preparing to end their relationship. At the time of the initial investigation, DNA tests conducted on Bernadzikowski's fingernail clippings revealed DNA belonging to Bernadzikowski and an unknown individual.\\nYears later, in September 2011, after advances in DNA technology, DNA testing of Bernadzikowski's fingernails revealed that the DNA profile of the previously unknown individual matched Bennett, causing him to become a suspect. Additionally, Sergeant Meyer learned that, on March 30, 2000, a Maryland State Trooper had stopped Bennett while he was walking toward I-895. Sergeant Meyer traveled to Colorado, interviewed Bennett, and obtained Lewis's name from Bennett. Sergeant Meyer believed Lewis to be a witness and interviewed him in Colorado on four separate occasions. On January 19, 2012, Bennett was arrested.\\nAs a witness for the State, Ott, Bennett's high school classmate, testified that Bennett and Lewis were best friends. In Spring 2000, Ott drove Bennett and Lewis to Denver International Airport. On the way, Bennett said that he and Lewis were two of the biggest members of organized crime in Colorado; that Bennett was going to Baltimore to do a job; and that he and Lewis were going to make a lot of money.\\nAs a witness for the State, Rebecca Love (\\\"Love\\\"), the mother of Lewis's two children, testified that, in Spring 2000, while she and Lewis were in her apartment, Lewis told her that an out-of-State woman owed him money and had \\\"reneged[,]\\\" and that he had sent Bennett to kill her while he watched on his computer via satellite. Love ran out of her apartment and cried. Lewis followed Love and told her that he had made up the planned killing to impress her.\\nAs a witness on his own behalf, Lewis testified that he and Bennett developed a \\\"silly scam\\\" in which they would accept money for contract killings without following through. Lewis acknowledged that he created an online advertisement for \\\"professional and discreet cleaning services,\\\" and that in response to the online advertisement, Cooke offered to pay $20,000 up front, and another $20,000 upon completion, for a contract killing of Bernadzikowski. Cooke e-mailed Lewis to provide his and Bernadzikowski's address, and Bennett flew to Baltimore, where he was supposed to collect the up-front payment from Cooke. Once Bennett was in Baltimore, over time, Lewis heard from Bennett and Cooke that Cooke wanted to lower the amount that he would pay up front, and eventually that Cooke wanted to cancel the contract killing. Lewis also heard from Bennett that he accosted and threatened Cooke, who then agreed to proceed with the contract killing. After Bennett returned to Colorado, he told Lewis that he had entered Cooke's and Bernadzikowski's house, where he planned to extort money from Cooke. According to Lewis, Bennett said that, after Bernadzikowski entered the house instead, Bennett panicked and killed her. Lewis testified that he was \\\"horrified at what had transpired[,]\\\" that he had never intended to carry out a murder, and that he had never believed that Bennett would do so. Lewis denied having told anyone else about his and Bennett's scam.\\nA jury found Lewis guilty of first-degree murder of Bernadzikowski and conspiracy to commit first-degree murder of Bernadzikowski. The circuit court sentenced Lewis to life imprisonment for first-degree murder, and five concurrent years of imprisonment for conspiracy to commit first-degree murder. Lewis noted an appeal.\\nLewis did not allege, pretrial or during trial, that his arrest violated the Maryland Uniform Act to Secure the Attendance of Witnesses from Without State in Criminal Proceedings.\\nSubsequent Procedural History\\nOn appeal, for the first time, Lewis raised the exemption from arrest under CJ \\u00a7 9-304(a). Specifically, before the Court of Special Appeals, Lewis contended that the State's prosecution of him violated CJ \\u00a7 9-304(a), and argued that, accordingly, the circuit court lacked subject-matter jurisdiction and improperly exercised personal jurisdiction over Lewis.\\nThe Court of Special Appeals disagreed and affirmed the convictions, holding that the circuit court had subject matter jurisdiction and properly exercised personal jurisdiction. See Lewis v. State , 229 Md.App. 86, 101, 143 A.3d 177, 186-87 (2016). Specifically, the Court of Special Appeals concluded that the circuit court had subject matter jurisdiction because Bernadzikowski's body had been found in a residence in Dundalk, Maryland. See id. at 101, 143 A.3d at 186. The Court of Special Appeals held that an alleged violation of CJ \\u00a7 9-304(a) does not result in a lack of subject matter jurisdiction, and that the alleged violation is subject to Maryland Rule 4-252, and is waived if not raised in a timely manner. See id. at 107-08, 143 A.3d at 190. The Court of Special Appeals held that the circuit court had personal jurisdiction over Lewis because \\\"[Lewis] was served in the State, and thus, the State acquired personal jurisdiction over him.\\\" Id. at 103, 143 A.3d at 188. The Court concluded that Lewis's challenge to the exercise of personal jurisdiction was waived. See id. at 103, 108, 143 A.3d at 188, 190. The Court of Special Appeals determined that the issue was whether, in light of the alleged violation of CJ \\u00a7 9-304(a), personal jurisdiction should have been exercised. See id. at 103, 143 A.3d at 188. The Court of Special Appeals concluded that \\\"it is settled that the defense of lack of personal jurisdiction, unlike subject matter jurisdiction, is waived unless raised in a mandatory preliminary motion[.]\\\" Id. at 103, 143 A.3d at 188 (citation, brackets, and internal quotation marks omitted).\\nLewis filed a petition for a writ of certiorari , which this Court granted. See Lewis v. State , 450 Md. 420, 149 A.3d 547 (2016).\\nDISCUSSION\\nThe Parties' Contentions\\nLewis contends that the circuit court improperly exercised personal jurisdiction over him in violation of CJ \\u00a7 9-304(a), which provides that a person who comes into the State on an out-of-State summons shall not be subject to arrest or the service of process in matters that arose before his or her entrance into the State. Lewis argues that, as such, his convictions should be vacated and he should be allowed to return to Colorado, at which point Maryland may elect to initiate extradition proceedings against him. Lewis acknowledges that a court's ability to exercise personal jurisdiction over a criminal defendant is not generally affected by the manner in which a defendant is brought into court. Lewis asserts, however, that the Doctrine of Specialty-which provides that a court cannot exercise personal jurisdiction over a person who is extradited to the United States for an offense that is not specified in the demand for surrender of the person-is an exception to the general rule, and applies in this case. Lewis maintains that, like the Doctrine of Specialty in extradition matters, CJ \\u00a7 9-304(a) prevents the circuit court from exercising personal jurisdiction over him for any matter other than the purpose for which he was brought to Maryland.\\nLewis concedes that he did not preserve the issue as to the alleged violation of CJ \\u00a7 9-304(a) for appellate review, but asks us to exercise our discretion under Maryland Rule 8-131(a) to review the unpreserved issue because of this case's \\\"extraordinary circumstances.\\\" Lewis contends that both the prosecutor and circuit court were or should have been aware that his prosecution violated CJ \\u00a7 9-304(a), and that the circuit court and the State had a substantial opportunity to correct the error. Lewis argues that the purpose of fairness in judicial proceedings would be furthered by this Court exercising its discretion to review the matter, and that addressing the issue would avoid the expense and delay of another appeal.\\nAs to the merits, Lewis argues that an out-of-State witness does not waive the issue of a violation of CJ \\u00a7 9-304(a) by failing to file a pretrial motion under Maryland Rule 4-252 (Motions in Circuit Court). Lewis points out by analogy that an implicit waiver is not permitted under Maryland's extradition laws, which require an express waiver of the right to challenge extradition. Lewis asserts that permitting an implicit waiver under CJ \\u00a7 9-304(a) would permit the circumvention of an explicit waiver that would be required to extradite him from Colorado. Lewis maintains that a waiver of the issue as to a violation of CJ \\u00a7 9-304(a) should be the same as the general requirement for a waiver of extradition-the waiver must occur in open court, before a judge, and after an advice of the right to challenge extradition. According to Lewis, permitting an implicit waiver would render trial courts \\\"unaccountable\\\" for violations of CJ \\u00a7 9-304(a). Lewis contends that, in this case, although there is no evidence of bad faith on the circuit court's part, there is an appearance of impropriety because the same circuit court judge issued the Certificate for Attendance of Witness from Colorado State and presided over his trial.\\nThe State responds that Lewis forfeited the ability to challenge his arrest and prosecution by failing to raise the issue in a pretrial motion pursuant to Maryland Rule 4-252. The State contends that a challenge to a trial court's personal jurisdiction over a defendant falls under \\\"[a] defect in the institution of the prosecution\\\" under Maryland Rule 4-252(a)(1), and thus must be the subject of a mandatory motion. The State argues that Maryland Rule 4-252 requires a defendant-not the State or a trial court-to raise an issue as to a violation of CJ \\u00a7 9-304(a) before trial, or the issue is waived. The State asserts that a knowing and voluntary waiver is not required under CJ \\u00a7 9-304(a). The State maintains that the analogy to waiver under extradition laws is misplaced because: (1) the procedure to protect an out-of-State witness is not comparable to the procedure to protect the rights of a defendant who has already been charged with a crime; (2) errors in the extradition process that are not timely raised are forfeited without a knowing and voluntary waiver; and (3) Maryland Rule 4-252 does not require a knowing and voluntary waiver.\\nThe State contends that Lewis fails to demonstrate that this Court should exercise its discretion to review his unpreserved challenge to his arrest and prosecution, as doing so would not correct a recurring error, provide guidance where there is likely to be a new trial, or offer assistance if there is a subsequent collateral attack on the convictions. The State argues that it would be unfair to allow Lewis to raise an issue as to a violation of CJ \\u00a7 9-304(a) for the first time on appeal, as he could have known of the issue, yet decided not to raise it before trial. The State points out that, had Lewis raised the issue of a violation of CJ \\u00a7 9-304(a) before trial and been permitted to return to Colorado, the State could have immediately sought to extradite him.\\nThe Standard of Review\\n\\\"An appellate court reviews without deference a trial court's interpretation of a statute[.]\\\" Howard v. State , 440 Md. 427, 434, 103 A.3d 572, 576 (2014) (citations omitted). And, generally, an appellate court reviews questions of law without deference. See State v. Callahan , 441 Md. 220, 226, 107 A.3d 1143, 1146 (2015) (\\\"[W]hether the probationer violated the order of probation is a purely legal issue[, and] the appellate court reviews without deference the trial court's determination that the probationer violated the order of probation.\\\" (Citation omitted)).\\nCJ \\u00a7 9-304(a)\\nCJ \\u00a7 9-304(a), part of the Maryland Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings, states in its entirety:\\nExemption of person coming into State to attend and testify. -If a person comes into this State in obedience to a summons directing him [or her] to attend and testify in this State he [or she] shall not while in this State pursuant to such summons be subject to arrest or the service of process, civil or criminal, in connection with matters which arose before his [or her] entrance into this State under the summons.\\nPrior to the General Assembly enacting what is now the Maryland Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings, under the common law of Maryland, an out-of-State witness or party in a civil or criminal case was exempt from arrest or service of process while the witness or party was in Maryland for the purpose of attending a proceeding in the civil or criminal case. See Long v. Hawken , 114 Md. 234, 235, 79 A. 190 (1911) (\\\"It seems to be clear, that whatever may be the rule in other jurisdictions, it is settled in this [S]tate that a non-resident witness is exempt from service of civil process as well as arrest, while attending on the [C]ourts of the [S]tate.\\\"); Feuster v. Redshaw , 157 Md. 302, 304, 306-07, 145 A. 560, 561, 562 (1929) (\\\"The law is settled in Maryland that a non-resident who comes into this [S]tate either as a witness or as a party plaintiff or defendant in a civil action is, while for that purpose coming, staying, and returning in good faith and without unreasonable delay, exempt from the service of process for the commencement of a civil action against him in this [S]tate.... The[ ] reasons are as applicable to criminal prosecutions as they are to civil actions, and, on principle, should have no different conclusion.\\\"). In Feuster , 157 Md. at 303-04, 308, 145 A. at 561, 563, this Court held that a Pennsylvania resident who had been charged with a criminal violation of Maryland's motor vehicle laws was exempt from service of process in a civil case that arose out of a motor vehicle accident, where the Pennsylvania resident was served with summons while he was in a Maryland courtroom waiting for his criminal case to be called. This Court observed that, among courts in other jurisdictions, there was a split as to whether the exemption from arrest or service of process applied to defendants in both civil and criminal cases. See id. at 306, 145 A. at 562.\\nIn 1936, the National Conference of Commissioners on Uniform State Laws adopted the Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings. See National Conference of Commissioners on Uniform State Laws, Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings Explanatory Note at 333, http://www.uniformlaws.org/shared/docs/attendance% 20of% 20witnesses/attendance% 20of% 20witnesses% 201936.pdf [https:// perma.cc/U78L-JCTR]. Afterward, legislatures in all fifty States and the District of Columbia enacted the Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings.\\nSee National Conference of Commissioners on Uniform State Laws, Attendance of Out of State Witnesses, http://www.uniformlaws.org/Act.aspx?title=Attendance% 20of% 20Out% 20of% 20State% 20Witnesses [https://perma.cc/N4XU-HLTU].\\nIn 1937, the General Assembly enacted what is now titled the Maryland Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings as Md. Code Ann., Art. 27, \\u00a7 560 through 560E. See 1937 Md. Laws 235 (Ch. 124). CJ \\u00a7 9-304(a)'s earliest predecessor was the first paragraph of Art. 27, \\u00a7 560C, which was titled \\\"Exemption From Arrest and Service of Process.\\\" See id. at 237. The language of the first paragraph of Art. 27, \\u00a7 560C was identical to that of its source in the Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings, and was also identical to CJ \\u00a7 9-304(a)'s language. Compare id. with National Conference of Commissioners on Uniform State Laws, Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings at 337, http://www.uniformlaws.org/shared/docs/attendance% 20of% 20witnesses/attendance% 20of% 20witnesses% 201936.pdf [https://perma.cc/U78L-JCTR] and CJ \\u00a7 9-304(a).\\nAlthough the General Assembly has never changed the language of the provision that eventually became CJ \\u00a7 9-304(a), the General Assembly has recodified the provision multiple times. First, the General Assembly recodified Art. 27, \\u00a7 560C as Art. 27, \\u00a7 704, and made the first paragraph subsection (a). See 1955 Md. Laws 511 (Ch. 333, H.B. 4). Later, the General Assembly recodified Art. 27, \\u00a7 704 as Art. 27, \\u00a7 620, and gave subsection (a) its own title: \\\"Exemption of person coming into state to attend and testify.\\\" See 1973 Md. Laws. 299-300 (July Extraordinary Session, Ch. 2, S.B. 1). Finally, in 1973, the General Assembly recodified Art. 27, \\u00a7 620 as CJ \\u00a7 9-304. See id. The Revisor's Note stated that \\\"[t]his section presently appears as Art. 27, \\u00a7 [ ]620. No change has been made.\\\" See id. at 300. In the forty-four years since then, the General Assembly has not amended CJ \\u00a7 9-304.\\nNeither this Court nor the Court of Special Appeals has addressed any of CJ \\u00a7 9-304's predecessors. Aside from the opinion of the Court of Special Appeals in this case, this Court and the Court of Special Appeals have not decided any issues arising out of CJ \\u00a7 9-304, and have mentioned CJ \\u00a7 9-304 in passing in only two cases.\\nIn State v. Breeden , 333 Md. 212, 227, 634 A.2d 464, 471 (1993), this Court held that the State failed to prove that a witness was unavailable because the State did not timely invoke the procedures under the Maryland Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings. In Breeden , id. at 226, 634 A.2d at 471, this Court concluded that the State failed to make efforts in good faith to secure a witness's attendance because \\\"the State . sat on its hands with respect to the Uniform Act\\\" to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings. This Court noted that the adoption by every State of the Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings \\\"create[d] a community of jurisdictions [that] will honor the request of fellow members for the appearance of witnesses at criminal proceedings under the conditions specified in the Act.\\\" Id. at 223, 634 A.2d at 469 (citation and internal quotation marks omitted). This Court explained that the Act's purposes are \\\"to secure at trial the attendance of a material witness residing in another state\\\" and \\\"to promote the enforcement of the criminal laws and the administration of justice in criminal proceedings in the several [S]tates.\\\"\\nId. at 223, 634 A.2d at 469 (citation, ellipses, and internal quotation marks omitted). This Court quoted provisions of the Maryland Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings, and mentioned CJ \\u00a7 9-304 only in the following sentence: \\\" [CJ] 9-304 grants the witness exemption from arrest and service of process.\\\" See id. at 224, 634 A.2d at 470.\\nIn In re State of Cal. for Los Angeles Cty., Grand Jury Investigation , 57 Md.App. 804, 806-08, 811, 471 A.2d 1141, 1142-43, 1144 (1984), a case involving the appeal of a trial court's issuance of an order requiring a witness located in Baltimore City to appear before a Los Angeles County grand jury, the Court of Special Appeals affirmed the issuance of the order and stated:\\nThe principal difference is that in the [Uniform Criminal Extradition Act] the person demanded by the requesting State will be returned to that State to face criminal prosecution, while in the [Maryland Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings] the person requested is to testify and is specifically exempted from prosecution for matters that \\\"arose before . entrance into . [the] State under the summons.\\\"\\n(Quoting CJ \\u00a7 9-304 ) (ellipses and last alteration in original).\\nCase Law from Other Jurisdictions\\nAs in Maryland, few courts in other jurisdictions have addressed issues as to waiver of the exemption from arrest or service of process under those jurisdictions' Uniform Acts to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings. In Foster v. State , 372 N.W.2d 468, 469, 470 (S.D. 1985), the Supreme Court of South Dakota held that a trial court had personal jurisdiction over a defendant where the defendant was brought to South Dakota for the purpose of having him testify in a criminal case that was unrelated to his own. In South Dakota, the defendant had been convicted of a felony drug charge, sentenced to two years' imprisonment and given a date to surrender to a county sheriff to begin serving the sentence. See id. at 468. The defendant did not appear for service of the sentence, and was later arrested in North Dakota on charges that were pending in that State. See id. A trial judge in South Dakota signed a Certificate by Judge for Summons of Witness from Out-of-State under the South Dakota Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings for the purpose of securing the defendant's testimony in a matter that was unrelated to his failure to appear. See id. at 468-69. The defendant signed a waiver of extradition, and was brought to South Dakota. See id. at 469. In South Dakota, the defendant pled guilty to failing to appear before the sheriff, and was sentenced to five years' imprisonment. See id. The defendant subsequently filed a Writ of Habeas Corpus, which was dismissed. See id.\\nOn appeal, the defendant contended that the trial court lacked personal jurisdiction over him because he was brought to South Dakota as a witness, and thus was exempt from arrest under South Dakota's Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings. See id. at 470. The Supreme Court of South Dakota disagreed, and observed that the State of South Dakota \\\"neither intended, nor relied in fact upon,\\\" South Dakota's Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings to have the defendant brought to South Dakota for the purpose of prosecuting him for failing to appear before the sheriff. See id. The Court stated that the defendant had not identified any irregularities that would invalidate the waiver of extradition that he signed before being brought to South Dakota. See id. Finally, the Court concluded that any irregularities in extradition proceedings would not deprive South Dakota's trial courts of personal jurisdiction over the defendant. See id.\\nIn Zeller v. Cumberland Truck Sales , 272 S.C. 558, 253 S.E.2d 111, 112-13 (1979), a civil case involving a dispute over fees for repair of a vehicle, the Supreme Court of South Carolina held that a defendant did not implicitly waive an exemption from service of process by failing to raise the exemption before a trial court ordered default judgment. The Supreme Court of South Carolina rejected the plaintiff's contention that the defendant impliedly waived the exemption from service by failing to assert the exemption before the trial court ordered default judgment. See id. at 112-13. The Court explained:\\nThe exemption or immunity from service of process, afforded under [the\\nexemption provision of South Carolina's Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings], is a personal privilege or exemption and may be waived by the person otherwise entitled thereto. [The plaintiff] correctly states that the applicable rules require a prompt assertion of the exemption from service of process and, ordinarily, such immunity should be claimed prior to judgment. The latter, however, is not an absolute rule but must be weighed in the light of all of the surrounding facts and circumstances.\\nId. (citations and paragraph break omitted). In Zeller , id. at 113, the Court concluded that it was reasonable to infer that the service of two summonses that had been stapled together without a complaint gave the impression that only one case was pending. The Court noted that a letter from the defendant's lawyer to the plaintiff's lawyer, apart from South Carolina's Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings, should have put the plaintiff's lawyer on notice that the defendant did not intend for the trial court to issue default judgment in the plaintiff's case. See id. The Court concluded that \\\"[t]hese circumstances raise sufficient doubts to justify the refusal to imply waiver from the alleged silence of\\\" the defendant. Id.\\nIndependent of other jurisdictions' Uniform Acts to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings, courts in other jurisdictions have addressed issues as to waiver of an exemption from arrest or service of process under other jurisdictions' common law. In Bradford v. Nat'l Distillers & Chem. Corp. , 117 Ariz. 244, 571 P.2d 1040, 1041 (Ariz. Ct. App. 1977), without referring to Arizona's Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings, the Court of Appeals of Arizona held that an out-of-State witness who is in Arizona to testify in one case waives immunity from service of process in another case by delaying an assertion of that immunity. In Bradford , id. , an Arkansas resident came to Arizona to testify at a deposition. The deposition was cancelled on the day on which it was scheduled, and the parties to the case settled. See id. While he was in Arizona, the Arkansas resident was sued and served with summons. See id. The Arkansas resident took no action, and an Arizona trial court ordered default judgment against him. See id. Five years later, the Arkansas resident moved to vacate the default judgment for lack of personal jurisdiction, contending that he was immune because he was in Arizona for the purpose of testifying in another case. See id. An Arizona trial court denied the motion to vacate, and the Court of Appeals of Arizona affirmed. See id. The Court explained:\\nThe immunity upon which [the Arkansas resident] relies is a privilege extended by the court and not a jurisdictional matter, and in order to obtain the benefit of this privilege, the person served must timely urge the court to extend it. A delay in doing so, especially a delay of five years after entry of the judgment, as here, constitutes a waiver of any possible immunity.\\nId. (citations omitted).\\nIn Eaton v. Eaton , 120 Kan. 477, 243 P. 1040, 1040-41 (1926), the Supreme Court of Kansas held that a Texas resident who was in Kansas as a defendant in a criminal case waived the exemption from service of process in a civil case by failing to assert that exemption until after judgment. In Eaton , id. at 1040, the Texas resident's wife, who lived in Kansas, sued him for divorce and alimony, and service was made by publication; the Texas resident's wife also filed a criminal complaint against him for failure to pay child support. While the Texas resident was visiting his children in Kansas, he was arrested, and he posted bail. See id. When the Texas resident appeared for trial in Kansas, he was served with summons in the divorce case. See id. Judgment was entered against the Texas resident, who then moved to set aside the judgment on the ground that the service of summons was invalid. See id. At the time, the National Conference of Commissioners on Uniform State Laws had not yet adopted the Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings; however, under the common law of Kansas, an out-of-State party was exempt from service of summons while the party was in court, or on the way to or from court. See id. In Eaton , id. at 1040-41, a trial court denied the motion to set aside, and the Supreme Court of Kansas affirmed, stating that the exemption from service of summons \\\"must be claimed at as early a stage of the proceeding as possible\\\"-for example, in a motion or an answer to a complaint. See id. at 1041 (citation omitted). The Supreme Court of Kansas explained that the Texas resident could have moved to set aside the service of the summons when the answer to the complaint was due, and should have filed the motion before judgment. See id. The Supreme Court of Kansas stated: \\\"Instead of moving promptly, [the Texas resident] allowed judgment to be taken, allowed the term to lapse, and then undertook to proceed as though the judgment were void. The result is he waived his privilege.\\\" Id.\\nMaryland Rules 4-252 and 8-131(a)\\nMaryland Rule 4-252 states in pertinent part:\\n(a) Mandatory motions. In the circuit court, the following matters shall be raised by motion in conformity with this Rule and if not so raised are waived unless the court, for good cause shown, orders otherwise:\\n(1) A defect in the institution of the prosecution;\\n(2) A defect in the charging document other than its failure to show jurisdiction in the court or its failure to charge an offense;\\n(3) An unlawful search, seizure, interception of wire or oral communication, or pretrial identification;\\n(4) An unlawfully obtained admission, statement, or confession; and\\n(5) A request for joint or separate trial of defendants or offenses.\\n(b) Time for filing mandatory motions. A motion under section (a) of this Rule shall be filed within 30 days after the earlier of the appearance of counsel or the first appearance of the defendant before the court pursuant to Rule 4-213(c), except when discovery discloses the basis for a motion, the motion may be filed within five days after the discovery is furnished.\\n\\n(d) Other motions. A motion asserting failure of the charging document to show jurisdiction in the court or to charge an offense may be raised and determined at any time. Any other defense, objection, or request capable of determination before trial without trial of the general issue, shall be raised by motion filed at any time before trial.\\nMaryland Rule 8-131(a) states in its entirety:\\nThe issues of jurisdiction of the trial court over the subject matter and, unless waived under Rule 2-322, over a person may be raised in and decided by the appellate court whether or not raised in and decided by the trial court. Ordinarily, the appellate court will not decide any other issue unless it plainly appears by the record to have been raised in or decided by the trial court, but the Court may decide such an issue if necessary or desirable to guide the trial court or to avoid the expense and delay of another appeal.\\nPersonal Jurisdiction\\nPersonal jurisdiction is \\\"[a] court's power to bring a person into its adjudicative process; jurisdiction over a defendant's personal rights, rather than merely over property interests.\\\" Personal Jurisdiction, Black's Law Dictionary (10th ed. 2014). Under the Ker -Frisbie Doctrine, a trial court has personal jurisdiction over a defendant in a criminal case where the crime was committed within the trial court's jurisdiction and the defendant is physically present before the trial court, regardless of how the defendant was brought before the circuit court. See Clark v. State , 284 Md. 260, 277, 396 A.2d 243, 253 (1979) (This Court discussed Ker v. People of State of Illinois , 119 U.S. 436, 7 S.Ct. 225, 30 L.Ed. 421 (1886) and Frisbie v. Collins , 342 U.S. 519, 72 S.Ct. 509, 96 L.Ed. 541 (1952), and explained that Maryland law is in accord, stating: \\\"[T]he right to try is founded on the fact that the crime was committed within the jurisdiction of the Court and upon the further fact that the [defendant] after being indicted is present in person before the Court during the trial. It is not material how or by what means he [or she] was brought into Court[.]\\\" (Quoting Rigor v. State , 101 Md. 465, 470, 61 A. 631, 633 (1905) ); see also Ker -Frisbie Rule, Black's Law Dictionary (10th ed. 2014) (\\\"The principle that the government's power to try a criminal defendant is not impaired by the defendant's having been brought back illegally to the United States from a foreign country.\\\").\\nIn Ker , 119 U.S. at 443, 444, 7 S.Ct. 225, where the defendant was kidnapped from Peru and brought by force to the United States for trial, the Supreme Court held that it was not a \\\"valid objection\\\" for a defendant in a criminal case to raise the circumstance of \\\"his forcible seizure in another country, and transfer by violence, force, or fraud to this country[.]\\\" The Supreme Court explained its holding as follows: \\\"[A]bduction is no sufficient reason why the party should not answer when brought within the jurisdiction of the court which has the right to try him [or her] for such an offense, and presents no valid objection to his [or her] trial in such court.\\\" Id. at 444, 7 S.Ct. 225.\\nIn Frisbie , 342 U.S. at 522, 72 S.Ct. 509, the Supreme Court reaffirmed its holding in Ker , 119 U.S. at 444, 7 S.Ct. 225, and reiterated that \\\"the power of a court to try a person for crime is not impaired by the fact that he [or she] had been brought within the court's jurisdiction by reason of a 'forcible abduction.' \\\" (Footnote omitted). In Frisbie , 342 U.S. at 519-20, 72 S.Ct. 509, an inmate petitioned for a writ of habeas corpus, alleging that, while he was living in Illinois, law enforcement officers from Michigan kidnapped him and took him to Michigan, where he was convicted of murder. The Supreme Court held that the inmate was not entitled to relief, and explained:\\n[D]ue process of law is satisfied when one present in court is convicted of crime after having been fairly apprized of the charges against him [or her] and after a fair trial in accordance with constitutional procedural safeguards. There is nothing in the Constitution that requires a court to permit a guilty person rightfully convicted to escape justice because he [or she] was brought to trial against his [or her] will.\\nId. at 522, 72 S.Ct. 509.\\nIn Clark , 284 Md. at 277, 396 A.2d at 253, this Court stated that the principle set forth by the Supreme Court in Frisbie , 342 U.S. at 522, 72 S.Ct. 509 -that an abduction does not deprive a court of jurisdiction-was consistent with Maryland law. In Clark , 284 Md. at 263, 276, 396 A.2d at 245, 252, an inmate escaped from a Maryland prison, and ended up being incarcerated again in an Oregon prison. The State filed a detainer against the inmate, who, in a letter to the Maryland State Police, requested that he be brought back to Maryland to serve the remainder of the sentence that he had received in Oregon. See id. at 276, 396 A.2d at 252. The State treated the inmate's letter as a waiver of extradition, had him brought back to Maryland, and prosecuted him for escaping from prison. See id. at 276, 396 A.2d at 252. In the trial court and on appeal, the inmate contended that his prosecution was illegal under the Uniform Criminal Extradition Act. See id. at 277, 396 A.2d at 252. This Court rejected the inmate's contention, and noted that the inmate correctly conceded that he was properly before the trial court because the forcible return of a person to a State does not deprive a court of jurisdiction. See id. at 277, 396 A.2d at 252-53.\\nIn McGuire v. State , 200 Md. 601, 603, 609, 92 A.2d 582, 583, 585 (1952), where Baltimore City police officers located a defendant in Washington, D.C. in connection with a violation of the lottery laws in Maryland and the defendant agreed to accompany the officers to Baltimore, this Court stated that the trial court's jurisdiction would not be affected even if law enforcement officers had illegally brought the defendant to Maryland. Specifically, this Court stated: \\\"Even if the action of the [officers of the Baltimore Police Department] in taking [the defendant] to Baltimore could be held to be unlawful, such fact would not affect the jurisdiction of the Maryland court or vitiate his indictment and trial.\\\" Id. at 609, 92 A.2d at 585 (citing Davis v. Brady , 188 Md. 113, 51 A.2d 827 (1947) ; Rigor , 101 Md. 465, 61 A. 631 ).\\nAnalysis\\nHere, we conclude that an out-of-State witness who enters Maryland to testify at a trial in a criminal case pursuant to a summons under the Maryland Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings, and who is then arrested and charged with a crime in Maryland, waives any issue as to a violation of CJ \\u00a7 9-304(a) by failing to raise the issue pretrial as required by Maryland Rule 4-252.\\nMaryland Rule 4-252(a) identifies certain matters, such as \\\"[a] defect in the institution of the prosecution[,]\\\" and provides that such \\\"matters shall be raised by motion in conformity with this Rule and if not so raised are waived unless the court, for good cause shown, orders otherwise [.]\\\" Maryland Rule 4-252(d) unequivocally states that, other than a motion asserting failure of the charging document to show jurisdiction in the court or to charge an offense, any \\\"defense, objection, or request capable of determination before trial without trial of the general issue, shall be raised by motion filed at any time before trial.\\\"\\nIn agreement with the Court of Special Appeals, we conclude that Maryland Rule 4-252(a)(1) requires that an alleged violation of CJ \\u00a7 9-304(a) be raised pretrial, as Maryland Rule 4-252 requires that a motion alleging a defect in the institution of the prosecution be filed within the timeframe specified under Maryland Rule 4-252(b). See Lewis , 229 Md.App. at 107-08, 143 A.3d at 190. Indisputably, instituting prosecution in a criminal case involves, among other things, the arrest of the defendant or issuance of process to secure the defendant's appearance in the matter. In addition to the requirements of Maryland Rule 4-252(a)(1) and (b), Maryland Rule 4-252(d) applies. The matter of whether CJ \\u00a7 9-304(a) has been violated is capable of determination before trial and does not involve trial of the general issue, as the facts that would be relevant in a determination of such a matter are wholly independent of the alleged criminal conduct. Specifically, the facts that would be at issue in deciding whether CJ \\u00a7 9-304(a) has been violated include: whether the defendant received a summons pursuant to the Maryland Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings; whether the defendant entered Maryland pursuant to such summons; and whether the defendant was arrested or served with process \\\"in connection with matters which arose before his [or her] entrance into this State under the summons.\\\" CJ \\u00a7 9-304(a). Because a trial court is capable of determining before trial whether a violation of CJ \\u00a7 9-304(a) occurred, Maryland Rule 4-252(d) requires the defendant to raise the issue in a pretrial motion; if the defendant fails to do so, the issue is waived.\\nIndependent of the requisites of Maryland Rule 4-252(a)(1), (b) and (d), where, as here, a defendant not only fails to raise an alleged violation of CJ \\u00a7 9-304(a) in a pretrial motion, but also fails to raise the issue at any time in the trial court, a defendant may forfeit appellate review of the matter under Maryland Rule 8-131(a), which provides, in pertinent part, that \\\"the appellate court will not decide any [non-jurisdictional] issue unless it plainly appears by the record to have been raised in or decided by the trial court[.]\\\" As this Court explained in Nalls v. State , 437 Md. 674, 691, 89 A.3d 1126, 1136 (2014) :\\nGenerally, in order to \\\"preserve\\\" an issue for appellate review, the complaining party must have raised the issue in the trial court or the issue was decided by the trial court. Md. Rule 8-131(a). In other words, if a party fails to raise a particular issue in the trial court, or fails to make a contemporaneous objection, the general rule is that he or she waives that issue on appeal.\\n(Footnote and some citations omitted).\\nThe purpose of Maryland Rule 8-131(a) is \\\"to prevent 'sandbagging' and to give the trial court the opportunity to correct possible mistakes in its rulings. An appeal is not an opportunity for parties to argue the issues they forgot to raise in a timely manner at trial.\\\" Peterson v. State , 444 Md. 105, 126, 118 A.3d 925, 936-37 (2015) (citations and internal quotation marks omitted). Allowing a defendant to raise the issue of an alleged violation of CJ \\u00a7 9-304(a) for the first time on appeal would enable defendants to refrain from raising the issue, wait to see the outcome of trial, and, if the defendant is convicted, attempt to secure reversal by raising the alleged violation of CJ \\u00a7 9-304(a) for the first time on appeal.\\nIt is fair to require a defendant from outside Maryland to assert an issue as to a violation of CJ \\u00a7 9-304(a) before trial. Given that such a defendant would have entered Maryland pursuant to a summons for an out-of-State witness and then been charged with a crime, the issue of whether the defendant was arrested or served with process in violation of CJ \\u00a7 9-304(a) would have been known, or should have been known, to the defendant well in advance of trial, thereby giving the defendant an opportunity to raise the matter in a pretrial motion pursuant to Maryland Rule 4-252.\\nAt oral argument, Lewis contended that the circuit court had the burden to sua sponte raise the issue of a violation of CJ \\u00a7 9-304(a) because the same circuit court judge issued the Certificate for Attendance of Witness from Colorado State and presided over Lewis's trial. We do not accept the notion that a trial court has the burden to sua sponte raise the issue of a violation of CJ \\u00a7 9-304(a). We see no valid reason, even where the same judge issues the summons and presides at trial, to treat an alleged violation of CJ \\u00a7 9-304(a) differently from any other defense that a defendant, not a trial court, is obligated to raise prior to trial under Maryland Rule 4-252 -such as any other issue that Maryland Rule 4-252 requires to be raised before trial. Thus, the defense must be raised by motion filed at any time before trial, i.e. , the defense must be timely asserted and the circuit court has no obligation to raise the issue on the defendant's behalf. See Md. R. 4-252. Where, as here, an issue as to a violation of CJ \\u00a7 9-304(a) is raised for the first time on appeal, the issue is waived and not preserved for appellate review.\\nNotably, in contending that the circuit court improperly exercised personal jurisdiction over him, Lewis relies on two cases from other jurisdictions, Wright v. State , 500 P.2d 582 (Okla. Crim. App. 1972) and State ex rel. Forte v. Ferris , 79 Wis.2d 501, 255 N.W.2d 594 (1977). Aside from being case law that this Court is not bound to follow, each case is distinguishable because the defendant timely raised an issue in the trial court. In Wright , 500 P.2d at 586, the defendant filed a pretrial motion to dismiss on the ground that his prosecution was instituted in violation of Oklahoma's Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings. The Court of Criminal Appeals of Oklahoma rejected the defendant's contention that the charges against him were invalid due to a failure to adhere to Oklahoma's Uniform Act, explaining that the defendant was properly extradited to Oklahoma. See id. at 587, 588-89.\\nIn Forte, 255 N.W.2d at 595, a case involving Wisconsin's Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings, the defendant served a sentence in Wisconsin and then was placed on parole; the defendant later went to Illinois and was permitted to remain there pending acceptance of his parole supervision by Illinois authorities. While the defendant was in Illinois, a Wisconsin trial court sought to secure the defendant's presence as a witness at a murder trial pursuant to Wisconsin's Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings; a summons was issued directing the defendant to appear at the trial in Wisconsin and the defendant obeyed. See id. at 595-96. At the trial, the defendant refused to testify and was jailed for contempt of court; the defendant's Wisconsin parole agent then placed a parole detainer on him. See id. at 596. A few days later, while still subject to the parole detainer, the defendant was charged with murder; the defendant petitioned for a writ of habeas corpus, contending that his detention violated Wisconsin's Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings. See id. The Supreme Court of Wisconsin agreed with the defendant, finding that the protections of Wisconsin's Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings could not be limited after the defendant arrived in Wisconsin, and concluding that the parole detainer was \\\"tantamount to an arrest.\\\" Id. at 599 (citation omitted).\\nSignificantly, however, neither Wright nor Forte incl udes any discussion of waiver of the issue of a violation of the Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings, as both defendants timely raised the issue prior to trial. Contrary to the purpose for which Lewis relies on the cases, Wright and Forte illustrate that the proper time at which to raise an alleged violation of the Uniform Act is before trial, not on appeal.\\nWe reject Lewis's contention that our holding is inconsistent with Md. Code Ann., Crim. Proc. (2001, 2008 Repl. Vol.) (\\\"CP\\\") \\u00a7 9-124, which is part of the Uniform Criminal Extradition Act, and states in its entirety:\\n(a) In general. -(1) Any person arrested in this State charged with having committed any crime in another state or alleged to have escaped from confinement, or broken the terms of bail, probation, or parole, may waive the issuance and service of the warrant provided for in \\u00a7 9-107 and 9-108 of this title, and all other procedure incidental to extradition proceedings, by executing or subscribing in the presence of a judge of any court of record within this State a writing that states that the person consents to return to the demanding state.\\n(2) Before a waiver is executed or subscribed by the person, it shall be the duty of the judge to inform the person of the right to the issuance and service of a warrant of extradition and the right to obtain a writ of habeas corpus as provided in \\u00a7 9-110 of this title.\\n(b) Action on consent. -(1) If and when a consent has been duly executed, it shall forthwith be forwarded to the office of the Governor of this State and filed therein.\\n(2) The judge shall:\\n(i) direct the officer having the person in custody to deliver forthwith the person to a duly accredited agent of the demanding state; and\\n(ii) deliver or cause to be delivered to the agent a copy of the consent.\\n(c) Construction. -(1) This section does not limit the rights of the accused person to return voluntarily and without formality to the demanding state.\\n(2) This waiver procedure is not an exclusive procedure and does not limit the powers, rights, or duties of the officers of the demanding state or of this State.\\nAccording to Lewis, because CP \\u00a7 9-124(a)(1) requires an express, written waiver of service of a warrant for extradition, an express waiver of any issue as to a violation of CJ \\u00a7 9-304(a) is also required.\\nWe disagree. Simply put, Lewis's contention is misguided. Entering Maryland pursuant to a summons, and then being arrested or served with process in connection with a crime in Maryland, is not comparable to being extradited to Maryland. Obviously, as a threshold matter, because Lewis was not extradited to Maryland, CP \\u00a7 9-124(a)(1)'s requirement of an express waiver does not apply.\\nAnd, in actuality, CP \\u00a7 9-124(a)(1) supports our holding that an express waiver is not required under CJ \\u00a7 9-304(a). In drafting CP \\u00a7 9-124(a)(1)'s language, the General Assembly chose to require an express waiver where another State initiates extradition proceedings of a person who has been arrested in Maryland. By contrast, in drafting CJ \\u00a7 9-304(a)'s language, the General Assembly did not include a requirement of an express waiver where the State charges a person who entered Maryland pursuant to a summons. We decline to read such a requirement into CJ \\u00a7 9-304(a) ; in interpreting a statute, a court does not \\\"add . words to a clear and unambiguous statute to give it a meaning not reflected by the words that the General Assembly used [.]\\\" Bottini v. Dep't of Fin ., 450 Md. 177, 188, 147 A.3d 371, 378 (2016) ; see also id. at 206, 147 A.3d at 389 (\\\"[T]he General Assembly could have identified a bank account and the funds contained in a bank account as a separate classification of property subject to forfeiture, or as a specific form of tangible or intangible personal property distinct from money, had it desired to do so.\\\" (Citation omitted)).\\nWe find no merit in Lewis's contention that the circuit court's exercise of personal jurisdiction over him was improper in light of the Doctrine of Specialty, \\\"under which a person who is extradited to a country to stand trial for certain criminal offenses may be tried only for those offenses and not for any other pre-extradition offenses.\\\" Doctrine of Specialty, Black's Law Dictionary (10th ed. 2014); see also United States v. Rauscher , 119 U.S. 407, 424, 7 S.Ct. 234, 30 L.Ed. 425 (1886)\\nAn extradited \\\"party shall not be delivered up by this government to be tried for any other offense than that charged in the extradition proceedings[.]\\\"). Lewis argues that, like the Doctrine of Specialty, CJ \\u00a7 9-304(a) prohibits the State from securing a person's presence in Maryland, and then exercising jurisdiction over him in a separate matter. Lewis's attempt to analogize the Doctrine of Specialty to CJ \\u00a7 9-304(a) and the circumstances of this case fails because, given that the statute governing extradition is inapplicable here, the Doctrine of Specialty would be equally inapplicable. In United States v. Valencia-Trujillo , 573 F.3d 1171, 1173-74 (11th Cir. 2009), the Eleventh Circuit described the purpose of the Doctrine of Specialty as follows:\\nThe rule of specialty \\\"stands for the proposition that the requesting state, which secures the surrender of a person, can prosecute that person only for the offense for which he or she was surrendered by the requested state or else must allow that person an opportunity to leave the prosecuting state to which he or she had been surrendered.\\\" The rule is grounded in concerns of international comity. As we have explained, \\\"[b]ecause the surrender of the defendant requires the cooperation of the surrendering state, preservation of the institution of extradition requires that the petitioning state live up to whatever promises it made in order to obtain extradition.\\\"\\n(Citations omitted). Grounded in concerns of international comity, contrary to Lewis's contention, the Doctrine of Specialty involves policy considerations that are not at issue in this case.\\nWe are also unpersuaded by Lewis's argument that, unless we require an express waiver of the issue of a violation of CJ \\u00a7 9-304(a), trial courts will be \\\"unaccountable\\\" for violations of law, and an out-of-State witness will lack a remedy on appellate review. There is a simple way for a defendant to ensure that an appellate court will consider an issue as to the protections afforded by CJ \\u00a7 9-304(a), which is: raise the issue in a pretrial motion. That way, the trial court will have the opportunity to address the matter, which will be preserved for appellate review, and the issue of the need for an explicit waiver would be non-existent.\\nApplying our holding to this case's facts, we conclude that Lewis waived the issue of a violation of CJ \\u00a7 9-304(a) by failing to raise the issue pretrial in the circuit court. Pursuant to the Maryland Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings, the State secured Lewis's presence in Maryland to testify at Bennett's trial. On the day on which Bennett's trial was to begin, Bennett entered into a guilty plea agreement, and made a proffer in which he inculpated Lewis. At oral argument, Lewis's counsel acknowledged that \\\"there is no evidence that the State knew in advance, prior to the proffer, that [ ] Bennett was going to give the proffer that he did.\\\" Lewis's counsel acknowledged that \\\"[t]here is no evidence of bad faith\\\" on the State's part. In short, before Bennett's proffer, the State had no reason to treat Lewis as a suspect or a potential defendant. As a result of Bennett's proffer, an investigation occurred, and Lewis was arrested and charged with crimes. Lewis never asserted an issue as to a violation of CJ \\u00a7 9-304(a) in the circuit court, whether in a motion pursuant to Maryland Rule 4-252 or otherwise; instead, Lewis raised the issue for the first time on appeal. Indeed, Lewis concedes that he failed to preserve the issue as to the violation of CJ \\u00a7 9-304(a) for appellate review.\\nLewis asks us to exercise our discretion, pursuant to Maryland Rule 8-131(a), to review the unpreserved issue. We decline to do so. In Ray v. State , 435 Md. 1, 22, 76 A.3d 1143, 1155 (2013), this Court noted:\\nWe usually elect to review an unpreserved issue only after it has been thoroughly briefed and argued, and where a decision would (1) help correct a recurring error, (2) provide guidance when there is likely to be a new trial, or (3) offer assistance if there is a subsequent collateral attack on the conviction.\\nNone of the circumstances that are described in Ray exist here. There is no indication that there are recurring violations of CJ \\u00a7 9-304(a). Indeed, since the provision was recodified as CJ \\u00a7 9-304 forty-four years ago, this Court has never been called upon to decide an issue involving an alleged violation of CJ \\u00a7 9-304(a). And, there is no case law interpreting CJ \\u00a7 9-304's predecessors. The facts of this case are unusual. Lewis was present in Maryland pursuant to an out-of-State witness summons and, prior to the scheduled trial, the person against whom Lewis was summonsed to testify gave a proffer implicating him in the murder for which the person was to be tried. These are not circumstances that happen on a recurring basis. There is not a need to provide guidance for purposes of a new trial, given that the issue concerning the propriety of Lewis's arrest does not involve resolution of matters that occurred during trial. Finally, there is no need to offer assistance for purposes of a collateral attack on Lewis's convictions, given that, to prevail on a claim of ineffective assistance of counsel, Lewis would have to satisfy the \\\"prejudice\\\" prong under Strickland v. Washington , 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) -i.e. , Lewis would have to prove \\\"that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.\\\" Jamison v. State , 450 Md. 387, 413 n.19, 148 A.3d 1267, 1283 n.19 (2016) (quoting Strickland , 466 U.S. at 694, 104 S.Ct. 2052 ) (internal quotation marks omitted). In other words, Lewis would be required to establish that the result of the criminal proceeding would have been different if his trial counsel had raised the issue of a violation of CJ \\u00a7 9-304(a) in a pretrial motion. This would be difficult to do because, if Lewis had not been arrested in Maryland and had returned to Colorado, the State would have been able to initiate extradition proceedings, and prosecute Lewis in the same manner that it did at his trial in this case. Stated differently, Lewis's trial would have proceeded, and the State would have presented the same evidence against him, if he had been extradited from Colorado rather than arrested while he was in Maryland.\\nHaving held that Lewis waived the issue as to a violation of CJ \\u00a7 9-304(a), we conclude that the circuit court had personal jurisdiction over Lewis by virtue of his physical presence before the circuit court. Under the Ker -Frisbie Doctrine, a trial court has personal jurisdiction over a defendant in a criminal case where the crime was committed within the trial court's jurisdiction and the defendant is physically present before the trial court, regardless of how the defendant was brought before the trial court. See Rigor , 101 Md. at 470, 61 A. at 633 (\\\"[T]he right to try is founded on the fact that the crime was committed within the jurisdiction of the court, and upon the further fact that the [defendant], after being indicted, is present in person before the court during the trial. It is not material how or by what means he [or she] was brought into court[.]\\\"). As in McGuire , 200 Md. at 609, 92 A.2d at 585, any unlawful act in arresting Lewis in Maryland and bringing him before the circuit court would not have undermined the existence of the circuit court's jurisdiction. Rather, as the Court of Special Appeals explained, the issue is whether the circuit court should have exercised personal jurisdiction, not whether the circuit court possessed such jurisdiction. See Lewis , 229 Md.App. at 102, 143 A.3d at 187.\\nIndeed, in his brief, Lewis notes that he does not dispute that the circuit court had personal jurisdiction over him, but instead contends that the circuit court should have refrained from exercising personal jurisdiction over him because he was arrested in violation of CJ \\u00a7 9-304(a). As discussed above, Lewis waived the issue of a violation of CJ \\u00a7 9-304(a) by failing to raise it pretrial as required by Maryland Rule 4-252 ; and, we decline to exercise our discretion to review the matter.\\nJUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED. PETITIONER TO PAY COSTS.\\nCJ \\u00a7 9-303(a) states in pertinent part:\\nIf a person in any [S]tate, which by its laws has made provision for commanding persons within its borders to attend and testify in criminal prosecutions . in this State, is a material witness in a prosecution pending in a court of record in this State, . a judge of the court may issue a certificate under the seal of the court stating these facts and specifying the number of days the witness will be required.... This certificate shall be presented to a judge of a court of record in the county in which the witness is found.\\nIn their briefs, the parties state that CJ \\u00a7 9-304(a) provides for \\\"immunity.\\\" In State v. Breeden , 333 Md. 212, 224, 634 A.2d 464, 470 (1993), this Court stated: \\\"[CJ] 9-304 grants the witness exemption from arrest and service of process.\\\" (Emphasis added). For consistency with our case law, we use the term \\\"exemption.\\\"\\nIn 2015, Cooke was convicted of first-degree murder, conspiracy to commit first-degree murder, and solicitation to commit first-degree murder.\\nIn 2005, Baltimore/Washington International Airport was renamed Baltimore/Washington International Thurgood Marshall Airport. See Maryland Aviation Administration, BWI Timeline, http://www.bwiairport.com/en/about-bwi/bwi-timeline/ [https://perma.cc/T7Z5-8JEL].\\nBefore us, Lewis does not contend that the circuit court lacked subject-matter jurisdiction.\\nCJ \\u00a7 9-304(b) applies to witnesses who are passing through Maryland on their way to another State, and thus does not pertain to this case.\\nIn 1985-twelve years after the General Assembly recodified Art. 27, \\u00a7 620 as CJ \\u00a7 9-304 in 1973-the General Assembly enacted a new Art. 27, \\u00a7 620, which pertained to a victim's or representative's right to be present at trial. See 1985 Md. Laws 2761 (Pt. 4, Ch. 563, S.B. 713). Afterward, this Court and the Court of Special Appeals mentioned the new Art. 27, \\u00a7 620 in certain cases. See, e.g. , Cianos v. State , 338 Md. 406, 412, 659 A.2d 291, 294 (1995) ; Wheeler v. State , 88 Md.App. 512, 529, 596 A.2d 78, 87 (1991). In 1996, the General Assembly recodified the new Art. 27, \\u00a7 620 as Art. 27, \\u00a7 773. See 1996 Md. Laws 3324 (Vol. V, Ch. 585, S.B. 456). In 2001, the General Assembly recodified Art. 27, \\u00a7 773 as Md. Code Ann., Crim. Proc. (2001) \\u00a7 11-302. See 2001 Md. Laws 322-23 (Vol. I, Ch. 10, S.B. 1).\\nMaryland Rule 2-322 applies only to civil cases in circuit courts. Maryland Rule 2-322(a)(1) states: \\\"The following defenses shall be made by motion to dismiss filed before the answer, if an answer is required: [ ] lack of jurisdiction over the person.... If not so made and the answer is filed, these defenses are waived.\\\"\\nCases from other jurisdictions support such a conclusion. Zeller , 253 S.E.2d at 112, Bradford , 571 P.2d at 1041, and Eaton , 243 P. at 1040 are civil cases from other jurisdictions that involved exemption from service of process. It is instructive that, in all three cases, the Courts stated that an out-of-State defendant must assert the exemption promptly. See Zeller , 253 S.E.2d at 112 (\\\"[T]he applicable rules require a prompt assertion of the exemption from service of process [.]\\\"); Bradford , 571 P.2d at 1041 (\\\"[T]o obtain the benefit of this privilege, the person served must timely urge the court to extend it.\\\"); Eaton , 243 P. at 1040 (\\\"[T]he privilege must be claimed at as early a stage of the proceeding as possible.\\\" (Citations omitted)).\"}"

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+"{\"id\": \"1676090\", \"name\": \"Phalen & Morris vs. The State of Maryland\", \"name_abbreviation\": \"Phalen & Morris v. State\", \"decision_date\": \"1841-12\", \"docket_number\": \"\", \"first_page\": \"18\", \"last_page\": \"31\", \"citations\": \"12 G. & J. 18\", \"volume\": \"12\", \"reporter\": \"Reports of cases argued and determined in the Court of Appeals of Maryland\", \"court\": \"Court of Appeals of Maryland\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-10T23:44:35.587641+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Phalen & Morris vs. The State of Maryland.\", \"head_matter\": \"Phalen & Morris vs. The State of Maryland.\\nDec. Term 1841.\\nBy the act of 1816, chap. 89, the Visitors and Governors of W. College were authorised \\u201cto propose a scheme or schemes of a lottery for raising a sum \\u201c not exceeding, &e., clear of all expenses, and to dispose of, or sell all or \\u201c any of the tickets of said lottery or lotteries, and to draw the same, or to \\u201cauthorise any other persons to draw the same,\\u201d &c.\\nBy the act of 1821, chap. 46, the V. and G. of St. J\\u2019s. College were authorised \\u201cto propose a scheme or schemes of a lottery or lotteries for raising a \\u201c sum not exceeding, &c., and to sell such scheme or schemes to any pev- \\u201c sons whatsoever, and the purchaser or purchasers thereof, are hereby \\u201c empowered to sell and dispose of tho tickets in the said lottery or lot- \\u201c teries.\\u201d\\nUpon these acts it was held\\u2014\\n1. The assignees, of the V. and G. of the Colleges, of the franchises created by those acts, possessed no greater powers than their assignors,\\n2. The terms of those acts are unambiguous.\\n3. They communicate an authority to propose a scheme or schemes for raising a limited amount.\\n4. When the schemes for raising that amount havo been proposed and drawn, the authority given by those acts has performed its office, whether the let. ter of the act or tho legislative intent is regarded.\\n5. It was the intention of the Legislature, that the sum specified should be raised; it gave adequate means for its accomplishment; it iyas the duty of the owner of the schemes, in the exercise of his franchise, previously to drawing such schemes, to have sold all the tickets. In that mode was the amount authorised to be raised.\\nG. It being admitted that if all the tickets had been sold, in the schemes which have been drawn under the acts of 1816 and 1821, that a larger amount would have been raised than was authorised by them, the franchise thereby created was held to be exhausted.\\nThe act of 1817, chap. 154, declaring the effect and construction of previous lottery grants, so far as to show under what circumstances those grants shall be deemed exhausted, must he regarded as of overwhelming influence in tho decision of similar questions arising under grants made subsequent to its passage.\\nWhere parties claim to exercise a lottery privilege, under a grant which in point of law is exhausted by proceedings under it, the parties so claiming and acting may be restrained by injunction.\\nAppeal from the Equity side of Baltimore County Court.\\nOn the 18th February, 1840, the State of Maryland exhibited its bill of complaint alleging, that heretofore, to wit, by an act of Assembly, passed at December session 1816, and entitled \\u201cAn act to authorise a lottery or lotteries to raise a sum of money for the purpose of repairing, and raising a sum of money for the use of Washington College,\\u201d and by two several supplements thereto, the one passed at December session 1821, and the other at December session 1823; and also by a further and other act of Assembly, passed at December session 1821, entitled \\u201cAn act for the benefit of St. John\\u2019s College,\\u201d certain powers were conferred on the governments respectively, of Washington College on the Eastern, and St. John\\u2019s College on the Western Shore, and among them the power to dispose of the schemes of lotteries thereby authorised; and that a certain Palmer Canfield, of the city of JVew York, iu the year 1824, made contracts with the said governments severally, for the purchase or use and enjoyment, in whole or in part, of the lottery privileges granted them by the acts of Assembly aforesaid ; and that the schemes by him submitted for approval, and approved under said acts, being twelve in number, amounted in all to one million five hundred and forty-nine thousand seven hundred and sixty-five dollars, and that ten of said schemes, amounting to six hundred and eighty-seven thousand three hundred and sixty-five dollars, were drawn by himself or his agents, or by the Commissioners of Lotteries for him, and at his instance; and that the two remaining schemes, amounting to eight, hundred and sixty-two thousand four hundred dollars, were either drawn by him or his agents, or if undrawn, are so by reason of the negligence, default and fraud of the said Canfield, in this behalf, who made sale of, and received the money for a large number of the tickets in said two last mentioned schemes, more than fourteen years since. The said State further sheweth to your honors, that the prizes in each of the schemes submitted by, and approved for, said Canfield aforesaid, and by him advertised, amounted to the sum which would have been raised by the sale of the whole of the tickets in such scheme, and that each and every ticket issued in each of said schemes, contained upon its face a stipulation that the holder should submit to a deduction of fifteen per cent, from such prize as it might draw. And the said State also sheweth to your honors, that the whole sum of one hundred and sixty thousand dollars, authorised to be raised by the acts of Assembly aforesaid, with the expenses legally chargeable in addition, was raised by the said Canfield, under the schemes aforesaid, and certain other schemes, amounting to three hundred and eighty-three thousand seven hundred and forty-five dollars, drawn in fact on his account by Yates and McIntyre, of JVew York, and that the lottery privileges by said acts granted, were by him exhausted and extinguished. And the said State further sheweth to your honors, that the said Palmer Canfield, in addition to the schemes of lotteries by him submitted for approval, and approved, including those already stated to have been drawn in fact on his account, did advertise and draw in the State of Connecticut, through his agent, one Dana, of the firm of Paine, Burgess 4r Dana, certain other schemes of lotteries to an amount to the said State unknown, but believed and charged to be upwards of one hundred thousand dollars, purporting to be authorised by the acts of Assembly aforesaid, but which were never by him or said agent submitted for approval, or approved, according to the requirements of said act in that behalf. And the said State further sheweth to your honors, that the only surety in the bonds required by the acts aforesaid to be given by the purchaser of the schemes of lotteries thereby authorised, and which were given in conformity by said Palmer Canfield, is either dead, insolvent, or resides without this State, and that no other person than said Canfield has given or tendered any bond as purchaser, or in any other capacity, under said acts, except Yates and McIntyre, for the amount drawn by them as hereinbefore stated. And the said State further sheweth to your honors, that the said State, on the 20th of November, 1829, recovered judgment against the said Palmer Canfield, for the sum of sixteen thousand five hundred and sixty-eight dollars, in the Circuit Court of the United States for the second circuit, in and for the Southern District of New York, in an action of assumpsit in said court, instituted on the last Monday of October 1828, after wdiich, to wit, some time in the year 1833, the said Palmer Canfield died insolvent, leaving the said judgment wholly unsatisfied. And the said State further sheweth to your honors, that a certain Robert B. Ji. Tate, of the city of Baltimore, hath obtained letters of administration from the orphans court of Baltimore county, upon the personal estate of the said Palmer Canfield; and that on the 17th of February, 1840, an action of debt was instituted, and is now pending in Baltimore county court against the said Tate, as such administrator, upon the judgment aforesaid, by Michael McBlair, Samuel S. Dickinson and George Cooke, esquires, the said State\\u2019s Commissioners of Lotteries. The said State also sheweth to your honors, that James Phalen and Francis Morris, partners under the firm of James Phalen and Company, falsely alleging themselves to be entitled to the lottery privileges granted as aforesaid, by virtue of pretended assignments thereof from the said Palmer Canfield, through a certain Felix Pascales, of Jfew York, his pretended immediate assignee, propose and offer to draw, on the 18th of February, 1840, in the city of Baltimore, the scheme of a lottery authorised (as they aver in their advertisement thereof, which they have caused to be inserted in one or more of the daily papers published in the city of Baltimore, and a copy of which is herewith filed, which it is prayed may be taken as part of this bill,) by acts of the General Assembly of Maryland, for the benefit of Washingington and St. John\\u2019s Colleges, and which said scheme has never been submitted for approval, or been approved by the Commissioners of Lotteries. And the said State further showeth to your honors, that the pretended assignment aforesaid, from the said Canfield to the said Pascales, (who was the father-in-law of said Canfield, a doctor of medicine, in no wise acquainted with, or engaged in the lottery business, either at that time or before or after, and of narrow means,) was made, if at all, without consideration, and fraudulently, to defeat and delay the judgment aforesaid, and execution thereon. And the said State further sheweth to your honors, that the said Canfield had no power by the acts aforesaid, or the action under the same, of the governments of the colleges aforesaid, to make any assignment of his purchase from said governments, in the form which he is falsely alleged to have adopted, or in any other form; and that the said Canfield never did make any such assignment to the said Pascales, or if he did, that the said Pascales never did make assignment to the said Phalen and Morris, of any interest derived by him in the premises from said Canfield, and that the said Phalen S Morris are not the assignees, in law or in fact, of any rights acquired by said Canfield-, under his purchase aforesaid, or of any of said rights pretended to have been communicated by him to the said Pascales. And the said State further sheweth to your honors, that the said Felix Pascales, the pretended immediate assignee of the said Palmer Canfield, hath departed this life, and that no letters testamentary or of administration upon his estate, have been granted in this State. And the said State also sheweth that no power was conferred, or could or can he exercised, under the acts aforesaid, to propose or draw any scheme of a lottery purporting to be jointly authorised by the grants made severally as aforesaid, to Washington and St. John\\u2019s Colleges. And the said State further sheweth to your honors, that Michael McBlair, Samuel S. Dickinson and George Cooke, esquires, the State\\u2019s Commissioners of Lotteries for the present time being, believe that the scheme of a lottery, proposed and offered to be drawn as aforesaid, is unauthorised by the laws of this State. In tender consideration whereof, and inasmuch as the appropriate remedy of the said State in the premises is in equity, \\u2014 To the end, therefore, that the said James Phalen and Francis Morris, and Robert B. Ji. Tate, may full, true and perfect answers make, on their several and respective corporal oaths, to all and singular the premises, and that as fully as if thereto specially interrogated; and that by this honorable court it may be adjudged, ordered and decreed, that the said James Phalen and Francis Morris, and their agents and servants, be perpetually enjoined and restrained from proposing or offering to draw, or drawing or disposing of any scheme or schemes of lotteries, under and by virtue of the acts of Assembly aforesaid, and that the said State may have all such other and further relief in the premises as the case hereinbefore set forth shall in equity demand.\\nThe said State respectfully asks that the court here do'grant, as well the State\\u2019s writ of injunction (pursuant to the direction of the 21st section of an act of Assembly, passed at December session 1828, entitled, \\u201cA supplement to an act entitled, an act to amend the lottery system,\\u201d) to the said James Phalen and Francis Morris to be directed, strictly commanding and enjoining them, their servants and agents, from proceeding in the drawing of the lottery by them offered and proposed to be drawn in the city of Baltimore, on the I8th day of February, 1840, and purporting to be so offered and proposed by authority of acts of the General Assembly, for the benefit of Washington and St. John's Colleges, till their right to draw the same can be determined; and also the State\\u2019s writ of subpcpna, &c.\\nUpon this bill the county court ordered an injunction to issue.\\nThe joint and separate answer of James Phalen and Francis Morris alleged, that it is true as stated- in said bill of complaint, that by the various acts of Assembly in said bill mentioned, certain lotteries were authorised to be drawn, in order to raise funds for Washington and St. John's Colleges, and by said acts the governments of said colleges were authorised, either to draw said lotteries or to sell the right of drawing the same to any other person or persons whomsoever. And these respondents further admit, that the right of raising the sums of money in said acts mentioned, was duly and regularly assigned, for value received, to Palmer Canfield, of the city of JVew York. And these respondents further answering, admit, that said Canfield submitted for approval to the Governor and Chancellor of the State, the system of schemes of lotteries, amounting to a large sum nominally, and these respondents admit that ten of said schemes, amounting in the gross to the sum of six hundred eighty-seven thousand three hundred and sixty-five dollars, were drawn by said Canfield or his agents, but these respondents deny that any other schemes were drawn by said Canfield, and they also deny that tickets to any extent, in any other schemes, were sold by him or his agents; and they also deny that any of such tickets of the few which were sold, remains outstanding, unless they be in the hands of dealers who never paid for them, Canfield having redeemed all which were paid for. And these respondents further answering, admit, that the prizes in each of the schemes submitted by, and approved for said Canfield, and by him advertised, amounted to the sum which would have been raised by the sale of the whole of the tickets in such scheme, and that each and every ticket issued in each and every scheme, contained upon its face a stipulation, that the holder should submit to a deduction of fifteen per cent, from such prize as it might draw; but these respondents expressly deny, that either one hundred and sixty thousand dollars, or any other sum exceeding thirty thousand dollars, was raised, either by said Canfield or by any person drawing lotteries under the aforesaid grants, so assigned as aforesaid to said Canfield, including the drawing of Yales and McIntyre and Francis W. Dana; but these respondents verily believe, that said Canfield made large losses by such drawings, never having sold one-third of the tickets in said schemes, and several very high prizes having been drawn by holders of said tickets sold as aforesaid; and in confirmation of this denial, these respondents state, that from the 1st of December, 1838, to the 1st of December 1839, schemes were issued by the Commissioners of Lotteries for this State, amounting to about five millions of dollars, from which they derived but about twenty thousand dollars; and further, that said commissioners require of the contractors for such schemes, merely an allowance of five per cent, upon the tickets sold, and not upon the gross amount of the schemes. And these respondents utterly deny, that the lottery privileges by said act granted, have been exhausted or extinguished. And these respondents further answering, admit, that under such grants Yates \\u00a7 McIntyre drew several schemes, amounting in the gross to three hundred eighty-three thousand seven hundred and forty-five dollars, for which said Yates 4r McIntyre paid said Canfield eight thousand dollars, and no more; and they also admit, that Dana did draw one scheme, and no more, and that the gross profits were three hundred forty-eight dollars and seventy-five cents, and no more. Whether such last drawing took place on the approval of the Commissioners of Lotteries, these respondents do not know, and cannot therefore admit or deny. And these respondents admit, that no other security, except that given by Canfield and Yates \\u00a7 McIntyre, has been given, but aver that these respondents are ready and willing to file any bond with such satisfactory security as may be required by the pro per authorities. And these respondents further answering, admit the recovery of the judgment of the said State in the manner and at the time stated in said bill of complaint, and that said Palmer having been ruined by the loss upon the drawing of said lotteries, and other causes, died at or about the time stated, insolvent, not having satisfied said judgment; and they further admit, that letters of administration upon the estate of said Canfield, have been granted in Maryland to Robert B. A. Tate, the clerk of the Commissioners of Lotteries, who your respondents verily believe obtained said letters under the direction, and at the instance of said commissioners or their counsel; and they also admit the pendency of said actions of debt against said Tate, as is alleged in said bill. And these respondents further admit, that they did propose and offer to draw the scheme of a lottery on the 18th day of February, now last past, but they deny that they falsely alleged themselves entitled to do so by virtue of any pretended assignments, but on the contrary aver, that they are bona fide assignees for valuable consideration of the grants to said colleges, and they herewith state the dates and times of such assignments, which they are ready to produce and prove, when and where this court shall require. Palmer Canfield, on the 29th day of July, 1829, assigned to Felix Pas\\u00e9ales the said grants, in trust to sell the same, and from the proceeds thereof to pay a debt due to said Pas\\u00e9ales, and another one to James Raymond, with interest on such debts; that said Felix died, having first made his last will and testament, bequeathing all his estate to his son, Cyril O. Pas\\u00e9ales, and also appointing him executor of such will; that said Cyril advertised and sold such grants at auction, to Alexander G. Anderson, and on the 19th day of February, 1834, assigned and conveyed the said grants to said Anderson; that on the 22nd day of February, 1834, fhe said Anderson conveyed the same to James Raymond, of the city of Baltimore, and on the 13th day of December, 1838, the said Raymond, for full value, assigned and transferred fhe same to these respondents, and these respondents verily believe, that all of said assignments were fairly made, and for a valuable consideration. And these respondents farther answering, admit, that the schemes by them proposed to be drawn, were not submitted for approval, or approved by the Commissioners of Lotteries, these respondents submitting that they were not by law bound to submit the same for approval to such commissioners, and these respondents well knowing that no scheme submitted by them would be approved. And these respondents further answering, deny, that the assignment made by said Canfield to Felix Pascales was fraudulent, or without consideration, or fraudulently or otherwise to defeat and delay the aforesaid judgment rendered against said Canfield, or any other judgment. And these respondents insist, that said Canfield, had the power of transferring the said lottery grants, and that these respondents are the assignees of such lottery-grants ; and these respondents admit, that said Felix Pascales is dead, and that no letters testamentary, or of administration, upon his estate have been granted in Maryland,. And these respondents pray to be hence dismissed with costs.\\nAfter this, the cause was prepared for a final decree by admissions of facts and the filing of documentary proof, all of which, so far as is necessary to the understanding of the opinion and application of the principles decided in this court, sufficiently appear in the opinion delivered in this cause. At the final hearing, Baltimore county court (Purviance, A. J.,) decreed that the defendants be, and are perpetually enjoined and restrained from proposing or offering to draw, or disposing of any scheme or schemes of lotteries under or by virtue of the acts of Assembly in the bill in this cause mentioned.\\nFrom this decree the defendants appealed.\\nThe cause was argued before Buchanan, C. J., Stephen, Archer, Dorsey, Chambers, and Spence, J.\\nBy G. R. Richardson and R. Johnson for the appellants.\\nBy J. Mason Campbell and McMahon for the appellees,\", \"word_count\": \"4881\", \"char_count\": \"28527\", \"text\": \"Dorsey, J.,\\ndelivered the opinion of this court.\\nIt is admitted, that if all the tickets had been sold in the schemes, which have been drawn under the lottery grants in favor of Washington and St. John's Colleges, that a larger amount would have been raised than was authorised by the acts of Assembly under which the drawings took place. But it is insisted on the part of the appellants, that notwithstanding the competency of the schemes drawn (had all the tickets been sold,) to have raised the sum of $160,000, as authorised by the Legislature of Maryland, yet, that but a small portion of that sum was; in point of fact, realized, by reason of a great portion of the tickets remaining unsold when the schemes were drawn, and by the loss of the wheel, in the high prizes coming up to the tickets which had been sold.\\nThe first question, then, raised for our determination, is, have the lottery grants in question been exhausted by the drawing of lotteries, competent, upon the face of the schemes, to have realized the prescribed amount, or, as contended for by the appellants, are the owners of the privilege at liberty thereafter to continue their drawings, until, by the gain of the wheel or the sale of tickets, the specified amount shall have been actually raised?\\nBut the act of 1816, chap. 89, and by the supplement thereto of 1823, chap. 193, the Visitors and Governors of Washington College are authorised to propose a scheme or schemes of a lottery or lotteries, for raising a sum of money, not exceeding eighty thousand dollars; and by the act of 1821, chap. 46, the Visitors and Governors of St. John's College are authorised \\\"to propose a scheme or schemes of a lottery or lotteries, for raising a sum of money not exceeding eighty thousand dollars.\\\" The assignees of the franchise possess no greater powers than did the visitors and governors of these colleges. The terms in which the authority is communicated to them, are clear and unambiguous, to wit, to propose a scheme or schemes for raising a limited amount; when the schemes for raising that amount have been proposed and drawn, the authority given has performed its office, according to the letter of the acts of Assembly by which it is conferred. And if we look to the legislative intent in passing those acts, the construction we give them is still more strongly fortified. But it is said that it was the design of the Legislature, that the sum specified should be raised. Doubtless, such was its intention. A failure to effect it was not within its contemplation. It had given adequate means for its accomplishment, had they been pursued in the contemplated mode. It was the duty of the owner of the schemes, in the exercise of his franchise, previously to their drawing, to have sold all the tickets. Upon this assumption only did the Legislature act. It did not design to confer a floating, gambling power, of indefinite duration, which should expand and contract with the gain or loss of the wheel. But the amount to be raised (in the absence of all subsequent legislation, providing a different mode of raising it, as for example, by the consolidation system, or any other mode that might be prescribed,) was to be obtained by a sale of all the tickets embraced by the scheme, in the manner it prescribed. That such was the legislative intent, we think apparent on the face of the lottery grants before us, but is clearly deducible from all prior and subsequent enactments upon the subject.\\nIn requiring bonds to be given for the payment of prizes, it cannot be doubted that the Legislature believed it had provided ample security, in this respect, for the owners of prize tickets; upon no other terms would it have made the grants in question. What are the provisoes upon which those grants were made by the acts of 1821, chap. 46, and of 1821, chap. 224? They are, that the purchaser or purchasers of such scheme or schemes, shall before the sale or disposal of any ticket or tickets in said lottery or lotteries, give bond to the State of Maryland, in the penalty of one hundred and sixty thousand dollars, to be approved by the Governor and Council, conditioned that he or they will well and truly apply so much of the money arising therefrom, within twelve months after the drawing of the said lottery or lotteries shall commence, as will satisfy the fortunate adventurers for prizes drawn by them, and defray the necessary expenses incurred in the management thereof. It is too dear for argument or doubt upon the subject, that by the condition of those bonds, the obligors are no further bound than for the money arising from the sale of tickets. What then is the irresistible inference of the intention of the Legislature in making these grants? It is, that to warrant the drawing of a lottery, there must have been a sale of all the tickets in the scheme. Such being the apparent in tention of the Legislature, upon every principle of sound construction we are bound to give an accordant interpretation to its acts. To give to those lottery grants the exposition which has been claimed for them by the appellants, that the schemes may be drawn at the will of the purchaser, as soon as any portion of the tickets are sold, would impute to the Legislature a design to grant an almost interminable license to the most reckless, fraudulent system of gambling that could well be practised upon the thoughtless and unsuspecting. The inducement to such a system of gaming is too obvious to be overlooked. The purchaser after the acquisition of the grants, would have everything to gain, and could lose nothing. In the almost infinite series of schemes which he might draw, no tide of ill luck that could be anticipated, could prevent the filling of his coffers by unrighteous acquirements. The gain of the wheel in every scheme drawn was all his own; its losses were thrown on the owners of the prize tickets. He might gamble indefinitely at the risk of others; of his own, nothing was put to hazard.\\nThat wre have construed correctly the acts of Assembly in question, we think demonstrated by the first section of the act of 1810, chap. 154, which declares, \\\"that in all cases where lotteries have been heretofore authorised, under which powrer is given to raise a particular sum of money by one or more lotteries, and the managers may have drawn a lottery or lotteries, the scheme of which purported to raise the sum authorised to be raised, that in all such cases the power and authority given to raise money thereby\\\" is completed, and the power to draw any other lottery or lotteries under the same authority, at an end. If such were the legislative design in all previous like enactments, upon what recognized principle of sound construction can you give a different interpretation to the acts of Assembly now under consideration? And even conceding, as was slightly intimated in the argument, that this retrospective, declaratory law, is unconstitutional and void as to prior lottery grants, which otherwise would be differently construed, yet in all subsequent similar legislation, such a declaration of the will or intent of the Legislature must be regarded as of overwhelming influence, in the construction of its acts, and such is the case before us.\\nBelieving the lottery privileges, created by the acts of 1816, chap. 89, and 1821, chap. 224, and 1821, chap. 46, to have been exhausted by the schemes which have already been drawn under said acts, we deem it unnecessary to examine the other questions which have been discussed in this cause.\\nThe decree of Baltimore county court, perpetuating the injunction issued in this case, is affirmed.\\ndecree affirmed.\"}"

md/169926.json

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+"{\"id\": \"169926\", \"name\": \"ATTORNEY GRIEVANCE COMMISSION OF MARYLAND, Petitioner v. David Tucker HEIMBACH, Respondent\", \"name_abbreviation\": \"Attorney Grievance Commission v. Heimbach\", \"decision_date\": \"1999-11-10\", \"docket_number\": \"Misc. Docket AG, No. 44\", \"first_page\": \"470\", \"last_page\": \"471\", \"citations\": \"356 Md. 470\", \"volume\": \"356\", \"reporter\": \"Maryland Reports\", \"court\": \"Court of Appeals of Maryland\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-10T22:17:57.075788+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"ATTORNEY GRIEVANCE COMMISSION OF MARYLAND, Petitioner v. David Tucker HEIMBACH, Respondent.\", \"head_matter\": \"740 A.2d 599\\nATTORNEY GRIEVANCE COMMISSION OF MARYLAND, Petitioner v. David Tucker HEIMBACH, Respondent.\\nMisc. Docket AG, No. 44,\\nSept. Term, 1999.\\nCourt of Appeals of Maryland.\\nNov. 10, 1999.\", \"word_count\": \"153\", \"char_count\": \"910\", \"text\": \"ORDER\\nUpon consideration of the consent to disbarment from the practice of law filed by David Tucker Heimbach in accordance with Maryland Rule 16-712d2, and the written recommendation of Bar Counsel, it is this 10th day of November, 1999,\\nORDERED, by the Court of Appeals of Maryland, that David Tucker Heimbach be, and he is hereby, disbarred by consent from the further practice of law in the State of Maryland; and it is further\\nORDERED that the Clerk of this Court shall strike the name of David Tucker Heimbach from the register of attorneys, and pursuant to Maryland Rule 16-713, shall certify that fact to the Trustees of the Clients' Security Trust Fund and the clerks of all judicial tribunals in the State.\"}"

md/1724988.json

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+"{\"id\": \"1724988\", \"name\": \"Higdon et ux. vs. Thomas\", \"name_abbreviation\": \"Higdon v. Thomas\", \"decision_date\": \"1827-06\", \"docket_number\": \"\", \"first_page\": \"139\", \"last_page\": \"154\", \"citations\": \"1 H. & G. 139\", \"volume\": \"1\", \"reporter\": \"Harris and Gill\", \"court\": \"Court of Appeals of Maryland\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-10T20:10:08.796254+00:00\", \"provenance\": \"CAP\", \"judges\": \"The cause was argued at the last June term before Earle, Martin, Stephen, Archer, and Dorsey, J.\", \"parties\": \"Higdon et ux. vs. Thomas.\", \"head_matter\": \"Higdon et ux. vs. Thomas.\\nJune, 1827.\\nA liberal construction is to be given to the Statute of Frauds. 29 Car. 0, ah. 3. in relation to the fourth section thereof, it is settled, that if the \\u00a1r\\u00edame of a party appears in the memorandum of a contract, and isapplicabie to the whole substance of the writing, and is put there by him or his authority, it is immaterial in what part of the instrument the name appears, whether at the top, in the middle, or at the bottom. Forms are jsot regarded, and the Statute is satisfied, if the terms of the contract are in writing, and the names of the contracting parties appear.\\n\\u2022\\u00a1h> a bond, which recited the names of the parties to, and the terms of a contract for the sale of land, and contained a condition to secure a performance cii'such contract, prepared and written by the vendee, who was also the obligee of the bond, executed by an agent of the vendor, and delivered by him to the vendee, is a sufficient signing within the fourth section of the Statute of Frauds,\\nA technical authentication by signature is not necessary.\\n'The phraseology of tin-fourth and fifth sections of that statute, as respecto signing, is equally imperative, and substantially the same.\\nA receipt for the purchase money, in a deed for the conveyance of land, is only prima facie evidence of its pay ment.\\nWhere an agreement does not designate the person to whom its consideration is to tie paid, the law will raise an ammmpsit, and this is always implied m favour of those who are the meritorious cause of action, or from whom the consideration moves.\\n'The consideration being the sale of the wife\\u2019s inheritance, in the absence of an express promise the law will raise one to the husband and wile, on which the husband may sue either in his own name, or in the names of 'himself and wife, and in such case, even if there was an express promise to the husband, the wife might be joined as plaintiff\\n38ut a feme covert cannot be joined in an action to recover the price of property sold by her, and which belonged to her bef\\u00f3te coverture, or Hid value of services by her personally rendered, unless there be an express promise of payment to ber. This distinction arises from rights which pass to the husband absolutely, and those which survivi to the wife, and oyer which he has no power of transfer but by the consent and co-operation of the wife.\\nAppeal from Frederick County Court. This was an action \\u00aef assumpsit brought in the names of oe tppellants, (tho ji\\u2019niniiffs in the court below)) against the appellee., (the defendant in that court.)' The declaration counted upon the contract recited in the bond, a copy of which will be found in the bill of exceptions; and also averred that the defendant was put into the possession of the land sold to him on the day of making such contract, and afterwards accepted from the plaintiffs a sufficient deed conveying the fee simple of the said land to him. It then assigned as a breach, the nonpayment of the four last instalments mentioned in the contract, and concluded to the damage of the plaintiffs, &e. The defendant pleaded non assumpsit, and issue was joined.\\nAt the trial the plaintiffs gave in evidence the following instrument of writing, to wit: \\u201cKnow all men by these presents, that I, John 8. Frazier, of Frederick county, and state of Maryland, farmer, am held and firmly bound unto Samuel S. Thomas, of the same place, in the just and full sum of eight thousand dollars current money of Maryland, to be paid to Mm the said Samuel S. Thomas, his executors, administrators or assigns; to the which payment, well and truly to be made, I bind myself, my heirs, executors, administrators' and assigns, in and for the whole, firmly by these presents. Sealed with my seal, and dated this tenth day of February eighteen hundred and thirteen. Whereas the said John S. Frazier hath been authorised by Thomas Higdon, of Nelson county, in the state of Kentucky, to contract with persons for the sale of his lands lying in Frederick county aforesaid, which he the said Higdon bolds by virtue of his intermarriage with Arfemesia, daughter and devisee of Sarah Briscoe. And whereas the said John S. Frazier, in pursuance of his said authority, contracted with the said Samuel S. Thomas for the sale of all the said Thomas Higdon and Jirtemesia, his wife\\u2019s right, title, property, claim, and interest whatsoever, legal and equitable, to all the land situate, lying and being, in Frederick county aforesaid, which they hold under the last will and testament of Sarah Briscoe, deceased, except so much thereof as lies in and near LibertyToum, for which the said Samuel S. Thomas is to pay the sum of four thousand dollars current money, in the following manner; that is to say, one thousand dollars on the execution of this instrument of writing, one thousand in July next, and five hundred dollars annually thereafter, until the said four thousand dollars be fully paid. The said John 8. Frazier is to procure from the said Thomas Higdon, and his wife, deed for the a-hove described lands, except as before excepted, investing him the said Samuel S. Thomas, his heirs, executors or assigns, with a good title in fee simple for the same, and is to have possession now; all suits that are now or may be hereafter brought, which may affect the title or possession of said land, and the necessary costs thence accruing, is to be paid out of the latter payments. Now, the condition of the above obligation is such, that if the above mentioned Thomas Higdon and JLrtemesia his wife, do and shall well and truly, by a good and sufficient deed, agreeable to the terms and agreement aforementioned, convey to the said Samuel S. Thomas, his heirs, executors and administrators, all the lands above described, except as before excepted, on or before the twentieth day of September next, then the above obligation to be void, otherwise of full force and virtue. JohnS. Frazier, Att\\u2019y (Seal.)\\nSigned, sealed and delivered, in presence of Wesly Philips, .Ignatius M'Attee.\\nJieceived this 10th day of February, 1813, of Samuel S. Thomas, the sum of one thousand dollars, current money, in part payment of the above contract.\\nPr. me John S. Frazier, Att.\\u2019\\u2019\\nThe plaintiffs also gave in evidence, that the said instrument was prepared and written by the defendant, and by him brought to John S. Frazier, for the purpose of procuring his John S. Frazier\\u2019s signature to the same; that John S. Frazier did, in the presence of the defendant, sign, seal and deliver, the said instrument of writing, to the defendant. The plaintiffs also gave in evidence, that the defendant, on the 10th o\\u00ed February 1813, immediately after the execution of the said instrument of writing, and in pursuance thereof, was put into the possession of the lands mentioned in the said writing, by the said Frazier, and is still in possession of the same, and that the defendant on that said day, to wit, the 10th of February 1813, paid to the said Frazier, one thousand dollars. The plaintiffs also gave in evidence a deed dated the 9th of August 1813, executed by them to the defendant for the lands so contracted by the plaintiffs to be conveyed to the defendant. Which deed was made -,;ip consideration of the sum of $4,000 to the said Higdon and Wife, paid before the sealing and delivery thereof, the receipt whereof they thereby acknowledged, and was prepared at the instance of the defendant; and that the said deed after its execution, was delivered to, and accepted by the defendant, as a good and sufficient deed, and that the defendant, at the time of his acceptance thereof, said he wanted no other deed. The plaintiffs also gave in evidence anotherdeed for the same lands, bearing date the 12th of April 1814, executed by the plaintiffs to the defendant.\\nAfter the above evidence was read and given to the jury, the plaintiffs closed their case. The defendant then prayed the-opinion and direction of the court to the jury, that upon the evidence offered by the plaintiffs, they are not entitled to recover; which opinion the Court, [_Shriver, A. J.] gave, and so directed the jury. The plaintiffs excepted; and the verdict being for the defendant, they appealed to this court.\\nThe cause was argued at the last June term before Earle, Martin, Stephen, Archer, and Dorsey, J.\\nRoss, for the Appellants,\\ncontended, that the bond of John S. Frazier, the agent of the plaintiffs below, dated the 10th of February 1813, was sufficient evidence,\\n1. Of an agreement in writing, and signature by the party, or his agent, to gratify the Statute of Frauds. To prove this position, he cited 1 Pow. on Cont. 286, 287. Ogilvie vs. Foljambe, 3 Meriv. 61. Kennedy vs. Lee, Ib. 447, 448, 449, 450. Coles vs. Trecothick, 9 Ves. 250. Clark vs. Wright, 1 Atk. 13, (note 1.) Welford vs. Beazely, 3 Atk. 504. Ballard vs. Walker, 3 Johns. Cas. 65. Clason vs. Bailey, 14 Johns. Rep. 484, 486. M'Comb vs. Wright, 4 Johns. Ch. Rep. 663. Batturs vs. Sellers & Patterson, 5 Harr. & Johns. 119. It is not necessary that the agreement should be in writing; but the evidence of it must be in writing. Randall vs. Morgan, 12 Ves. 71. The bill of parcels is not to be considered as the contract itself; but it is a sufficient memorandum in writing of the contract within the meaning of the Statute of Frauds. Batturs vs. Sellers & Patterson, 5 Harr. & Johns. 120. If a letter contains the terms of an agreement, or acknowledges or refers to a former written one? then it takes it out of the Statute of Frauds. Clerk vs. Wright, 1 Atk. 13, (note 1.) Where there is a complete agreement in writing, and a person who is a party, knows the contents, subscribes it as a witness only, he is bound by it; for it is a signing within the statute. Welford vs. Beazely, 3 Atk. 504. Where A drew up a note of the agreement in writing, which B signed, but A did not sign, it was decreed the agreement of both; for A\\u2019s drawing up the agreement in his own hand, and procuring B to sign it on his part, made the signing of B, not only a signing for himself, but also a signing as authorised by A to close the agreement. And if B had come into a court of equity against A, the court would have decreed the agreement against him. 1 Pow. on Cont. 287. This case was decided soon after the passage of the Statute of Frauds The construction of the Statute of Frauds is the same in equity as at law; indeed the court of equity professes to follow the law. Morrison vs. Turnour, 18 Ves. 183. Sudg. 6. M'Comb vs. Wright, 4 Johns. Ch. Rep. 666. Forms are not regarded; and the statute is satisfied if the terms of the contract, and the names of the contracting parties, appear in the memorandum. Coles vs. Trecothick, 9 Ves. 252. Morrison vs. Turnour, 18 Ves. 180, (note 1.) Clason vs. Bailey, 14 Johns. Rep. 486. Kennedy vs. Lee, 3 Meriv. 447. Batturs vs. Sellers & Patterson, 5 Harr. & Johns. 119. As to the effect of the insertion of the name in the body of an agreement, as a signature within the Statute of Frauds, see Batturs vs. Sellers & Patterson, 5 Harr. & Johns. 119. Clason vs. Bailey, 14 Johns. Rep. 487, and the cases there cited. In the construction of all contracts, the situation of the parties, and the subject matter of the contract, are to be considered, in. order to determine the meaning of any particular provision. Wilson vs. Troup, 2 Cowen\\u2019s Rep. 196. By this rule let the question be decided, whether Mrs. Higdon was not a party to the contract.\\n2. That Artemesia, the wife, was not improperly joined in the action as one of the plaintiffs, he cited 1 Chitty\\u2019s Plead. 19, 20. Bashford vs. Buckingham, Cro. Jac. 77, 205. Guy vs. Livesey, Ib. 501. Aleberry vs. Walby, 1 Stra. 229. Bidgood vs. Way & Wife, 2 W. Blk. 1239. Ort vs. Fenwick, 3 East, 106. Philliskirk & Wife vs. Pluckwell, 2 Maule & Selw. 393. Arnold vs. Revoult, 5 Serg. & Low. 141. The State vs. Krebs, 6 Harr. & Johns. 37. Reeves Dom. Rel. 60, 61, 131, 132, 133.\\nPalmer, for the Appellee.\\n\\u00cd. The evidence does not support the issue. 2. The receipt in the deed is prima facie evidence of payment. 2. There is a misjoinder of husband and wife in the action. It should have been in the name of the husband alone.\\n1. The action is brought on a contract recited in a bond given to the defendant below. There is a distinction between referring to a contract in a bond, and the contract itself. Some of the counts in the declaration set out a contract different from that recited in the bond. Higdon and wife were not bound to make the deed under the agreement made by Frazier. The wife was not bound by the contract either at law or in equity. Bingh. on Infancy, 300. Emery vs. Wase, 5 Ves. 848. Sedgwick vs. Hargrave, 2 Ves. 57. The contract cannot remain partly by writing, and partly by parol. Stat. Frauds, 29 Car. II, ch. 3, s. 4, 17. Parkhurst vs. Van Cortlandt, 1 Johns. Ch. Rep. 273, 282. The recital of the contract in the bond is not the best evidence which the nature of the case admitted of. The contract itself should be produced. Phill. Evid. 356. Johnson vs. Mason, 1 Esp. Rep 89. Shelley vs. Wright, Willes, 11 Stroughton vs. Lynch, 2 Johns. Ch. Rep. 222. The writing the, name in the bond reciting a contract, is not a signing within the Statute of Frauds. Rob. on Frauds, 121. Glynn vs. Bank of England, 6 Ves. 39. Jackson vs. Pierce, 2 Johns. Rep. 221.\\n2. The receipt in the deed is prima facie evidence that the money has been paid. Dixon vs. Swiggett, 1 Harr. & Johns. 252. The receipt in the deed operated as an estoppel.\\n3. As to the misjoinder of the wife in the action, he cited 1 Chitty\\u2019s Plead. 18, 22, 314. Bingham on Infancy, 300. Sedgwick vs. Hargrave, 2 Ves. 57. Emery vs. Wase, 5 Ves. 848. Hall vs. Hardy, 3 P. Wms. 189, Innes vs. Jackson, 16 Ves. 367. 1 Madd. Ch. 6. Campbell vs. Jones, 6 T. R. 570. Pordage vs. Cole, 1 Saund. 320, (note 4 ) Buckley vs. Collier, 1 Salk. 114. Bashford vs. Buckingham, Cro. Jac. 77. Bidgood vs. Way & Wife, 2 W. Blk. 1236. Yard vs. Ellard, Carth. 462. 3 Thomas\\u2019s Co. Lilt. 312, (note.) The State use of Rogers vs. Krebs, 6 Harr. & Johns. 37.\\nRoss, in reply,\\nas to the point that the receipt in the deed was conclusive evidence of the payment of the consideration therein expressed, cited Shephard vs. Little, 14 Johns. Rep. 210. Bowen vs. Bell, 20 Johns. Rep. 338. Hamilton vs, M'Guire, 3 Serg. & Rawle, 355. Weigley\\u2019s Admr. vs. Wier, 7 Serg. & Rawle, 309. Wilkinson vs. Scott, 17 Mass. Rep. 257. O\\u2019Neale vs. Lodge, 3 Harr. & M'Hen. 433.\\nCuria adv. vult,\", \"word_count\": \"6333\", \"char_count\": \"35617\", \"text\": \"Doksey, J.\\nat this term delivered the opinion of the Court, It being conceded in argument, (as is unquestionably settled by authority,) that the receipt in a deed, for the conveyance of land, is only prima facie, and not conclusive evidence of the payment of the purchase money; in determining this cause, two questions only are necessary to be considered; and these, it must be admitted; are neither free from difficulty nor doubt.\\nHas the defendant signed a note or memorandum in writing of the agreement, as required by the statute of 29 Car. II, ch. 3? is the question which first presents itself. The nature of the requisite signature, m cases analogous to that now before us, although again and again examined and discussed in England^ and elsewhere, does not appear heretofore to have been the subject of judicial scrutiny in this state. In Lemayne. vs. Stanly, 3 Lev. 1, among the first cases upon the subject which arose after the statute, and which occurred only four years from its passage, after several arguments It was adjudged, that a will of lands in fee, in the handwriting of the testator, beginning \\\"In the name of God, Amen. I John Stanley make this my last will and testament,\\\" &c. not subscribed by the testator, but subscribed by three witnesses in his presence, Was a good will. \\\"For (in the language of the court,) being written by himself, and his name in the will, 'tis a sufficient signing within the statute, which does not appoint where the will shall be signed, in the top, bottom or margin, and therefore-a signing in any part is sufficient. \\\" This case turned on the construction of the fifth section of the Statute of Frauds. The case before us depends on the intrepretation of the fourth section, but the phraseology of both sections, as respects signing, is equally imperative, and substantially the same. In Knight vs. Crockford, 1 Esp. Rep. 190, the doctrine of Lemayne vs. Stanley is established in a case arising under the fourth section. At the trial the plaintiff produced a memorandum of the agreement, beginning \\\"I James Crockford, agree to sell,\\\" &c. but signed only by the plaintiff, and witnessed by one Mills. On the objection that the agreement was void within the Statute of Frauds, as not being signed by the defendant, it only beginning \\\"I James Crocks ford agree,\\\" &c. and not having his name subscribed to it, Eyre, Chief Justice, held \\\"that the agreement contained a sufficient signing within the Statute of Frauds, by beginning in the defendant's own handwriting, \\\"I James Crockford agree,\\\" &c. In Bawdes vs. Amherst, 1 Eq. Ca. Ab. 21, Lord Chancellor Cowper said, \\\"he knew of no. case where an agreement, though wrote by the party himself, should bind, if not signed, or in part executed by him;\\\" adding, that the agreement was susceptible of alterations or additions, and might have been entirely broken off.\\nAlterations made by the defendant in his own handwriting in the draught of an agreement, and a delivery thereof to an attorney to he engrossed, were held not to be a, signing within the statute, in Hawkins vs. Holmes, 1 P. Wms. 770. In reply to the argument of the plaintiff's counsel on the plea of the Statute of, Frauds and Perjuries, Mr. Williams answers, \\\"that the statute requires that the party, or ,some person by him lawfully authorised, should sign the writing; and though the defendant had altered the draught with his own hand, yet this could not be called a signing; that, the statute requires signing as a material circumstance, which is not to be dispensed with in equity any more than at law; that if the defendant had himself wrote over the whole deed with his own hand, without signing it, this had not been sufficient; for the statute has made signing absolutely necessary for the completion of the contract J for which purpose I cited the case of Ithel vs. Potter.\\\"\\nReferring to the case of Hawkins vs. Holmes, 1 P. Wms. 770, and Ithel vs. Potter, as there cited, Sugden, in his valua ble treatise upon the Law of Vendors, 55, (73,) states, that \\\"the mere altering the draft of the conveyance will not take a case out of the statute; neither will the writing over of the whole draft by the defendant with his own hand, be sufficient, as there must be a signature. To this rule (he adds.) we may p\\u00e9rhaps refer the case of Stokes vs. Moore, 1 Cox, 219, where the defendant wrote instructions for a lease to the- plaintiff, in these words, viz. \\\"The lease renewed; Mr. Stokes to pay the King's tax; also to pay Moore \\u00a324 a year, half yearly; Mr; Stokes to keep the house in good lenantable repair, &c. Stokes, the lessee, filed a bill for a specific performance; and'the court of exchequer held it not to be a sufficient signing, to take the agreement out of the statute;\\\" although it was not necessary to decide the point. In Stokes vs. Moore, the Lord Chief Baron, in delivering his opinion says, \\\"this is no formal signature of the defendant's name, ahd the question is, whether so inserted and written by the defendant, is a sufficient signing? The purport of the statute- is manifest, to avoid all parol agreements, and that none should have effect hut-those signed in the manner therein specified. It is argued' that\\\" the name being inserted in any part of the writing is a sufficient signature. The meaning of the statute is, that it should amount to an acknowledgment by the party, that it is his agreement, and if the name does not give such authenticity to the instrument, it does not amount to what the statute requires.\\\" In the same case and to the same effect is Baron Eyre equally explicit. \\\"The signature, (says lie,) is to have the effect of giving authenticity to the whole instrument; and if the name is inserted so as-to have that effect, I do not think it signifies much in what part of the instrument it is to be found-; it is perhaps difficult, except in the case of a letter with a postscript, to find an instance where the name inserted in the middle of a writing, can well have that effect; and there the name being generally found in a particular place by the common usage of mankind, it may very probably have the effect of a legal signature, and extend to the whole; but I do not understand how a name inserted in the body of an instrument, and applicable to particular purposes, can amount to such an authentication as is required by the statute.\\\" The case, however, was decided on the ground, that the memorandum was not the whole or final agreement between the parties. Roberts, in his treatise on the Statute of Frauds, 121, in commenting ' on the signing required by the statute, tells us \\\"the place of the signature seems not to have been regarded as of much importance, If the name is inserted in any part of the instrument, it may operate as a signing under the Statute of Frauds? but then it must have been inserted for the clear and only purpose of giving authenticity to the instrument.\\\" The same principle is sanctioned by Sugden, in his Law of Vendors 56, (74;) and is recognized in Ogilvie vs. Foljambe, 3 Merivale, 52, in which the Master of the Rolls states, \\\"it is admitted, that provided the name be inserted in such manner as to have the effect of authenticating the instrument, the provision of tire act is complied with, and it does not much signify in what part of the instrument the name is to be found.\\\"\\nIf the correctness of this general rule be admitted, for the establishment of which it must be confessed that the authorities, herein before referred to, are of the most imposing character, it cannot be contended, that the writing, upon which this action is founded, takes the case without the statute, as in no part of it is the name of the defendant written for the purpose of giving it authenticity, or acknowledging it to be genuine, But if these authorities be minutely and separately examined, they are not of that conclusive nature, which might be ascribed to thepi on a more superficial examination. The cases of Lemayne vs. Stanley, and Knight vs. Crockford, simply show, that a technical or formal signature is not requisite, and that a will of agreement without the subscription of the party making it, commencing, \\\"I, A B,'* &c. if in his own handwriting, is sufficiently signed. Nothing is s\\u00e1id \\u00f3t \\u00e1ny general rule by which cases of this nature are to be tested.\\n,The doctrine of Lord Chancellor Cowper, in Bawdes vs. Amherst, if received with the meaning usually ascribed to it,' viz. that a formal signature is necessary, is contradicted by Le~ \\u2022mayne vs. Stanley, Knight vs. Crockford, Saunderson vs.' Jackson, and another, 2 Bos. fy-Pull. 238, and Ogilvie vs^. Foljambe; and is denied to be law by Lord Hardtoicke iii Welford vs. Bedzely, 3 Atk. 503, and its repudiation has been sanctioned by all subsequent writers upon the subject.\\nHawkins vs. Holmes differs from the present case in many essential particulars. There the instrument was in the hand\\u00bb writing of a stranger to the contract, and not of the party against whom it was attempted to be enforced. It does not appear, (nor, from the nature of the transaction is it at all probable that it were so,) that the writing of his own name was any part of the alterations made; nor if it were, that it was so inserted as to govern or be applicable to all the provisions of the contract.\\nIthel vs. Potter not being reported, we know not that its facts bore any analogy to those now under consideration. 'Tis true Mr. Sugden understood Mr. Williams as asserting, that in Ithel vs. Potter it was determined, that the writing over the whole draft by the defendant, with his own hand, will not be sufficient. But the language of Mr. Williams would bear, and is perhaps grammatically more susceptible of a different interpretation, viz. \\u2014 that the only purpose for which Ithel vs. Potter was cited, was as establishing the immediately preceding legal position, that 'the statute has made signing absolutely necessary for the completion of the contract;\\\" and that the assertion of Mr. Williams, that the writing over the whole draft by the defendant, with his own hand, will not he sufficient, was an inference of counsel by way of argument, supposed to be deducible from the decision in Ithel vs. Potter, that signing was absolutely necessary. At all events an equivocal statement of a case, in the argument of counsel, which has never been reported, is an authority of the most feeble character.\\nThe bearing of the decision in Stokes vs. Moore is certainly not so easily\\\" obviated; as the similitude of that case to the one now before us, is much greater than that of any other of the cases herein before referred to. But of the doctrine in that ease Lord Eldon is reported to have said he had some doubt. (Vide Sug. Ven. (55,) 73.) It may also be added, that the decision is in the nature of an obiter dictum, as the decree was pronounced, and bill dismissed, on the ground that the memorandum did not contain the whole or final agreement between the parties. Admit, however, the decision to he correct, and made too because the signing was not sufficient, it does not set- tie the question now in controversy; the name, as, there inserted,was only, applicable to particular purposes, and did not necessarily connect; itself with, and operate on every other part of the:,agreement. In Ogilvie vs. Foljambe, the Master of'the Rolls, in, a part, of,his opinion, sanctions the inference, that he did not use the word authenticating in. its-usual literal import, but in a sense entirely consistent with the plaintiff's right to recover.\\nThis general rule as to what must be the object in writing the name which is necessary to constitute a signing within the statute is of modern origin and first presents itself in Stokes vs. Moore, decided in 1786; and is afterwards adopted by Sugden and Roberts, and by Sir Samuel Romilly in arguing the Case of Morrison vs Tumour, 18 Ves. 180, in which he states that \\\"a man thus describing himself in the third person, has never been decided to have signed within the act of parliament, which requires a signature as attesting what he has written. It is not necessary to sign it as an agreement; but he must sign. In the instance of the will, the name though in the beginning, authenticated the whole instrument, as that by which the testator meant to abide as his will, which is very different from a name occurring in the third person.\\\"\\nThe object of the statute being to substitute written for oral evidence, and thereby, prevent frauds, and perjuries, its almost contemporaneous exposition, in Lemayne vs. Stanley, announces to us, that a liberal and free construction is to be given it that substance, and not form, amounts to a compliance witits provisions, that if the name of a testator appear in any part of a will written by himself , it is sufficiently signed. The same principle, is recognized in Knight vs. Crockford, and in Welford vs. Beazely; in deciding, the latter of which cases the words of Lord Hardwicke are 'the meaning of the statute is to reduce contracts to a certainty, in order to avoid perjury on the one hand, and fraud on the other; and therefore, both in this court, and,.thp, courts of common law, where an, agreement h\\u00e1s been reduced to such a certainty, and the substance of -the statute has been complied with in the material part, the: forms' have never been insisted,on.\\\" Can it then be denied, that such object of the statute is as completely gratified, as much certain-, ty attained by the agreement here relied on,.as if Jt had bee\\u00bb. written in the first instead of the third person? It is not a refinement upon subtlety, a total sacrifice of substance to form, to say, that if the agreement had commenced, \\\"Whereas I, Samuel S. Thomas, have purchased of John S. Frazier, \\\" &c. the signature is complete, the objects of the statute have been accomplished, and the contract is available; but if it commences, as it does here, \\\"Whereas John S. Frazier hath contracted to sell to Samuel S. Thomas'' &c. there is is no signing, the provisions of the statute have not been complied with, and the contract is a nullity. And yet such is the effect of this rule, and the construction which has been given to the authorities referred to. An absurdity so glaring will never be sanctioned by this court but upon authorities too conclusive to be disregarded. Nor does this famous rule appear to be consistent with the reasoning of the learned tribunal in the case in which it was adopted, or free from doubt or unshaken hy judicial decisions of the country in which it was promulgated. In Stokes vs. Moore, Baron Eyre, after stating the rule says \\\"hu\\u00ed. I do not understand how a name inserted in the body of an instrument, and applicable to particular purposes, can amount to such an authentication as is required by the statute.\\\" But if a ease had arisen like the present, where the name is inserted in such a way as to control the whole agreement, and be applicable to every purpose of it, the inference would not be unreasonable, from the learned Baron's own reasoning, that he did understand how it could amount to such an authentication as the statute requires. Moreover, the case of Stokes vs. Moore, is now understood to have turned, not upon the circumstance of the name being contained in the body of the instrument, but its being applicable to particular purposes only, and not governing the whole instrument: as fully appears from the opinion of the Master of the Rolls in Ogilvie vs. Foljambe. In which he says \\\"it is admitted, that provided the name be inserted in such manner as to have the effect of authenticating the instrument, the provision of the act is complied with, and it does not much signify in what part of the instrument the name is to be found. In Stokes vs. Moore the objection was that this authentication was wanting, the name being introduced incidentally in the middle of the paper, and referring, in gram matical construction only, to a single term in the conditions. There was no objection on the score of th\\u00e9 Christian name being wanting, but the ground of the decision was, that the name, being introduced where it was, did not govern the en\\u00bb tire agreement.\\\" From these remarks of the Master of the Rolls it manifestly follows, that he deemed an agreement, iii the handwriting of a defendant, with his name so inserted in the body of it, as to govern the whole agreement, sufficiently signed within the meaning of the statute. That the name of Samuel S. Thoms is so inserted in the agreement in question cannot' be denied, as it forms a part of every clause and provision which it contains. The case of Saunderson vs. Jackson, determined by Lord Eldon, whilst chief justice of the common pleas, is. also strongly in favour of the plaintiff, and the decison of the supreme court of New-York, affirmed in the high court of errors, in Clason vs. Bailey, 14 Johns. Rep. 487, presenting the identical question before us, is of the most imperious authority. Chancellor Kent, in delivering his opinion, there states, that \\\"it is a point settled, that if the name of a party appears in the memorandum, and is applicable to the whole substance of the writing, and is put there by him or by his authority, it is immaterial in what part of the instrument the name appears, whether at the top, in the middle, or at the bottom. Forms are not regarded, and the statute is satisfied if the terms of the contracture in writing, and the names of the contracting parties appear. This doctrine of Chancellor Kent, is so simple in its nature, so easy of application, so consonant to reason and common sense, that supported, as it is, by the opinions of Lord Hardwicke, Lord Eldon, and Sir Wm. Grant, it would be a safer guide to follow, than the technical rule to which the case of Stokes and Moore has given birth. Whether the name of the defendant therefore be so introduced as to authenticate the whole instrument or not, is deemed immaterial, if it be so inserted as to govern or be applicable to the whole substance of the writing.\\nIf it be conceded that Samuel S. Thomas is liable to an action on the agreement, the next and only remaining question to be considered is, can such action be sustained in the joint names of Higdon & Wife, the present plaintiffs? The agreement, designates no person to whom the purchase money is to be paid. View it then as a case of implied promise. Where the law is left to raise the assumpsit, it is always implied in favour of those who ar\\u00e9 the meritorious cause of action, or from whom the consideration moves. The consideration here being the .inheritance of the wife, in or over which, during his life only, has the husband any interest or control, in the absence of an express promise, the law will raise one to husband and wife, ora which the husband may, at his pleasure, either sue in his own. name, or in the names of himself and wife. But suppose ifc Be considered that the agreement does amount to an express promise to pay to the husband; is it'not perfectly consistent with legal principles, in analogous cases, that the husband having acted, by the consent of - the wife, concerning a subject matter over which he had no power or control but in virtue of such consent, shall be deemed to have acted on the account, and for ilie benefit of himself and wife. Nor would his concealment of the principles on which he acted at all vary the case. It is every day's practice for the owners of merchandize, or other property, to sue in their own names on contracts of sale made by their agents, to whom express promises to pay have been made, and with whom the vendee's dealt, as sole owners of the property, having no knowledge of their principals. So, also where one part-owner sells, as his own, the property of his firm, all the partners may sue. But there could be no concealment from the defendant of the intentions with which Thomas Higdon acted through his agent, John S. Frazier, as the condition of the bond of conveyance is, that the deed to Samuel S. Thomas shall be executed by Higdon and Wife. That the defendant is in anywise damnified by the present form of action, has not been even insinuated.\\nIt is not intended to impugn the numerous decisions' which have been cited, that a feme covert cannot be joined in an action to recover the price of property sold by her, and which belonged to her before coverture; or the value of services by her personally rendered, unless there be made to her an express promise of payment. But these decisions apply only to cases of goods and chattels, whjch by the marriage vested absolutely In the husband; as does the right of her personal services and \\u00e1re wholly inapplicable to \\u00e1 case where the rights of the wife pass not to the husband, hut remain and survive to her, and over which the htisband has no power of transfer, but by the consent and cb-operation of the wife.\\nBeing of opinion that, upon.the whole circumstances of the case, the plaintiffs are entitled to recover, and in the form of action too in Which they have sought to prosecute their rights, We reverse the judgment of the county court.\\nJUDOMENf REVERSED, AND PROCEDENDO AWARDED.\"}"

md/1768389.json

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+"{\"id\": \"1768389\", \"name\": \"Joseph Osborn Dugan vs. Robert S. Anderson\", \"name_abbreviation\": \"Dugan v. Anderson\", \"decision_date\": \"1872-06-21\", \"docket_number\": \"\", \"first_page\": \"567\", \"last_page\": \"590\", \"citations\": \"36 Md. 567\", \"volume\": \"36\", \"reporter\": \"Maryland Reports\", \"court\": \"Court of Appeals of Maryland\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-10T22:06:40.345806+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Joseph Osborn Dugan vs. Robert S. Anderson.\", \"head_matter\": \"Joseph Osborn Dugan vs. Robert S. Anderson.\\nSeparable Agreement \\u2014 Contract Indivisible \\u2014 Breach of Contract \\u2014 Immediate right of Action \\u2014 Damages \\u2014 Evidence.\\n\\\"Whe're ail agreement embraces a number of distinct subjects, wliicb admit of being separately executed and closed, the general rule is that it shall he taken distributively, and each subject he considered as forming the matter of a separate agreement after it is so closed.\\nIn the summer of 1870, a contract was entered into between the plaintiff\\\" and defendant, by which the latter agreed to employ the former as clerk in his store, at a salary of not less than 31,500 per annum, until the 1st of March, 1871, and then to receive him as partner in his business for one. year, certain, and allow him one-third of the profits; in pursuance of this promise and agreement by the defendant, the plaintiff gave up a situation and employment in which lie was receiving1 $2,000 per annum, and entered into the service of the defendant as proposed, and continued therein until discharged and removed therefrom by tlio defendant; the plaintiff- before instituting a suit against the defendant, offered to continue to serve him until the 1st of March, 1871, and then to become a partner in the business under their agreement, hut the defendant, before suit brought, denied there was any such agreement between himself and the plaintiff, and refused to permit the plaintiff to continue in his service until the 1st of March, 1871, and required him to leave Ms employment, and forbade him to remain in the store in which the business was conducted, and denied he was 'entitled to become a partner therein from that date, and refused to receive him as such, when that time should arrive. The defendant did not at any time before the 1st of March, 1871, retract his action towards the plaintiff, and offer to receive him again into his employment until that time, and then to admit him as partner in the business as aforesaid. On the 5th of January, 1871, the plaintiff' instituted suit against the defendant for a breach of the contract. Held :\\nThat while in one sense, the contract between the parties was in its nature and terms, separable and apportionable \\u2014 the services as clerk and the partnership being- capable of separate execution \\u2014 it was in respect to tlio intention of tlio parties, to he entire and indivisible. The consideration for the plaintiff\\u2019s action in entering into it, was not merely that he should ho employed until the 1st of March, 1871, at a salary, hut that he should ho so employed and he taken as a partner at that time for a year, certain; and the conduct of the defendant consli tuted a breach of the contract, which gave an immediate right of action, and entitled the plaintiff to recover damages as for a breach of the entire contract.\\nThe plaintiff, after offering evidence tending to establish the contract entered into between the defendant and himself, proved that he faithfully and efficiently in all particulars, discharged his duties under it, as long as he was allowed to execute it. He also proved that the engagement of the defendant to take him into his employment, first at a salary, and then to receive him as a partner, was absolute, and not in any way dependent upon the defendant\\u2019s wanting him or not, or of his being satisfactory to the defendant; that he was not taken on trial, and his being taken into partnership was not to ho a matter of contingency ; that the defendant knew his qualifications and habits perfectly, having been intimate with him for many years, and knew what his position with Neale, his former employer, was, and what salary he was receiving from Neale, and what Neale\\u2019s opinion of him was, and expressly waived in advance all claim to make the continuance of his employment and the taking him into partnership, dependent upon his being found satisfactory. Ho further proved he was in every way competent for the duties ho assumed to discharge, and discharged them faithfully and fully. Held :\\nThat this testimony, coming from the plaintiff himself, as a witness, did not amount to such anticipation of -the proof to be offered in evidence on the ground of his bad habits and incompetency, as ought, in the exercise of a sound discretion by the Court, to preclude him from replying to the specific proof adduced by the defendant, to wit: that .while he (the plaintiff) was in the employ of Neale, where he had been since 1861, he was in the habit of drinking, and was more or less under the influence of liquor much of his time during that period, so as to render him unfit for business, and incapable of discharging his duties, and was negligent and inattentive. The plaintive having been properly allowed to reply to this, hy offering evidence tending to show that while he was at Neale\\u2019s he attended to his duties diligently and faithfully, he was further entitled to prove, in reply to the evidence of bad conduct, bad habits, and incompetency, that all the while ho was at Bird\\u2019s, where he had been employed for many years, and up to the very day he wont into the service of Neale, that he was capable, efficient, attentive to his business, and of unexceptionable habits.\\nAnd this proof in its entirety, coming down as it did to the very day the plaintiff left Bird and went to Neale, did not relate to a period so distant and remote from that in respect to which the defendant had offered proof of incompetency and bad habits, as to make it altogether irrelevant and therefore inadmissible.\\nAppeal from the Superior Court of Baltimore City.\\nThis was an action brought by the appellee against the appellant for the breach of a contract. The facts of the case are stated with sufficient fulness in the prayers of the respective parties and in the opinion of the Court.\\nFirst Exception: After evidence had been offered on both sides, the plaintiff further proved by J. Edward Bird, that he had been for many years a dry goods merchant in Baltimore, and the plaintiff' had been in his employment as a clerk, salesman and superintendent for sixteen or seventeen years, down to 1861, when he went to Neale\\u2019s. The plaintiff\\u2019s counsel then proposed to ask the witness the following question:\\nPlease state what you know of his habits of punctuality, attention to his duties and efficiency, wffiile in your employment. The defendant\\u2019s counsel objected to the question as not applicable by way of rebuttal to any of the defendant\\u2019s proof, and because it was irrelevant, and related to a time anterior to that covered by the defendant\\u2019s proof.\\nThe Court (Dobbin, J.) overruled the objection, on the ground that according to the recollection of the Court, the testimony of the defendant\\u2019s witness, Fisher, had impugned the character of the plaintiff in the particulars inquired of, while at Neale\\u2019s. Thereupon the question being put, the witness testified, that while in his employment, the plaintiff was a capable and efficient salesman, attentive to business and of unexceptionable habits. The defendant excepted to both the question and the ansvmr.\\nSecond Exception: The plaintiff offered the three following prayers:\\n1st. If the jury shall find from the evidence that the plaintiff wTas employed by the witness, Neale, at a salary of $2,000 a year, and that at that time there wras a firm composed of the defendant and the witnesses Bowen and McCabe, existing under the articles of co-partnership offered in evidence; and if they'- shall further find, that while the plaintiff was so employed by said Neale, the defendant agreed with the plaintiff, without any condition as to plaintiff being taken on trial, that if the plaintiff would give up his employment under said Neale,-t-he defendant would take the plaintiff into the employment of himself and said Bowen, as remaining members of said firm, after the retirement therefrom of said McCabe, until the 1st of March, 1871, and would allow the plaintiff for his services until said time, the share of the profits of said business which would have accrued to said McCabe as a member thereof to said time, had said McCabe remained in .said firm, and in case said share of said McCabe of said profits should be less than at the rate of $1,500 per annum, the plaintiff should receive compensation for his services to March 1st, 1871, at the rate of $1,500 per year; and if they shall further find that the defendant, at the same time, also promised and agreed with the plaintiff as aforesaid, that the plaintiff should, on the 1st of March, 1871, become a partner with the defendant and said Bowen in their business for one year certain, and receive one-third of the profits of said business; and if they shall further find, that in consideration of the said promises of the defendant to employ the plaintiff until the 1st of March, 1871, and at that time to admit him as a partner, the plaintiff did give up his employment under said Neale, and did enter the service of said defendant and said Bowen as proposed; and if they shall further find that the plaintiff continued in the service of the defendant and Bowen until he was discharged and removed therefrom by the defendant, and that the plaintiff, before the institution of this suit, offered and tendered to continue to serve said defendant and Bowen until the 1st of March, 1871, and then to become a partner in said business under the agreement aforesaid, but that the defendant, before the institution of this suit, denied that there was any such agreement between himself and the plaintiff, as is above set forth, and refused to permit the plaintiff to continue in the services of defendant and Bowen until the 1st of March, 1871, and then become a partner in said business as aforesaid, and required the plaintiff to leave the employment of said defendant and Bowen, and forbade him to he and remain in the store in which said business was conducted, and denied that the plaintiff was entitled to become a partner in said business from March 1st, 1871, and refused to receive him as such vdien that time should arrive; and if they shall further find that the defendant did not, at any time before March 1st, 1871, retract his said action towards the plaintiff, and offer to receive him again into the employment of himself and said Bowen until the 1st of March, 1871, and then to admit him as a partner in said business as aforesaid, then the plaintiff was entitled to institute this suit at the time it was brought, to recover as for a breach of the entire contract above required to be found.\\n2d. If the jury find the facts in the first prayer, then the plaintiff is entitled to recover, unless the jury shall find that the acts of the defendant towards the plaintiff, therein set forth, were occasioned by some substantial incompeteney or unfitness or misconduct on the part of the plaintiff, occurring after the inception of the contract, or by reason of the defendant, after the inception of the contract, acquiring a knowledge of some unfitness or disqualification of the plaintiff to perform said contract on his part, unknown to the defendant at the inception of the contract.\\n3d. If the jury find the facts in the plaintiff\\u2019s first prayer, the defendant had no right to terminate said contract without compensation to plaintiff) merely because the defendant believed that said contract -would not be profitable.\\nThe defendant offered the eight prayers following:\\n1. The writ in this action having been issued prior to the 1st of March, 1871, the question of damages for the alleged refusal of the defendant to take the plaintiff into partnership on that day, under the contract to that effect alleged and sought to be set up, is not before the jury for consideration.\\n(2. Prayer withdrawn.)\\n3. If the jury shall find from the evidence that the plaintiff was employed by the defendant on trial, the defendant had a right to discharge him at pleasure, and the plaintiff can recover no damages for such discharge.\\n4. If the jury shall find from the evidence that the defendant\\u2019s taking the plaintiff' into partnership was to depend upon its being satisfactory to him to do so, on the 1st of March, 1871, the plaintiff is not entitled to recover any damages for the refusal of the defendant so to take him.\\n5. Even if the jury shall find that the defendant employed the plaintiff until the 1st of March, 1871, to act as superintendent and otherwise in the store on Gay street, without any stipulation that the defendant might discharge him for incapacity, misconduct or inattention, the defendant still had the lawful right to discharge him, if the jury shall find that he was incapable of discharging the duties so prescribed, or was inattentive thereto, or negligent thereof, or failed otherwise suitably and faithfully to comply with his obligations.\\n6. Even if the jury shall find that the defendant agreed to take the plaintiff into partnership on the 1st of March, 1871, as alleged and sought to be proven by the plaintiff, the defendant had still the lawful right to refuse to do so, if the jury shall find that the conduct of the defendant in the intermediate time was such as to shew that he was incapable of discharging the duties which he was to perform in such partnership, or was so neglectful or careless, or of such habits and conduct-as, in the opinion of the jury, would have rendered such partnership a failure for the purposes in contemplation of the parties in its formation.\\n7. That there is no evidence in the cause of any request or demand addressed by the plaintiff to \\\"the defendant to take him into partnership on the 1st of March, 1871, or of any tender of his readiness to enter into such partnership, or any refusal of the plaintiff to take him into the same, and the plaintiff cannot therefore recover any damages on account of any alleged failure or refusal of the defendant so to do.\\n8. That even if the jury should find for the plaintiff under the Court\\u2019s instruction, and should deem it proper under said instructions to find damages for the plaintiff for breach of the alleged contract to take the plaintiff into partnership on the 1st of March, 1871, the jury .are nevertheless not authorized to give any greater damages for the breach of said contract than one-third of the net profits of the business for one year from that period, less such amount as the jury may find that the plaintiff has otherwise earned, or might or ought, by due and reasonable industry and diligence, to have earned during such part of said year, as has already elapsed, and may and ought so to earn during the remainder thereof, in the judgment of the jury.\\nThe defendant excepted to the first prayer of the plaintiff, because there was no evidence to support it in several particulars :\\n1st. There is no evidence in the cause that the Avithdrawal of the plaintiff from the service of Neale Avas any part of the consideration of the agreement or understanding betAvcen the plaintiff and defendant, or Avas involved in the same in any other Avay than that the plaintiff could not possibly go into Dugan\\u2019s service Avithout going out of Neale\\u2019s \\u2014 the only consideration proven being the engagement of Anderson on the one side to render certain services, and the agreement of Dugan on the other side to take him into his service, at a certain salary, till March 1st, 1871, and admit him into partnership on that day.\\n2d. There is no evidence Avhatcver in the cause that the plaintiff, at any time before the institution of this suit, tendered himself ready to the defendant to become a partner in business AA\\u2019ith him on the 1st of March, 1871, or that the defendant denied, before the institution of this suit, that the plaintiff AA'as entitled to become a partner in said business from March 1st, 1871, or refused to receive him as such when that time should arrive.\\nThe Court granted the first and third prayers of the plaintiff, and rejected his second prayer as offered, but granted it subject to the qualification contained in the defendant\\u2019s third, fourth, fifth and sixth prayers, provided the jury should find the hypothesis of facts contained in said prayers of the \\u2022defendant.\\nThe Court granted all the prayers of the defendant but the first and seventh, which it refused, and the second, which was withdrawn. To the rejection of his first and seventh prayers, and to the granting of the plaintiff\\u2019s prayers, the defendant excepted.\\nA verdict was rendered in favor of the plaintiff for \\u00a72,000, and judgment was entered accordingly. The defendant appealed.\\nThe cause was argued before Bartol, C. J., Bowie, Grasos, Miller and Alyey, J.\\nT. Wallis Blaldstone and 8. Teaclcle Wallis, for the appellant.\\nThe question proposed to Mr. Bird should not have been allowed, and liis answer to it was not proper to go to the jury.\\nThe testimony, if proper in itself, was not admissible at the stage of the cause when it was offered, and after the course which the proof'had taken. It is perfectly clear law, now, that if the plaintiff, instead of waiting till the defendant has closed, to produce evidence in reply, thinks proper to anticipate the defence and repel it in advance, he must exhaust his proof on the point anticipated, and will not be permitted to return to the same subject after the defence has been heard. 1 Sharswood\\u2019s Starkie, 552, (top ;) 1 Taylor on Ev., sec. 357.\\nIn the present controversy, the appellee might have contented himself, if he had chosen, with proof of the contract and his fulfilment of it, followed up by proof of breach and damages. This was his case. He was under no obligation to' prove his character, capacity or efficiency till the defence had assailed them. He chose to do otherwise. He proved in chief that he was a person of large experience and much skill in his business, and that his conduct and attention to duty had commanded the approbation of his employer, Mr. Neale. He further proved that he was in every way competent for the duties he assumed to discharge, and that the appellant knew his qualifications and habits perfectly. lie might then have proved, with equal propriety, and in like manner, (if it were admissible at all,) that his qualifications and habits had been as satisfactory to Mr. Bird as to Mr. Neale. But he did not. He finished his general evidence on that point without calling Mi'. Bird, and he left himself no right to rebut any general proof to the contrary on the part of the defence. He retained only the right to rebut particular tacts which the defence might set up ele novo. The defence proceeded to set up no new particular facts, (pertinent to the present question,) except those of actual misconduct. These the appellee had the right to rebut, and he did give evidence tending to rebut the testimony of the appellant\\u2019s witness, Fisher, by which his (appellee\\u2019s) proof of his deportment at Neale\\u2019s had been contradicted. But that testimony was itself responsive proof on the part of the appellant, and it was confined to the appellee\\u2019s conduct at Neale\\u2019s, and nowhere else. Proof of the appellee\\u2019s behavior at Bird\\u2019s was, therefore, simply nothing in the way of rebuttal, .and the Court\\u2019s adjudication that it was competent to show that the appellee had been a faithful and efficient clerk at Bird\\u2019s, because his character in the same particulars while at Neale\\u2019s had been impugned, was, with great respect, a plain non sequitur.\\nBut the testimony, in itself, was altogether inapplicable to the issue. It was not proof of general character or reputation, but of particular facts occurring or existing ten years before the facts in controversy. The appellant had not attempted to assail the appellee\\u2019s fitness or habits by general proof, nor by proof of facts anterior to the period in controversy, except in the single point touched by Fisher\\u2019s testimony, and that was in contradiction of facts set up affirmatively in chief by the appellee. 'Whether the appel lee was sober or drunken, capable or incapable, at Bird\\u2019s, before the war, had nothing to do with the case, and was applicable to no issue that had been raised in it. The proof should have been excluded therefore as, per se, irrelevant and inadmissible.\\nThe appellee\\u2019s first prayer, which was granted, allowed the jury to make two assumptions, viz:\\nFirst: That it was part of the agreement between the parties that \\u201c the plaintiff would give up his employment with Neale,\\u201d and that he did so.\\nSecond: That the plaintiff, before suit brought, tendered himself to the defendant to become his partner from March 1st, 1871, but the defendant -refused to permit him to become his partner from that time, and refused to receive him as such when that time should arrive.\\nThe appellant insisted that there was no evidence to support the said assumptions, or either of them, and filed his several objections to the prayer on that ground :\\n1st. There was no proof in the cause that the appellee\\u2019s leaving Neale was any part of the contract in controversy, or had any connexion with it further than arose from the impossibility of the appellee\\u2019s being in two places at once. He could not go to Dugan without going from Neale. The evidence, it is believed, will clearly maintain this objection. Nor could the appellee\\u2019s leaving Neal\\u00e9 have been properly put in proof. It had nothing to do with the issue. The appellee agreed to go to the appellant on certain terms, and he sued because those terms, as he alleged, were not complied. with. He did not sue for his loss from leaving Neale, but for what he was to have had and ought to have received from Dugan. The eighth prayer of the appellant, which was granted without dispute, defined properly the limit and measure of his damages. The matter.of leaving Neale, as introduced into the first prayer of the appellee, was consequently irrelevant, calculated to mislead the jury and withdraw their attention from the true points in issue and to set up a matter of aggravation which was aside from the merits of the controversy. Its introduction, in itself, should have caused the prayer to be rejected, even if otherwise unobjectionable.\\n2d. There was no proof that the appellee tendered himself as partner, or was refused, as the prayer assumes. This point is raised by the appellant\\u2019s seventh prayer, as well as by the objection heretofore referred to.\\nThe Court will observe that the contract set up by the appellee was to employ the appellant as clerk till March 1st, 1871, and then take him for a year into the partnership existing between himself and Bowen. The suit was brought on the 5th of January, 1871, three months before the time for the contemplated partnership arrived, and of course before the appellee could possibly tender himself ready to enter into it in fact. The parties quarrelled in December, 1870, while the employment of the appellee continued as clerk, and the appellee swore that the appellant then notified him that he \\u201c desired no further business relations with him.\\u201d Matters becoming aggravated, the appellee swore that by the advice of counsel he visited the appellant about the 31st of December, 1870, and told him he was ready to perform his part of the contract, and wanted to know whether the appellant was ready to perform his. The appellant swore he had no contract with him. The appellee replied that he had, and that he (appellee) was prepared honorably to carry it out.\\nThere is not a particle of proof on either side, that the appellee at any time signified his readiness to enter into the proposed partnership; that appellant himself alluded to it; or that anything was the subject of discussion between them except the determination of the appellant to discharge the appellee from his service as clerk, and the determination of the appellee not to be discharged.\\nThe prayer is further believed to be vicious in its instruction that the plaintiff, upon its hypothesis of facts, was entitled to institute the suit at the time it was brought, to recover as for a breach of the entire contract, &c. The proposition intended to be put, it is presumed, was, that on the theory of the prayer, the suit on the entire contract was not premature. As the prayer stands, however, it asserts the right to sue to recover for breach of a contract, without requiring the jury to find that the plaintiff had damage from its being broken. The prayer should have concluded \\u201c then the plaintiff is not precluded by the fact that this suit was instituted before the 1st of March, 1871, from recovering as for a breach of the entire contract above required to be found, if the jury shall find that the plaintiff was injured by such breach.\\u201d\\nThe second and third prayers of the appellee must fall with his first, if the latter be found erroneous, inasmuch as they rest on the same faulty assumption of facts.\\nThe appellant\\u2019s first prayer asserts, in direct antagonism to the proposition intended to be set up by the appellee\\u2019s first prayer, that as the action was brought prior to March 1st, 1871, the question of damages for refusing to take the appellee into partnership on that day, was not before the jury.\\nThe contract in controversy was from its terms and its nature separable and apportionable, and not entire, and whether it was entire or separable, it was not competent for the appellee to recover any damages for an alleged, breach-of that part of it which was not to be performed, and could not be performed, until after action brought. A repudiation of one part of it was not necessarily, nor in law, a repudiation of the whole of it, and furnished no ground of suit as for an entire breach. It would have been carrying the doctrine of the English cases far enough to have allowed the appellee to sue after the 1st of March, 1871, and before the expiration of the year, for damages which could only be ascertained when the year was over. .But a contract for a future personal association, such as a partnership, the performance of which would have been rendered impossible by the death or per sonal disqualification of either party before the period named, can hardly be held enforeible or broken until that period has been reached. Otherwise we have the anomaly of damages given for the non-formation of a partnership which might never have come to be formed, and which, if formed, might have resulted in loss rather than in profit. 2 Parsons on Contracts, 517, 521; 2 Smith\\u2019s Lead. Cases, 55, et seq.; Rodemer vs. Hazlehurst, 9 Gill, 294; Kercheral vs. King, 44 Missouri, 401; Taylor vs. Laird, 25 L. J., (Exch.,) 329; Sedgwick on Dam., 258, (marg. 229;) Philpotts vs. Evans, 5 M. & W., 475; Ripley vs. McClure, 4 Exch., 359; Frost vs. Knight, 5 Exch., (L. R.) 322; Greenway vs. Gaither, Campbell\\u2019s C. C. Rep., 227.\\nCharles Marshall, for the appellee.\\nUnder the contract set forth, and upon such a rescission of it as is alleged in the first prayer of the plaintiff, and supported by the evidence on the part of the plaintiff, the right of action as for an entire breach accrued at once, and the plaintiff was not bound to wait until March 1st, 1871, to bring suit.\\nThe contract was one and indivisible. The consideration for the plaintiff\\u2019s action was not merely that he should be employed, until the 1st of March, 1871, at a salary, but that ho should be so employed, and be taken as a partner at that time, the latter being as much a part of the consideration promised him for entering the service of the defendant as the former. Under such a contract as that alleged in the prayer, the conduct of the defendant was a breach which gave a right to an immediate action.\\nIn such a case the plaintiff had an inchoate right to the performance of the bargain, at the time stipulated, and a right in the meantime to have the contract kept open as a subsisting contract. lie could deal with the rights acquired under it in various ways for his advantage. On the other hand, if it be held that he cannot sue until the time fixed for taking him into partnership has passed, he can do nothing in the interval between his removal by the defendant and the 1st of March, which would disable him from tendering himself ready to form the partnership at that time. He would remain bound under a contract which the defendant claims the right to repudiate. Hochster vs. De la Tour, 20 E. L. & Eq. Rep. 157, 160 ; The Danube and Black Sea Company vs. Xenos,. 11 C. B. Reps., 152, (103 E. C. L. R. 151;) Avery vs. Bowden, 5 Ellis & B. 714, 728, (85 E. C. L. R.;) Goodman vs. Pocock, 15 Q. B. 576, (69 E. C. L. R.;) Emmens vs. Elderton, 4 House of L. Cases, 624; Frost vs. Knight, 20 Weekly Reporter, 471.\\nThis is a decision of the Court of Exchequer Chamber, reversing a decision of the Court of Exchequer, found in 5 Court of Exchequer, 322 (Law Reports,) and distinctly adopting the law as laid down in Hochster vs. De la Tour. Crabtree vs. Messersmith, 19 Iowa, 180 ; Addison on Contracts, 974; United States vs. Speed, 8 Wallace, 84; Masterton & Smith vs. Mayor, &c., of Brooklyn, 7 Hill, 62.\\nThere is a special exception to the plaintiff\\u2019s first prayer, \\u25a0upon the ground that there was no evidence that the withdrawal of the plaintiff from the service of Neale, was any part of the consideration of the agreement between plaintiff and defendant. In reply to this it may be said, that, so far as the plaintiff\\u2019s first prayer is concerned, it would make no difference if there had been no. evidence that the fact of the plaintiff leaving Neale was part of the consideration of his contract.\\nThat prayer requires the jury to find all the elements of a contract, of which, it is conceded, that there was evidence, namely, the engagement of the plaintiff on the one hand to render certain services, and of the defendant on the other to employ him at a salary, and take him into partnership on the 1st of March. If the jury found such a contract, and also found the refusal of the defendant to be bound by it, as set forth in the prayer, the right of action accrued immediately ou such refusal, and all that the prayer states about plaintiff leaving Neale\\u2019s employment is surplusage.\\nBut there was positive proof that the fact that the plaintiff was to give up his place at Neale\\u2019s, was part of the consideration on his part, for the promises of the defendant to him.\\nThe plaintiff\\u2019s second prayer was granted, but subject to the qualifications imposed upon it by the third, fourth, fifth, and sixth prayers of the defendant, all of which were granted. The effect of these prayers combined, gave the defendant every thing he could ask.\", \"word_count\": \"8593\", \"char_count\": \"49380\", \"text\": \"Miller, J.,\\ndelivered the opinion of the Court.\\nWe have to deal in this case simply with the questions of law presented by the two exceptions contained in the record. The jury have passed upon the conflicting testimony.\\nThe suit was instituted by the appellee against the appellant on the 5th of January, 1871, and was tried in October of that year. No question arises upon the pleadings. The plaintiff's ground of action as presented by his first prayer is, in substance, that in the summer of 1870 a contract was entered into between the parties, by which the defendant agreed to employ the plaintiff as clerk in his store at a salary of not less than $1,500 per annum until the 1st of March, 1871, and then to receive him as partner in his business for one year certain, and allow him one-third of the profits; that in pursuance of this promise and agreement by the defendant, the plaintiff gave up his then situation and employment, in which he was receiving $2,000 per annum, and entered into the service of the defendant as proposed, and continued therein until discharged and removed therefrom by the defendant; that the plaintiff, before the institution of this suit, offered to continue to serve the defendant until the 1st of March, 1871, and then to become a partner in the business under the agreement aforesaid, but the defendant, before suit brought, denied there was any such agreement between himself and the plaintiff, and refused to permit the plaintiff to continue in his service until the 1st of March, 1871, and required him to leave his employment, and forbade him to be and remain in the store in which said business was conducted, and denied he was entitled to become a partner therein from that date, and refused to receive him as such when that time should arrive. The prayer, after leaving to the jury to find these facts,, and also that the defendant did not at any time before the 1st of .March, 1871, retract his action towards the plaintiff and offer to receive him again into his employment until that period, and then to admit him as partner in the business as aforesaid, asserts, as a legal proposition resulting therefrom, that the plaintiff was entitled to institute the suit at the time it was brought, and to recover as for a breach of the entire contract above-required to be found.\\nThe defendant's first prayer denies the right of the plaintiff to recover damages for the alleged refusal of the defendant to take the plaintiff into partnership on the 1st of March, 1871, under the contract alleged and sought to be set up, because the action was instituted prior to that time. The proposition thus announced by the defendant's prayer is a denial of the law of Hochster vs. De la Tour, 20 English L. and Eq. Rep., 157, and of the English cases that have followed and sanctioned that decision. That case was decided in 1853, and gave rise to a controversy in the English Courts in which their most-eminent Judges have participated. It may be doubted whether the controversy is yet ended and the law of England in respect thereto finally settled. No decision upon the subject has yet been made by the House of Lords. The latest decision in the highest Court to which the question has been taken, is that of Frost vs. Knight, decided in the Exchequer Chamber on the 8th of February of the present year. That case was heard before and'decided by Chief Justice Cockburn and Byles, Keating and Lush, Judges, who, without dissent, reversed the judgment of the Court of Exchequer by Chief Baron Kelly and Channell, B., and sustained and affirmed the law of Hochster vs. De la Tour.\\nThe principle of this decision in cases to which it has been held applicable, is, that there is a breach of the contract when the promissor repudiates it and declares he will no longer be bound by it. It is said the promissee has an inchoate right to the performance of the bargain whieli becomes complete when the time for performance has arrived. In the meantime he has a right to have the contract kept open as a subsisting and effective contract. Its unimpaired and unimpeached efficacy may be essential to his interests. His rights acquired under it may be dealt with in various ways for his benefita and advantage. Of all such advantages the repudiation of the contract by the other party, and the announcement that it never will be fulfilled, must of course deprive him. It is therefore quite right to hold that such an announcement amounts to a violation of the contract in omnibus, and that upon it the promissee, if so minded, may at once treat it as-a breach of the entire contract and bring his action accordingly. The contract having been thus broken by the promissor, and treated as broken by the promissee, performance at the appointed time becomes excluded, and the breach, by reason of the future non-performance, becomes virtually involved in the action as one of the consequences of the repudiation of the contract; and the eventual non-performance may therefore, by anticipation, be treated as a cause of action, and damages be assessed and recovered in respect of it, though the time for the performance may yet be remote. It is obvious that such a course must lead to the convenience of both parties, and though decisions ought not to be founded on grounds of convenience alone, they yet tend strongly to support the view that such an action ought to be admitted and upheld. By acting on such a notice of the intention of the promissor, the promissee may in many eases avert, or at all events materially lesson the injurious effects which would otherwise flow from the non-fulfilment of the contract; and in assessing the damages for breach of performance, a jury will of course take into account whatever the plaintiff has done or has had the means of doing, and, as a prudent man, ought in reason to have done, whereby his loss has been, or would have been, diminished.\\nThis in substance is the reasoning upon which such actions have been sustained by the English Courts. Most masterly arguments have been made at bar in this case, founded both in reason and authority, urging us on the one hand to adopt, and on the other to repudiate this as the law of Maryland. All the authorities discoverable by the research of eminent counsel, have been presented, reviewed and pressed upon our attention. But we do not feel ourselves justified in deciding a question of this importance, unless it be clearly presented by the record, and becomes essential to the determination of the very case before us. When so presented we shall be prepared, as it will be our duty, to determine it. But in the present record there is a question beyond and outside of Hochster vs. De la Tour, that is decisive of this case, and upon which in our opinion its decision must rest. The law of Hochster vs. De la Tour, relates simply to cases where there is a pre-contract for future services, or the performance of some act or duty at a future period, and where performance cannot be commenced, and was not by the contract contemplated, until that period arrives, and where the promissor prior to that time announces his intention not to abide by the contract. But in this case performance of the contract had been commenced and the plaintiff was discharged by the defendant and prevented from further executing it; and suit Avas not brought until after this discharge, though before the time for performance of that part of the contract relating to the partnership had arrived. The defendant broke up the contract Avliile it was being performed by the plaintiff, and the action was not commenced until after this breach. In this respect there is a broad distinction between the case before us and that of Hochster vs. De la Tour. It is an ancient and familiar rule of laAv that only one action can be maintained for the breach of an entire contract, and the judg ment, obtained by the plaintiff in one suit may bo pleaded in bar of any secojjfl proceeding. Sedgwick on Damages, 224. But the difficulty is to determine in what cases the contract is entire. Jn, determining this question the Courts must be guided by a respect to general convenience, and by the good sense and reasonableness of the particular case. Where an agreement embraces a number of distinct subjects, which admit of being separately executed and closed, the general rule is that it shall be taken distributively, and each subject be considered as forming the matter of a separate agreement after it is so closed. In one sense the contract before ns-was in its nature and terms separable and apportionablc, that is, its separate parts, the services as clerk, and the partnership, were capable of separate execution, and must have been performed consecutively in order of time. But in respect to the intention of the parties gathered from the facts presented by the plaintiff's prayer, it was in our.opinion to be entire and indivisible. The consideration for the plaintiff's action in entering into it was not merely that he should be employed until the 1st of March, 1871, at a salary, but that he should be so employed and be taken as a partner at that time for a year certain. The latter was as much a part of the consideration promised hint for entering the service of the defendant as the former, and the conduct of the defendant as stated in the prayer, in our judgment, constituted a breach which gave an immediate right of action and entitled the plaintiff to recover damages, in the language of his prayer, as for a breach of the entire contract.\\nSuch, in our opinion, is the true construction of this contract and the right of the plaintiff ensuing upon its alleged breach. The case bears a close analogy to that of Masterton & Smith vs. Mayor, &c., of Brooklyn, 7 Hill, 61, where the plaintiffs contracted, in January, 1836, with the defendants to furnish all the marble necessary for a certain public building then about to be erected by the defendants for .which they were to pay a specified sum in instalments as the work pro gressed. The plaintiffs entered into the performance of this contract and furnished marble thereunder until July, 1837, when the defendants suspended operations on the building and refused further to perform on their part, The contract could not have been fulfilled by the plaintiffs, even if they had been allowed to prosecute the work without interruption, before 1842. In 1840 they brought an action against the defendants founding it upon the breach which occurred in 1837. The action was not only sustained as well brought at that time, but the plaintiffs were allowed to recover in respect to so much of the contract as remained wholly unperformed at the time of the breach, the difference between what the performance would have cost them and the price the defendants had agreed to pay, estimating the former by the price of labor and materials at the time of the breach. All the Judges held that the contract being broken before the time of full performance the plaintiffs might elect to consider it in that light, and were not bound to wait till the period had elapsed for the complete performance of the agreement nor to make successive efforts of performance in order to recover all their damages, but might regard the contract as broken up so far as to absolve them from making further efforts to perform and recover full damages as for a total breach. So in Clossman vs. Lacoste, 28 Eng. L. & Eq. Rep., 140, where an agreement was made that the plaintiff should enter into the employment of the defendant for the sale of wines on commission, the agreement to continue for five years, $nd the defendant guaranteeing the plaintiff \\u00bf\\u00a3600 per annum as a minimum revenue from the business during the continuance of the agreement, it was held that the plaintiff might sue in any one year during the continuance of the agreement for breaches in any former year, but if there was an entire dismissal from the service before the expiration of the agreement, the plaintiff ought to include in one action the whole gravamen lie would- suffer by such breach of contract. The present case, in our judgment, falls within the rule of these decisions and others of similar import, and the law of Hochster vs. De la Tour is not necessarily involved in its determination. It follows there was no error in the rulings rejecting' the defendant's first prayer and granting the first prayer of the plaintiff, in so far as the legal propositions they contain are concerned.\\nThe record shows two special objections were taken in the Court below to the plaintiff's first prayer, on the ground there was no evidence to support certain facts thereby left to the finding of the jury. In reference to these, it suffices to say that we have examined the testimony embodied in the exceptions, and are satisfied there is proof from which the jury might have found, or legitimately inferred, the facts of which it is thus objected there was no evidence. What has already been said, also demonstrates the correctness of the ruling rejecting the defendant's seventh prayer. No objection was made in argument to the granting of the plaintiff's third prayer, that the defendant had no right to terminate the contract merely because he believed it would not be profitable ; and this ruling is undoubtedly correct. The plaintiff's second prayer, that if the jury found the facts stated in his first prayer, then he is entitled to recover, unles the jury shall find that the acts of the defendant towards him therein set forth, were occasioned by some substantial incompetency or unfitness or misconduct on the part of the plaintiff, occurring after the inception of the contract, or by reason of the defendant's acquiring after that time, knowledge of some unfitness or disqualification of the plaintiff to perform the contract on his part, unknown to the defendant at its inception, was granted, but Avith the qualifications contained in the defendant's third, fourth, fifth and sixth prayers, Arhich Avere also granted. The defendant's eighth prayer, as to the measure of damages for the breach of the contract in refusing to take the plaintiff into partnership on the 1st of March, 1871, AAas likewise granted. In respect to the law of the case, save in regard to the disputed questions already decided, it was stated as favorably for the defendant as he could have asked. We find no error in the rulings in this particular; and this disposes of the second exception.\\nThe first exception was taken to the ruling allowing a question to be asked the witness Bird, and the admission of his answer thereto as evidence to go to the jury. Whether this ruling, aS stated in the record, was matter of pure discretion in the Court below, irreviewable here, is a question we do not propose to decide. If the revisory power belongs to this Court, still in matters of this kind it must appear the ruling was manifestly wrong, and has occasioned substantial injustice. The general rule is that the plaintiff first adduces evidence to support the issue which he is bound to prove, reserving his right to rebut his adversary's proof if he establishes a prima fade case with respect to the issues which lie upon him. If however, the plaintiff at the outset thinks fit to call any evidence to repel the defendant's case, he will not in general be permitted to give further evidence in reply, for if such a privilege were allowed to the plaintiff, the defendant in common justice might claim the same, and the proceedings would run the risk of being extended to a very inconvenient length. 1 Taylor on Evidence, sec. 357; Sharswood's Starkie on Evidence, 552. But in deciding upon the admissibility of evidence called in reply, regard must be had to the circumstances of the individual case, and considerable latitude will necessarily be granted to the judge in the exercise of his discretion. 1 Taylor on Evidence, sec. 359.\\nIt appears that the plaintiff after offering evidence tending to establish the contract alleged, proved that he faithfully and efficiently, in all particulars, discharged his duties under it as long as he was allowed to execute it. He also proved that the engagement of the defendant to take him into his employment, first at a salary, and then to receive him as a partner, was absolute and not in any way dependent upon defendant's wanting him or not, or of his being satisfactory to the defendant, that he was not taken on trial, and his being taken into partnership was not to be a matter of contingency; that defendant knew his qualifications and habits perfectly, having been intimate with him for many years, and knew what his position with Neale, his former employer, was, and what salary he was receiving from Neale and what Neale's opinion of him was, and expressly waived in advance all claim to make the continuance of his employment and the taking him into partnership dependent upon his being found satisfactory. He further proved he was in every way competent for the duties he assumed to discharge, and discharged them faithfully and fully. All this testimony came from the plaintiff himself as a witness, and in our opinion it does not amount to such anticipation of the proof to be offered in defence on the ground of his bad habits and incompetency, as ought, in the proper exercise of a sound discretion by the Court, to preclude him from replying to the specific proof adduced by the defendant in that particular. That proof was in substance, that while the plaintiff was in the employ of Neale (where he had been since 1861) he was in the habit of drinking, and was more or less under the influence of liquor much of his time during that period, so as to render him unfit for business, and incapable of discharging his duties, and was negligent and inattentive. The plaintiff was allowed without objection (and properly so) to reply to this by offering evidence tending to show that while he was at Neale's, he attended to his duties diligently and faithfully. Up to the time he left Neale he had been for many years in the employment of the witness Bird. We see no good reason why he should not be allowed to prove in reply to this proof of bad conduct, bad habits and incompetency, that all the while he was in Bird's employ, where he continued up to the very day he went into the employment of Neale, that he was capable, efficient, attentive to his business and of unexceptionable habits. No stringent rule of evidence or practice forbids it. Nor did this proof in its entirety, coming down as it does to the very day he left Bird and went to Neale, relate to a period so distant and remote from that in respect to which the defendant had offered proof of incompetency and bad habits, as to make it altogether irrelevant and therefore inadmissible on that ground. We cannot therefore reverse the ruling in this exception. v\\n(Decided 21st June, 1872.)\\nJudgment affirmed. ^\"}"

md/1774874.json

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+"{\"id\": \"1774874\", \"name\": \"Frederick S. Blitz vs. Henry James and others, trading as Henry James and Company\", \"name_abbreviation\": \"Blitz v. James\", \"decision_date\": \"1869-07-02\", \"docket_number\": \"\", \"first_page\": \"264\", \"last_page\": \"269\", \"citations\": \"31 Md. 264\", \"volume\": \"31\", \"reporter\": \"Maryland Reports\", \"court\": \"Court of Appeals of Maryland\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-10T21:38:14.090648+00:00\", \"provenance\": \"CAP\", \"judges\": \"The cause was argued before Bartol, O. J., Miller, Stewart, Brent, Grason and Robinson, J.\", \"parties\": \"Frederick S. Blitz vs. Henry James and others, trading as Henry James and Company.\", \"head_matter\": \"Frederick S. Blitz vs. Henry James and others, trading as Henry James and Company.\\nConstruction of the Law relating to the Inspection of Lumber in the city of Baltimore.\\nThe 481st section of the Public Local Laws of the city of Baltimore provides that, \\u201cwhenever the buyer or seller of any lumber or timber shall feel himself aggrieved by the measurement of any inspector, the buyer shall appoint one of the licensed inspectors, and the seller another, and they two shall select a third person to act as umpire, who shall be well acquainted with the kind of lumber or timber to be resurveyed, and not a licensed inspector, and the three persons so appointed shall re-measure and mark said lumber or timber, and their decision shall be final.\\u201d On the 29th of January, 1864, the plaintiffs, who were lumber merchants in Baltimore, sold to the defendant a quantity of lumber lying in a pile on the wharf in that city. The lumber was shipped to Washington. After its arrival there, the plaintiff sent to the defendant by mail an inspector\\u2019s certificate of the quantity of lumber sold to him. The lumber was inspected in Washington, and found to fall short in the number of feet sold, and the defendant refused to pay for the amount of the deficiency. In an action brought to recover this amount, Held :\\n1st. That tho purchase and delivery having been made in Baltimore, the purchaser was bound to know the Public Local Laws of that city relating to the inspection and sale of lumber.\\n2d. That upon the arrival of the lumber at Washington, and the defendant being dissatisfied with the inspection and measurement previously made, it was his duty, under the section of the law above cited, to have resorted to the means provided by that law for a correction of the previous inspection; and this was his only remedy.\\n3d. That the inspection in Washington, and the fact of the lumber having fallen short under that inspection, were altogether immaterial facts which could have no bearing or effect upon the issue to be tried, and the Court below was right in not permitting them to be considered by the jury.\\n4th. That the inspection of the lumber previous to its sale, and the marks put upon it by the inspector, furnished prim\\u00e9 facie evidence of the number of feet in the lot at the time of its sale and delivery, and in the absence of the proceedings which the law required the purchaser to resort to, if not satisfied, became conclusive of the number of feet it contained.\\n5th. That the law does not require an inspection whenever a sale of lumber is made, notwithstanding an inspection has been previously made.\\nAppeal from the Court of Common Pleas.\\nOn the 13th day of December, 1864, a writ of attachment on warrant was issued in this case, at the suit of the appellees against the appellant, a non-resident, for the purpose of recovering the sum .of $538.68, alleged to be due for lumber sold and delivered to the latter by the former, which writ was returnable to the January Term, 1865, of the Court of Common Pleas. The short note shows the cause of action to be for goods and wares sold and delivered. Certain lumber of the appellant was taken by the,Sheriff, and subsequently a bond was given and an appearance entered, and the attachment dissolved.\\nAt the January Term, 1865, the defendant pleaded that he never was indebted as alleged, upon which issue was joined.\\nAt tho trial, it appeared by the evidence that the appellant, on the 29th of January, 1864, purchased of the appellees a pile of lumber, lying on the wharf in Baltimore, at thirty cents per. hundred feet, to go to Washington for the use of the United States Government; that the lumber was shipped on two vessels for Washington ; that subsequently to its departure an invoice or inspector\\u2019s certificate, made a month before the sale by an inspector employed by the appellees alone, was mailed to the appellant at Washington. It was also proved that the appellant paid $1,719.50 on account of the lumber, but refused to pay the balance because the number of feet charged was not correct, of which he gave the appellees due notice. The appellant then offered to prove that the lumber, on its arrival at Washington, was inspected by a Washington City inspector and an inspector of the United States, for which the lumber was bought; that the lumber was falsely and incorrectly marked; that the lumber thus fell short. some 2,600 feet below the amount charged in the* account of the appellees; that some .of the boards; which were over-marked two feet each, had been retained at Washington for some time to be produced at the trial, but had been destroyed by fire. To the evidence thus offered the appellees objected and the Court refused to allow it to go to the jury; to this ruling the defendant excepted, and this constitutes the subject-matter of the first bill of exceptions.\\nThe plaintiffs offered one prayer, which was granted by the Court below, and the defendant offered two, which were rejected; and this action of the Court forms the ground of the second bill of exceptions. The character of these prayers is sufficiently stated in the opinion of the Court.\\nThe cause was argued before Bartol, O. J., Miller, Stewart, Brent, Grason and Robinson, J.\\nWm. Pinkney \\\"Whyte, for the appellant.\\nLuther M. Reynolds, for the appellees.\", \"word_count\": \"1973\", \"char_count\": \"11303\", \"text\": \"Qeasok, J.,\\ndelivered the opinion of the Court.\\nThe first exception of the appellant was taken to the refusal of the Court below, to permit him to offer proof to the jury that the lumber, which he purchased of the appellees, had been inspected in Washington City upon its arrival there, and, upon that inspection, had fallen short twenty-six hundred feet, some of the boards measuring one foot, and others two feet less than was represented by the inspector's mark. The lumber was purchased in the city of Baltimore by the appellant, and was shipped to him at Washington by his agent, Willis. The purchase and delivery having been made in Baltimore, the purchaser was bound to know the Public Local Law of that city, relating to the inspection and sale of lumber, even if he Avere not acquainted Avith the custom among lumber merchants there. The 481st section of the Public Local LaAA of Baltimore provides that \\\" whenever the buyer or seller of any lumber or timber shall feel himself aggrieved by the measurement of any inspector, the buyer shall appoint one of the licensed inspectors, and the seller another, and they two shall select a third person to act as umpire, who shall be well acquainted with the kind of lumber or timber to be resurveyed, and not a licensed inspector, and the three persons so appointed shall remeasure and mark said lumber or timber, and the decision shall be final.\\\" Upon the arrival of the lumber at Washington, and the appellant being dissatisfied with the inspection and measurement previously made, it was his duty, under the section of the law above referred to, to have resorted to the means provided by that law, for a correction of the previous inspection. This was his only remedy. The inspection in Washington, and the fact of the lumber having fallen short under that inspection, were altogether immaterial facts, which could have no bearing or effect upon the issue to be tried, and the Court below was right in not permitting them to be considered by the jury. Had there been an offer of proof that the lumber had fallen short in the number of boards, or that the inspection marks had been changed or obliterated, it would have been admissible. No such offer was, however, made, although the bill of lading, and invoice of the lumber, as well as the tale of the inspector, who had inspected the lumber a short time previously, were sent to the appellant, a few days after the sale.\\nThe second exception was taken to the granting of the appellees' prayer, and the rejection of the appellant's two prayers.\\nThe prayer of the appellees was correct in all respects, except, perhaps, in putting to the jury the finding of the custom among lumber dealers in Baltimore City, without there being any evidence in the cause to show that the appellant, who was not a resident of the city, had knowledge of it. But, as the appellant, as we have stated, was bound to know the Public Local Law of the place at which he was making his purchase, and which required him, if he was aggrieved, to pursue the remedy it provided, he was not injured by the prayer as granted.\\nThe inspection of the lumber previously to its sale, and the marks put upon it by the inspector, furnished prima facie evidence of the number of feet in the lot at the time of its sale and delivery; and in the absence of the proceeding, which the law inquired the purchaser to resort to, if not satisfied, became conclusive of the number of feet it contained. The appellant's first prayer was, therefore, properly rejected. His second prayer was based upon the theory that the law requires an inspection, whenever a sale of lumber is made, notwithstanding an inspection has been previously made. In this view of the law, we do not concur. The 477th section of the Public Local Law of Baltimor.e requires all lumber coming to that city to be inspected by a licensed inspector of the city, unless the same has been inspected by a licensed inspector at some one of the places named in the section. From the language of this section, the inference is plain, that all the law requires is, that it shall be once inspected by a licensed inspector in some part of the State, before it is sold in Baltimore. Section 478 provides, that lumber shall be inspected and sold in Baltimore by measurement only, and goes on to prescribe the rule for the measurement. If this section stood alone, it might bear the construction that all lumber was required to be inspected upon coming to Baltimore before it could be sold. But it must be taken and construed with the preceding section, which provides that lumber coming to Baltimore shall be inspected, unless it has been previously inspected at Port Deposit, Havre de Grace, or Perryville, or its vicinity. It will be seen too, from an examination of section 483, that no doubt can be entertained as to the proper construction of section 478. Section 483 provides, that if \\\" any person bringing lumber to Baltimore shall sell the same without having it inspected by a licensed inspector, unless the same has been previously inspected, as hereinbefore mentioned, he shall forfeit and pay a fine of five dollars per thousand feet, board measure.\\\" Section 480 provides for the payment of fees to the inspector, and directs that one-half shall be paid by the buyer, and the other half by the seller. This applies only in cases where an inspection is made at the time of a sale, but does not make it obligatory upon the seller to have an inspection made whenever a sale takes place. This is too plain for controversy, when considered in connection with section 483. Any other construction than the one which we have given to these laws would do violence to the laws themselves, and would result in expense and inconvenience to the lumber dealers of Baltimore City, which would be oppressive and intolerable. The Court below was therefore right in rejecting the appellant's second prayer, and its judgment must be afirrmed.\\n(Decided 2d July, 1869.)\\nJudgment affirmed.\"}"

md/1794769.json

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+"{\"id\": \"1794769\", \"name\": \"WILLIAM F. OWENS vs. EDWARD R. OWENS\", \"name_abbreviation\": \"Owens v. Owens\", \"decision_date\": \"1895-06-19\", \"docket_number\": \"\", \"first_page\": \"518\", \"last_page\": \"525\", \"citations\": \"81 Md. 518\", \"volume\": \"81\", \"reporter\": \"Maryland Reports\", \"court\": \"Court of Appeals of Maryland\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-10T21:42:10.369170+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"WILLIAM F. OWENS vs. EDWARD R. OWENS.\", \"head_matter\": \"WILLIAM F. OWENS vs. EDWARD R. OWENS.\\nMalicious Prosecution\\u2014 Testimony of Foreman of Grand Jury \\u2014 \\u25a0 Certificate by Trial Judge as to Testimony not Contained in Bill of Exceptions.\\nIn an action for malicious prosecution, it was held upon the facts that the evidence was sufficient to authorize the jury to find that the defendant caused the plaintiff\\u2019s arrest, that the same was without probable cause and malicious, and that the prosecution was at an end.\\nIn such action, when, in order to show the end of the prosecution, the foreman of the grand jury has testified that the case against the plaintiff was dismissed, it is not competent to ask him on cross-examination why it was dismissed, for the purpose of showing that the prosecution was abandoned at the instance of the defendant. Different reasons may have influenced different grand jurors, and in most cases they should not be permitted to assign reasons for their actions.\\nIn an action for malicious prosecution, evidence that after the arres and imprisonment of the plaintiff, efforts were made by the defendant to have the prosecution dismissed is not admissible, either in bar of the suit or in mitigation of damages.\\nThe certificate of the trial Judge, contained in the record, as to what was proved at the trial, will be considered on appeal, although not embodied in a bill of exception, when such certificate refers to the matter of the exception.\\nAn exception was taken to the action of the trial Court in rejecting certain evidence. Subsequently this fact was proved in the case by another witness, and it was so stated in a certificate of the trial Judge filed the same day as the bill of exception. Held, that such certificate would be considered on appeal in connection with the exception.\\nAppeal from the Circuit Court for Anne Arundel County. The case is stated in the opinion of the Court. The jury rendered a verdict for the plaintiff assessing his damages at $1,700. The certificate referred to in the opinion of the Court is as follows :\\n\\u201cMemorandum to be inserted in the record following the exceptions: At the request of the plaintiff, through his counsel, it is further certified, that after the evidence embraced in the aforegoing exceptions and after the rejection of the defendant\\u2019s prayer, contained in the 5th exception, the defendant proceeded to examine witnesses on his behalf and the defendant himself testified in his own behalf, and in the course of his testimony testified to the fact that he went before the gi'and jury at the October term, 1892, (spoken of by the witness, Henry M. Murray, foreman of the grand jury), and stated to said jury that he abandoned the said charge against his brother, this fact the plaintiff asks to have inserted for the reason that even assuming that the Court were wrong in excluding the testimony which the defendant proposed to offer by the witness Murray, yet still no injury was done the defendant by such exclusion, inasmuch as by his own testimony he got before the jury substantially the reason why the grand jury dismissed the charge.\\n\\u201c It is also by the same request further certified, that after the evidence on both sides was closed, certain prayers for instructions to the jury were offered by both parties, those af the defendant (conceded by the plaintiff and granted by the Court) distinctly placing upon the plaintiff the burden af proof of showing the want of probable cause for the said prosecution of the plaintiff by the defendant. The Court not being fully satisfied of the propriety of the practice of certifying to anything taking place during the trial subsequently to the taking of the exceptions \\u2014 yet, so as to do no possible harm to the plaintiff, this certificate is signed to avail as it may, and leaving to the Court of Appeals to determine upon the question of the right to so certify \\u2014 the practice not appearing to be clea,rly settled. The defendant objects to the Court signing this certificate; but without waiving any of his objections, request the Court if it signs the certificate at all, to further certify that the defennant testified that as the plaintiff was his brother and had been sufficiently punished for his misconduct, and their father was an old man and very nervous and infirm, and this trouble was a great source of worry to him, he desired that the grand jury would not bring in any indictment against the plaintiff, or words to that effect.\\n\\u201c Witness our hands and seals, this 28th day of January, 1895, counsel agreeing that the foregoing be signed upon an understanding between counsel that it is subject to objection made in this Court by defendant\\u2019s counsel, and with the right to defendant\\u2019s counsel to press said objection in the Court of Appeals. Jas. Revell, I. Thomas Jones.\\u201d\\nThe cause was argued before Robinson, C. J., Bryan, McSherry, Fowler, Page and Boyd, JJ.\\nFrank H. Stockett and James M. Munroe, for the appellant.\\nD. R. Magruder and Robert Moss (with whom was J. R. Magruder, on the brief), for the appellee.\", \"word_count\": \"2575\", \"char_count\": \"14545\", \"text\": \"Boyd, J.,\\ndelivered the opinion of the Court.\\nThis was an action for malicious prosecution brought by the appellee against the appellant. At the conclusion of the plaintiff's testimony, the defendant asked the Court to instruct the jury that there was no evidence in the case legally sufficient to entitle the plaintiff to recover. The rulings of the Court in rejecting that prayer and in excluding some evidence, to be hereinafter referred to, are before this Court for review.\\nIt is contended on the part of the appellee that the prayer is too general and was properly rejected by the Court below on that ground. It certainly did not direct the Court's attention to the particular point or points in which the evidence, in the opinion of the defendant, failed. It is a practice not to be approved of; but, without stopping to discuss the foi'm of the prayer, we think no sufficient reason has been given to justify us in saying that the evidence is so lacking in any material point necessary to sustain the plaintiff's case that it should not have been submitted to the jury.\\nIt is conceded that the plaintiff was prosecuted by the defendant for an alleged criminal offence \\u2014 an assault with intent to kill. He was imprisoned in the county jail for about two weeks, when he was admitted to bail. It was shown by the evidence of the deputy clerk that no presentment had been found against the plaintiff, and by the foreman of the grand jury that the case was dismissed. There can, therefore, be no question that the prosecution had been finally terminated in favor of the appellee. Hyde v. Greuch, 62 Md. 582. A careful examination of the record satisfies us that there was abundant evidence from which the jury could find that the arrest was without probable cause. The testimony of the plaintiff not only tends to show that he did not assault the defendant, but that on the contrary he was assaulted by him. It is true that he admits that he threw a brick at the door of the kitchen connected with the house which he wanted to enter to see his father. But the circumstances, as detailed by him, which for the purposes of this prayer we must accept as true, were such that the jury may have well reached the conclusion that the charge made by the defendant was wholly unjustifiable. He was not acting on what others had told him, but on what he could see for himself. The plaintiff testified that \\\" I told him (defendant) that I had come to see my father, and started to enter the kitchen door, and as I placed my foot on the step he shoved me back and I caught on my hands; as I fell back my hand came in contact with a brick, and I picked it up; my brother by this time had gone in the kitchen and left the door nearly closed, being prevented from closing it by my foot placed on the sill; I threw the brick at the door and then went in the kitchen.\\\" The jury might well have found, if they believed that statement, that the defendant was not justified in having the plaintiff arrested for committing an assault on him, with a brick, with intent to kill, and that the arrest was without probable cause. If they found that the arrest was without probable cause, they could infer malice, and there'was, moreover, other evidence in the case to support that inference. It was clearly a case for the jury to pass upon, and the Court would not have been justified in withholding it from them. That prayer was therefore properly rejected.\\nAfter the foreman of the grand jury had testified that the case against the plaintiff was dismissed, the defendant asked on cross-examination why it was dismissed. The Court refused to permit the question to be answered. The record shows that the witness had been permitted to testify that the case had been dismissed by the grand jury for the purpose of showing that the prosecution was ended. The evidence being admitted for that purpose, it is difficult to see the relevancy of the inquiry why it was dismissed \\u2014 in other words, why it was ended. But different reasons might have influenced the grand jurors, and it was not competent for the foreman to undertake to give them. As was said in Elbin v. Wilson, 33 Md. 144: \\\" All the authorities concur in saying that the juror will not be permitted to state how any member voted, or the opinion expressed by his fellow or himself, or the individual action of any juror in regard to the subject-matter before them.\\\" This is not such a case as Knott v. Sargeant, 125 Mass. 95, relied on by the appellant. There the grand jury simply did not find a bill at the first term of Court \\u2014 they did not dismiss the case. The recognizance which the accused had entered into required her to appear at the October term of 1874 of the Court, and at any subsequent term or terms until the final sentence, decree or order of that Court. It was held that she had not been discharged and the case was consequently not ended. The District Attorney was therefore permitted to testify that the case was continued before the grand jury by reason of the absence of the witness. Cases occur in which it is essential to call grand jurors as witnesses, but the rule should not be extended beyond what is necessary for the purposes of justice, and it would be exceedingly dangerous, in most cases, to permit them to explain or assign reasons for their actions.\\nMuch of what we have already said about the question involved in the first bill of exceptions applies to the second, third and fourth. In all of them the effort was made to have the foreman explain the action of the grand jury. The object seemed to be to show that the prosecution was abandoned at the instance of the appellant. We do not think that relevant. We must assume that the grand jury would not have dismissed the case, even at the instance of the appellant, unless they thought it proper to do so. There was no proffer to show that the appellant took such action at the request or with the knowledge of the appellee. Nor do we think that any effort on the part of the appellant to have the case dismissed could be offered in evidence, either in bar of the suit or in mitigation of damages. The appellee had already suffered the injury he complained of, as he had been arrested in the month of May before the October term of Court, when the case was dismissed, and hal remained in jail for two weeks. It may be that the appellant believed he had done his brother a wrong, or he may have been anxious to relieve himself from farther liability, or he may have acted from a desire to save his father from annoyance and his brother from further trouble, but whatever his motive was his action then would not compensate the appellee for the injury already done him. Of course the dismissal of the case did not preclude the appellant from showing that the appellee was in fact guilty, and the learned Judges below have certified that they granted prayers instructing the jury that the burden of proof of showing a want of probable cause was on the plaintiff. That was, evidently, because the testimony of the foreman of the grand jury had only been admitted to prove that the prosecution was ended and not for the purpose of showing a want of probable cause. But the certificate of the Judges also shows that after the exceptions were taken by the defendant he testified that he went before the grand jury and requested them not to indict his brother. So we find that he did get the benefit of the testimony he is complaining of having been excluded. It is contended on the part of the appellant, that this Court cannot consider the certificate of the Judges. No authority has been offered to sustain that position, and we can see no reason why it cannot be done under such circumstances as those in this case. All of the exceptions were taken before the plaintiff closed his case. It has been frequently decided by this Court that even if an error be committed by rejecting testimony, and it is subsequently admitted during the trial of the case, the judgment should not be reversed on account of the original error. A bill of exceptions ordinarily only contain what has transpired, and is relevant to the time the exception was noted, and it may be signed at once. If subsequent to that time the error is corrected, cannot the trial Judge certify that fact to the appellate Court? For example, suppose the defendant had called the foreman of the grand jury as his witness, and had asked the identical question stated in these bills of exceptions, and the witness had answered them without objeci\\u00f3n or with the permission of the Court, could it be said that if the Judges below had already signed the exceptions they could not inform this Court of what subsequently transpired ? There ought to be no doubt about their right to do so, for if this Court deemed the ruling of the Court below, as set out in the exceptions, reversible error, it might reverse the judgment for the exclusion of testimony which in point of fact was before the jury. The certificate was filed the same day the bills of exceptions were and expressly refers to them. If the exceptions were not signed before the testimony was taken by the defendant, the Judges might have inserted in them the facts stated in the certificate ; but as they did not, there can be no valid objection to their signing a certificate of this character to be taken in connection with the exceptions.\\n(Decided June 19th, 1895.)\\nAs we find no error in the rulings of the Court below, the judgment must be affirmed.\\nJudgment affirmed with costs to the appellee.\"}"

md/1802016.json

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+"{\"id\": \"1802016\", \"name\": \"Andrew J. Tabler vs. John H. Tabler, George F. Tabler, and others\", \"name_abbreviation\": \"Tabler v. Tabler\", \"decision_date\": \"1884-12-19\", \"docket_number\": \"\", \"first_page\": \"601\", \"last_page\": \"615\", \"citations\": \"62 Md. 601\", \"volume\": \"62\", \"reporter\": \"Maryland Reports\", \"court\": \"Court of Appeals of Maryland\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-10T21:14:49.181859+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Andrew J. Tabler vs. John H. Tabler, George F. Tabler, and others.\", \"head_matter\": \"Andrew J. Tabler vs. John H. Tabler, George F. Tabler, and others.\\nIncomplete Will of Personalty \\u2014 Caveat\\u2014Second set of Issues.\\nA man in a dying condition undertook to dictate his will to an amanuensis, and while this dictation was in progress, his mind gave way before he had time to complete what he evidently deemed an important part of it. Held :\\nThat while the authorities had gone very far in admitting unfinished or incomplete papers as good wills of personal property, no Maryland decision had gone to the extent of holding that in such a case, the part of the instrument which he dictated while in possession of his mental faculties, could be set up as his will.\\nOn a caveat to a paper writing purporting to be a will of personalty, issues were granted by the Orphans\\u2019 Court, raising the question of the testamentary capacity of the deceased as affecting the entire paper. These issues were tried before a jury who found adversely to the will. Before the Orphans\\u2019 Court had acted on this verdict, by refusing probate of the instrument, one of the original caveatees. applied for a second set of issues to try the question, whether the instrument was not good down to the last clause, but void as to that clause by reason of the mind of the deceased having suddenly given way before said clause was written, or the instrument was signed. On appeal from the refusal of the Orphans\\u2019 Court to grant said issues, it was Held :\\n1st. That assuming this new set of issues could have been granted if they had been applied for at the proper time, it was too late to ask for them after a trial and verdict on the first set.\\n2nd. That the appellant had knowledge, or means of knowledge in his possession, of all the facts and circumstances upon which his application was founded, at the time the first issues were granted, and should then have obtained the issues subsequently asked for, if they could have been granted at all.\\nIt is only in cases where the issues are totally different throughout,, that successive sets of them can be allowed, and successive trials had.\\nIf the question of capacity is once raised on a caveat to a paper purporting to be a will, the issues must be so framed in the first instance as to present it, so far as the law will permit, in every aspect, and with reference to every part of the paper which the circumstances demand or the parties desire.\\nAppeal from the Orphans\\u2019 Court of Montgomery County.\\nThe case is stated in the opinion of the Court.\\nThe cause was argued before Alvey, C. J., Stone, Miller, Robinson, Irving, and Ritchie, J.\\nThomas Anderson, and Wm. P. Maulsby, Jr., for the-appellant.\\nIf the testator were of sound and disposing mind, memory and understanding at the time he dictated said will, down to clause five thereof, and the will, dictated as aforesaid down to said clause, disposed of his entire es tate, and was intended by him to operate as his will,, then it was a valid will of personal property, and the testamentary intention could not be defeated by the scrivener writing other clauses to the will after the testator had so lost consciousness, and without his dictation or direction. Weems vs. Weems, et al., 19 Md., 343 and 347; Boofter vs. Rogers, 9 Gill, 44; Dorsey\\u2019s Testamentary Law, 61; In re Welsh, 1 Redfield\\u2019s Surrogate Reports, (New York,) 238; Redfield\\u2019s American Cases on the Law of Wills, 513, 514; Munnikhuysen vs. Magraw, 35 Md., 280.\\nIf the issues sent to the Circuit Court for trial required the jury to pass upon the paper as an entirety, and did not permit them to exclude by their verdict the portion thereof written by the scrivener after the testator had lost consciousness, and pass upon the residue thereof, then under the circumstances of this case the appellant is entitled to have new issues framed and sent to said Court, so that the jury may pass upon the validity of said paper as a will, down to clause five. Pegg, et al. vs. Warford, 4 Md., 390, 393; Diffenderffer and Hungerford vs. Griffith and Griffith, Executors, 57 Md., 81 and 87.\\n\\u2018 The only way the appellant could have the will down to clause five, appointing an executor, passed upon by the jury, was to apply to the Orphans\\u2019 Court for new issues, since the Circuit Court had no power to modify the issues sent to it by the Orphans\\u2019 Court for trial, or to direct a qualified finding upon them by the jury, and if the jury had found for the appellant on those issues, they would have found for the paper as an entirety, and part of the judgment of the Orphans\\u2019 Court on such finding would have been the grant of letters testamentary to the appellant ; consequently the appellant could not have reversed, by appeal to this Court, the rulings of the Circuit Court rejecting his instructions, asking that a portion of said paper-writing be submitted to the jury. Cook vs. Carr and Wife, 20 Md., 403, 410; Griffith vs. Diffenderffer, et al., 50 Md., 466, 489.\\nJames McSherry, and James B. Henderson, for the appellees.\", \"word_count\": \"4892\", \"char_count\": \"27548\", \"text\": \"Miller, J.,\\ndelivered the opinion of the Court.\\nThis appeal is from an order of the Orphans' Court refusing to grant a second set of issues involving the validity of a will, and it presents a singular and novel question.\\nA paper-writing, purporting to he the last will of Michael Leather, was propounded for prohate. The name of the alleged testator was signed by Warner Welsh, the scrivener who prepared the instrument. It is also duly attested by three witnesses, but as all the estate of the deceased consisted of personal property, this attestation was, as the law then stood, unnecessary. It contains five clauses. In each of the three first there is a legacy of $2000 to a named legatee. The fourth is the residuary clause disposing of all the rest and residue of his estate, and the fifth appoints Andrew J. Tabler his executor, and revokes all former wills.\\nA caveat was filed and, after the usual proceedings, five issues were sent to a Court of law for trial. Of these the first is, was this instrument sufficiently executed to pass personal property ? the second were its \\\" contents \\\" read to or by the alleged testator, or known by him \\\"at or before the time of the alleged execution thereof?\\\" the third, was it his last will and testament ? the fourth, was he \\\"at the time of the alleged execution\\\" thereof of \\u2022sound and disposing mind, capable of executing a valid deed or contract? and the fifth, was its execution procured by undue influence or fraud? At the trial the verdict was for the caveator on all the issues except the last. In other words the jury found, upon all the testimony before them, and under instructions as to the law (which the re cord shows the Court gave) that this instrument was not sufficiently executed to pass personal property, that its contents were not read to or hy the deceased, or known hy him at or before the time of its alleged execution, that it was not his last will and testament, and that at the time of its alleged execution he did not have testamentary capacity. No exceptions to the rulings of the Court appear to have been taken, nor was any appeal prosecuted; hut a motion for a new trial, upon the ground that the verdict was against the evidence and the instructions of the Court, was overruled, and the Court ordered the verdict to he certified to the Orphans' Court.\\nBefore the Orphans' Court had acted on this verdict, hy refusing probate of the instrument, one of the original cave'atees, (the party named as executor therein) filed a petition in that Court asking for five new issues substantially as follows: 1st. Was this paper-writing down to its fifth clause (which appoints the executor and revokes former wills) sufficiently executed to pass personal property ? 2nd. Were its contents down to said clause, read to or hy the deceased, or known hy him at the time of the writing thereof? 3rd. Is it down to said clause the last will and testament of the deceased ? 4th. Was the deceased at the time of the writing of said paper down to its fifth clause, of sound and disposing mind, memory, and understanding, and capable of executing a valid deed or contract? 5th. Was he, at the time of the writing of said paper down to its said fifth clause \\\" prevented hy sudden and extreme illness from proceeding further with said paper-writing, said extreme illness thus incapacitating him, continuing to the time of his death ?\\\"\\nThe grounds stated in the petition upon which these new issues are asked, are, that the first issues presented the instrument as an entirety, and required each fact tobe found or negatived as of the whole paper; that Welsh, the scrivener, in his testimony at the trial of the first issues, testified that lie wrote or read over to the deceased \\u2022each and every clause in this instrument down to the fifth, and that this fifth clause was not read to him, nor was the same directed to be so written hy him, nor was it made known to him at or before the execution of the paper ; and that further evidence was also offered tending to show that the deceased was seized with extreme illness immediately before this fifth clause was written, and that at no time thereafter until his death, did he regain sufficient strength and capacity to enable him to finish his said will beyond that clause, and that he did not dictate the writing of that clause, hut the whole of it was copied hy \\\"Welsh from Latrobe's Justice without any suggestion from the \\u2022deceased. The petition then avers that this is a good will to pass personal property, even though this last clause was not read to, or made known to the deceased, if he was prevented by the act of God, or sudden illness from completing the instrument in the way he had designed. To this petition the original caveator, together with other next of kin of the deceased, filed an answer in which they admit that Welsh testified as stated, and also that there was testimony of like effect, as to the time the incapacitating illness supervened, but they aver there was other testimony submitted to the jury tending to prove that the \\u2022deceased was taken ill the day before this paper was written, and that early in the morning of the day it was prepared, and from that time on, was incapable of making a valid deed or contract, and was in that condition of incapacity before Welsh was sent for, and before the alleged dictation commenced, and so continued until his death. The respondents then resist the granting of these new issues upon the ground that the same facts, in substance and in truth, were involved in the former issues and were conclusively adjudicated under those issues, and the interpretation placed upon them hy the Court in the instructions which it gave, and which appear in the record.\\nUpon this petition and answer the Orphans' Court passed an order refusing to grant the new issues and dismissing the petition. From this order the petitioner has appealed.\\nWe do not know what the entire testimony before the jury on the trial of the first issues really was. We can gather some of it from the averments of this petition and answer, and from the instructions granted can infer there was more. One of these instructions, granted at the request of the caveatees, is to the efifect that if the jury find, from all the evidence, that Welsh wrote the introductory clause of the alleged will and read it to the said Leather, and that he then dictated all the clauses disposing of his estate, including the residuary clause, and that Welsh wrote the same as so dictated, and that Leather was then asked who he wanted as executor, and replied \\\" Jack, Jack,- Jack,\\\" and that this was the usual mode by which he designated Andrew J. Tabler, then the instrument was sufficiently made known to him to be a good will to pass personal property, and the verdict must be for the caveatees under the second and third issues, even though the jury should further find that that part of the fifth and last clause which revokes former wills, was not dictated by or read or made known to the said Leather,.prowled they shall further find that he was, at the time of said dictation, of sound \\\"mind, memory, and understanding, and capable of making a valid deed or contract. Row, upon the presumption that the Court would not have granted this instruction unless there was evidence tending to support every hypothesis of fact it contained, the inference is a legitimate one that the deceased not only intended to appoint an executor, in order to complete his will, but named the party he wished to act in that capacity.\\nFrom this meagre disclosure of the testimony it is impossible to say, with certainty, upon what ground the verdict was based. It is highly probable the jury found that incapacity existed before the preparation of the paper was begun, and we are strongly inclined to the opinion that, under the instructions given them, such must be the legal intendment of their verdict. It is possible, however they may have found that the deceased was incapable up to the time of the preparation of the last clause, hut became incapable before the executor was named, and may have thought that upon the issues before them, and the instructions of the Court, they were hound to find against the will unless they believed he was competent when the appointment of the executor was written, and it may he inferred from the rejected instructions that the Court was of that opinion. But assuming the jury did so find, their verdict must he conclusive, at least, that incapacity supervened before the executor was appointed, and, that being so, it is by no means certain that the disposing clauses, even if dictated and written while capacity lasted, could be admitted to probate, especially if there was any evidence that it was his purpose to appoint an executor. Such appointment, though not essential to its validity, is still an important part of a will, and few are made without it. The compensation which our law allows an executor is liberal, and this, where the estate is large or considerable, (as was the case here) is us,ually taken into consideration by a testator and forms part of his testamentary scheme ; and from the granted instruction already referred to, we iiifer there was evidence offered by the appellant himself tending to show that the alleged testator in this case intended to appoint an executor in order to complete his will. No doubt-.the authorities have gone very far in admitting unfinished or incomplete papers as good wills of personal property ; hut here we have a case where a man in a dying condition undertakes to dictate his will to an amanuensis, and while this dictation is in progress his mind gives way before he has time to complete what he evidently deemed an important part of it. We have found no Maryland decision \\u2022which has gone to the extent of holding that in such a state of case, the part of the instrument which he dictated while in possession of his mental faculties can be set up as his will. The case differs materially from those of Weems vs. Weems, et al., 19 Md., 334, and Barnes vs. Crouch, reported in Dorsey's Testamentary Law, 60. In the former, the original record shows that the paper propounded for probate was a complete will disposing -of all the testator's property, and appointing an executor. The Court found from the proof that the testator was capable of making a valid will during all the time he was giving the verbal instructions for the preparation of this paper, and only became incapable later in the day when it was presented to himfor formal execution; and they pronounced it a good will of personalty. In the other case, the terms iCmy executor hereinafter named,\\\" appear in the formal commencement of the will, but it is manifest they were simply copied by the scrivener from the form he was using. There is no proof whatever from any of the witnesses that the testator gave any instructions as to the appointment of an executor, or ever expressed a wish to have one, and the paper contains no such appointnent. Here also the proof was clear that the testatator was of sound mind during the time he gave the instructions, and that he gave all he intended to give; but some time afterwards, when the paper was brought to him to be signed, he was speechless and dying. The order of the Orphans' Court admitting the paper to probate appears to have been affirmed by the Court of Appeals in June, 1834, but no opinion was filed stating the reasons for the affirmance. It is plain, however, that it was not a case where the mind failed and incapacity came on while the dictation or giving of instructions was in progress and before it was completed.\\nStill more does the present case differ from that of Boofter vs. Rogers, 9 Gill, 44. In that case instructions or memoranda for an entire will, including the appoint ment of an executor, were prepared by the testator himself at a time when there was no question as to his capacity,, and these he left with a scrivener with directions to prepare a formal will in accordance therewith. The testator died some months afterwards, hut before the formal will was prepared and executed, and the Court held that such a paper could he admitted to probate, if the more formal will was left unfinished by any act which the law pronounces to be the act of God, provided it is shown that the intention of the deceased that it should he his will continued down to the time when the act of God intervened. There are also several other cases in which the same doctrine has been announced, and this, as it seems-to us, is the extent to which the Maryland decisions have gone. Among the earlier decisions of the English Ecclesiastical Courts, cases can he found which sustain the position that so much of this paper as was dictated while the deceased was of sound mind could he admitted to probate. Billinghurst vs. Vickers, 1 Phillimore, (Ecclesiastical,) R., 67; Wood vs. Wood, Ibid., 357; Nathan vs. Morse, 3 Phill., 529. But in the later case of Montefiore vs. Montefiore, 2 Addams, 354, it was charged that the paper set up as a will of personalty was dictated by the testator, when he was of sound mind, though suffering from great weakness, and that he became incapable of fully executing it. According to this paper, the testator after giving a farm to each of his two sons, gave \\\" all his other property to his wife.\\\" The Court, however, under all the circumstances of the case, refused to admit it to probate, and, Sir John Nicholl, in the course of his opinion, refused his assent to the proposition contended for by one of the counsel, that if a testator dies while the instrument is in progress, that instrument as far as it goes, he its contents and effect what they may, must he valid. In 1 Jarman on Wills, (2nd Amer. Ed.) 137, the learned author states the general proposition to the effect, that the doctrine in favor of imperfect papers obtains only where the defect is in regard to some formal or authenticating act, and not where it applies to the contents of the instrument; for, if in its actual state, the paper contains only a partial disclosure of the testamentary scheme of the deceased, it necessarily fails of effect, even though its completion was prevented by circumstances beyond his control; and'he then refers to this case of Montefiore vs. Montefiore, as sustaining the position, that where a person while dictating his will to an amanuensis is stopped by sudden death, or the rapid declension of his mental or physical powers, such paper cannot be admitted to probate as containing his entire will, without the most unequivocal testimony that the .deceased considered it as finished; and the fact that the paper professes to dispose of the deceased's whole estate is not conclusive as to its completeness, because testators not unfrequently begin with such a universal disposition, and then proceed to bequeath specific portions of their property by way of exception thereout.\\nIt would thus seem at least doubtful whether, assuming the proof to be exactly as the record shows jfie insists it is, the appellant could ever have succeeded in having any part of this paper admitted to probate. But it is not necessary to express a definite opinion either upon this question or upon the question whether the verdict on the first issues must be taken as a conclusive finding by the jury that there was an entire want of capacity during all the time the paper was in course of preparation, nor to rest the decision of the case upon either of these points. There is another ground upon which we think the order appealed from, must be affirmed, and that is, assuming this new set of issues could have been granted if they had been applied for at the proper time, it is too late to ask for them now after a trial and verdict on the first set. The caveat attacked the testamentary capacity of the deceased, and asked for issues submitting that question to a jury. The appellant was not only a party to that proceeding hut was named as executor in the alleged will. When he consented to the first set of issues he knew they raised the question of capacity, and he also knew that at the trial he would he called on to defend the paper from assault on that ground. If he desired to raise the question whether capacity lasted down to the dictation and writing of the fifth clause, and then ceased, then was the time to raise it. The issues now asked could then have been granted, in connection with the other issues, if they could be granted at all, and no excuse is given in his present petition for not asking them then. He does not aver that he was taken by surprise by the testimony which Welsh gave at the trial, or that he did not know at the time the caveat was filed, or could not, by the use of ordinary diligence, have learned what the facts in relation to the condition of the deceased and his dictation of this paper were, and what the testimony of the party who acted as scrivener in .its preparation would be; and in fact we do not see how he could have truthfully made any such averment. He was the custodian of the paper, and in his affidavit before the register when he brought it to the Orphans' Court, he states that he received it from the deceased the very day it purports to have been executed. When it was thus produced in Court and opened to his inspection, if not before, he knew who the attesting witnesses and scrivener were, and the slightest inquiry of them, would have given him information of all the facts and circumstances upon which his present application is founded. With this knowledge or means of knowledge in his possession, he consented to let the original issues go without even the suggestion of any such addition or modification as he now seeks through the instrumentality of a new set of issues. From this it would seem that his purpose was to take the chance under the first issues of sustaining before the first jury the whole will, in which, if he was successful, he would secure the office of executor; and if he did not succeed in that, then to fall hack upon the four clauses which contain the legacies, and of which he and his son receive the larger share, and submit the validity of these to a second jury under a new or modified set of issues. In our opinion there is no law, precedent, or authority which sanctions such a proceeding.\\nIn the case of Pegg vs. Warford, 4 Md., 385, our predecessors have very clearly construed the several sections of our testamentary law which relate to the awarding and trial of issues, and with equal clearness have declared the effects of verdicts thereunder, and how far such verdicts are binding or conclusive upon the Orphans' Courts. In the opinion in that case, which is often quoted, it is laid down that it does not necessarily follow, that the finding of the jury negatively or affirmatively upon the questions submitted by the issues, determines the validity of the paper as a will, because there may he other facts outside of the verdict, and not inconsistent with it which decide the question; and hence it follows, that even after the finding of a jury on issues, other issues in regard to facts not covered by those pronounced upon may be sent, if the final judgment on the paper has not been rendered, so that the Orphans' Court have not only the right, hut are sometimes hound to render their final judgment on the findings of different juries upon different issues. And what is thus meant by \\\" different issues,\\\" they take pains to illustrate in this wise: \\u2014 \\\" thus if an issue he sent to a Court of law which involves only the question of the execution, attestation and publication of the paper, and it he found in favor of the paper, it is still competent to the same party, or any other in interest, to require another issue or issues as to the mental and disposing capacity of the testator, or the exercise of undue importunity or control over him, the practice of fraud upon him, or any other fact not inconsistent with the execution, attestation and publication of the paper.\\\"\\nIt is plain that in the instance thus put, there can be no possible clashing between the several findings, for neither the same facts nor any part of the same facts are submitted by the different issues to the different juries. It is only in rare cases like this where the issues are totally different throughout, that successive sets of them can be allowed, and successive trials had. We find nothing in any of the language used in this carefully prepared opinion of our predecessors, which countenances the idea that they intended to say that a set of issues raising the question of capacity as to a whole paper could be tried, and then be followed by another set, raising the same question as to a part of the same paper, to be tried before another jury; and we are clearly of opinion that if the question of capacity is once raised in a case like the present, the issues must be so framed in the first instance as to present it, so far as the law will permit, in every aspect and with reference to every part of the paper which the circumstances demand or the parties desire. There ought not to be successive sets of issues involving that question and successive trials of it. The practical effect of allowing these new issues to be sent would be little short of granting the appellant a new trial; for the first jury may have found, and, (as we have said,) probably did find upon the evidence before them that incapacity existed before the preparation of the paper was commenced, whereas another jury upon the same evidence may be convinced that it intervened only after the first four clauses had been written, so that he may, upon the same evidence, get a verdict from the second jury, which he could not have obtained from the first. Eor these reasons we shall affirm the order of the Orphans' Court.\\nIt is satisfactory to know that no question like the present, nor any similar one, can arise under any will executed since the 1st of August, 1884. Nearly seventy years ago Judge Martin in delivering his opinion in the important case of Tilghman vs. Stewart, (4 H. & J., 165,) said it was much to he regretted that the requisites to constitute a will of personal property were not the same \\u2022as those required for a will of real estate. The Legislature has, at last, heeded this suggestion, and by the Act of 1884, ch. 293, has placed wills of real and personal estate on the same footing by requiring them to he written, signed and attested in the same manner.\\n(Decided 19th December, 1884.)\\nOrder affirmed, and cause remanded.\"}"

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+"{\"id\": \"1813846\", \"name\": \"Murray Kane vs. The State of Maryland\", \"name_abbreviation\": \"Kane v. State\", \"decision_date\": \"1889-05-03\", \"docket_number\": \"\", \"first_page\": \"546\", \"last_page\": \"554\", \"citations\": \"70 Md. 546\", \"volume\": \"70\", \"reporter\": \"Maryland Reports\", \"court\": \"Court of Appeals of Maryland\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-10T23:00:04.267731+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Murray Kane vs. The State of Maryland.\", \"head_matter\": \"Murray Kane vs. The State of Maryland.\\nOyster laws \\u2014 State Fishery force \\u2014 Power to Arrest without Warrant \\u2014 Proceedings before a Justice of the Peace\\u2014 Jurisdiction \\u2014 Act of 1878, ch. 359 \\u2014 Act of 1886, ch. 296, sec. 41, {Art. 72, sec. 37, of the Code of 1888,) \\u2014 Act of 1884, ch. 510 \\u2014 Appeal.\\nThe owner of a sloop was licensed to dredge for oysters within certain limits in Maryland. The person in charge of the vessel was arrested without a warrant by officers of the State fishery force, upon the charge that he did not have the number of the license displayed on the vessel as required by section 7 of the Act of 1878, chapter 359. The accused being carried before a justice of the peace, waived a jury trial, and elected to be tried by the justice, and was found guilty, and sentenced to pay a fine and costs. The return of the justice to a writ of certiorari issued by the Circuit Court of the county contained a copy from his docket which failed to show by whom or under what authority the accused was arrested, or under what statute the justice proceeded. The writ of certiorari was quashed by the Circuit Court, and upon a writ of error it was Held:\\n1st. That the defective record made by the justice in these particulars was aided and made certain by the statements and admissions of record contained in the petition of the plaintiff in error for the writ of certiorari.\\n2nd. That the question was not whether the proceeding before the justice was in all respects regular, and free from error, but whether he acquired jurisdiction of the person of the plaintiff in error, and of the subject-matter of the accusation, and acted within the limits of such jurisdiction.\\n3rd. That under section 41 of the Act of 1886, chapter 296, now section 37 of Article 72, of the Code, the State fishery force have the power to arrest on view without warrant.\\n4th. That nothing appearing to the contrary, it must he presumed the arrest -was lawfully made.\\n5th. That it w'as not necessary that the justice should set forth, as the basis of his judgment, all the circumstances of the arrest of the party accused, or whether the arrest was made with or without warrant.\\n6th. That as it was apparent from the entries of the justice in his docket, that the party was before him on a charge of violating the law, and elected that the justice should exercise his jurisdiction, rather than be held for trial in the Circuit Court by jury on indictment, this was sufficient to show that jurisdiction was obtained by the justice.\\n7th. That the statute does not require in cases like the present, that a written charge be filed with the magistrate, as the foundation of his proceeding; and however desirable it may he, as a matter of good practice by magistrates, that such written charge should be filed in all cases of arrests without warrant, its omission can in.no way affect the question of the jurisdiction of the magistrate.\\nUnder the Act of 1884, ch. 510, giving magistrates concurrent jurisdiction with the Circuit Courts in certain enumerated cases, if the party accused waives his right to a trial by jury, afforded by the Act, and elects to be tried by the magistrate, he has no right to ask a review' of the judgment against him, (except where there is a want or failure of jurisdiction) except in cases where the right of appeal is given by statute.\\nAppeal as upon Writ of Error, from the Circuit Court for Talbot County.\\nThe case is stated in the opinion of the Court.\\nThe cause was argued before Alvei', O. J., Miller, Eobistson, Bbtax, and McSiierry, J.\\nSewell T. Melbourne, for the plaintiff in error.\\nWin. Pinkney Whyte, Attorney-General, for the defendant in error.\", \"word_count\": \"2724\", \"char_count\": \"15416\", \"text\": \"Alvey, C. J.,\\ndelivered the opinion of the Court.\\nThis case is here upon error assigned in the judgment of the Court below in quashing the writ of certiorari issued to a justice of the peace of Talbot County, requiring him to produce the record of conviction of the plaintiff in error, for the alleged violation of the. Act of 1878, ch. 359, one of the local oyster laws of the State.\\nIt appears, from the petition of the plaintiff in error filed for the writ of certiorari, under oath, that the owner of a certain sloop, called the \\\" George Washington Eaunce,\\\" was licensed to take oysters with dredge, scoop, or scrape, in certain waters within Dorchester County, and in the waters of the Choptank river, between and within Dorchester and Talbot Counties, for the season of 1888-1889: That the plaintiff in error, being in charge of said boat, was, on the 15th of January, 1889, arrested, and the boat was seized, by officers of the State Fishery Force, upon the charge that the plaintiff in error did not have the number of the license displayed on the boat, as required by section 7 of the Act of 1878, ch. 359: That on the 16th of January, 1889, the plaintiff in error was carried before Edward J. ;Stevens, a justice of the peace of Talbot County, to be dealt with according to law \\u2014 it being conceded that the arrest was made without the legal process of warrant for that purpose. It is further alleged in the petition., that on the 21st of January, 1889, the case was tried by the justice, upon the charge aforesaid, and that judgment was rendered, finding the plaintiff in error guilty, and thereupon a fine of $25 was imposed, with costs; and that the plaintiff in error was committed to jail until the fine and costs were paid. The petition alleges that many errors and irregularities were committed by the justice in his proceeding, and princij>ally, that the justice failed to acquire juris diction in the matter, hy reason of the fact, that the arrest had been made without warrant, and that no charge in writing was presented to the justice, setting forth and describing the offence, whereon to found his proceeding. The justice, in his return to the writ, sent up to the Circuit Court the following copy from his docket, as containing the entire record of the proceedings that took place before him, to wit:\\n\\\" State of Maryland s January 16, 1889. Charge vs. I of having no numbers dis-Murray Kane, f played: Waived a jury Sl'p G. W. Faiince. J trial: Ouilty, fine $25 and costs, and stands committed until fine and costs are paid: Parties committed to jail. Eo other papers in this case. Witness my hand and seal.\\nE. J. Stevens, J. P. [Seal.]\\nTrue copy \\u2014 Test: E. J. Stevens, J. P. [Seal.]\\nUpon this return the Circuit Court quashed the writ of certiorari, holding that the justice had jurisdiction of both the person of the plaintiff in error and of the subject-matter of the accusation; and that ruling is assigned as error in the judgment of the Court below.\\nThe record of the proceeding before the justice is certainly of a very meagre and inexplicit character. It neither shows by whom, or under what authority, the plaintiff in error was arrested and brought before the justice for trial; nor does it show under what statute the justice proceeded. But the defective record made by the justice in these particulars is aided and made certain by the statements and admissions of record contained in the petition of the plaintiff in error for the writ of certiorari. In that petition it is stated that the arrest of the plaintiff in error was made hy the officers of the State Fishery Force, and that such arrest was made for the alleged violation of the provision of the 7th section of the Act of 1878, ch. 359, requiring the number of the license to be painted on the boat, &c.; and that it was upon that charge that the plaintiff in error was tried and convicted by the justice. The question here is, not whether the proceeding before the justice was in all respects regular and free from error, but whether he acquired jurisdiction of the person of the plaintiff in error and of the subject-matter of the accusation, and acted within the limits of such jurisdiction; for if he rightfully acquired such jurisdiction, and acted within the limits thereof, the Court below was clearly right in quashing the writ of certiorari.\\nThe State Fishery Force is a marine police, constituted by statute, for the purpose of enforcing the legal regulations prescribed,for and required to be observed in the taking of both shell and floating fish, within the tidal waters of this State, and particularly the oysters of those waters. The present Fishery Force was organized under the provisions of the Act of 1886, ch. 296, repealing and re-enacting former statutes upon the subject, with amendments, to \\\"provide further police regulations for the protection of the oysters in the waters of this State ;\\\" and which latter statute is incorporated in the Code of 1888, as Article 72, tit. \\\"Oysters.\\\" It is made the duty of this police force to execute all warrants directed to it, founded upon information, for the apprehension of parties offending against the regulations prescribed by the statutes upon the subject; and it is required to patrol the tidal waters of the State, for the purpose of detecting and arresting all violators of the law; and when offenders are detected in the act of violating the law, it is made -the duty of this police force to arrest at once the party or parties offending, without the delay of procuring a warrant for the pur pose. By section 41 of the Act of 1886, ch. 296, now-section 81 of Article 12 of the Code, it is declared that the said State Fishery Force shall have charge and control of the enforcement of all laivs of this State, relating to fish, whether general or local; and that they shall arrest and bring to trial all persons found violating any Acts of Assembly, and cause them to be tried and punished, as provided by law. Indeed, without the power to arrest on view without warrant, it would, in the nature of things, be quite impossible to execute the law with any degree of efficiency. And it being settled that such is the power of police officers on land, we can perceive no sufficient reason for holding that the same rule should not apply in the execution of the duties of the police force on water. Mitchell, et al. vs. Lemon, 34 Md., 116.\\nIt is true it is not shown by any direct averment or admission that the party arrested was at the time in the act of violating the law; but it is admitted, by averment under oath, that he was at the time in charge of a licensed boat, and the alleged offence was'that the boat was without the number of the license disjfiayed, as required by law. Nothing appearing to the contrary, it must be presumed that the arrest was lawfully made. As a general rule, an officer is always presumed to have acted in conformity to his'duty and the requirement of law, until that presumption is overcome by proof; the maxim being omnia prcesumuntur rite esse acta. Rex vs. Hawkins, 10 East, 211, 216; Hartwell vs. Root, 19 John., 345; Bank of the U. S. vs. Dandridge, 12 Wheat., 64; Houston vs. Perry and Williams, 3 Texas, 390. The law will not presume the arrest to have been tortiously made, but to have been made according to law; seeing that the officers had competent authority to make arrest without having legal process for the purpose. Burke vs. Negro Joe, 6 G. & J., 143. But this maxim, omnia prcesumuntur rite esse acta, does not apply to inferior Courts, and proceedings hy magistrates, or others, acting judicially under special statutory powers, so as to give jurisdiction. In all such cases, every fact required hy the statute to give jurisdiction must appear on the face of the proceedings, either hy averment, or hy reasonable intendment. Boarman vs. Israel and Patterson, Ex'rs, 1 Gill, 372, 381; Swann, et al. vs. Mayor, &c., of Cumberland, 8 Gill, 150. But if it appear that jurisdiction was obtained, both of the person and subject-matter, and that such jurisdiction has not been exceeded, the validity of the judgment rendered will not be a\\u00edfected hy the fact that there may have been irregularities and want of form in the proceeding upon which the judgment is founded. Williamson vs. Carnan, 1 G. & J., 196; Taylor vs. Clemson, 2 Q. B., 978, and same case affirmed, 11 Cl. & Fin., 610, 640-1; Broom Leg. Max., (2d ed.) 444, 445, and cases there cited. Such irregularities or want of form, in the proceedings can only be corrected on appeal, in cases where that mode of review is allowed. The writ of certiorari is issued upon the allegation of the want of jurisdiction in the magistrate, or that he has transcended his powers in taking the proceedings complained of; and the Court, upon the return of the writ, does not investigate the merits of the case, but only determines whether the magistrate has acted within the limits of the power or jurisdiction conferred upon him; and if it be determined that he has so acted, and in no way exceeded his jurisdiction, the writ of certiorari will be quashed, as was done in this case. Williamson vs. Carnan, supra; Gaither vs. Watkins, et al., 66 Md., 576.\\nHere the jurisdiction of the magistrate sufficiently appears, though not as formally as could be desired. It is not necessary that the magistrate should set forth, as the basis of his judgment, all the circumstances of the arrest of the party accused, or whether the arrest was made with or without warrant. The party was before the magistrate on a charge of violating the law, and he elected that the magistrate should exercise his jurisdiction rather than he held for trial in the Circuit Court hy jury on indictment. All this is made apparent hy the entries of the magistrate in his docket; and this, we think, is sufficient to show that jurisdiction was obtained hy the magistrate. Taylor vs. Clemson, 11 Cl. & Fin., 640-642. It is objected that no written charge was filed with the magistrate, as the foundation of his proceeding. But no such requirement is made by the statute in cases like the present; and however desirable or proper it may be, as matter of good practice hy magistrates, that such written charge should be filed in all cases of arrests without warrant, its omission can in no way affect the question of the jurisdiction of the magistrate. Reg. vs. Millard, 1 Dears. Cr. Gas., 167. The charge is entered briefly by the magistrate in his docket, and it is upon this-that he proceeds to trial and judgment.\\nThe plaintiff in error, as already stated, was charged with the violation of the provision of the 7th section of the Act of 1878, ch. 359, in failing to exhibit on the boat in his charge as master the number of the license held; but the proceedings before the magistrate were conducted in accordance with the provisions of the Act of 1884, ch. 510, applicable to Talbot and certain other counties. By this last mentioned Act, if the party accused elects to have his case tried by a jury, the jurisdiction of the magistrate thereupon ceases, and the party accused is simply required to enter into recognizance for his appearance in the Circuit Court, or to stand committed until indictment found. In this case, the party accused waived his right to trial hy jury, and elected to be tried hy the magistrate; and after such election and trial, (except where there is a want or failure of jurisdiction,) the party can have no right to asir a review of the judgment against him, except in cases where the right of appeal is given hy statute.\\n(Decided 3rd May, 1889.)\\nBeing of opinion that the Court below committed no error in quashing the writ of certiorari, we shall affirm its judgment.\\nJudgment affirmed.\"}"

md/1815765.json

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+"{\"id\": \"1815765\", \"name\": \"Caroline Hadaway, by her son and next friend, John E. Hadaway vs. Lavinia Smith\", \"name_abbreviation\": \"Hadaway v. Smith\", \"decision_date\": \"1889-11-14\", \"docket_number\": \"\", \"first_page\": \"319\", \"last_page\": \"322\", \"citations\": \"71 Md. 319\", \"volume\": \"71\", \"reporter\": \"Maryland Reports\", \"court\": \"Court of Appeals of Maryland\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-10T23:26:21.323699+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Caroline Hadaway, by her son and next friend, John E. Hadaway vs. Lavinia Smith.\", \"head_matter\": \"Caroline Hadaway, by her son and next friend, John E. Hadaway vs. Lavinia Smith.\\nConveyance by Married woman \\u2014 Insanity of Husband \\u2014 Art. 45, see. 2, of Code.\\nFnder. section-2, of Article 45, of the Code, which provides that where the husband is a lunatic, or insane, and has been so found upon inquisition, and said finding- remains unreversed, and in force, the wife may convey her property as fully as if she were a feme sole, by her separate deed, whether the same be absolute, or by way of mortgage, she may mortgage her property, her husband having been declared insane by the special verdict of a jury in a criminal case, and being in confinement in a hospital for the insane under an order of the Court.\\nAppeal from the Circuit Court for Kent County.\\nThe case is stated in the opinion of the Court.\\nThe cause was submitted on briefs to Alvey, C. J., Miller, Robinson, Irving, Bryan, and McSherry, J.\\nHope H. Barroll, and Albert Constable, for the appellant.\\nJames A. Pearce, for the appellee.\", \"word_count\": \"1152\", \"char_count\": \"6463\", \"text\": \"Miller, J.,\\ndelivered the opinion of the Court.\\nThis is an action of \\\"ejectment, brought on the 3rd of January, 1888, by Mrs. Caroline Hadaway, a married woman, by her son and next friend, against Lavin'ia Smith, for a tract of land in Kent County, containing about one hundred and thirty-two acres, which was devised to the. plaintiff by her father, John P. Smith, who died in January, 1811.\\nProm the pleadings and admissions in the record, the following facts upon which the defence is based, appear to be. undisputed: On the 1st of October, 1812, the plaintiff, with other parties, executed two mortgages of this and other lands to Richard Hynson, one to secure the sum of $10,000 payable on the 1st of October, 1815, with interest payable semi-annually, and the other to secure the sum of $3,500, payable on the 1st of October, 1816, with interest also payable semi-annually; and each contained a power of sale in case of default in payment of principal or interest. Under these powers of sale, Hynson, on the 20th of June, 1816, sold all the mortgaged property, including the land in controversy, to the defendant, who became the purchaser thereof, and this sale has been duly reported to the Circuit Court for Kent County for confirmation, where it is now awaiting the action and decision of that Court. Under this purchase the defendant entered upon the land and ejected the plaintiff. The husband of the plaintiff did not unite with her in the execution of either of these mortgages, but in each it is recited that she is the \\\"wife of James H. Hadaway, who is a lunatic, or insane, and has been so found upon an inquisition in the Circuit Court for Kent County, and said finding remains unreversed and in force. \\\" The plaintiff was married in 1853, and in 1858 her husband was indicted and tried in the Circuit Court for Kent County for an assault with intent to kill one James E. Clark. At the trial the plea or defence of insanity was set up, and the jury returned a special verdict \\\"that the traverser, at the time of the commission of the offence for which he is indicted, was insane, and that he still is insane;\\\" and thereupon the Court ordered him to be confined in the Maryland Hospital for the insane, at the expense of the county, (it appearing by the evidence that he is without any property,) \\\"until he shall have recovered, and Tin til he shall have been discharged in due course of law;\\\" and he lias remained so confined in the Hospital under this order from that time to the present. This proceeding in the criminal case is expressly authorized by the Act of 1826, ch. 191, now embodied in the Code, Art. 59, secs. 4 and 5.\\nUpon this state of facts the Court below decided that the mortgages were binding upon the plaintiff, and were duly executed by her under that clause of the Act of 1812, ch. 210, (Code, Art. 45, sec. 2.,) which provides that \\\"where the husband is a lunatic, or insane, and has been so found upon inquisition, and said finding remains unreversed and in force, the wife may convey her property as fully as if she were a feme sole, by her separate deed, whether the same be absolute, or by way of mortgage;\\\" and we have no hesitation in affirming this ruling. The clause referred to, with others, was added by the Act of 1812, by way of amendment to the original law, (Code of 1860, Art. 45, sec. 2,) which gave the wife power to devise her property as fully as if she were a feme sole, and \\\"to convey the same by a joint deed with her husband.\\\" It seems to us clear that cases like the present come with- ,m the spirit and intent, if not within the exact letter, of this amendment, and are within the mischief intended to be remedied thereby. The clause does not say that the husband must be found to be insane by the inquisition of a jury summoned hy the sheriff under a writ ele lun\\u00e1tico inquirendo issued by a Court of equity; but its language is, who \\\"is a lunatic, or insane, and has been so found ujaon inquisition.\\\" The special verdict in the criminal case is certainly an ascertainment by a jury of the fact that he was insane at the time of the trial, and fully justifies the conclusion that he had been so found \\\" upon inquisition. ' It was a finding authorized by law, and was just as effectual in establishing judicially the fact of his insanity, as if it had been found upon inquisition under a formal writ de lun\\u00e1tico inquirendo. The order directing his confinement in the hospital until he recovered his reason, and was discharged in due course of law, was one which the law authorized and required the Court to pass in such cases. He has not recovered his reason, or.been discharged from his confinement, but has remained in confinement under this order from its date to the present time; and it may therefore be well said that the inquisition of the jury by which he was found to be insane remained unreversed and in force at the time these mortgages were executed by the wife. Some of the words, taken in their strict, technical sense, are exclusively appropriate to an inquisition under a writ de lun\\u00e1tico inquirendo, and such cases are unquestionably embraced by the clause, but to confine its operation to them would be giving to remedial legislation an unauthorized, technical, and narrow construction, disregarding its spirit and purpose. Further discussion of the subject is unnecessary. We are clearly of opinion the clause covers this case.\\n(Decided 14th November, 1889.)\\nJudgment affirmed.\"}"

md/1832517.json

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+"{\"id\": \"1832517\", \"name\": \"Solomon L. M. Conser vs. Samuel Snowden, Adm'r c. t. a. of Agnes D. Scholl\", \"name_abbreviation\": \"Conser v. Snowden\", \"decision_date\": \"1880-06-30\", \"docket_number\": \"\", \"first_page\": \"175\", \"last_page\": \"186\", \"citations\": \"54 Md. 175\", \"volume\": \"54\", \"reporter\": \"Maryland Reports\", \"court\": \"Court of Appeals of Maryland\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-10T18:40:31.867813+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Solomon L. M. Conser vs. Samuel Snowden, Adm\\u2019r c. t. a. of Agnes D. Scholl.\", \"head_matter\": \"Solomon L. M. Conser vs. Samuel Snowden, Adm\\u2019r c. t. a. of Agnes D. Scholl.\\nDonatio causa mortis\\u2014Its essentials\\u2014What constitutes delivery of money in a Savings Bank\\u2014Rejection of Evidence \\u25a0 no ground of Appeal where its rejection is not prejitdicial to the appellant\\nIt is well settled in Maryland, that there is no difference in the legal requirements to make a good delivery in gifts inter vivos and mortis causa.\\nAlthough a gift moi'tis cama depends for its absoluteness on the death of the giver from the disease threatening life when the gift was made, so that recovery would revoke it, still for the time being, and until recovery, the absolute dominion over the thing given, must be parted with at the time of the gift.\\nS. on the 3rd of April, 1877, being sick at the time, gave O. a written order on a Savings Bank, for the payment to him of a sum of money on deposit in said Bank in her name. A memorandum was added, \\u201c the book must be sent with this order.\\u201d At the same time she gave C. a written order on G. in whose possession her book of deposit then was, requesting G. to deliver said book to 0. The order for the payment of the money, was presented at the Bank by 0. without the bank book, and he was told the money was there, and the order was in proper form, but could not be paid till the book was produced. S. died on the 10th of July, 1877, at a different place from that where the order was given. In an action by 0. against the administrator of S. to recover the amount of the order, the above facts were proven, but there was no proof that C. ever had the bank book in his possession, or that he ever made any efforts to get it; nor did it appear of what disease S. died, or what was her disease at the time the order was given. Held :\\n1st. That'standing as the money did in the name of S. at the Bank when she died, it devolved upon her legal representative, who having properly possessed himself of it, the plaintiff had no enforceable claim against the defendant or the fund.\\n2nd. That there was a serious failure of proof as to the disorder of which the alleged donor died, and it was essential to make the attempted gift, an effective gift mortis causa, that the donor should die of the very disorder with which she was suffering when the gift was made, and that there should be no intervening recovery.\\nWhere a party is not prejudiced by the refusal to permit him to testify, such refusal, even if erroneous, is no ground of appeal.\\nAppeal from the Court of Common Pleas.\\nThe case is stated in the opinion of the Court. The plaintiff excepted to the rulings of the court below, (Brown, J.,) which are sufficiently set forth in the opinion of this Court, and the verdict and judgment being against him, he appealed.\\nThe cause was argued before Bartol, C. J., G-rason, Miller, Robinson and Irving, J.\\nCharles E. Garritee and Charles J. Bonaparte, for the appellant.\\nA valid delivery, in cases of this class, \\u201cmust be according to the manner in which the particular thing is susceptible of being delivered.\\u201d (Hinkley Test. Law, 147.) \\u201cWhere the nature of the thing will not admit of a corporal delivery, * * * * a delivery of the means of coming at the possession, or making use of the thing given, will be sufficient.\\u201d Williams on Executors, 17th Ed., 776. And as will be seen from the cases, these \\u201cmeans of coming at the possession, or making use,\\u201d are often extremely indirect. Jones vs. Selby, Prec. Ch. 300; Smith vs. Smith, 2 Stra., 955; Snellgrove vs. Bailey, 3 Atk., 214; Gardiner vs. Parker, 3 Madd., 184; Blount vs. Burrow, 4 Bro. C. C., 72; Duffield vs. Elwes, 1 Bligh, N. S., 498, (1 Dow. N. S., 1;) Veal vs. Veal, 27 Beav., 303.\\nMore especially, the delivery of a cheque or order on a bank or banker, when made under circumstances satisfy ing the first two conditions of a donatio mortis causa, has heen adjudged a sufficient delivery of the money it calls for. Lawson vs. Lawson, 1 P. Wms., 441; Bouts vs. Ellis, 17 Beav., 121; 4 DeG., M. & G., 249. These cases must be distinguished from Hewitt vs. Kaye, 6 L. R. Eq. Cas., 618, and In re Beaks\\u2019 Estate, 13 L. R. Eq. Cas., 734, where the cheques, although signed in extremis, were intended as absolute and immediate benefactions, and could be effective, therefore, only as gifts inter vivos, though even for this purpose, the delivery in the present case would be sufficient, on the authority of Bromley vs. Brunton, 6 L. R. Eq. Cas., 275.\\nThe true test of sufficiency seems to be that the delivery should be the best which the circumstances of the case permit, i. e. that the donor should indicate his intention to give by acts as unequivocal as the nature of the thing given, and his own physical condition and surroundings allow. Duffield vs. Elwes, 1 Bligh N. S., 498, (1 Dow. N. S., 1;) Story Eq. Jur., ch. X, sec. 607; Brown vs. Brown, 18 Conn., 410; Waring vs. Edmonds, 11 Md., 424; Moore vs. Barton, 4 DeG. & Sm., 517.\\nIf we apply this test, we find that this testatrix did everything which an illiterate and dying woman could do; her bank-book being in the custody of a person living at a distance, and often absent from the city, to give the amount of money covered by her order to the plaintiff, she gave him a cheque in proper form on the Bank for the $1000 ; she gave him a written order on its custodian for the book; she had charged him previously to obtain this and she omitted no act that could possibly aid in effecting her purpose. For the plaintiff to obtain the book from Mrs. G-ambrill, and the money from the Bank, there was no need that the testatrix should perform one act or speak one word more than she did; and to hold the delivery herein sufficient, the Court must find that she could not have made a donatio mortis causa of her hank balance without the concurrence of some third party.\\nThere is, it is confidently submitted, no authority in the Maryland decisions, however it may be as to some dicta, to deny this unfortunate woman the right to do as she would with her own. No case in our reports, or it is believed in those of any reputable jurisdiction, avoids a gift really in expectancy of death, when accompanied by the best delivery the donor could make of its subject-matter, and the appellant claims of this Court a decision, that by the transactions of April 3rd, 1877, he acquired an equitable title to the amount of the order then signed, which a Court of chancery would compel the legal representative of the deceased to perfect.\\nIf this claim is well founded, the appellant was entitled to recover of the appellee the amount of this gift with interest, in the quasi equitable action for money had and received. Smith vs. Jones, 1 Dowl., (N. S.) 526; Marsh vs. Keeting, 1 Bing. N. C., 198; Calland vs. Lloyd, 6 M. & W., 26; Hayslep vs. Gymer, 1 Ad. & El., 162.\\nSamuel Snowden and Thomas A. Whelan, for the appellee.\\nIt is absolutely essential, to render perfect a donatio mortis causa, that the donor should be then in his last illness, and that the gift shall take effect only on the death of the donor by a disorder from which he is then suffering. Hebb vs. Hebb, 5 Gill, 509; Taylor vs. Henry and Bruscup, Adm\\u2019rs, 48 Md., 559.\\nIt is also absolutely essential to the perfection of a gift mortis causa that there be a delivery of the subject of the donation. The subject of the gift here, was a sum of money in the Savings Bank of Baltimore, the donor gave a check for the money, and also an order for the delivery of the bank-book, which was in the hands of a friend, Mrs. G-ambrill; the rules of the Bank which she had at one time in her possession, prescribes that no check would he paid hy the Bank, unless accompanied hy the production of the bank-book.\\nThe delivery must he, according to the manner in which the particular thing is susceptible of being delivered, and that which is not capable of being delivered, is not the subject of donation. It is no answer to this to say, that under the particular circumstances of this case, the party did all that could have been done hy her; she was compelled to do more, the nature of the thing was susceptible of more; it was susceptible of any actual delivery in money, or the actual delivery at least of the bank-book. Pennington vs. Gittings, 2 G. & J., 215; Murray vs. Cannon, Adm\\u2019r, 41 Md., 476; Nickerson vs. Nickerson, 28 Md., 332; Hebb vs. Hebb, 5 Gill, 506; Taylor vs. Henry and Bruscup, Adm\\u2019rs, 48 Md., 559; Bradley vs. Hunt, Adm\\u2019r, 5 G. & J., 58.\\nIn the case of Waring vs. Edmonds, 11 Md., 432, cited hy the counsel for the appellant in the Court below, although the subject of the gift, three negroes, was not personally present, still the party in whose custody they were, was present, and was solemnly charged to fulfil the wish of the donor, which she equally as solemnly promised to do, and actually did. And on page 433, the Court say the party was in extremis unable to write, and fully conscious of her approaching death, declaring the gift and the delivery, and also the open avowal of its acceptance hy the donee.\\nIn this particular case, although the order for delivery of the bank-book was given, still it does not appear that any demand was ever made for it, or any acceptance by the holder of it, and the donor died with it in her possession, as the administrator presented the same to the Bank for payment of the deposits. Until the bank-book was delivered, the party had a right to recall the order, and demand the hook, so there remained at all times a locus penitentiae, and the grantor never parted with the legal dominion over this money; it cannot he held likewise to he a trust, for there is no evidence that Mrs. Gambrill held the bank-book afterwards for the appellant, or that she even knew of the order being given, or in any way accepted it. Had the appellant been allowed to he sworn, he could not have testified on these subjects, and cured this want of proof; so there was no error by the Court, upon which the judgment could he reversed, and the appellee submits that the judgment should he affirmed.\", \"word_count\": \"4274\", \"char_count\": \"23272\", \"text\": \"Irving, J.,\\ndelivered the opinion of the Court.\\nThis is an action of assumpsit instituted by the appellant against the appellee as administrator c. t. a. of Agnes Scholl. The narr. is in the ordinary form, with money counts, and a hill of particulars limits the claim of the appellant to the count for money had and'received to the appellant's use, and defines the claim to he for one thousand dollars with interest accrued, which has been received by the appellee for the use of the appellant, the same having been given the appellant by the appellee's testator as a gift, mortis causa.\\nThe facts essential to a proper understanding of the questions presented for our decision are as follows: Agnes Scholl, who for many years was a servant in the appellant's family, was ill at Bay view Asylum, and the appellant and his daughter, (Mrs. Schaefer) in March, 1811, visited her there. While there, Mrs. Schaefer testifies, \\\"She made remarks and exclamations as though she was suffering pain; she then' said she had a considerable amount of money in a Bank on Gay street, which she wished to leave the appellant; he asked her to leave it to his children instead, and she requested him to prepare a will leaving it equally to witness and her two brothers; she then seemed much worried lest some accident should befall this will, and appellant suggested that she should give him an order for the money on the hank; to this she assented, and asked him to prepare such an order, and also told him to obtain her bank book from a Mrs. Margaret A. G-ambrill, in .whose custody she said it then was; she said she did not remember the exact amount of the balance shown by this book, but knew it exceeded one thousand dollars. On April 3rd, 1877, the witness and appellant went again to see her, when she signed the following will, \\\" In the name of God, Amen! I, Agnes Scholl, of the City of Baltimore, and State of Maryland, being of lawful age and in my right mind, after due reflection, and uninfluenced by any one concerned, and of my own will and accord, do make this my last will and testament. And, first, it is my will that so much of the $65 last deposited in the Savings Bank of Baltimore as may be necessary, be expended to secure my remains a decent Christian burial. Secondly. It is my will that all my other goods and moneys and all my estate and effects whatsoever, be distributed equally between Virginia M. Conser, Carlton Conser and C. Ellsworth Conser, children of S. L. M. Conser, excepting my clothes and household effects, which are stored at Mrs. Louisa Caskie's, which shall be Virginia M. Conser's exclusively. And thirdly, it is my will and pleasure that the said S. L. M. Conser, of the city aforesaid, shall see that this, my will, is fully and truly executed.\\\" This will was attested by V. Marion Conser, (Mrs. Schaefer), and the appellant. The testatrix died on the tenth of July, 1877, and the will filed in the proper office and proved by S. L. M. Conser on the 6th of August, 1877, and at the time S. L. 'M. Conser proved the will, he swore he received it from the testatrix, and had retained it, and knew of no other'. The order given appellant on April, 3rd, 1877, read as .follows:\\n<- Baltimore, April 3rd, 1877. The Savings Bank of Baltimore, pay to the order of S. L. M. Conser, or bearer, the sum of one thousand dollars and-cents, and charge book No.\\u2014. Signed, Agnes X Scholl.\\\" It was witnessed by Y. Marion. Conser. A memorandum was added, \\\"The book must be sent with this order.\\\" The order for the bank book was in these words, \\\" Mrs. Gambrill will please give Mr. Conser my bank book.\\\" It was signed by Agnes Scholl making her mark, and was without witness. This last paper was first in appellant's possession, and was \\u2022 afterwards given to the Avitness, Mrs. Schaefer, who never gave it back as she remembers, and after search it cannot be found, and witness thought it was lost. The order for the money, after it was given the appellant, witness and the appellant took to the Bank and exhibited, and were told the money was there, and the order in proper form, but could not be paid till the book was produced. No proof was offered that the book was ever in appellant's bands, or that he. ever made any effort to get it. It was not shown what became of the bank book. But the appellant, to raise the presumption that it was never returned to the testatrix, proved. by a daughter of Mrs. Gambrill, the custodian of it, that for many years prior .to the 3rd of April, 1811, her mother kept a bank book for Mrs. Scholl; that it was kept in her wardrobe; that witness lived with her mother, and had never known of this book being given up prior to April 3rd, 1811, and believed it was then in her custody. About that time her mother was frequently absent from Baltimore, visiting in Anne Arundel County. The appellant having closed his case without offering any other proof than what has been herein incorporated, the appellee was required by the Court to ask an instruction \\\" that under the pleadings in this cause there is not sufficient evidence on which the plaintiff can recover, and their verdict must be for defendant.\\\" This was done, and the instruction was granted. The granting of this prayer and the refusal to permit the appellant to testify as a witness are the only subjects of exception. We will consider them in reverse order, and first pass upon the second exception, which relates to the instruction given the jury.\\nThe appellant contends that all the requisites necessary to the perfection of a gift mortis causa coexist in this case, and especially complains that in deciding that a sufficient delivery was not effected, so as to entitle the appellant to recover, the Court improperly held there was no difference in the legal essentials of delivery in a gift mortis causa and one inter vivos. To sustain this view, very many cases have heen cited and relied on, which it will not he necessary for us to review or refer to, for the doctrine is well settled in Maryland, that there is no difference in the legal requirements to make a good delivery in gifts inter vivos and mortis causa. According to the decisions in this State, if the delivery in this case was not such as would have made an effective gift inter vivos, it will he insufficient to perfect an attempted gift mortis causa. Pennington, Adm'r, &c. vs. Gittings' Ex'r, &c., 2 Gill & Johnson, 215; Bradley and Wife vs. Hunt, Adm'r of Jack, 5 Gill & Johns., 58; Hebb vs. Hebb, 5 Gill, 509; Taylor vs. Henry, 48 Md., 559. Justice Woodward, in Mitchener vs. Dale, 23 Pa. St. R., 59, concisely defines a gift mortis causa to he that of a \\\" chattel made hy a person in his last illness, or in periculo mortis, subject to the implied condition that if the donor recover, or if the donee die first, the gift shall he void.\\\"\\nIn Taylor vs. Henry, 48 Md., this Court says, \\\" In order to render perfect a donatio mortis causa three things must concur: 1. That the gift he made with a view to the death. 2. That it he with a condition, either express or implied, that it shall take effect only on the death of the donor, hy a disorder from which he is then suffering ; and 3. That there he a delivery of the subject of the donation.\\\" In that case, as here, the claim was made to a fund on deposit in hank, which was claimed as a gift of that character. In that case 'the deceased was suffering from the disease of which he died. After the deposit of the money in Bank to the credit of himself and his sister, and subject to the order of the survivor of them, the deceased made a will, in which he disposed of his estate between his mother and sisters, one of whom was the claimant, afterwards, of all as a gift. He had no property hut that fund. The Court held it to he clearly neither a gift inter vivos nor mortis causa. In Pennington's Case the alleged donor had a certificate of stock in the Commercial and Farmers Bank of Baltimore, which shortly before his death he endorsed, and handed to the donee, saying, lie gave her the stock; hut the certificate was not in the life time of the testator taken to the Bank, that the stock might he transferred to Mrs. Patterson on the hooks of the Bank. The Court held that it was stock which was intended to he given, and there was therefore no delivery of it. The Court said it was like the case of Mary Tate vs. Hilbert, and Jane Tate vs. Hilbert, 2 Vesey, Jr., 112, where a man, a short time before his death, gave a check on his banker, which was not presented for payment before the death of the donor, and it was held that as the check was not presented and paid in the life-time of the maker, the intended donation of the money was defeated for want of delivery ; notwithstanding the holder of the check by presenting and obtaining payment in the lifetime of the maker could have perfected the gift. This case of Tate is fully adopted by the Court in Pennington's Case as laying down the law properly; and the Court say with reference to the question before them, whether it was an attempted gift inter vivos or mortis cousa, made no difference. If in the Tate Case the holder of the check was not entitled to relief in equity, it is very clear that this appellant was not entitled to recover, upon his proof, from the appellee, adm'r, of Agnes Scholl, in his suit at .law. In this case it was the money which was sought to he given, and an order was given for its payment to the appellant, and although he .does appear to have gone to the Bank with his order, he was not paid, hut was told it could not he paid without the hank hook being brought with the order. Indeed he had notice of this rule of the Bank, for it appears the very order which he took contained a notice endorsed that the hank hook must be presented with the order. It is true he appears to have had an order on the custodian of the bank hook for its delivery to him; but it does not appear that he ever made any demand for it, or ever obtained it, or ever made further effort to procure the money from the Bank. The money which it is alleged was sought to he given was never obtained, and according to the principles settled in the cases already referred to, the gift was \\\"not perfected by a sufficient delivery of the thing given, in the life-time of the appellee's testator. Although such gift depends for its absoluteness on the death of the giver from the disorder threatening life when the gift was made, so that recovery would revoke it, still, for the time being and until recovery, the absolute dominion over the thing given must he parted with at the time of the gift. In this case it is clear that so long as the money was in the Bank in her name, she or any other person with an order from her, on presenting the hank hook, could have drawn the money, notwithstanding the appellant had an order for it. He never was in condition to secure the payment from the Bank, and payment hv the Bank to any one .else properly equipped with an order and the hook, would have been legitimately made. ' Standing, as the money did in Agnes Scholl's name, at the Bank when she died, it devolved upon the legal representative, who has properly possessed himself of it, and the appellant has no enforcible claim against the appellee or the fund. In addition to the defective delivery, on which ground we were told at the hearing, the Court below based its instruction, there was a serious failure of proof as to the disorder of which the alleged donor died. As we have already said it was essential, to make the attempted gift, an effective gift mor Us causa, that the donor should die of the very disorder with which she was suffering when the gift was made, and that there should have been no intervening recovery. In this case the character of the sickness with which she was suffering at the time the transaction took place, was very imperfectly described. She is represented as making exclamations indicative of suffering, and that is all. At that time she was at Bayview Hospital. She died in an entirely different institution\\u2014St. Agnes Hospital, to which she removed. How or when she removed does not appear. In what condition she was after the third day of April, does not appear. Whether the. same disorder with which she was suffering on the 3rd of April continued, and finally proved fatal, is not shown. We only know that three months and more after the third of April, she died in an entirely different locality. There is not a tittle of evidence as to the final cause of death; so that another ingredient of a gift mortis causa is entirely wanting. There was no error therefore in the instruction given by the Court, to which exception has been taken. Having decided that there was in this case no gift causa mortis, it becomes wholly unnecessary to decide the question of evidence ; for even admitting the Court erred in the refusal to permit the appellant to testify, but upon which we express no opinion, the appellant was not prejudiced by it. We are not informed what he expected to prove, but it is very certain he could not prove the delivery of the money to him, for if he had got it he would not now be suing for it. The judgment will be affirmed.\\n(Decided 30th June, 1880.)\\nJudgment affirmed, with, costs.\"}"

md/1842554.json

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+"{\"id\": \"1842554\", \"name\": \"M. K. Walsh vs. Mary E. Taylor\", \"name_abbreviation\": \"Walsh v. Taylor\", \"decision_date\": \"1874-03-03\", \"docket_number\": \"\", \"first_page\": \"592\", \"last_page\": \"600\", \"citations\": \"39 Md. 592\", \"volume\": \"39\", \"reporter\": \"Maryland Reports\", \"court\": \"Court of Appeals of Maryland\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-10T23:04:21.726033+00:00\", \"provenance\": \"CAP\", \"judges\": \"The cause was argued before Bartol, C. J., Stewart, Grason, Miller, Alvey and Robinson, J.\", \"parties\": \"M. K. Walsh vs. Mary E. Taylor.\", \"head_matter\": \"M. K. Walsh vs. Mary E. Taylor.\\nWhat does not constitute a Trespass \\u2014 Instruction.\\nThe plaintiff purchased of the defendant certain articles of furniture, and paid part of the price at the time, and agreed to pay the balance in weekly instalments of one dollar. By a written contract entered into at the time, and signed by both parties, and admitted in evidence without objection, it was agreed that if before full payment, the plaintiff should part with the possession of the goods, or if there should be default in the payment of any one of the weekly instalments, for three successive weeks, the defendant should have the right to reclaim and take possession of the goods wherever the same might be found, it being understood that the sale was conditional only, and that for the retaking possession, the defendant or his agent should not be subject to any proceeding criminal or civil; and it was further agreed that all payments of instalments should be regarded as forfeited upon default by the plaintiff in making the weekly payments. Upon default made by the plaintiff in complying with the contract, the defendant called with three of his agents at the house of the plaintiff, and according to the evidence on the part of the plaintiff, demanded payment of the money due or a return of the furniture; and the plaintiff being unable to pay the money, and refusing to deliver up the furniture on the defendant\\u2019s demand, the latter called in one of his men to take the furniture away, and proceeded up stairs in search of it, and entered the rooms and examined the furniture therein against the remonstrance of the plaintiff. The jilaintiff herself testified that her servant opened the front door, on the ringing of the bell, and the defendant entered the house, and then told her, the plaintiff, that he had come to take away the furniture, and she proposed to deliver up one of the articles in payment of the balance (lae, but that the defendant refused to accede to her proposition. It was proved on the part of the defendant that upon being told by the plaintiff, that she was unable to pay the balance due, and it being proposed that he should take back one of the articles purchased and thus settle the matter, he acceded to the proposition, and thereupon called in one of his agents to assist in removing the article, and proceeded up stairs to get it, where, as he was informed by the plaintiff, it was to be found: that he did not find it and left the house without it. The plaintiff sued the defendant in trespass for breaking and entering her dwelling house and making a noise and disturbance therein &c. The defendant pleaded that he did not commit the wrongs alleged. At the instance of the plaintiff the Court instructed the jury that if they believed that the defendant entered on the premises of the plaintiff against her consent, or having entered into the hall or passage of her house, without her knowledge, afterwards, and against her consent, went into the rooms, &c. of her house, and inspected and handled the furniture therein, the said mtrance was a trespass ah initio, and the plaintiff was entitled to damages &c. On appeal by the defendant, it was Held :\\nThat the Court below erred in instructing the jury upon the evidence, that the entrance into the dwelling house of the plaintiff by the defendant was a trespass ah initio. The contract signed by the parties, gave the defendant a license coupled with an interest; and as such the plaintiff could not withdraw from it, and hold the defendant as a trespasser for doing what she had agreed he might do with impunity.\\nThe defendant having authority to enter the house of the plaintiff, for the purpose of retaking his goods, had authority to take such agents or assistants with him, as were necessary to accomplish the act authorized to be done.\\nWhere the Court is called upon by the plaintiff to instruct the jury as to the right to recover upon an assumed state of facts; if the proof of the defendant would clearly establish any proposition or right inconsistent with the theory of the instruction asked by the plaintiff, based upon his own evidence, such instruction should not be granted, because it must assume, or admit the truth of all the defendant\\u2019s proof on the subject.\\nAppeal from the Superior Court of Baltimore City.\\nThe case is stated in the opinion of the Court.\\nException. \\u2014 The plaintiff offered two prayers, which the Court (Dobbin, J.) granted ; the first is set out in the opinion of this Court, the second is as follows:\\nIf the jury find from, the evidence that the defendant came unlawfully into the premises of the plaintiff, and then and there conducted himself in a violent and angry 'manner, using abusive and insulting language to the plaintiff, and putting her and her family into bodily fright and alarm, their verdict should be for the plaintiff, \\u25a0and they may find punitive and exemplary damages, and in such an amount as they shall think will redress the wrongs suffered by the plaintiff, and punish the defendant for the wrongs and injuries of which they may think \\u2022he is guilty.\\nThe defendant offered four prayers, the second, third and fourth of which the Court granted, the first as follows, it rejected:\\nThat unless the jury believe from the evidence that the defendant entered the dwelling house of the plaintiff, No. 68 Sharp street, forcibly and against her will, she is not.entitled to recover in this action on the first and third counts in her declaration ; and further, that there is no evidence that the defendant entered said dwelling house with force and arms.\\nTo the ruling of the Court in granting the plaintiff\\u2019s prayers, and rejecting the first prayer of the defendant, he excepted, and the verdict and judgment being against him, he appealed.\\nThe cause was argued before Bartol, C. J., Stewart, Grason, Miller, Alvey and Robinson, J.\\nSeverely Johnson, for the appellant.\\nAllan B. Magruder, for the appellee,\\nRelied in support of the plaintiff\\u2019s first prayer on 2 Saunders on Pl. & Ev., 854; 9 Bacon\\u2019s Abridg., 449, 450, B.; The Six Carpenters\\u2019 Case, 8 Coke, 146; 1 Smith\\u2019s Leading Cases, 259.\\nThe plaintiff\\u2019s second prayer is supported by Young vs. Mertons, 27 Md , 128; Zimmerman vs. Helser, 32 Md., 277, 278.\", \"word_count\": \"2892\", \"char_count\": \"16559\", \"text\": \"Alvey, J.,\\ndelivered the opinion of the Court.\\nThis was an action of trespass by the appellee against the appellant, for breaking and entering the dwelling house of the plaintiff, and making a noise and disturbance therein, and depriving the plaintiff of the use thereof, &e., and to which the defendant pleaded that he did not commit the wrongs alleged.\\nAt the trial below, it was proved, on the part of the plaintiff, that she was keeping a boarding-house, and that she purchased of the defendant certain articles of furniture, and paid part of the price at the time, and agreed to pay the balance in weekly instalments of one dollar. That after the entire balance of the purchase money had fallen due, the defendant, having three men with him, entered the plaintiff's house, and demanded payment of the money due, or a return of the furniture, and the plaintiff being unable to pay the money, and refusing to deliver up the furniture on the defendant's demand, the latter called in one of his men to take the furniture away, and proceeded up stairs in search of it, and entered the rooms and examined the furniture therein, against the remonstrance of the plaintiff. That the defendant and those with him, remained on the premises twenty-five or thirty minutes, against the consent of the plaintiff, and while there the defendant indulged in loud and abusive language ; and that he entered the room of the plaintiff's daughter with such violence as to terrify her. The plaintiff herself stated that her servant opened the front door on the ringing of the bell, when the defendant entered the house, and that he then told her, the plaintiff, that he had come to take away the furniture, and she proposed to deliver up one of the articles in payment of che balance due, but that the defendant refused to accede to her proposition.\\nAfter this evidence on the part of the plaintiff, the defendant then offered in evidence the written contract, signed by both parties, whereby the articles of furniture were- sold, and by such contract it was stipulated and agreed, that the balance of the purchase money for the furniture should be paid in weekly instalments of one dollar, until the whole amount was paid, and that if, before full payment, the plaintiff should part with the possession of the goods, or if there should be default in the payment of any one of the weekly instalments, for three successive weeks, the defendant should have the right to reclaim and take possession of the goods, wherever the same might he found, it being understood that the sale was conditional only, and that, for the retaking possession, the defendant or his agent, should not be subject to any proceeding, criminal or civil. And it was further agreed that all payments of instalments should be regarded as forfeited, upon default by the plaintiff in making the weekly payments, as provided by the contract.\\nIt was also proved, on the part of the defendant, that after default made by the plaintiff in complying with the contract, he, with three of his agents, called at the house of the plaintiff in regard to the furniture, and upon being tpld by the plaintiff that she was unable to pay the balance due, it was proposed that he should take back one of the articles purchased, and thus settle the matter.; that this proposition was acceded to by him, and he thereupon called in one of his agents to assist in removing the article, and proceeded up stairs to get it, where, as as he' was informed by the plaintiff, it was to be found ; though he did not find it, and left the house without it.\\nUpon the evidence the plaintiff prayed for and obtained two instructions to the jury. The first was that if the jury believed from the evidence that the defendant entered on the premises of the plaintiff against her consent, or, having entered into the hall or passage of her house without her knowledge, afterwards, and against her consent, went into the rooms, chambers, or interior passages of her house, and inspected and handled the furniture therein, the said entrance was a trespass ah initio, and the jury could assess such damages for the trespass and injury to the property and personal rights and feelings of the plaintiff, as they might deem a just compensation for the wrong and injury sustained.\\nIn granting this instruction we think the court below fell into error.\\nThere was no plea of leave and license interposed by the defendant; but the contract, signed by the plaintiff, and about which there was no dispute, was admitted in evidence without objection. The instruction, as is perceived, makes no reference whatever to the pleadings in the cause. There was, therefore, no question raised by the instruction as to the pleadings, or the issues formed thereby ; it having been repeatedly decided by this Court that, on such an instruction, the only question presented is, whether the law be properly announced with reference to the facts of the case as they may be found by the jury. Stockton vs. Frey, 4 Gill, 406. And where the Court, as in this case, is called upon by the plaintiff to instruct the jury,, as to the right to recover upon an assumed state of facts, if the proof of the defendant would clearly establish any proposition or right inconsistent with the theory of the instruction asked by the plaintiff, based upon his own evidence, such instruction should not be granted, because it must assume or admit the truth of all the defendant's proof on the subject. McTavish vs. Carroll, 7 Md., 352; Coates & Glenn vs. Sangston, 5 Md., 121.\\nNow the instruction under consideration makes no reference whatever to the agreement in evidence, whereby the defendant was fully authorized to take the goods where-eVer found, in the event of default of payment by the plaintiff: and that she had made default was abundantly established by her own evidence. All the rights and authority of the defendant under the contract, were left out of view, by this instruction. The contract, the construction of which was for the Court, plainly gave the defendant an irrevocable license, or rather, a license coupled with an interest; and, as such, the plaintiff could not withdraw from it, and hold the defendant as a trespasser for doing what she had agreed he might do with impunity. The prayer states no act to have been done by the defendant that may not have been fully authorized by the agreement, in order to regain possession of the goods. Where, for instance, one sells personal chattels on his own premises, and before a reasonable time to remove them-, he forbids the purchaser to enter and take them, it has been held to be a license which he could not revoke within such reasonable time. Nettleton vs. Sikes, 8 Metc., 34; White vs. Elwell, 48 Me., 350. So here, having reference to the agreement, it could with no propriety be said that the simple entry into the house, even without the consent of the plaintiff, if no violence attended the act, constituted a trespass db initio. And the defendant having authority to enter the house for the purpose of retaking his goods, had authority to take such agents or assistants with him, as were necessary to accomplish the act authorized to be done. This was expressly decided in the case of Dennett vs. Grover, Wills Rep., 195.\\nIn the case of Wood vs. Manley, 11 Adol. & Ell., 34, goods which were upon the plaintiffs land were sold to the defendant, and by the condition of sale, to which the plaintiff was a party,- the buyer was to be allowed to enter and take the goods; and in an action of trespass against the defendant for entering the plaintiff's premises to take the goods purchased by him, it was held, 1. That, after the sale, the plaintiff could not countermand the license ; and, 2. That the defendant was entitled to' the verdict, though it appeared that the plaintiff had, between the sale and the entry, locked- the gates and forbidden the defendant to enter, and the defendant- had broken down the gates and entered to take the goods. In that case Lord Denman, Ch. J., said: \\\"Mr. Crowder's argument goes this length ; \\u2014 that, if I sell goods to a party who is, by the terms of the sale, to be permitted to come and take them, and he pays me, I may afterwards refuse to let him take them. The law countenances nothing so absurd as this: a license thus given and acted upon is irrevocable.\\\" And of that opinion were all the Judges. The same principle has been fully adopted by this Court in the case of Long vs. Buchanan, 27 Md., 502.\\nThere is no doubt of the general principle, that where a person has a special privilege or authority to enter upon the premises of another to seize goods, or do other acts, and he exceeds his authority, by doing what he was not authorized or justified in doing, he becomes a trespasser ab initio. All his subsequent acts are trespasses, and he is in the same position as if he was a perfect stranger, acting without any color of excuse or justification. Add. on Torts, 255. But the acts enumerated in the first instruction, given at the instance of the plaintiff, are not stated to have been done with any violence, or with any degree of\\\" force, except as that may be implied from the fact that they were done against the consent of the plaintiff. The defendant entered the house for the purpose of receiving pay, or retaking the articles of furniture, which he had a right to do under the contract; the entry not being at an unreasonable hour, or in any un usual way. The defendant, had the right to take the articles wherever found, and from their character they would most likely be found in some of the chambers of the house. It is, therefore, plain, we think, that this instruction, in the terms given, was inconsistent with the right and authority of the defendant, under the contract, and consequently calculated to mislead the jury.\\n(Decided 3rd March, 1874.)\\nAs to the plaintiff's second prayer, which was granted, and the defendant's first prayer, which was refused, all that is necessary to be said in regard to them is, that we discover no error in the rulings thereon that would justify a reversal. But as we think there was error in granting the plaintiff's first prayer, for the reason stated, the judgment below will be reversed, and a new trial awarded.\\nJudgment reversed, and .new trial aivarded.\"}"

md/1848534.json

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+"{\"id\": \"1848534\", \"name\": \"Samuel E. Schindel and Wife, vs. Henry H. Keedy and George W. Smith, Trustees, and Charles B. Boyle\", \"name_abbreviation\": \"Schindel v. Keedy\", \"decision_date\": \"1876-01-19\", \"docket_number\": \"\", \"first_page\": \"413\", \"last_page\": \"420\", \"citations\": \"43 Md. 413\", \"volume\": \"43\", \"reporter\": \"Maryland Reports\", \"court\": \"Court of Appeals of Maryland\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-11T00:00:55.194843+00:00\", \"provenance\": \"CAP\", \"judges\": \"The cause was argued before Bartol, C. J., Brent, Miller and Robinson, J.\", \"parties\": \"Samuel E. Schindel and Wife, vs. Henry H. Keedy and George W. Smith, Trustees, and Charles B. Boyle.\", \"head_matter\": \"Samuel E. Schindel and Wife, vs. Henry H. Keedy and George W. Smith, Trustees, and Charles B. Boyle.\\nSales under a Decree in Equity \\u2014 Exceptions to Trustees Sales\\u2014 Construction of Mortgages in regard to the mortgage Debts bearing Interest.\\nIt is well settled in this State, that in all sales made under a decree in equity, the Court is in fact the vendor, acting for and in behalf of all parties interested, the trustee being the mere agent of the Court.\\nThe contract of sale in such cases is never regarded as consummated until it has received the sanction of the Court.\\nAll objections to the sale on the ground of error, mistake or misrepresentation, either in regard to the terms or manner of sale; or in regard to the nature and character of the interest in the property decreed to be sold, are open for consideration before final ratification; and when such objections are made the Court will either ratify or set aside such sale, as equity and good conscience may require.\\nWhere a trustee is advised before the sale of a doubt in regard either to the title or the nature and character of the interest in the property to be sold, it is his duty to use all reasonable efforts to disembarrass the title of such doubt in order that the property may bring its fair market value.\\nWhere property was decreed to be sold subject to the lien of certain mortgages, but owing to their peculiar character and phraseology a doubt arose in regard to their construction, and the extent of the liens subject to which the properly was decreed to he sold \\u2014 it was the duty of the trustees before making the sale, to have submitted the matter to the Court for its determination.\\nIf, however, this was not done, and the question was brought to the attention of the Court before the final ratification of the sale, it was the duty of the Court to have decided it a t that time in order to prevent further litigation between the parties.\\nCertain moneys were loaned upon mortgages to S. E. C., by the executors of S. C., in pursuance of a power conferred upon them by his will. By the terms of the will, the mortgagor himself was entitled to the annual interest on the mortgage debt during his life. The mortgages provided only for the payment of the mortgage debt upon the death of the mortgagor, and did not provide for the payment of interest during the life time of the mortgagor, but the provisions of the will under which the executors were directed to .invest the money so that S. E. 0., the mortgagor, should receive the annual interest thereon for life, were set out at length upon the face of the mortgages. A decree was passed for a sale of the mortgaged premises, subject to the lien of the' mortgages. Upon exceptions filed by S. E. 0., the . mortgagor, to the sale made under this decree, it was Held :\\n1st. That when the mortgagor\\u2019s ownership of the property ceased, and it was sold under-the decree, the trust created by the will, and set out at length on the face of the mortgages, attached to the property in the hands of the purchaser.\\n2nd. That the mere fact, that there was no provision in express terms, for the payment of interest during the life of the cestui que trust, in the event of a sale of the property, did not affect the question provided it was fairly inferrible from the face of the mortgages that such was the intention of the parties.\\n3rd. That the sale should be ratified and the purchaser directed to pay to S. E. C. during his life the annual interest on the mortgages, and upon his death to pay the principal of the mortgage debt to the mortgagees.\\nAppeal from the Circuit Court for Washington County, in Equity.\\nThis is an appeal from an order of the Court below, overruling the exceptions of the appellants to the sale made and reported by the appellees Henry H. Keedy and George W. Smith, trustees, and finally ratifying and confirming said sale. The case is stated in the opinion of this Court.\\nThe cause was argued before Bartol, C. J., Brent, Miller and Robinson, J.\\nLouis E. McComas, for the appellants.\\nHenry H. Keecly, for the appellees.\", \"word_count\": \"2700\", \"char_count\": \"15131\", \"text\": \"Robinson, J.,\\ndelivered, the opinion of the Court.\\nThe will of Samuel Schindel directed his executors to invest the distributive share of his son, Samuel E. Schindel in some secure manner, the interest thereon to be received by his said son during his life, and upon his death the principal to be distributed among his children or their representatives.\\nIn pursuance of the power thus conferred upon them, Richard II. Alvey and George Schindel, executors therein named, loaned to the said Samuel E. Schindel, the sum of three thousand four hundred and eighty dollars, the same being the amount of said distributive share, to the interest upon which the said Samuel E. was entitled during his life. To secure the payment of the principal upon his death, two mortgages were executed by him of certain real estate sold under the proceedings in this case.\\nIn these mortgages provision is made for the payment to his children of the principal upon his death, but there is no provision for the payment of the annual interest thereon during his life. The mortgagor himself being entitled under the will of his father to such interest, he was permitted by the terms of the mortgage to appropriate it to his own use.\\nThe will, however, directing the executors to invest the distributive share of Samuel E., the son, in some secure manner, so that he should receive the interest thereon during his life, and upon his death the principal to be distributed among his children, and the object and purpose of \\\"the executors in loaning the principal to the said Samuel E. Scliiudel, in order that he might receive and appropriate the interest due thereon during his life, are set out at length upon the face of the mortgages.\\nSubsequently Samuel E. Schindel mortgaged the same property to other persons, and upon a bill filed by one of the mortgagees to foreclose, all prior and subsequent incumbrancers were made parties.\\nIn their answer to this bill, the executors of Samuel Schindel, say that the mortgages to them were taken as a permanent investment for the object and purposes stated on their face, and that they are not liable to redemption or foreclosure, until after the death of Samuel E. Schindel; and that they can only consent to a sale of the mortgaged premises upon condition, that they are sold subject to said mortgages; that is 'to say, upon condition that the purchaser and those claiming under him, shall pay annually the interest on the mortgage debt to Samuel E. Schindel, during the term of his life, and upon his death to pay the principal of said debt to the mortgagees.\\nThe cause was submitted to the Court below on bill, answer and exhibits, and a decree was passed for the sale of the property, free and discharged of the claims of all parties to the suit, except the claims and liens of the several mortgages to R. H. Alvey and George Schindel, executors of Samuel Schindel.\\nUnder this decree, the property was sold by H. II. Needy and George W. Smith, to Doctor Charles B. Boyle for the sum of eight thousand and five hundred dollars.\\nTo the ratification of the sale thus made Samuel E. Schindel, mortgagor, and Urilla his wife, filed sundry objections, the fifth and sixth being in these words :\\n5. That the purchaser at the sale claims and confidently expects that his said purchase is subject only to the lien of the principal sums named in the mortgages to Richard H. Alvey and George Schindel, executors, and not subject to the interest on said principal sums to be poaid annually to this exceptant Samuel, or to said mortgagees for the use and benefit of said Samuel, wherefore by the ratification of said sale great injustice will be inflicted on this except-ant Samuel and much litigation produced.\\n6. That the precise nature, effect and lien of said two mortgages to said executors as recited therein, as well as in the answer of said executors and in the decree in this cause, does not sufficiently appear in the proceedings and advertisement of sale, and unless the same can be clearly set forth in the final order of ratification, or unless said sale be set aside, great injustice will be done to these exceptants by reason of mistake and error.\\nA petition was also filed by Doctor Boyle, purchaser, alleging that he bought the property under the belief that he was not to pay interest on the mortgage debt due the executors of Samuel Schindel, during the life-time of Samuel E. Schindel, but was liable only to the payment of the principal upon the death of said Samuel E. ; that since the purchase he had heard of the claim of annual interest on said mortgage debt, and that a ratification of the sale would be a fraud upon him, &c.\\nThis petition, and all objections to the ratification of the sale were subsequently withdrawn by the purchaser, but in the statement of facts upon which the case was submitted to the Court, he still claims that under the sale and purchase, he is not liable for the payment of interest on the mortgage debt.\\nThe Court below refused to decide the questions raised by the fifth and sixth exceptions of the appellants, being of opinion they were more properly determinable in a separate suit to be brought for that purpose. These and other exceptions filed by the appellants were overruled, and a general order of ratification passed.\\nThe first question then, is whether it was the duty of the Court, before final ratification of sale, to have decided the questions presented by the appellants' fifth and sixth exceptions ?\\nIt is well settled in this State, that in all sales made under a decree in Equity, the Court is in fact the vendor, acting for and in behalf of all parties interested, the trustee being the mere agent of the Court. Green vs. Clapp, 11 G. & J., 1; Perrin vs. Keitley; 9 Gill, 412; Goldsborough vs. Ringgold, 1 Md. Ch. Dec., 239.\\nThe contract of sale in such cases being one between the Court as vendor, and the purchaser, it is never regarded as consummated until it has received the sanction of the Court. Wagner vs. Marshall & Cohen, 6 Gill, 100. All objections therefore to the sale on the ground of error, mistake, or misrepresentation, either in regard to the terms or manner of sale; or in regard to the nature and character of the interest in the property decreed to be sold, are open for consideration before final ratification ; and when such objections are made the Court will either ratify or set aside such sale as equity and good conscience may require. Bolgiano vs. Cooke, 19 Md., 375.\\nIt is true, in chancery sales in this State, there is no examination of title by an officer of the Court as in England, but where a trustee is advised before the sale, of doubt in regard either to the title or the nature and character of the interest in the property to be sold, it is his duty to use all reasonable efforts to .disembarrass the title of such doubt, in order that the property may bring its fair market value.\\nNow in this case, the property was decreed to be sold subject to the liens of certain mortgages held by the executors of Samuel Schindel. Ordinarily the examination of a mortgage would disclose on its face the extent of the lien thereby created, but owing to the somewhat peculiar character and phraseology of the mortgages in question, a doubt seems to have arisen in regard to their construction, and the extent of the liens, subject to which the property was decreed to be sold.\\nThe 'money was loaned by the executors of Samuel Schindel in pursuance of a power conferred upon them by his will, and by the terms of the will the mortgagor himself, was entitled to the annual interest' on the mortgage debt during his life. The mortgages provided only for the payment of the mortgage debt upon the death of the mortgagor, and the property being sold subject to the liens thus created, a question arose as to whether a purchaser would be obliged to pay the annual interest on said mortgages during the life of Samuel E Schindel, the cestui que trust.\\nIt was known both to the trustees and the purchasers before the day of sale, that a doubt existed in regard to this question, and affecting as it did the value of the property, it was the duty of the trustees before making the sale, to have submitted the matter to the Court for its determination. If, however, this was not done, and the question was brought to the attention of the Court before the final ratification of the sale, it was eminently proper and the duty of the Court to have decided it at that time, in order to prevent further litigation between the parties. The Court through its agents had offered the property for sale subject to certain mortgage liens ; the mortgagees were parties to the proceedings, and if a question arose as to the nature and extent of such liens, it would be contrary to sound policy for a Court of Equity, having jurisdiction of the subject-matter and the parties, to impose upon them the costs and trouble of a separate and independent suit.\\nIf so, we come to the question as to the proper construction of these mortgages. It was argued they did not provide for the payment of interest on the mortgage debt during the life-time of Samuel E. Schindel; but the provisions of the will of the father by which the executors were directed to invest the money so that the said Samuel should receive the annual interest thereon for life, are set out at length upon the face of the mortgages \\u2014thus plainly showing that the object of the executors in making the loan, was to carryout the trust thus reposed in them. The mortgagor himself being entitled to the interest for life, it was altogether unnecessary to require him to pay it to the mortgagees ; and the mortgages therefore provided that he should appropriate it to his own use. If, however, his ownership in the property ceased, and it was sold under a decree at the instance of his creditors, we are of opinion that the trust created by the will, and set out at length on the face of the mortgages, attached to the property in the hands of the purchaser. Any other construction, would defeat the purpose of the trust, which it was the intention of the .executors in taking the mortgages to preserve.\\n(Decided 19th January, 1876.)\\nThe mere fact that there is no provision in express terms for the payment of interest during the life of the cestui que trust in the event of a sale of the property, does not affect the question, provided it is fairly inferrible from the face of the mortgages, that such was the intention of the parties.\\nThe rulings of the Court below, and the final order of ratification of the sale of the mortgaged premises, must be reversed, to the end that an order of ratification may be passed, in which C. B, Boyle, purchaser, shall be directed to pay to Samuel E. Schindel during his life, the annual interest on the mortgages to R. H. Alvey and George Schindel, and subject to the liens of which the property was decreed to be sold ; and upon the death of the said Samuel E. to pay the principal of said mortgage debt to .the mortgagees.\\nRulings and order reversed, and cause remanded.\"}"

md/1854119.json

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+"{\"id\": \"1854119\", \"name\": \"Oscar Trail, use of Kemp and Buckey, use of Jacob M. Buckey, vs. John B. Snouffer\", \"name_abbreviation\": \"Trail ex rel. Kemp & Buckey v. Snouffer\", \"decision_date\": \"1854-12\", \"docket_number\": \"\", \"first_page\": \"308\", \"last_page\": \"319\", \"citations\": \"6 Md. 308\", \"volume\": \"6\", \"reporter\": \"Maryland Reports\", \"court\": \"Court of Appeals of Maryland\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-10T20:35:22.366392+00:00\", \"provenance\": \"CAP\", \"judges\": \"The cause was argued before Le Grand, C. J., Eccleston and Tuck, J.\", \"parties\": \"Oscar Trail, use of Kemp and Buckey, use of Jacob M. Buckey, vs. John B. Snouffer.\", \"head_matter\": \"Oscar Trail, use of Kemp and Buckey, use of Jacob M. Buckey, vs. John B. Snouffer.\\nA judgment of fiat upon a scire facias issued in the name of the legal plaintiff for the use of the equitable plaintiffs is valid, notwithstanding the legal plaintiff was dead at the time the fiat was entered.\\nBut where nfi. fa. on such judgment is issued in the name of the legal plaintiff, the objection may be taken on motion to quash the writ on its return, that such plaintiff was dead when it issued, and the writ will be quashed; sucb objection is made at the proper time and in the proper mode.\\nAfi. fa. cannot be enforced in the name of a deceased plaintiff, if the fact of his death at the date of the writ is relied upon against its validity upon its return.\\nAt common law a judgment cannot be obtained where either party has died if the objection be taken in due time, but if not then made, the judgment concludes all persons from denying the fact of the party\\u2019s existence at the time of its .entry.\\nWhere a new party is to be changed or benefitted after judgment, a scire facias must issue, but in such case also the objection must be made in due time.\\nThe act of 1852, ch. 180, sec. 4, operates per se upon all writs defective in the particulars therein indicated, and makes them valid, subject however to the rights of creditors and purchasers, who became such prior to its passage.\\nThis act affects all parties, except prior creditors and purchasers, with notice of the rights of parties claiming under the defective writs, as fully as if they claimed under process valid at the time of its passage,\\nA trustee of an insolvent claiming under the deed in insolvency, executed after the passage of this act, is not protected by the proviso thereto, even if he be considered a purchaser within its terms.\\nUnder the insolvent system of this State, as it stood at the adoption of the present constitution, arrest for debt was not necessary to entitle a person to its benefits, and hence that system was not abolished by that clause of the constitution which declares, there shall be no imprisonment for debt.\\nAppeal from the Circuit Court for Frederick county.\\nThis was an appeal taken by the appellant, Jacob M. Buckey, from an order of the court below (Nelson, J.,) overruling a motion made by him to amend a writ of fieri facias, and also from the judgment of said court making absolute a rule obtained by the insolvent trustee of the appellee to quash said writ. The facts of the case are fully slated in the opinion of this court.\\nThe cause was argued before Le Grand, C. J., Eccleston and Tuck, J.\\nJoseph M. Palmer for the appellant.\\n1st. It is insisted that the circuit court, erred in discharging the rule of the appellant, and refusing to direct the mistake or misprision of the clerk in issuing the ji.fa. to be corrected and the writ amended. The mistake occurred in this way: An act of the legislature of 1852, ch. 13, changing the terms of the circuit court for Frederick county from the first to the second Monday in November, was passed on the 16th of February 1852, but this law not having been published, the clerk was ignorant of its existence at the time he issued the writ, 9th of April 1852, and he therefore made it returnable on the first Monday of November, as usual. But this error, (if the court below had not the power to correct it, which we insist they had,) is clearly cured by the express terms of the act of 1852, ch. 180, sec. 4, passed on the 25th of May 1852, unless the insolvent\\u2019s trustee can be called a \\u201cbonafide purchaser or creditor\\u201d under the proviso to that section. Snouffer did not apply for the benefit of the insolvent laws until the 3rd of August 1852, after the passage of the act of 1852, ch. 180, and after the fi.fa. had been levied upon his property. Every body was bound to take notice of this act, and therefore it cannot be said that this trustee was a purchaser bona fide, having been appointed after its passage. As to the construction of this statute, see Dwarris on Statutes, 716. There is no evidence in the record to show that at the time of the passage of the act of 1852, ch. 180, the said insolvent had any bona fide creditors except the appellant, and if there were any such creditors at that time, they must show affirmatively that they are within the true meaning of the proviso to entitle them to its benefit. That an appeal will lie from the order refusing to direct the amendment, see 1 H. & G., 404, Union Bank vs. Ridgely. 1 Gill, 52, Gordon vs. Downey. 11 Wheat., 302, Chirac vs. Reinicker.\\n2nd. The court below manifestly erred in deciding that the writ of Ji.fa. should be quashed and vacated by reason of the death of Trail, the legal plaintiff, who died after the rendition of the original judgment, and before the issuing of the sci.fa. and the judgment o\\u00ed fiat. The court below decided that the judgment fiat was a good, legal and valid judgment, and free from error, and from this ruling there was no appeal taken. Now the death of Trail should have been pleaded in abatement to the scire facias, and that not having been done, the objection or fact of death cannot be made available to Snouffer afterwards in any possible way. 1 Comyn's Digest, 65, Abatement, (F. 2.) 16 Johns., 537, 579, Jackson vs. Robins. 1 Chitty's Pl., 441. 6 Randolph, 110, Garrand vs. Henry. Hobart's Rep., 283, Hannor vs. Mase, and note 1.\\n3rd. But Archibold T. Snouffer has no standing in court to make any objection to this judgment or writ, because he is not the legal trustee of the insolvent petitioner, John B. Snouffer. All the proceedings in the case of this application purporting to be made under the provisions of the insolvent laws of 1805, ch. 110, and the supplements thereto, are coram nonjudice and void, because the whole insolvent system of 1805 and its supplements was abolished by virtue of the provision in the present constitution of the State, declaring that there \\u201cshall be no imprisonment for debt.\\u201d The first step under these old insolvent laws upon the part of the applicant, is to show' that he is in custody or actually under arest for debt, and the writ of ca. sa. having been abolished there can now be no such arrest, and hence these laws are now abrogated and annulled.\\nWilliam M. Merrick for the appellee.\\n1st. In refusing leave to amend thefi.fa. the court was acting within the sphere of its discretionary pow'er, and no appeal will lie from such ruling, and hence this appeal should be dismissed. 6 H. & J., 151, Hawkins vs. Jackson. 7 H. & J., 454, Carroll vs. Barber. 2 H. & G., 81, Wall vs. Wall. 7 Gill, 237, Crockett vs. Parke. 2 Lord Raymond, 1061, Reg. vs. Tuchin. 3 Greenlf's Rep., 183, Wyman vs. Dorr. Ibid., 219, Clapp vs. Balch. 9 Wheat., 576, Walden vs. Craig. 11 Do., 280, Chirac vs. Reinicker. 3 Pet., 12, United States vs. Buford.\\n2nd. The defect in the writ is not cured by the act of 1852, ch. 180. Under the act of 1804, ch. 55, the writ must be returned on the first day of the term, and a ji. fa. returnable in vacation is void, and void process cannot be corrected. 3 G. & J., 385, Turner vs. Walker. 2 Johns., 190, Bunn vs. Thomas. 4 Do., 309, Burk vs. Barnard. 1 H. & J., 8, West vs. Hughes. Now by the act of 1852, ch. 180, the courts have not power to amend a void writ, but it says that executions shall be ruled valid notwithstanding mistakes in the return day. This implies that the act does not per se make the writ good, but that there must be a rule laid in each case by the court to show cause -why the writ should not be ruled valid. But the proviso to this act is not confined to creditors or purchasers antecedent to the passage of the law. The law in England and in all the States is, that in the exercise of their discretionary power over amendments courts never allow them to be made to the detriment of rights intermediately, acquired, and the highest equity being the fair and equal distribution of assets among creditors, they will never grant an amendment which will operate to disturb that equality of distribution by assignees in bankruptcy or trustees in insol-, vency, but leave the party to the consequence of any inadvertence. 6 G. & J., 217, State vs. Bank of Maryland. 14 Johns., 219, Bank of Newburgh vs. Seymour. 6 Term Rep., 10, note a. 8 Do., 153, Paris vs. Wilkinson. 3 Pick., 445, Putnam vs. Hall. 9 Do., 167, Emerson vs. Upton. 6 New Hamp., 459, Bowman vs. Stark. 8 Mass., 240, Williams vs. Brackett. 3 Greenlf's Rep., 260, Freeman vs. Paul. 7 Do., 146, Means vs. Osgood. 4 Maule & Selw., 329, Hunt vs. Pasman. These cases are a key to the interpretation of the act of 1852, ch. 380. The courts never allow an unmeritorious amendment. 4 G. & J., 381, State vs. Green.\\n3rd. The ji. fa. was properly quashed, because at the time it bore test, as well as at 1,'ne time it, issued, the nominal plaintiff was dead, and a new sci.fa. was therefore necessary,- unless the assignee had caused the execution to issue in his own name, as he might have done under the acts of 1829, ch. 51, and 1830, ch. 165, sec. 2. Having used the name of the technical plaintiff he must take the consequence of not making his representative a party. The judgment of scire facias, bearing even date with test of execution, does not estop us from showing his death before test day. 3 G. & J., 366, Hanson vs. Barnes. 2 Wms. Saunders, 72. 1 Wils., 302, Earl vs. Brown. 2 Do., 372, Hewitt vs. Mantell. 2 Ld. Raymond, 1280, Colebeck vs. Peck. 1 Term Rep., 463, Kretchman vs. Beyer. The fiction of relation will not be accumulated upon the fiction of estoppel.\\nThe objection that Snouffer\\u2019s trustee has no standing in couit because the insolvent laws were abolished by the new constitution, was not made in the court below, and the appellant is precluded by the act of 1825, ch. 117, from making it here. But if the question-is open, we insist that these laws are not abrogated by the constitution.\", \"word_count\": \"4687\", \"char_count\": \"26112\", \"text\": \"Tuck, J.,\\ndelivered the-opinion of this court.\\nThe facts on which this appeal comes before us,-are these:Oscar Trail obtained a judgment, in 1845, against the appellee, which was entered for the-use of Kemp and Buekey, and afafterwards for the use of Jacob M. Buekey. Trail died in-1848, after which a writ of sci. fa. was issued, in his name,for the use of the equitable plaintiffs, and no appearance having been entered by the defendant, a fiat was awarded in-February 1852. A writ of fieri facias was issued on the 9th-April 1852, in the name of the legal plaintiff,-for the use of the other parties, as the fiat had been- rendered; but this writ was made returnable to the first Monday, of November, when the sittings of the court commenced on the second- Monday of that month. In August 1852, after- this fi. fa. had been-levied on the defendant's property, he applied for the benefit of the insolvent.laws,-and-Archibold-T-Snouffer was appointed' his trustee, to whom a deed was executed, and the party discharged. On the return of this writ of fi. fa., the trustee filed- a \\u00a1notion to quash, on the following suggestions: \\u2014 1st. That She fi. fa. is tested on n day when Trail, the legal plaintiff, was-dead. 2nd. That the writ issued on a day when Trail was dead. 3rd. That the writ is made returnable on the first Monday in November, when the court was not in session. 4th. Is the same, substantially', with the third. 5th. That the fiat was obtained by surprise, and should be stricken out. Accompanying this motion, he filed a record of the proceedings in insolvency.\\nSubsequently, in the progress of the cause, the cestui que use, Jacob M. Buckey, appeared and moved for leave to amend the writ of fi. fa. by inserting the second Monday, instead of the first Monday in November, on the ground, that it was a mistake of the clerk.\\nThe court discharged the motion to strike out the fiat, and, overruling the motion to amend the writ, made absolute the rule to quash, it. From these Last, two rulings, the, cestui que use appealed.\\nIt is conceded, that the judgment on the sci. fa. is to be treated as valid, notwithstanding the legal plaintiff was dead at the time thc fiat was entered. Hawkins vs. Bowie, 9 Gill & Johns., 428. But one of the questions before us is, as to the validity of the writ of fi. fa. issued on that judgment.\\nIt is unnecessary to inquire, whether the error as to the return day can be amended, because we consider that defect cured by the act of 1852, ch. 180-, sec. 4, which provides: \\\"That all writs of execution which have been issued out of any of the courts of this State, between the first Wednesday of November 1851, and the date of the passage of this act,, shall be deemed regular, and ruled valid, notwithstanding errors or mistakes in the test day, in the return day, in the name of the proper judge, or in the style, of the proper court;. provided, however, that nothing in this section contained shall affect or in any wise impair the rights of a bona fide purchaser or creditor.\\\" This act took effect from the 25th of May 1852,. the date of its passage.\\nWe do not agree with the counsel for the appellee, that a. special rule must be laid in each case to give effect to this act, It operates, per se, upon all process defective in the particulars there indicated; and, in all contests relating to such writs, the courts must deal with them as if no such errors had occurred, subject, however, to the rights of creditors and purchasers, who may have become such before the passage of the act. As to all other persons, the act affects them with notice of the rights of others, as fully as if they claimed under process, valid at the time of the passage of the act. In this view of the case the proviso does not protect the appellee, claiming under the deed in insolvency, executed after the passage of the act, even if he be considered a purchaser within its terms;\\nBut the appellee's counsel has presented another objection, which we think fatal to the writ of fi. fa. The cases referred to by the appellants' counsel, do not warrant the conclusion, that the fact of the plaintiff's death, before judgment, can never be afterwards inquired into for any purpose. It is true the judgment cannot be impeached on that ground, but it does not follow, that, in all time to come, the dead plaintiff is to be considered as alive. Upon technical grounds, the law treats the judgment as if the party was alive at the time it was rendered, and died afterwards. If it were otherwise, and the judgment was against a defendant who had died before the judgment, the plaintiff would be entitled to his execution against the property of a dead man, and, if imprisonment for debt had not been abolished, even against his person; because, if the law treats the judgment as having been obtained against a party in esse, and if, as now contended, th.e fact of his death can never be alleged for any purpose, there would be no more reason for denying the validity of the process in the one case than in the other. And, though the anomaly is not likely to occur,, a proceeding on final process might be carried on in th.e names-of parties to the judgment, both of them being dead. It is well-settled, that at common law, a judgment cannot be obtained where either party has died, if the objection be taken in due time; but if not then made, the judgment concludes all persons from denying the fact of the party's existence at the time of its entry. There are exceptions by statute; (Foster's Law of Sci. Fa., ch. 5,) and by our acts of Assembly in reference to the death of parlies in this court. It is equally clear, that where a new party is to be charged or benefitted, after judgment, a sci. fa. must issue. Hanson vs. Barnes, 3 G. & J., 359. But, as in the former case, the objection must be raised in due season. The cases referred to by the appellants' counsel have no application to the point in question. They are merely illustrations of the general doctrine, that the death of the plaintiff must be availed of before the judgment, by plea in abatement. How can that plea be used here? The fact of the party's death can never be alleged to impeach the judgment; but irregularity in reference to writs of fi, fa. can be shown on motion. The objection goes, only, to the fact that the plaintiff was dead when the writ issued; not denying that, in contemplation of law, he was alive when the judgment was rendered. Here the objection is presented at the proper time, and in the proper mode. The question was decided in Earl vs. Brown, 1 Wils., 302, where a fi. fa. was quashed, on motion, because the plaintiff was dead at, the time of the judgment, and it had not been revived by sci. fa. See also Underhill vs. Devereux, 2 Saund. Rep., 72, and notes; and Foster's Sci. Fa., ch. 5, (73 Law Lib., 174,) where the subject is fully treated. It is certainly giving to the judgment sufficient efficacy, when the law allows it to be enforced as if the plaintiff had been alive on (he day of its rendition, but died afterwards. The equitable plaintiff had his remedy, in his own name, under our acts of Assembly, but we can find no case in which a fi. fa. has been enforced in the name of a deceased plaintiff, where the fact of his death, at the date of the writ, has been relied upon against its validity, at the return of the process.\\nWe do not understand that the clerk committed the error of issuing the fi,. fa. in the name of the legal plaintiff. Without deciding whether the writ was amendable, it is clear that if it was not his misprision the party was not entitled to the amendment. For aught that appears to us the writ was issued according to the direction of the party. Nor do we express any opinion on the right of appeal from orders granting or refusing such amendments. On this subject see Crockett vs. Parke, 7 Gill, 237. Shipley's Appeal, 4 Md. Rep., 493.\\nThe appellee's right to avail himself of objections to the proceedings below, depends upon the validity of his appointment as trustee under the insolvent laws, which system, it is said, on the part of the appellant, was abrogated by the article of the present constitution abolishing imprisonment for debt. The point then, on which this part of the case turns is, whether it was necessary, under the insolvent laws, for the petitioner to show that he was under arrest, in order to entitle himself to their protection; for if that system applied only to those who were in that predicament, it, cannot be said to exist when arrest for debt is prohibited by the constitution.\\nThe act of 1805, ch. 110, is not restricted in terms to persons under arrest. The preamble does not assert that they were in confinement, but merely that they were unable wholly to pay their debts. Several of its sections indicate that the act was designed to comprehend all persons who might apply, whether under arrest and confinement, or not. The second authorises any of the persons named in the act to apply to the county court, or \\\"to any judge\\\" thereof incase of his actual confinement.\\\" The third relates to the residence of the applicant, and the assent of his creditors, but there is a proviso which dispenses with such assent, when the party was in actual confinement. Sections 11 and 13, also prescribed what was necessary, or might be done in case of the imprisonment of the petitioner, and among other things, bond was required for his personal appearance, which is not made necessary in any other condition of the party. The implication that persons not in confinement might have applied under these laws, is also supported by the acts of 1807, ch. 150, and 1808, ch. 71, which make special provision for debtors in prison at the time of their application. The twenty-first section of the original act, authorized the courts to extend .the benefits of the act \\\"to all such persons as might apply,\\\" before January 1810, which provision was further extended by the act of 1S09, ch. 179, to all applicants, without limitation of the continuance of the act. The condition of the party did not affect his right to apply, further than by allowing the petitioner, in case of actual confinement, to be presented to a judge out of court. The jurisdiction of the judges of the orphans courts, was by the act of 1817, ch. 183, confined to the release of imprisoned debtors; but by the act of 1827, ch. 70, application might, be made to die county courts, or the judges thereof, or of the orphans courts, by any person having resided in the State two years. Residence is the only condition mentioned in tins act, no reference being made to the arrest or imprisonment of the party.\\nWe believe it to have been the common, though not universal, impression of the bar, that these laws applied only to debtors under arrest. This may have originated from tile fact that few, if any voluntary applications were made; the discharges granted having been to persons who were compelled to avail themselves of the benefit of the acts; and the question having never been presented as a matter of controversy, had not received a thorough examination. A contrary opinion, however, we know to have been entertained by members of high standing in the profession. But the act of 1830, ch. 130, appears to have thrown doubt on the question, or rather to have obscured what was not quite clear before, by providing that it should not be necessary for the applicant \\\"to produce any evidence of iris confinement in jail.\\\" This act does imply, that such evidence was necessary before that time, but it is not expressly required in any of the previous acts. They require the court or judge to be satisfied of the party's residence, and at one time, of the assent of his creditors; but nothing is said about evidence of his arrest or confinement. If the system was designed to embrace only tir\\u00f3se who might be in that predicament, we presume such proof would also have been demanded by the law. We understand that before the act of 1830, the construction of these iaws was not uniform in the several judicial districts, nor indeed, since its passage. In some, that act was taken to be a legislative construction, that under the previous acts, actual confinement was indispensable, and that arrest was necessary afterwards; while in others, it was construed as dispensing altogether with arrest as well as confinement, even if before the act arrest was necessary. The consequence was, that in the latter districts dis charges were granted to persons who were not under arrest at the time of their application, and, probably, valuable estates are now held under these proceedings.\\nThis view of the act of 1830, is sustained, as we think, by the case of Bowie vs. Jones, 1 Gill, 208. It appears by the proceedings on that appeal, that the validity of Bowie's discharge was contested, because there was no proof of his confinement, which, it was said, was necessary to give jurisdiction to the court granting the discharge; to which it was answered f that since the act of 1830, arrest and confinement were not requisite. There was no evidence of the party's arrest. Now if the court had supposed, that in order to give jurisdiction* arrest was necessary, after actual confinement had been dispensed with, they would not have affirmed the validity of proceedings in which the fact of arrest did not appear. The court said, \\\"under the act of 1805, ch. 110, the presentation of a petition by a party in confinement, was alone necessaiy to give jurisdiction, and since the proof of confinement has been dispensed with by the act of 1830, ch. 130, the jurisdiction of the county courts attaches by the presentation of a petition, such as is prescribed by the acts in relation to insolvent debtors.\\\" No form of petition is prescribed by the acts; but the party in his petition must offer to surrender his property, and accompany the same with a list of his creditors, debtors and property, and the courts are authorized to grant discharges on being satisfied of his residence, and at one time, of the assent of his creditors as provided in the acts. We think that the judgment in Bowie vs. Jones, can be sustained, only on the supposition that the Court of Appeals considered arrest as well as confinement, to have been dispensed with by the act of 1830. For if arrest was indispensable there was no such proof to bring the application within the jurisdiction of the court; yet the discharge was sustained, as within their jurisdiction.\\nThese acts are to be construed together, with reference to their intent and policy. Their design was to relieve those, who, \\\"by reason of misfortunes, were unable to pay their debts, and were willing to surrender (heir property for the use of their creditors.\\\" 1805, ch. 110. The system has been modified from time to time, in amelioration of fhe condition of the debtor -class, until, finally, imprisonment for debt has been altogether abolished. With the expediency or policy of such a system of voluutary bankruptcy, we have no concern. It is our duty to expound the law, not to declare what it should be. The legislation of half a century, embracing many acts of Assembly, some of which are not easily comprehended, may be open to cither construction when taken in detached portions, but when considered as a whole, we think, it leads to the conclusion that arrest for debt was not necessary, at the adoption of the present constitution, to entitle a person to be discharged under the insolvent laws of the State. The question is not free from difficulty; and in arriving at this conclusion, we have not overlooked the consideration, entitled to much weight iu doubtful cases, that by one construction titles ac -quired under proceedings, where the debtor had not been ar. \\u00a1rested, may fee sustained, whereas by a contrary,interpretation they might be disturbed. Ram on Judgments, 9 Law Lab. ch. 6 and 14.\\nBelieving that the insolvent laws were not abrogated by the constitution, it follows that, the trustee of John B. Snouffer, bad a standing! n court to object to the validity of the ji. fa. issued on the judgment set out in the record, and that the ruling of the court below must be affirmed.\\nJudgment affirmed.\"}"

md/1860716.json

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+"{\"id\": \"1860716\", \"name\": \"Cumberland Coal and Iron Company and Jonathan W. Magruder, vs. Margaret Tilghman\", \"name_abbreviation\": \"Cumberland Coal & Iron Co. v. Tilghman\", \"decision_date\": \"1859-02-18\", \"docket_number\": \"\", \"first_page\": \"74\", \"last_page\": \"85\", \"citations\": \"13 Md. 74\", \"volume\": \"13\", \"reporter\": \"Maryland Reports\", \"court\": \"Court of Appeals of Maryland\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-11T00:29:15.127163+00:00\", \"provenance\": \"CAP\", \"judges\": \"The cause was argued before Le Grand, C. J., Tuck and Bartol, J.\", \"parties\": \"Cumberland Coal and Iron Company and Jonathan W. Magruder, vs. Margaret Tilghman.\", \"head_matter\": \"Cumberland Coal and Iron Company and Jonathan W. Magruder, vs. Margaret Tilghman.\\nIn Maryland the action of replevin is most generally resorted to, for the purpose of trying the right of possession at the\\u2019time the writ issued, and not to determine necessarily the absolute title to the property for all time.\\nWhoever is entitled to the possession at the time the writ issued, may maintain or defeat the action of replevin, and his title to damages must be confined to the extent of the interference with that possession.\\nIn an action of replevin, which was tried on issues to the pleas of non cepit and property in the defendant, the verdict and judgment on both issues were in favor of the defendant, who then brought suit on the replevin bond for damages. Held:\\n1st. That the defendant, in the suit on the bond, could not show, in mitigation of damages, that the title to the property was in himself, for this was decided in the replevin suit.\\n2nd. But he could show that, although the defendant in the replevin suit had title to the property at the time the judgment was rendered in his favor, yet that title was but of short duration, and terminated by contract in a short time after that judgment.\\nIn an action for damages on a replevin bond, it was u\\u00e9nitted, that on the trial of the replevin suit, the plaintiff offered evidence to show title in himself, and the defendant offered evidence of title in himself, and that the verdict was found in favor of the defendant, on the issue joined. Held:\\n1st. That this admission relieves the plaintiff in the action on the bond, from either pleading the record in the replevin suit, specially as an estoppel, or the jury from finding its existence on the testimony, for what is admitted need not be proved.\\n2nd. The same word, \\u201ctitle,\\u201d having been used both in this admission, and in the plaintiff's offer of evidence in the suit on the bond, it must be understood as importing the same thing, and whatever title was designed to he proved in the suit on the bond, must be considered as settled by the replevin suit.\\nWhere the court below had granted an instruction, in regard to the standard of damages, it is no error for it to refuse another instruction, setting up another standard inconsistent with that established by the prayer already granted.\\nAppeal from the Circuit Court for Allegany county.\\nThis action was brought on the 11th of August 1857, by the appellee against the appellants upon a replevin bond.\\nOn the 17th of July 1855, the Cumberland Coal and Iron Company sued out a writ of replevin, and gave the usual bond, with Jonathan W. Magruder as security on it, to Margaret Tilghman. In this replevin suit, the defendant, Margaret Tilghman, pleaded non cepit and property in herself, and the plaintiff, the Cumberland Coal and Iron Company, joined issue on the first plea, and to the second replied property in itself. At the trial both issues were found for the defendant, and judgment for the return of the property and for costs, was rendered on the 15th of April 1857. The property taken was a canal boat called \\u201cThe Anna Woodward,\\u201d which was replevied and delivered to the company on the day the writ of replevin was issued, and has remained in the company\\u2019s possession to the time of the present suit.\\nIn the present action the plaintiff, Margaret Tilghman, declared on the replevin bond above mentioned, assigning as breaches thereof, \\u201cthat the said Cumberland Coal and Iron Company, did not prosecute the said writ of replevin with effect, against the plaintiff, and did not well and truly return and deliver unto the plaintiff the said property so replevied, and did not pay to the plaintiff the damages caused by the taking, use and detention of said canal boat from the plaintiff, and hath not paid the said costs.\\u201d The defendants pleaded, 1st, general performance; 2nd, \\u201c(hat the plaintiff from the tiraje of making of the writing obligatory aforesaid, hitherto hath not been damnified in respect of or by reason of any matter, cause or thing, in the condition of the writing obligatory aforesaid mentioned.\\u201d On these pleas issues were joined.\\nlsi Exception. The plaintiff to support the issue on her part joined, offered in evidence the replevin bond, the execution of which was admitted; and the record and docket entries in the replevin suit mentioned in the condition of the bond, and also gave evidence of the value of the boat at the time of the replevin. It was then admitted, that on the trial of said replevin suit, the plaintiff offered evidence to shoio title in itself, and the defendant offered evidence of title in herself, and that the verdict was found in favor of the defendant on the issues joined. The defendants then, to support the issues on their part joined, and for the .purpose only of mitigating the damages in this case, offered to prove by competent and proper evidence, that at the time said boat was replevied the .title thereto was in the company, and so continued in said company to the present time. To the admissibility of which evidence, the plaintiff, by her counsel, objected, upon the ground that the company was precluded by the verdict and judgment in the replevin suit, from showing any of the facts above offered to be proved; which objection the court (Perry, J.,) sustained, and to this ruling the defendants excepted.\\n2nd Exception. The plaintiff, in addition to the evidence offered in the first exception, offered in evidence the depositions of Atkinson and Sprigg, which were used in the replevin suit, and proved by Robert S. McKaig, that he had testified in the replevin suit, that, in March 1854, he purchased the boat for Margaret Tilghman; that after the boat had been delivered to him by Sprigg, under the contract, he understood that the Cumberland Coal and Iron Company had a claim on the boat, and he and Sprigg called on Henderson the company\\u2019s agent and had a conversation with him on the subject; that Henderson claimed there was still due by Sprigg to the company, on the sale of the boat to Sprigg by the company, $124 or $134; that Sprigg denied he owed any thing on the boat, but it was agreed, at that conversation, that Margaret Tilghman should keep the boat, and that witness, as her agent, should pay the company $100, part, of the $124; and that Sprigg should pay the balance of the $124 out of the earnings of another boat, and this arrangement was made to discharge the boat for Miss Tilghman, who was to hold the boat as her own; and that witness paid the $100, by leaving that much of the freight of the first load of the boat thereafter in the hands of the company; and that Sprigg so paid the $24 to the company.\\nThe defendants then offered to prove by Henderson and other competent witnesses, that the boat before and in the spring of 1854, was the property of the Cumberland Coal and Iron Company; and that in the spring of 1853 the company had made a contract with Sprigg, by which it was agreed he should take this boat and two others and run them on the canal in carrying coal for the company, and that the company, to pay for them, was to retain in its hands twenty cents per ton out of the freight money, as purchase money paid on the boats, and that the boats were to remain the property of the company till paid for; that Sprigg had a right by this contract to apply the twenty cents per ton earned by all the boats, to the payment of one, due regard being had to the condition of the others, and that the boat in question had been taken by Sprigg under this contract at $936,67, which was the principal sum, and that the twenty cents per ton were to be credited as earned, charging interest on the price of the boat from credit to credit until paid for in full, and that this boat was not paid for in the spring of 1854, and at the time of the alleged sale to McKaig; that Henderson never assented to a sale of the boat to McKaig by Sprigg, and that in a conversation had with McKaig and Sprigg, in the spring of 1854, at the place stated by them, he, Henderson, did not assent to such sale, but on the contrary communicated to McKaig the contract with Sprigg, and that the boat was not paid for, and that he would not consent to such sale to McKaig as the agent of the plaintiff; and also to prove that the amount due on the boat in the spring of 1854, at the time of said alleged sale, was. after giving all credits to which Sprigg was entitled under his contract, $347,87; and that no such sum of $124 or $134, was ever agreed to or stated by Henderson, or in his presence, with McKaig or Sprigg; and that no such sum of $100, or any thing like it, was paid, nor any such sum of $24 paid by Sprigg. To the admissibility of which evidence and every part thereof, the plaintiff, by her counsel, objected, and stated as her objection, that the said evidence was inadmissible upon the ground, that the verdict and judgment in the replevin suit between the present plaintiff and one of the present defendants, the company, estopped the defendants from showing, even in this action, for any purpose, that the title to said property was in the company at the time of said trial, or give such evidence in mitigation of damages; which objection to said evidence and to every part thereof the court sustained, and refused to permit the defendants to offer said evidence or any part thereof to the jury, and to this ruling the defendants excepted.\\n. 3rd Exception. The defendants asked the court to instruct the jury, that if they find from the evidence that the company replevied the boat from the plaintiff, on the 17th of July 1855, and that a judgment on verdict in said replevin suit de retorno habendo was rendered, on the 14th of April 1857, in favor of the plaintiff, and that the company, upon the rendition of this judgment, returned the boat to the plaintiff, and if thejr further find, that the boat was in possession of the company from the time she was replevied until she was returned as aforesaid, and was used by the company in boating coal from Cumberland to Alexandria, and that she was built for that purpose, and would have been used by the plaintiff, in the same manner if she had not been replevied; and if they further find that it was more beneficial so to use the boat than to let her remain idle, and that the boat, even if she had remained in possession of the plaintiff during said period, would have deteriorated by natural decay and advance in age, over and above all other deterioration, that then the rule of damages in this case should be, the value of the boat at the time said replevin was executed, with the interest thereon from that time, reduced by the amount of the value of the said boat when returned to the plaintiff, in so far as said last value was produced by other causes than natural decay and advance in age; and that the jury in estimating the difference between the value of the boat when replevied, and when returned, shall not take into their consideration the deterioration caused by such natural decay or advance in age, as would have accrued to said boat under all circumstances, and the costs of the replevin suit. This instruction the court refused to give, and to this ruling the defendants excepted.\\nIn an exception, which was taken by the plaintiff, the court had, at the instance of the defendants, instructed the jury, \\u201cthat the rule of damages in this suit, is the value of said boat at the time said replevin was executed, with the interest thereon from that time, reduced by the amount of the value of said boat when returned to the plaintiff, with the cost of the replevin suit,\\u201d provided they found that the boat was replevied, and the judgment in the replevin suit, and the return of the boat to the plaintiff, as stated in the preceding prayer.\\nThe verdict was in favor of the plaintiff for $836,78, damages and costs, and from the judgment thereon the defendants appealed.\\nThe cause was argued before Le Grand, C. J., Tuck and Bartol, J.\\nGeorge A. Thruston and George A. Pearre, for the appellants:\\n1st. That ordinarily, at least in an action upon a replevin bond, the defendants may show title in the defendant who replevied the property, in mitigation of damages. The object of the replevin bond is indemnity to the defendant, and all questions arising upon it should be determined by a due regard to that consideration. 6 G. & J., 453, Doogan vs. Tyson, et al. 3 G. & J., 247, Belt vs. Worthington. The damages recoverable, are only such as the defendant in replevin has personally suffered. 2 Gill, 216, Walter vs. Warfield. It is conceded, that if there had been no replication in the replevin suit, of property in the plaintiff, the evidence would have been admissible for the purpose for which it was offered. But it is contended, that a verdict on this plea found for defendant, negatives title in the plaintiff in replevin, and operates as an estoppel against his setting up title in himself in a suit on the replevin bond. Even if it be admitted that this principle is correct, yet the facts necessary to constitute the estoppel, are to be found by the jury when offered in evidence. What facts, even upon this theory, was it necessary for the jury to find? The verity of every thing contained in the record of the replevin suit offered in evidence, viz., that ther ewas a replevin suit, its subject, matter, the pleadings, verdict, judgment, and the evidence offered in the case, if it assisted in creating the estoppel. When the facts are found by the jury, the court pronounces their effect or rather instructs the jury, if they believe such facts they constitute an estoppel. Now the court, in rejecting this testimony in the first exception, assumes the existence of the estoppel, by undertaking to decide for itself without the intervention of the jury, the existence of all the facts necessary to constitute the estoppel. The evidence is rejected because of the estoppel, and yet the very facts which were to create the estoppel, were offered in evidence to the jury, and were yet to be found by them.\\n2nd. The testimony offered in the first exception, independent of the above question, was admissible,- because a verdict and judgment for the defendant in replevin, upon issue joined upon a replication by the plaintiff, of property in himself, does not settle the question of title against the plaintiff. Under such issue evidence of general ownership, unaccompanied by right to immediate possession, would be insufficient to obtain a verdict for the plaintiff. The mere right of bailee of the plaintiff would defeat the plaintiff. Right of possession alone will sustain, and want of it defeat the action. 1 H. & J., 147, Smith vs. Williamson. 6 H. & J., 471, Cullum vs. Bevans. There is no plea in replevin, that the defendant at the time of replevin was entitled to the possession, nor is there a replication that the plaintiff was entitled to possession. The plea of property in the defendant, or the replication of prop eity in the plaintiff, covers the whole. \\u201cProperty\\u201d in such plea or replication does not mean title necessarily. It more properly means right of possession, because title without the right <f possession will not sustain it, but right of possession without title will. The proof necessary in law to determine an issue, is the index of the meaning and extent of the issue; the substance of an issue is all that need be proved. 1 Greenlf. on Ev., secs. 56, 528. The substance of an issue in replevin, even upon the replication of property in the plaintiff, is the right of possession. It does not, therefore, appear from the record, that the title was in issue and decided in the replevin suit, and this is essential to constitute the estoppel. 11 G. & J., 173, 184, Garrett vs. Johnson. All that the record in the replevin suit is evidence of is, that the plaintiff at the time of the taking had not a right to the possession of the property. 15 Mass., 310, Gates vs. Gates. 4 Pick., 168, Wheeler vs. Train. 7 Blakf., 298, Wallace, et al., vs. Clark. Sedwick on Damages, 503. This question was left open by the Court of Appeals, in Belt vs. Worthington, 3 G. & J., 247, for there the plaintiff in replevin struck off his suit.\\n3rd. Under the first exception, we have endeavored to show that the evidence rejected was even admissible for the purpose of showing title in the plaintiff in the replevin suit, in mitigation of damages. The offer in the first exception is confined to proof of title in the plaintiff in replevin. In the second exception the proof is offered generally, and if admissible for any purpose was improperly rejected. The testimony was admissible to show that the defendant in replevin had no title. The issue in tire replevin case, was upon the replication of the plaintiff in replevin\\u2014property in it. (6 H. & J., 469, Cullum vs. Bevans.) If verdict is found on this issue for defendant, it only shows that the plaintiff had no property in it. It does not follow that the defendant had title. The defendant having possession at the time of replevin, (which is admitted by instituting the suit against him,) is prima facie owner, and entitled to maintain his possession until the plaintiff shows a better title.. The title of the defendant is not, therefore, involved. 6 H & J., 469, Cullum vs. Bevans. 11 G. & J., 80, Warfield vs. Walter. The title of the defendant not being involved, the evidence was admissible as tending to show a want of title in her. But again, the plea of non d.amnifi,catus was not a proper plea to this action, for though the object of a replevin bond is indemnity to the defendant, yet it is not by its terms and conditions technically a bond for indemnity, and the plea of non damnificatus was, therefore, bad, (7 Halsted, 1, Camp vs. Allen, et al.; 5 Johns., 42, Woods vs. Rowan, et al.;) but issue was joined on it and this lets in the proof.\\nThomas J. McKaig for the appellee argued:\\n1st. That as by the record in the replevin suit, the second issue in that action was \\u201cproPerty in the company,\\u201d and the appellants admit, that under that issue the company offered evidence of title in itself, and that the appellee offered evidence of title in- herself, and that the verdict was found in favor of the appellee, upon the issues joined on the trial of the replevin suit as offered in evidence, the appellants were estopped to re try that issue by offering to prove property in the company.\\n2nd. That the admission covers the record as offered in evidence, the trial, the evidence offered by both parties, the issues, and the verdict, and is consequently an admission that the title to the boat was directly in issue.\\n3rd. The whole scope and object, of the testimony in the second exception, was to prove property in the companju It was objected to and ruled out for the same reason that the testimony was refused in' the first exception. It tvas not offered to show a qualified property in Margaret Tilghman, but to show title in the company. No one denied that they could show that Margaret Tilghman had no property, or what property she had in the boat. 4 Dana, 251, Hanson vs. Buckner. 17 Verm., 419, Gray vs. Pingry. 19 Pick., 455, Sprague vs. Waite. 1 Story\\u2019s Rep., 474, Mallet vs. Foxcroft. 12 Verm., 692, Isaacs vs. Clark. 1 Greenlf. on Ev., secs. 522, 528. 4 Phillip\\u2019s Ev., (Cowen & Hill\\u2019s Notes,) 20 to 25.\\n4th. The rule of damages asked for in the appellants\\u2019 prayer in the third exception is practically this: The jury will allow the company to run the boat and receive the profits, and charge the appellee with natural decay and subtract it from the original value of the boat. A new boat will last say six years \\u2014 at the end of that time natural decay has destroyed it; the appellee would have thus lost the whole value of her boat, save six per cent, for six years on its original cost.\\n5th. No question was raised at the trial, of the right of the company to show that Margaret Tilgliman had no property in the boat, or to show what property she had; on the contrary such right was distinctly conceded.\", \"word_count\": \"4515\", \"char_count\": \"25317\", \"text\": \"Le Grand, C. J.,\\ndelivered the opinion of this court.\\nThis is an action brought by the appellee against the appellants, on a replevin bond. The Cumberland Coal and iron Company, sued out a writ of replevin, to obtain the possession of a. canal boat which was claimed as her property byr the appellee. To the action she pleaded non cepit and property in herself, to which the plaintiff in the replevin replied, property in itself, and joined issue on the plea of non cepit. At the trial, the verdict, of the jury, and the judgment of the court, was in favor of the defendant, the present appellee, on both issues, and this action is brought by her to recover damages for her alleged injury.\\nThe question which was most frequently presented in the discussion to the mind of the court was \\u2014 what is the nature of the estoppel, if any, of a judgment for defendant in an action of replevin?\\nTo our minds this question is involved in no mystery, but on the contrary is perfectly plain, when we remember the nature of the action of replevin in the State of Maryland. In this State the action is most generally resorted to, for the purpose of trying the right of possession at the time of the issuing of the writ, and not to determine necessarily the absolute title io the property for all lime. And this being so, it follows, that if the plaintiff, at the time of the bringing of the suit, has the right to the possession, he must succeed; or, if he have it not that his action must be defeated. Whoever is entitled to the possession, whatever may be his title in other respects, may maintain or defeat the action of replevin. His right to success in the action of replevin depending entirely on his right to possession, in reason, it follows, that his title to damages must' be confined to the extent of the interference with that possession. If the right to the possession covers all time, or is limited to a determinate period, the damages will be accordingly graduated as the case may be.\\nIn the case now before this court, the effort on the part of the defendants was, to show, as alleged by them, in mitigation of damages, title in the Cumberland Coal and Iron Company. Now this they could not do, because that question was decided in the replevin suit. It was, however, competent to them to show, that although the defendant in the replevin suit had title to the possession of the boat at the time of the judgment rendered in her favor, yet, that title was of but short duration, and terminated by contract in a short time after that judgment. No such evidence was offered to the court below; that is to say, the evidence of title of the company refused by the circuit court, Was not confined to a period subsequent to the judgment, upon the ground, that at the time of replevin Miss Tilghman had only a limited interest in the boat, and that such was the finding of the jury; but included as well the Very time wherein the judgment was rendered against it. It was urged at the bar, that it was competent to the defendants to' offer evidence in this unrestricted form, in order that the jury might pass upon the facts constituting the estoppel. Whatever force under other circumstances would belong to the argument, none can attach to it in this case, and for the simple reason, that the fact which it is claimed ought to have been found by the jury was admitted. In the defendants first exception it is said, that \\\"it was then admitted, that on the trial of said replevin suit, the plaintiff offered evidence to show title in itself; and the defendant offered evidence of title in herself, and that the verdict was found in favor of defendant on the issue joined.\\\" This admission relieved the plaintiff in this action, from either pleading the record specially, or, the jury from finding its existence on the testimony. That which is admitted need not be proved.\\n(Decided February 18th, 1859.)\\nThe same word, \\\"title,\\\" which may mean an absolute interest or a qualified one, is used both in the agreement and in the offer of evidence contained in the exception, and must be understood as importing the same thing in both, and therefore, whatever title was designed to be proved in this, must be considered as having been settled in the other case.\\nThe evidence offered in the second exception does not show, nor could the jury properly infer from it, that at the time of the purchase by Miss Tilghman, either she or her agent, McKaig, was aware of the state of facts testified to by the witness Henderson. What he says he told Mr. McKaig, was communicated to the latter, after the sale was perfected and the boat delivered. Anything he might say after that, could not affect her title.\\nThe court did right in the rejection of the defendants' last prayer, in regard to the standard of damages. The court had previously given an instruction on this subject, in its character, much more liberal than the defendants in law bad a right to ask. Inasmuch as that instruction is not before us on this appeal, we decline the examination of the principle contained in it. To have given the instruction embraced in the last exception, would not only have been clearly erroneous, but, to give contradictory instructions on the same subject, a procedure wholly inadmissible.\\nJudgment affirmed.\"}"

md/1863805.json

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+"{\"id\": \"1863805\", \"name\": \"Northern Central Railway Company vs. John Bastian\", \"name_abbreviation\": \"Northern Central Railway Co. v. Bastian\", \"decision_date\": \"1860-05-16\", \"docket_number\": \"\", \"first_page\": \"494\", \"last_page\": \"501\", \"citations\": \"15 Md. 494\", \"volume\": \"15\", \"reporter\": \"Maryland Reports\", \"court\": \"Court of Appeals of Maryland\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-10T19:30:39.987816+00:00\", \"provenance\": \"CAP\", \"judges\": \"The cause was argued before Lfe Grand, C. J., Tticis And Bartob, J.\", \"parties\": \"Northern Central Railway Company vs. John Bastian.\", \"head_matter\": \"Northern Central Railway Company vs. John Bastian.\\nA railroad company advertised a quantity of old iron rails for sale. The advertisement was signed by its secretary. A party, acting for the plaintiff, who was an iron-broker, called on the secretary in relation to the iron, and was referred to the acting president of the company, who, on being informed that the plaintiff was a broker, and would charge him (the acting president) one per cent, commission on the sale, assented to the charge. The plaintiff then went to the company\\u2019s office, had an interview with the acting president, disclosed the name of the party wishing to purchase, and informed him that he (the plaintiff) would charge him one per cent, commission, and a sale was subsequently effected through the agency of the plaintiff. In an action by the plaintiff against the company to recover these commissions \\u2014 Held :\\nThat these facts furnish evidence from which the jury might find that the acting president of the company was authorized to. make the contract for the commissions sued for.\\nA corporation can act only by its agents, and, in order to bind the corporation, the agency must appear, but this need not be shown by any^resolution or other written evidence, but may be implied from facts and circumstances.\\nThe acting president being empowered to sell the iron, it was competent for him to engage the services of the plaintiff, in finding a purchaser and effecting the sale. Such an act, in absence of proof to the contrary, was within the scope of his agency, as a reasonable and proper means of accomplishing the business entrusted to his charge.\\n\\u201e Appeal from the Court of Common Pleas.\\nThis action was brought by the appellee against the appellant on the 24th of December 1856, to recover the value of services alleged to have been rendered by the plaintiff to the defendant, as its agent and broker, in effecting the sale of a quantity of old railroad iron belonging- to the defendant. Plea, not indebted as alleged.\\n\\u25a0 Exception. After the evidence, which, for the purposes of this case, is sufficiently stated in the opinion of this court, was closed, the defendant offered four prayers, in substance as follow's:\\n1st. That there is no evidence, competent to go to the jury, to show that R. M. Magraw was authorized by the defendant to employ the plaintiff, or any one else, as a broker, to sell for the defendant die iron spoken of in the evidence, or that said Magraw was authorized by the defendant to pay, or promise to pay, the plaintiff, or any one else, any commission for the sale, or procuring the sale, of said iron, and, in the \\u25a0absence of any such evidence the plaintiff is not entitled to recover-.\\n2nd. That the plaintiff is not entitled to recover in this action, unless the jury shall find from the evidence that the defendant either employed the plaintiff to render the services for which this suit is brought, or promised to pay him for -them.\\n3rd. That though the jury may find that Mr. Magraw was -the acting president of the defendant at the time of the conversation between him and the witness Robbins, as testified to by the latter, and that this conversation took place as stated by this witness, yet the plaintiff is not entitled to recover, unless the jury shall also be satisfied, from the evidence, that the defendant authorized said Magraw to promise, or undertake for it, that it would pay to the plaintiff the compensation for which the suit is brought-, or ratified or adopted the agreement, if they should find any such, of said Magraw, so acting -as president, with the plaintiff.\\n4th. If the jury believe-, from the evidence, that the plaint-tiff was acting as agent for the Montour Iron Company, in effecting a sale to them of the defendant\\u2019s iron, then it Was a fraud upoA said company, to act for and accept a compensation from the defendant in that transaction, and he is not entitled to recover in this action any such compensation from the defendant, unless the jury further find that such acting for and agreement to compensate by the defendant, was known to and acquiesced in by the said Montour Iron Company.\\nThe court (Marshall, J.) granted the second and third, and rejected the first and fourth of these prayers, and to this rejection the defendant excepted. The verdictjand judgment were in favor of the plaintiff for $419.33; and the defendant appealed.\\nThe cause was argued before Lfe Grand, C. J., Tticis And Bartob, J.\\nBernard Carter, and J. Mason Campbell, for 'the appellant:\\n1st. So far as the evidence shows, it appears that Hollins, the secretary of the defendant, was the officer of the corporation to whom the corporation had entrusted all matters relating to the sale of the iron. The advertisement, as published in the newspaper, and which was the source of the plaintiff\\u2019s information, that this iron was for sale, expressly directed purchasers to Hollins, the secretary, and it was this officer who signed, on the part of the defendant, the contract of sale which was finally entered into with the Montour Iron Company. It appears, however, that Magraw was at the time of this transaction the acting president of the defendant. Had he any power by virtue alone of his office to employ the plaintiff on behalf of the company and bind the latter to pay for his services'.? We submit, he had no such power. The Act of 1854, ch. 25Q\\u201e (the charter of the defendant,) confirms the original Act of 1827, ch. 72, the 12th sec. of which declares, the \\u201cPresident and directors, or a majority of them, may appoint ail such officers, engineers, agents or servants, whatsoever, as they may deem necessary for the transaction of the business of the company, and may remove any of them at their pleasure; that they, or a majority of them, shall have power to determine, by contract, the compensation of all the engineers, officers, agents or servants in the employ of said company.\\u201d Now if the plaintiff is to be considered as employed b.y the defendant, it must be as an agent or servant; the charter has, in express words, entrusted the appointment of all its agents and servants to the president and directors. How, in the face of this can it be pretended that Magraw, as acting president, without a word said to the directors, had the power to employ the plaintiff, and at a rate of compensation fixed by himself? There is nothing in the record, or in the charter of the company, to show that Magraw had any power without the action of the directors, to sell any of the property of the company, and without some special authority, or power, given by the charter, or a vote of the corporation, it is clear he had no such power, virtute officii. Angell & Ames oh Corp., sec. 298. 7 Grattan, 352, Crump vs. U. S. Mining Co. 14 Mass., 180, Hollowell & Augusta Bank vs. Hamlin, et al. 29 Verm., 220, Hodges vs. Rutland & Burlington Railroad Co. 36 Maine, 414, Brown vs. Weymouth. 2 Ala., 724, Lazarus vs. Shearer. 19 Barb., 310, Soper vs. Buffalo Rochester Railroad Co. If he had no power of himself to sell the iron, what better right h\\u00e1d he to employ, of his own accord, another person to Sell that which h\\u00e9 had no\\u00bbpower to sell? The accessory must be supported without the principal. Nor does it appear that Magraw pretended even to settle the terms of the sale of the -iron, or to interfere in any way with Hollins in effecting 'the sale. Accord! ng to the plaintiff\\u2019s own showing, all he did Was to assent to the charg\\u00e9 which Bast\\u00edan said he meant to make. There is no evidence or pretence that Magraw, or any other president, had ever been-in tbe habit of making such contracts or engagements as this, or that any 'such power had ever been given by a vote of the corporation, or-that tbe assent of the latter to the exercise of such powers was ever signified by acquiescence'. Has the defendant', then, ever ratified -this engagement of Magraw? There is \\u00abnothing in the record t\\u00f3 Phow that the corporation ever had any knowledge that Magraw had made any arrangement or engagement of any kind -with -the 'plaintiff with reference to the sale of the iron, and still less that it ever had any knowledge of the particulars of this arrangement. There could, therefore, be no ratification. Story on Agency, sec. 239. 8 G. & J., 323, Steam Nav. Co. vs. Dandridge. 8 Md. Rep., 169, White vs. Davidson. 28 Penn. State Rep., 505, Moore vs. Patterson. 2 Md. Rep., 63, Keener vs. Harrod & Brooke. Hollins expressly states that Bastian\\u2019s claim was not recognized by the defendant; nor is there any evidence that the corporation ever, in any way, ratified the engagement made by Magraw with the plaintiff. Story on Agency, sec. 253. The evidence does not show that Magraw made any engagement for, or on account of,\\u2019 the defendant, to pay the plaintiff, commissions, and for this' reason, also, no acts of the defendant could amount to a ratification. Story on Agency, secs. 251, 258. It being clear then that Magraw had neither a special nor a general authority from the defendant to employ the plaintiff, or promise - to pay him, and that there has been no ratification by the defendant of the acts or engagements of Magraw, it follows that the defendant is not responsible, (Angel\\u00ed Sf Ames on Gorp., sec. 311, and cases cited,) and that its first prayer Should have been granted.\\n2nd. We contend, also, that the defendant\\u2019s fourth prayer should have been granted, and in support of this view refer to 2 -Story on Agency, sec. 31; 6 Pick., 204, Copeland vs. Mercantile Ins. Co.\\nRobert Gilmer, Jr.,- for the appellee:\\n1st. There was no error in the rejection of the defendant\\u2019s first prayer. It is well settled that one may be the agent of a corporation-, so as to bind it by his acts in a particular transaction, by implication from the facts and circumstances of the transaction, and the acts of the parties to it, without showing such agent to have been appointed under the corporate seal,' or giving proof that he has been appointed or elected by actual vote. 12 Wheat., 64, Bank of U. S. vs. Dandridge. 1 H. & G., 324, Union Bank vs. Ridgely. 2 Gill, 254, Burgess vs. Pue. The evidence in this case was admissible to go to the jury to raise such implication. 2 G. & J., 404, Davis vs. Barney. 4 H. & J., 516, Burt vs. Gwinn. If,then, such agency may be found by implication, and, as is1 contended, the evidence is admissible to go to the jury, by its' tendency t-o show the express purpose of the corporation to Sell the iron, and the course they pursued, as furnishing presumption that by permitting and assenting to the act by which Ivas carried out that purpose, they intended and provided for \\u00f1o other means by which it should be done, the implication might have been, in the opinion of the jury, that the corporation had thereby made Magraw their agent as to the plaintiff^ and the principle would have applied, that the acts and contracts of an agent, within the scope of his authority, would be binding on the corporation, a principle well established,- and which would render Magraw\\u2019s employment of the plain-.tiff, under the circumstances, binding on the company, provided this was an act that came regularly and legitimately within the scope of his authority as such agent, which also-was a question for the jury, and which was taken away by this prayer. Again, by acquiescing in it, it is insisted the company adopted Magraw\\u2019s act, and this is equal to authority, and was a question for the jury. It cannot, in right and justice, be permitted the defendant to accept the contract in such respects as it is beneficial, and reject its obligation or throw off its yoke. It is not contended that Magraw had any power to sell the iron and retain the plaintiff\\u2019s services, as president of the corporation, viriute qfficii, hut that, by all the acts of tire corporation, there was a fair and reasonable implication that, as to the plaintiff, they had set M.agrnw up as their agent in this particular, and that they must, therefore, be bound by his acts,\\n2nd. As to the second prayer. If the principle asserted by it were cq-d ceded to be correct, there is no sufficient foundation in the evidence for it or the facts on which it proceeds. It therefore asserts an abstract principle. The law never presumes illegality, and presumptions will be made to uphold the validity of a transaction until the contrary is proved. At best, there would be but a conflict of presumptions where the presumption of innocence must prevail.\", \"word_count\": \"3089\", \"char_count\": \"17617\", \"text\": \"Barton, J.,\\ndelivered the opinion of this court:\\nAt the trial of this action in the court below, the defendant, the present appellant, offered, four prayers, of which the second and third were granted., and the first and fourth refused. The defendant excepted, and by this appeal, has brought before us for review, the ruling of the court upon the first and fourth prayers.\\nThe suit was brought to recover a sum of money alleged co be due from the appellant to the appellee, for services rendered by the latter in his capacity of iron broker, in the sale of a quantity of old railroad iron belonging to the appellant. The contract upon which the plaintiff relies, is alleged to have been made- with- him by Mr. Magraw, the acting president of the railroad'company. The verdict and judgment were in favor of the plaintiff; and the appellant asks a reversal, on the ground that there was no evidence competent to go to the jury, to show that the acting .president was authorized by the defendant to employ the plaintiff, or to agree to pay him for his services. This question is presented by the first prayer; and, in deciding it, we must assume that the acting president of the company did- employ the plaintiff, and agree to- pay him the compensation claimed, those facts having been-found by the jury, and no-question being raised by the prayer, except as to the legal sufficiency of the evidence to go to the jury tor the purpose of showing the authority of the acting president to bind the company in the transaction. To determine this question,, it is necessary to advert to the evidence, which was substantially as follows:\\nIn April 1856, the railmad company caused an advertisement to be 'published in the newspapers, offering for sale about 800 tons of old T rails, which was signed by Robert S. Hollins, the Secretary of the company. Mr. Robbins, of Baltimore, who was acting, for the- plaintiff,, an iron broker, residing\\\"in Philadelphia, called- on Mr. Hollins in relation to the iron,'inquired the price-, &c v and informed him for whom he, Robbins, was- acting, and was referred' by Mr. Hollins to Mr. Magraw, the acting president pf the company, who, according to Mr.. Robbin's testimony,, upon being, informed that the plaintiff was acting as a broker, and was purchasing the Iron for a party in Philadelphia, and that the plaintiff would charge him (Magraw) one per cent, commission on the sale of, the iron-,, assented to the charge. It was further testified by Mr. Robbins, that the plaintiff visited Baltimore, went with witness to the office of'the-appellant; had, an interview wilb, Mr. Magraw, disclosed to him the name of' the party wishing'to. buy the iron, and informed him that he, the plaintiff, would charge him. one per cent, commission. Afterwards the plaintiff paid a second visit to Baltimore, when, through his agency, a sale was effected, and, on the 21st of June 1856, the contract of sale of 1000 tons of iron was made and con\\u00a9huded b.etvyeen the appellant and the Montour Iron Cont; pany. When the contract of sale was reduced to writing, and signed by the secretary of tire appellant, it was delivered to the witness, Robbins, who sent it to the plaintiff, in Philadelphia, to procure the signature of the Montour Iron Company, and the same was,, in. a few days, returned by mail to witness, who delivered it to Mr. Hollins, the secretary of the appellant.\\n(Decided May 16th, 1860.)\\nLooking at the facts and circumstances disclosed in the proof, as we have briefly stated them,, we think they furnish evidence from which the jury might find that Mr. Magraw, the acting president, was authorized to make the contract sued on. A corporation can act only by its agent, and, in order to bind the corporation, the agency must appear. This need not be shown by any resolution of the board, or other written evidence; it may be implied from facts and circumstances. 5 Md. Rep,, 152.\\nIn this case there is no question but that the offer of the iron for sale was the act of the railroad company.\\nAccording to the argument of the appellant, Mr. Hollins, the secretary,, was the agent to effect the sale. But the evidence shows that when he was called on in reference to the matter, Mr. Hollins referred the party to Mr. Magraw, the acting president, as the person empowered to act for the company, The only agency which Mr. Hollins appears to have h,ad in the business afterwards, was to sign the written contract of sale. If Mr. Magraw was empowered to effect the sale of the iron, and, in our opinion, there was evidence tending to prove that fact, then, it was competent for him to engage the services of the plaintiff to, aid in finding a purchaser and bringing about the sale. Such an act, in the absence of proof to the contrary, was within, the scope of his agency, as a reasonable and proper means of accomplishing ihe business entrusted to his charge. We think, therefore, the first prayer of the appellant was properly refused.\\nWe concur, also, in the ruling of the court below on the appellant's fourth prayer. There was no evidence to establish any fraud on the part of the plaintiff, in the transaction.\\nJudgment affirmed.\"}"

md/1866681.json

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+"{\"id\": \"1866681\", \"name\": \"STATE v. MONTGOMERY\", \"name_abbreviation\": \"State v. Montgomery\", \"decision_date\": \"1962-04-19\", \"docket_number\": \"App. No. 51\", \"first_page\": \"661\", \"last_page\": \"661\", \"citations\": \"228 Md. 661\", \"volume\": \"228\", \"reporter\": \"Maryland Reports\", \"court\": \"Court of Appeals of Maryland\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-11T01:05:52.964438+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"STATE v. MONTGOMERY\", \"head_matter\": \"STATE v. MONTGOMERY\\n[App. No. 51,\\nSeptember Term, 1961.]\\nDecided April 19, 1962.\\nBefore Bru\\u00f1e, C. J., and Henderson, Hammond, Prescott, Horney, Marbury and Sybert, JJ.\", \"word_count\": \"59\", \"char_count\": \"349\", \"text\": \"Per Curiam.\\nApplication by the State for leave to appeal from the grant of post conviction relief is denied for the reasons stated in the opinion of Judge Allen in the court below.\"}"

md/1869536.json

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+"{\"id\": \"1869536\", \"name\": \"SMITH et al. v. BERNFELD, etc.\", \"name_abbreviation\": \"Smith v. Bernfeld\", \"decision_date\": \"1961-10-11\", \"docket_number\": \"No. 5\", \"first_page\": \"400\", \"last_page\": \"409\", \"citations\": \"226 Md. 400\", \"volume\": \"226\", \"reporter\": \"Maryland Reports\", \"court\": \"Court of Appeals of Maryland\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-10T17:42:40.323913+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"SMITH et al. v. BERNFELD, etc.\", \"head_matter\": \"SMITH et al. v. BERNFELD, etc.\\n[No. 5,\\nSeptember Term, 1961.]\\nDecided October 11, 1961.\\nThe case was argued before Bru\\u00f1e, C. J., and Henderson, Hammond, Prescott and Sybert, JJ.\\nBari Pryor for the appellants.\\nJacob S. Levin for the appellee.\", \"word_count\": \"2651\", \"char_count\": \"14788\", \"text\": \"Bru\\u00f1e, C. J.,\\ndelivered the opinion of the Court.\\nThe plaintiff wife, Margaret R. Smith, and her husband, Albert H. Smith, brought this suit against Jules Bernfeld, the defendant, a beauty parlor operator, for injuries sustained by Mrs. Smith while she was a customer at one of the defendant's beauty parlors and by her husband for medical expenses incurred by him as a result thereof. The jury returned verdicts for both plaintiffs. The trial court entered judgment n.o.v. for the defendant, and both plaintiffs appeal. (Where \\\"the plaintiff\\\" (singular) is spoken of below, the reference is to Mrs. Smith.)\\nThe declaration alleged that the plaintiff was a customer at the defendant's beauty parlor, that she was awaiting service in a beauty salon chair provided for customers, that she \\\"leaned forward to place her pocketbook on a counter directly in front of such chair and that such chair tilted forward causing plaintiff to fall upon the floor and the chair to fall upon her\\\" and that the fall was due to the negligence of the defendant in failing to have the chair properly and firmly attached to the floor or in failing to provide a chair of sufficient balanced weight to withstand the weight of a customer sitting in the chair and \\\"leaning forward under such circumstances.\\\" The plaintiff's testimony at the trial as to the chair toppling over is in general accord with the above allegations, but is further to the effect that as she sat in the chair with her heels hooked behind a tubular bar serving as a footrest at the front of the chair and that as she started to settle back with her arms on the chair arms and her feet on the footrest, the chair tipped over, threw her on one side and fell on her. She also testified that two employees of the defendant had stated after the accident that the chairs tipped over easily, that several other people had nearly fallen out of them, and that it was customary for each of these employees to stand behind his or her chair when a customer was getting in or out. At the trial only one of these employees testified. He then ascribed his custom largely to the tendency of children who got in his chair to climb over it at all angles. (Though the plaintiffs had called him, they asked and were permitted to cross-examine him as a hostile witness.)\\nThe plaintiffs' case in the trial court was pitched upon the defendant's negligence in failing to bolt the chair in question to the floor or to furnish a chair of sufficient balanced weight as not to tip over. No claim was stated as to any failure of any of the defendant's employees to steady the chair while the plaintiff was getting into it or upon any duty to warn and failure to warn her of danger; nor was any instruction along those lines given or, so far as appears, requested. The alleged statements of employees were apparently offered to show that the chair was of defective construction and to bring home knowledge thereof to the defendant through the knowledge of these employees. In this Court the appellants seek to lay much emphasis on the doctrine of res ipsa loquitur, but no contention based thereon, so far as the record discloses, was made in the trial court.\\nNeither the chair involved in the accident nor a chair of the same type was produced in court, but it was described to some extent and its construction was made clearer by a sketch in a catalogue. It has four legs of tubular metal shaped more or less like spider legs which come together at a collar or hub roughly under the middle of the seat. Through this collar passes a treaded spindle, to which the seat is attached. By turning the seat on the spindle the chair can be raised or lowered through a range of about ten inches. A pin in the spindle limits the height to which the chair can be raised. Attached to the seat is a back, with arms coming forward from it. Also attached to the chair below its front edge and protruding perhaps six inches (exactly how much is not stated) is a tubular footrest. The chair had been raised to some unstated extent for the first phase of the plaintiff's treatment, she had left it temporarily and had returned for further attention.\\nThere was uncontradicted evidence on behalf of the defendant to show that the chair in question was of a standard type used in beauty parlors, that it was made by a large and es tablished manufacturer of such equipment and sold on a nationwide basis, and that the defendant had used chairs of the same or essentially similar design for fifteen years in his beauty parlors in serving more than 20,000 customers, none of whom, other than the plaintiff, had ever fallen out of one, and that a sales representative of the manufacturer who had been in the business for twenty-seven years had never known of anyone else falling out of one. This witness also testified, without contradiction, that chairs of similar design were installed in 95% of the beauty parlors designed and equipped by his company, and were made by the largest manufacturer of equipment in this particular field.\\nThe general rule by which the sufficiency of the evidence is to be tested when this Court is reviewing a motion for a directed verdict or judgment n.o.v. for the defendant is well established as being that this Court must resolve all conflicts in the evidence in favor of the plaintiff and must assume the truth of all evidence and inferences as may naturally and legitimately be deduced therefrom which tend to support the plaintiff's right to recover \\u2014 that is, the evidence must be viewed in the light most favorable to the plaintiff. Campbell v. Jenifer, 222 Md. 106, 110, 159 A. 2d 353; Zeamer v. Reeves, 225 Md. 526, 530, 171 A. 2d 488. A difficulty may arise in a case such as this where the defendant offers evidence to show some fact or facts by way of defense. Such evidence, where the facts are conceded or are undisputed, may be considered in reviewing a ruling on a motion for a directed verdict or in entering judgment n.o.v., but may not be so considered if the evidence is merely uncontradicted, if its truth is; controverted. Alexander v. Tingle, 181 Md. 464, 30 A. 2d 737. The rule of this case, as well as the practical difficulty - of applying the distinction therein stated, were recognized by-Judge Markell, speaking for the Court in Dunstan v. Bethlehem Steel Co., 187 Md. 571, 577-578, 51 A. 2d 288. See also Mario Anello & Sons, Inc. v. Dunn, 217 Md. 177, 181, 141 A. 2d 731, which, as did the Dunstan case, arose under the Workmen's Compensation Law.\\nIn the present case it is our view that the affirmative testimony on behalf of the defendant above summarized with regard to the manufacture and the wide distribution and use of chairs of the type here involved and of the absence of accidents to others from their use is essentially uncontroverted within the rule of Alexander v. Tingle, supra, and may, therefore, be considerd here, as was evidence of the sound construction and of inspection of the stool involved in Williams v. McCrory Stores Corp., 203 Md. 598, 102 A. 2d 253. We do not understand that the plaintiffs actually contend that it may not be considered here. It is true that the plaintiff testified that the chair was \\\"very unusual,\\\" but her explanation of this statement was that she had never seen one like it in any other beauty salon that she had been in. Her characterization of the chair seems to have been merely an expression of her personal opinion and she was not qualified as an expert in the field.\\nSince the plaintiff was a business invitee, a customer of the defendant, the latter owed her a duty to see that his premises and equipment intended for her use were reasonably safe and to warn her of any dangerous condition known, or which reasonably ought to have been known, to him, but not to the customer. Williams v. McCrory Stores, Corp., supra, 203 Md. at 604; Evans v. Hot Shoppes, Inc., 223 Md. 235, 239-241, 164 A. 2d 273, and cases therein cited. These cases make it clear that the proprietor is not an insurer of the safety of his patrons. In the latter case Judge Prescott fully reviewed the general rule as stated above and in the Restatement, Torts, Sec. 343, and in Maryland cases which have involved that Tule. He cited quite fully Glaze v. Benson, 205 Md. 26, 106 A. 2d 124, and Morrison v. Suburban Trust Co., 213 Md. 64, 130 A. 2d 915; and all of them are pertinent here notwithstanding that neither Evans, Glaze, nor Morrison dealt with chairs.\\nWilliams v. McCrory Stores Corp., supra, did deal with a stool at a lunch counter and it cited a number of chair cases. Among them were Herries v. Bond Stores, 231 Mo. App. 1053, 84 S. W. 2d 153, and Gow v. Multnomah Hotel, 191 Or. 45, 224 P. 2d 552, each of which involved a collapsing chair and Schueler v. Good Friend North Carolina Corp., 231 N. C. 416, 57 S. E. 2d 324, 21 A.L.R. 2d 417, where a customer in a store sat on one of a row of chairs and the whole row toppled over backwards. In that case, there was evidence to show that the whole row was likely to tip over unless it was bolted to the floor. It had previously been so attached, but was not at the time of the accident. The doctrine of res ipsa loquitur was applied in that case, but in view of the evidence of specific negligence, we should not regard it as controlling if the case had arisen under the law of this State.\\nIt is obvious and it was admitted that the chair in question could be tipped over and that it might be tipped over by someone standing on the footrest bar. These facts, we think, are not sufficient to show faulty construction of the chair. If they were, almost any movable chair would be inherently dangerous; and as a matter of common experience that simply is not so.\\nThis leaves for consideration the plaintiffs' alternative ground of alleged negligence\\u2014that the chair should have been bolted to the floor. Much the same may be said of this as of the closely related contention that the chair was of faulty construction. It must be borne in mind that the plaintiffs have the burden of showing negligence. It is doubtless true that as the chair seat is raised, the center of gravity is raised and the stability of the chair is thereby reduced. There is, however, no evidence to show at what, if any, point of elevation reasonable stability of the chair is lost; and the fact that the chair seat could be raised about ten inches (it is not even shown how much it actually was raised) is not of itself enough to show that the chair would become unstable. The situation is quite different from that in the Schueler case, where the chair was unstable because of its construction in that the seat overhung the legs. Even the reported statements of employees of the defendant made to the plaintiff just after the accident do not show that any chair of this type had tipped over\\u2014only that they might be tipped over, which, of course, is true of almost any chair. Their statements, indeed, indicated that none had tipped over.\\nWe have here a case in which the defendant used equipment of a type standard in the trade all over the country. While proof that a businessman follows the standards in his trade is not conclusive of due care, it is very strong evidence thereof. See Stottlemeyer v. Groh, 201 Md. 414, 94 A. 2d 449; Long v. Joestlein, 193 Md. 211, 216-217, 66 A. 2d 407; Smith v. Marks Isaacs Co., 147 So. 118 (La. App., 1933) ; II Harper & James, The Law of Torts, \\u00a7 17.3; Morris, Custom and Negligence, 42 Colum. L. Rev. 1147 (1942). As Morris points out, \\\"[i]t puts teeth in the requirement that the plaintiff establish negligence.\\\" 42 Colum. L. Rev. at 1148.\\nOf course the owner or user of property has a duty to a business visitor to provide reasonably safe premises within the scope of the invitation. However, no business man is required to provide an appliance or place of business free from the hazard of all mishaps. This is a task impossible to fulfill. When a business man uses a customary appliance, as in this case, negligence merely from his using that appliance is not lightly to be imputed, for the custom goes a long way to show that it is reasonably prudent to use it. A proprietor cannot be held for mishaps resulting from conditions obvious to any customer. As is said in II Harper & James, op. cit., \\u00a7 27.13, pp. 1489-1490:\\n\\\"People can hurt themselves on almost any condition of the premises. That is certainly true of an ordinary flight of stairs. But it takes more than this to make a condition unreasonably dangerous. If people who are likely to encounter a condition may be expected to take perfectly good care of themselves without further precautions, then the condition is not unreasonably dangerous because the likelihood of harm is slight.\\\"\\nThe very absence of any claim on the part of the appellants either in their declaration or in their brief in this Court of any breach of duty on the part of the defendant because of the fact that none of his employees steadied the chair while the plaintiff wife was getting in it or settling herself in it, or because no warning of danger was given her, is, we think, not without significance as to the absence of any actual known danger. This view is strengthened by the appellants' attempt to rely in this- Court on res ipsa loquitur, which was not even an issue in the trial court.\\nIf we assume that the facts that this specific issue was not presented in the trial court and that the plaintiffs took no exceptions to the charge would not prevent its consideration in this Court under Maryland Buies 885 and 554 e, we think that the plaintiffs' attempt to establish specific grounds of alleged negligence precludes recourse to the doctrine of res ipsa loquitur. Smith v. Baltimore Transit Co., 214 Md. 560, 566, 136 A. 2d 386; Maszczenski v. Myers, 212 Md. 346, 352, 129 A. 2d 109; Coastal Tank Lines v. Carroll, 205 Md. 137, 145, 106 A. 2d 98; Hickory Transfer Co. v. Nezbed, 202 Md. 253, 262-263, 96 A. 2d 241; Strasburger v. Vogel, 103 Md. 85, 63 A. 202. We accordingly hold that the doctrine of res ipsa loquitur is not available to the plaintiffs here.\\nEven if it were, it could do no more than serve as an argument in support of their claims of specific negligence. Their proof in support thereof was, as we have said, insufficient to warrant submission of the case to the jury. Williams v. McCrory Stores Corp.; Evans v. Hot Shoppes, Inc.; both cited above. Accordingly, we think the trial court was correct in granting the defendant's motion for judgment n.o.v.\\nJudgment affirmed; costs to be paid by the appellants.\"}"

md/1901533.json

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+"{\"id\": \"1901533\", \"name\": \"SELECTED RISKS INSURANCE COMPANY v. WILLIS, Personal Representative of the Estate of James W. Willis\", \"name_abbreviation\": \"Selected Risks Insurance v. Willis\", \"decision_date\": \"1972-11-09\", \"docket_number\": \"No. 60\", \"first_page\": \"674\", \"last_page\": \"678\", \"citations\": \"266 Md. 674\", \"volume\": \"266\", \"reporter\": \"Maryland Reports\", \"court\": \"Court of Appeals of Maryland\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-11T02:37:49.132978+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"SELECTED RISKS INSURANCE COMPANY v. WILLIS, Personal Representative of the Estate of James W. Willis\", \"head_matter\": \"SELECTED RISKS INSURANCE COMPANY v. WILLIS, Personal Representative of the Estate of James W. Willis\\n[No. 60,\\nSeptember Term, 1972.]\\nDecided November 9, 1972.\\nThe cause was argued before Murphy, C. J., and Barnes, Singley, Smith and Levine, JJ.\\nLloyd A. Dreiling, with whom was David D. Patton on the brief, for appellant.\\nFloyd L. Parks for appellee.\", \"word_count\": \"1127\", \"char_count\": \"6588\", \"text\": \"Murphy, C. J.,\\ndelivered the opinion of the Court.\\nThe appellant, Selected Risks Insurance Company, against whom a summary judgment was entered below, manifests in this appeal a dogged tenacity \\u2014 but little if anything else. The policy of insurance at issue was a \\\"Volunteer Fire Company Blanket Accident Policy,\\\" under which Selected insured \\\"each and every member of the Volunteer Fire Company known as Kent County Fire Chiefs Association & Kent Firemen's Rescue Squad\\\" in the sum of $10,000 against, among other things, loss of life suffered \\\"by reason of and in the course of duties as a member of said Fire Company.\\nJames W. Willis, a seventeen year old, whose personal representative is the appellee, was an active member of the Kennedyville Volunteer Fire Company and concededly an insured under the policy at issue. The affidavits filed by the claimant in support of her motion for summary judgment state these facts. The Kennedyville Volunteer Fire Company had held a picnic each year since 1964, a main reason being \\\"to provide . . . sponsored recreation to build esprit de corps and morale among the [members of the fire company] of a type beneficial to aid in the members' working together in training for fighting and in fighting fires and, to further the recruiting efforts of the [company] both in preventing high turnover of trained men and in attracting members.\\\" The members of the fire company were told in advance of the picnics, that they were annual affairs \\\"organized, sponsored, and made to occur\\\" by the fire company, and that the members of the company were expected to attend \\\"unless they had a reasonable reason not to so attend.\\\" The Chief of the fire company asked Willis to go to the picnic area early on August 8, the day the picnic was to be held in 1971, \\\"to help set up the affair\\\" which Willis did. He remained at the picnic \\\"to take part in the activities which included swimming in the river nearby.\\\" While Willis was so swimming and while \\\"the picnic was officially in progress,\\\" he accidentally drowned \\\"although valiant efforts were made to save him.\\\" When he drowned, Willis was not under the influence of alcohol (a policy exclusion) and was not participating \\\"in any athletic game or contest\\\" of any kind (another policy exclusion).\\nSelected did not controvert the facts set out by the claimant in support of her motion for judgment; instead, it claimed in its answer that it was entitled to have a jury draw and determine inferences from the facts. Selected framed its contention in these words in its memorandum in support of its answer to the motion for summary judgment:\\n\\\"Whether in law these facts show loss for bodily injuries suffered by reason of and in the course of duties as a member of the fire company, and not otherwise, and effected independently and exclusively of all other causes, is clearly questionable. A party against whom inferences are sought to be drawn is entitled to the inference most favorable to his contentions\\nIn its brief on appeal, Selected submits that whether Willis' swimming at the picnic was or was not for pleasure only and his drowning was or was not occasioned \\\"by reason of and the course of [Willis'] duties as a member of the said Fire Company,\\\" within the coverage of the policy, were questions for a jury.\\nSelected did not, and does not now, challenge the material facts asserted by the claimant and no inferences to be drawn from material facts are suggested, so that no dispute of material fact is offered for determination. This presents the classic case for summary judgment for either plaintiff or defendant as the applicable law requires. Wyand v. Patterson Agency, Inc., 266 Md. 456, 295 A. 2d 773 (1972). We think the undisputed material facts require an affirmance of the summary judgment entered against Selected. In our view the case is controlled by Sica v. Retail Credit Co., 245 Md. 606, 227 A. 2d 33 (1967). The material facts in that case are markedly similar to those in the present case. In Sica, an employee was seriously hurt while swimming at a company picnic. We held that the picnic was sufficiently work-connected to bring the injured employee within the coverage of the workmen's compensation law and held that, as a matter of law, Sica sustained an accidental injury arising out of and in the course of his employment. We do not suggest that in all instances construction of statutory or policy language in workmen's compensation cases is to be equated with construction of language in accident policies. Compare Frazier v. Unsatisfied Claim and Judgment Fund Board, 262 Md. 115, 118-19, 277 A. 2d 57, 59 (1971). But if the drowning of an employee at a company-sponsored picnic arose out of and in the course of his employment, then the drowning of a fireman at a work-related picnic scheduled and sponsored by the fire company was, in the language of the policy now before us, suffered \\\"by reason of and in the course of duties as a member of said Fire Company.\\\"\\nThe similarity between the words \\\"arising out of and in the course of employment,\\\" used in the workmen's compensation law, with those appearing in Selected's policy could hardly have escaped Selected's notice. The policy it wrote was issued some three years after Sica was decided and seventeen years after a Massachusetts case, and a New York case upon which we relied in Sica were decided.\\nSelected claims that the lower court erred in declining to grant a continuance to afford it an opportunity to secure discovery and necessary depositions, as well as other matters needed to enable preparation of a defense in opposition to the motion for summary judgment. The lower court denied the requested continuance on the ground that since it was made for the first time in the midst of the argument on the motion for summary judgment, it came too late. We find no abuse of discretion in that ruling.\\nJudgment affirmed with costs.\\n. Moore's Case, 330 Mass. 1, 110 N.E.2d 764 (1953); Tedesco v. General Elec. Co., 305 N. Y. 544, 114 N.E.2d 33 (1953). A New Jersey case, Ricciardi v. Damar Products Co., 45 N. J. 54, 211 A. 2d 347, upon which we also placed reliance in Sica, was decided in 1965, approximately five years before Selected's policy was written.\"}"

md/1909502.json

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+"{\"id\": \"1909502\", \"name\": \"ROMANESK v. ROSE\", \"name_abbreviation\": \"Romanesk v. Rose\", \"decision_date\": \"1968-01-08\", \"docket_number\": \"No. 29\", \"first_page\": \"420\", \"last_page\": \"425\", \"citations\": \"248 Md. 420\", \"volume\": \"248\", \"reporter\": \"Maryland Reports\", \"court\": \"Court of Appeals of Maryland\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-10T20:24:12.593311+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"ROMANESK v. ROSE\", \"head_matter\": \"ROMANESK v. ROSE\\n[No. 29,\\nSeptember Term, 1967.]\\nDecided January 8, 1968.\\nThe cause was argued before Hammond, C. J., and Horney, Barnes, McWilliams and Finan, JJ.\\nJoel Savits, with whom were Barker & Savits on the brief for appellant.\\nNorman H. Heller for appellee.\", \"word_count\": \"1736\", \"char_count\": \"9837\", \"text\": \"Horney, J.,\\ndelivered the opinion of the Court.\\nIn this tort action tried in Maryland under Virginia law for personal injuries received by a guest passenger riding in an automobile operated by the owner, the question on appeal is whether there was sufficient evidence of gross negligence to allow the jury to determine whether the plaintiff-appellee was entitled to recover damages from the defendant-appellant.\\nIn the early evening of a day in mid-January of 1965, the appellant, Richard A. Romanesk, accompanied by his wife, the appellee, Margo D. Rose, and Guy S. Pizzuto, drove from Palmer, Maryland, to a housewarming party in Arlington, Virginia. The party continued until about 1:30 a.m. the next day. The appellee had two or three glasses of champagne during the party and the appellant had a glass of champagne and three highballs. None of the group was intoxicated. After the party broke up, the appellant ate breakfast with the host. Between 2:30 and 3 :00 a.m. the two couples left for the return trip, the Romanesks (the husband driving) in the front seat and the two passengers seated in the rear of the automobile.\\nAt the trial, Margo Rose testified that they left Washington Street, went down a hill and turned right to get onto Arlington Boulevard. Although she dozed off at once, she remembered hearing a noise and feeling bumps but recalled nothing else until she awoke in a hospital.\\nGuy Pizzuto testified that the appellant stopped at a blinking red light at the intersection of Nash Street and Arlington Road and that when Romanesk got on the main highway he accel erated quickly up to what he estimated to be \\\"sixty or seventy miles an hour\\\" in a thirty-five mile zone. He further stated that he had leaned forward to ask the driver to reduce his speed when the automobile slowed down and it seemed to him that \\\"we were trying to make a turn or something\\\" and that when the driver tried to slow he reduced his speed to \\\"fifty or fifty-five miles an hour\\\" and veered off the road and struck an embankment on the edge before the automobile struck a concrete abutment.\\nThe roadway where the accident occurred was unlighted. Both sides of the road were being reconstructed and torch-topped barrels were spaced along the edges of the roadway. There was a road sign \\u2014 Washington Next Right \\u2014 and a break in the line of barrels immediately before the automobile reached the point of impact.\\nAt the close of the case for the plaintiff, the defendant moved for a directed verdict but the trial court declined to rule on the motion at that time.\\nRichard Romanesk admitted that the accident occurred in a thirty-five mile zone, but denied that Pizzuto had correctly estimated his speed. He testified that he had been misled by the sign and the break in the line of barrels to believe that the road turned off where he attempted to turn; that he struck several of the barrels and knocked them into the gully; that as he left the paved portion of the roadway he saw a deep drop before him; and that he accelerated the motor and turned his wheels to the left to prevent the automobile from dropping over the embankment but could not avoid striking the abutment of the overpass. The automobile was almost completely demolished.\\nWhen the defendant renewed the motion for a directed verdict at the close of all the evidence, it was denied. The motion for a new trial or in the alternative for a judgment n.o.v. was also denied.\\nSince the accident occurred in Virginia, it is governed by the law of that state which has a guest statute providing in pertinent part\\u2014\\n\\\"No person transported by the owner or operator of any motor vehicle as a guest without payment for such transportation shall be entitled to recover damages against such owner or operator for injuries to the person or property of such guest resulting from the operation of such motor vehicle, unless such injury was caused or resulted from the gross negligence or willful and wanton disregard of the safety of the person or property of the person being so transported on the part of such owner or operator.\\\" Code of Virginia, Vol. 2, \\u00a7 8-646.1 (1950).\\nGross negligence is defined in 4 Blashfield, Cyclopedia of Automobile Law and Practice, \\u00a7 2771 (1946 ed.) as\\u2014\\n\\\"an intentional failure to perform a manifest duty in reckless disregard of the consequences as affecting the life or property of another, and also implies a thoughtless disregard of the consequences without the exertion of any effort to avoid them. Stated conversely, a wrongdoer is guilty of gross negligence or acts wantonly and willfully only when he inflicts injury intentionally or is so utterly indifferent to the rights of others that he acts as if such rights did not exist.\\\"\\nFor cases applying this definition to guest statutes, see Blashfield, op. cit. \\u00a7 2322; 8 Am. Jur. 2d, Automobiles and Highway Traffic \\u00a7 506-523; 60 C.J.S. Motor Vehicles \\u00a7 399(4); 42 Va. L. Rev. 97; Wallower v. Martin, 144 S. E. 2d 289 (Va. 1965); Laster v. Tatum, 146 S. E. 2d 231 (Va. 1966).\\nWhether or not gross negligence exists necessarily depends on the facts and circumstances in each case. Wallower v. Martin, supra. It is usually a question for the jury and is a question of law only when reasonable men could not differ as to the rational conclusion to be reached. Smith v. Prater, 146 S. E. 2d 179 (Va. 1966).\\nWe think there was sufficient evidence to sustain the verdict of the jury in this case. While it may be that excessive speed alone would not ordinarily constitute gross negligence, Laster v. Tatum, supra, nevertheless, if the cumulative effect of ex cessive speed and other acts of negligence \\\"shows a form of recklessness or a total disregard of all precautions akin to willful and wanton misconduct, it is a question for the jury whether such negligence amounts to gross negligence.\\\" Kennedy v. Mc-Elroy, 81 S. E. 2d 436, 439 (Va. 1954). Also see Garst v. Obenchain, 58 S. E. 2d 207 (Va. 1955); Gill v. Haislip, 114 S. E. 2d 603 (Va. 1960).\\nIn the present case, the jury could properly have found from the evidence that the operator of the automobile, having driven over the same roadway on the way to the party, should have been aware of the obviously dangerous conditions; that the four alcoholic drinks he had consumed together with the lateness of the hour of the night, had impaired his ability to remain alert; that if he had seen the dangerous conditions on the way home as he should have he failed to look effectively before he attempted to make a right turn into what he thought was a roadway; that he drove his automobile on an unlighted roadway under reconstruction at an excessive rate of speed in utter disregard of prudence; and that he was either recklessly inattentive or had completely lost control of his automobile.\\nWhether the operation of a motor vehicle by a driver without looking or, having looked ineffectively, did not see what should have been seen constitutes gross negligence, is a question for the jury to decide. Barham v. Virginia National Bank, 142 S. E. 2d 569 (Va. 1965); Solterer v. Kiss, 70 S. E. 2d 329 (Va. 1952). Whether the disregard of prudence, such as driving at a rapid rate of speed heedless of displayed warnings, amounts to complete neglect of the safety of a guest passenger is likewise a jury question. Leech v. Beasley, 128 S. E. 2d 293 (Va. 1962); Doerr v. Barnes, 94 S. E. 2d 271 (Va. 1956).\\nIn Smith v. Prater, supra, it was said that deliberate or voluntary inattention to the operation of a motor vehicle is a good indication of gross negligence. In Solterer v. Kiss, supra, it was held that it is for the jury to say if the loss of control of a motor vehicle was due to mere inadvertance or lack of ordinary care or to gross negligence.\\nThis case, in that the appellant contends that the collision with the abutment was the result of having been misled and confused by a directional sign into presuming that the break in the line of barrels was where he was to make a right turn to go to Washington, is similar to the case of Solterer v. Kiss, supra, wherein the appellant, contending that he was misled and confused by a roadway leading to Andrews Chapel, entered the primary road without stopping and collided with another motor vehicle in the intersection. In that case, as in this, the question, as to whether the failure of the driver to properly look before moving onward amounted to gross negligence, was for the jury to decide.\\nThe law in Maryland as to what is and is not gross negligence in criminal cases involving manslaughter by automobile is in line with the Virginia decisions under the motor vehicle guest statute. As was pointed out by Judge Oppenheimer in the second footnote to the opinion in White v. King, 244 Md. 348, 223 A. 2d 763 (1966), the test is whether the conduct of the accused \\\"was such as to amount to 'a wanton or reckless disregard for human life or for the rights of others.' \\\" See Johnson v. State, 213 Md. 527, 132 A. 2d 853 (1957); Lilly v. State, 212 Md. 436, 129 A. 2d 839 (1957); Clay v. State, 211 Md. 577, 128 A. 2d 634 (1957).\\nAs there was evidence from which the jury could find that the injuries of the guest passenger were caused or resulted from the gross negligence or willful or wanton disregard of her safety on the part of the owner and operator of the motor vehicle, the judgment entered by the trial court on the verdict of the jury must be affirmed.\\nJudgment affirmed; costs to be padd by the appellant.\\n. The record is not clear as to whether the torches were burning at the time of the accident.\"}"

md/1911221.json

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+"{\"id\": \"1911221\", \"name\": \"VAIN, et ux. v. GORDON\", \"name_abbreviation\": \"Vain v. Gordon\", \"decision_date\": \"1968-03-04\", \"docket_number\": \"No. 110\", \"first_page\": \"134\", \"last_page\": \"137\", \"citations\": \"249 Md. 134\", \"volume\": \"249\", \"reporter\": \"Maryland Reports\", \"court\": \"Court of Appeals of Maryland\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-11T00:40:32.672969+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"VAIN, et ux. v. GORDON\", \"head_matter\": \"VAIN, et ux. v. GORDON\\n[No. 110,\\nSeptember Term, 1967.]\\nDecided March 4, 1968.\\nThe cause was argued before Hammond, C. J., and Marbury, Barnes, Finan and Singley, JJ.\\nThomas A. Rymer for appellants.\\nKenneth B. Pruden, with whom was George T. Burroughs on the brief, for appellee.\", \"word_count\": \"1046\", \"char_count\": \"6052\", \"text\": \"Hammond, C. J.,\\ndelivered the opinion of the Court.\\nThe payee of a note under seal made in 1965, payable one year after date, caused judgment by confession to be entered in the Circuit Court for Prince George's County in April 1966 for the full amount of the note and interest and attorney's fee, all as authorized by the terms of the note, when the note was not paid when due.\\nA timely motion to vacate the judgment on the ground that there was no consideration for the note was granted (the lien being retained), and the makers were given fifteen days to file responsive pleas. The makers filed the general issue pleas in assumpsit and, in due course, the case came on for trial before a jury. The plaintiff payee testified that the note had been signed by the defendant makers, husband and wife, and delivered to him, and that nothing had been paid thereon, whereupon the note was admitted in evidence. The court would not permit the makers to inquire into the matter of consideration for the note or to show that there was none and, when the makers offered no other defense, directed a verdict for the payee.\\nThe contest of the parties in this Court is between the makers' theory that under Citizens National Bank v. Custis, 153 Md. 235, lack of consideration for a negotiable instrument, whether or not under seal, may be shown under the general issue plea, and the payee's theory that under Maryland Rule 342 cl (1) a denial of consideration for a contract under seal must be specially pleaded.*\\nThe parties proceeded below and here on the assumption that the note is negotiable, although the payee contends and the makers concede that if the note is not negotiable, Rule 342 c 1 (1) and Roth v. Baltimore Trust Co., 161 Md. 340, require that the defense of lack of consideration for the non-negotiable instrument under seal must be specially pleaded, and cannot be availed of under the general issue pleas.\\nWe find the note to be non-negotiable. It is identical in its language authorizing confession of judgment in any court \\\"as of any term\\\" with the note before us in Stankovich v. Lehman, 230 Md. 426, in which we held that under the Negotiable Instruments Act the authorization to confess judgment \\\"as of any term\\\" permitted entry of judgment at any time prior to the maturity of the note and therefore destroyed negotiability.\\nThe Uniform Commercial Code does not appear to have changed the law on the point. Code (1964 Repl. Vob), Art. 95B, \\u00a7 3-112 (1) (d), provides that \\\"the negotiability of an in strument is not affected by a term authorizing a confession of judgment on the instrument if it is not paid when due .\\\" We said in Stankovich Aat page 430) :\\n\\\"It would seem logical that if the statute, as it does, preserves negotiability only if the confession of judgment is at or after maturity, the warrant to confess must expressly, or by necessary implication, restrict its exercise to that time if the note is to be negotiable, and that if the warrant is silent as to the time when it can be exercised, the reasonable implication must be that it can be done at any time. Most of the cases involving this general area of the law have arisen in Pennsylvania, and the Courts of that State have held that notes containing stipulations for confession of judgment without specification or limitation as to time are, like those expressly authorizing judgment prior to maturity, nonnegotiable.\\\"\\nThe Pennsylvania Courts have read the Uniform Commercial Code as not changing the law and have continued to hold that a provision in a note authorizing confession of judgment before the note is due renders it non-negotiable. Smith v. Lenchner, 205 A. 2d 626 (Pa. Super. Ct. 1964) ; Fidelity Trust Co. v. Gardiner, 155 A. 2d 405 (Pa. Super. Ct. 1959) ; Bittner v. McGrath, 142 A. 2d 323 (Pa. Super. Ct. 1958). In 1 Anderson's Uniform Commercial Code 528 (1961), the author says:\\n\\\"Negotiability is not affected by a provision authorizing the confession of judgment upon default when the instrument is due. If the instrument authorizes a confession of judgment before default or before the instrument is due the instrument is nonnegotiable.\\\"\\nWe conclude that the lower court did not err in excluding the defense of want of consideration under the circumstances of the case before us.\\nJudgment affirmed, with costs.\\n. \\\"The logical and necessary conclusion would seem to be that the legislative intent was to put negotiable papers, whether sealed or unsealed, on a common substantive and procedural equality, and so to permit this defense of a total or partial failure of consideration to be made without reference to the presence or absence of a seal to an instrument of writing, if otherwise negotiable. and, so far as procedure is concerned, no distinction is to be made in the pleadings by reason of the presence or absence of a seal upon the instrument, but in every such suit at law it will be sufficient for the defendant to set up his defense of an absence or total or partial failure of consideration under the general issue plea of either the defendant never promised as alleged, or was never indebted as alleged.\\\" (p. 242 of 153 Md.)\\n. Roth v. Baltimore Trust Co., 161 Md. 340, 348, held: \\\"The general issue pleas filed in this case permit, therefore, any matter of defense or discharge, except a denial of the incorporation of the plaintiff, the execution of the specialty, and the consideration for the nonnegotiable contract under seal, to be available to the defendant, except those defenses which must have been presented either by a special plea or by some other form of express denial in an action of assumpsit prior to the enactment of this provision. Citizens' Nat. Bank v. Custis, 153 Md. 235, 241, 242, 138 A. 261, 53 A.L.R. 1165.\\\"\"}"

md/1922404.json

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+"{\"id\": \"1922404\", \"name\": \"ALINA, et al. v. RASCHKA\", \"name_abbreviation\": \"Alina v. Raschka\", \"decision_date\": \"1969-06-30\", \"docket_number\": \"No. 350\", \"first_page\": \"413\", \"last_page\": \"422\", \"citations\": \"254 Md. 413\", \"volume\": \"254\", \"reporter\": \"Maryland Reports\", \"court\": \"Court of Appeals of Maryland\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-10T23:52:44.367663+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"ALINA, et al. v. RASCHKA\", \"head_matter\": \"ALINA, et al. v. RASCHKA\\n[No. 350,\\nSeptember Term, 1968.]\\nDecided June 30, 1969.\\nMotion for rehearing filed July SO, 1969; denied September 8,1969.\\nThe cause was argued before Hammond, C. J., and Marbury, McWilliams, Finan and Singley, JJ.\\nJoseph F. Lentz, Jr., with whom were Monfred & Lentz on the brief, for appellants.\\nDelverne A. Dressel, with whom was Emanuel H. Horn on the brief, for appellee.\", \"word_count\": \"2682\", \"char_count\": \"14904\", \"text\": \"Marbury, J.,\\ndelivered the opinion of the Court.\\nOn October 13, 1966, an automobile driven by the appellee John E. Raschka, struck the infant appellant Raclis S. Alina. The appellant Mary Elizabeth Alina, individually and as Raclis' mother and next friend, brought this action for damages arising as a result of the injuries sustained by the child. A jury trial was held on September 19, 1968, in the Circuit Court for Baltimore County. At the end of the appellants' case, the lower court granted the appellee's motion for a directed verdict and held as a matter of law that the appellants had failed to make out a prima facie case of negligence against Raschka. After a motion for a new trial was denied and judgment entered against them, the Alinas noted an appeal to this Court.\\nAt approximately 2:25 p.m. on October 13,1966, Raclis, who was then three and one-half years old, ran from behind a hedge located in front of his grandmother's house at 1417 Vesper Avenue into the street and was hit by Rasehka's automobile. It was a sunny, warm day and the avenue, which was approximately twenty feet wide, was dry. Because of the heat, the blacktop or macadam road surface was soft.\\nThe appellants called the appellee as their witness to establish the details of the accident. Raschka related that he lived at 1409 Vesper Avenue, and that at the time of the accident he was returning home with his son from a nearby bicycle shop. As he drove north on Vesper, there was only one car parked to his right and his view after passing that car was clear for approximately 600 feet to the point of impact. Across the street from the house in front of which the child was injured, there is a school. The appellee admitted that at times he had seen children playing and running in the street. He further testified that on two previous occasions he had taken Raclis out of the road and that he knew that certain neighbors had also done the same. Mr. Raschka stated: \\\"Well, this child has a habit of running out in front of cars.\\\"\\nAs he was traveling on Vesper Avenue at a speed of twenty miles per hour, the appellee first saw Raclis run out from behind a thick hedge about five feet in height, located in front of the child's grandmother's house. The hedge was approximately ten feet from the street. Raschka testified that when he first saw the boy, he was \\\"about two car lengths back\\\" and that he immediately slammed on his brakes when it became apparent that the boy was coming into the street. Appellee's vehicle left forty-nine feet of skid marks from his left rear wheel, but apparently none from the right rear wheel. He did not .sound his horn as he attempted to bring his automobile to a stop, and he did not swerve his car to the left or right to avoid striking the child.\\nOfficer Gary Witt, a Baltimore County policeman who investigated the accident, was also called as a witness by the appellants. Officer Witt testified that the speed limit on Vesper Avenue was twenty-five miles per hour. Due to the surface condition of the road which was soft due to the heat, he was unable to state the exact speed at which Raschka's vehicle was traveling, but he could state that the appellee was operating his car at \\\"not an excessive speed . . . .\\\" Although he testified that appellee's vehicle left only one skid mark, Officer Witt acknowledged that his official report indicated that there were no apparent mechanical defects in the vehicle, including the brakes.\\nOn appeal, the issue is whether the lower court erred in granting a directed verdict in favor of the appellee. The appellants urge that the evidence presented was sufficient to permit a jury to find negligence on Raschka's part in (a) failing to reduce his speed when approaching the area in which the accident occurred; (b) failing to apply his brakes when he first noticed the infant; (c) failing to reduce his speed at or near a school zone; (d) failing to sound his horn; (e) driving an automobile with defective brakes; (f) failing to turn his automobile to the left in order to avoid striking the child; (g) operating his vehicle across the center of the road; and (h) appellants also argue that the appellee should have been permitted to answer a question pertaining to the time in which he should have applied his brakes. This Court finds no merit in any of these contentions and will affirm the judgment entered by the lower court after granting a directed verdict for the appellee.\\n(a) (b) (c)\\nSince the appellants' arguments (a), (b) and (c) all pertain to a reduction of speed, we shall discuss these three together. It is well established in Maryland that a driver must exercise a high degree of caution when driving in a residential area where children are known to be. Mulligan v. Pruitt, 244 Md. 338, 223 A. 2d 574; Levine v. Beebe, 238 Md. 365, 209 A. 2d 67; Richardson v. Scott, 232 Md. 490, 194 A. 2d 288; State, Use of Taylor v. Barlly, 216 Md. 94, 140 A. 2d 173. Yet the fact that a motorist was familiar with an area and knew that children played on lawns or in the street on prior occasions has not precluded a directed verdict in favor of the motorist in other \\\"dart out\\\" cases. Willey v. Glass, 242 Md. 156, 218 A. 2d 212; Richardson v. Scott, supra. This Court has stated on numerous occasions that if a child darts out in front of an approaching vehicle when the driver is traveling at a reasonable rate of speed and obeying the rules of the road so that with the exercise of due care he is unable to avoid hitting the child, the driver is not liable for any injuries sustained by the child. Willey v. Glass, supra; Buscemi v. Bensel, 236 Md. 651, 205 A. 2d 219; Richardson v. Scott, supra; Lenehan v. Nicholson, 214 Md. 414, 135 A. 2d 447; Cocco v. Lissau, 202 Md. 196, 95 A. 2d 857.\\nIn the instant case, the appellee testified that he was traveling at a speed of twenty miles an hour, five miles below the speed limit. Officer Witt corroborated the fact that Raschka was not traveling at an excessive speed. There was no testimony that at the time of the accident the appellee observed children playing in the' street or immediately adjacent thereto. Had such been the case he may have been required to reduce the speed of his vehicle even further. See Buscemi v. Bensel, supra; Brantner v. Watkins, 227 Md. 626, 177 A. 2d 873; Richardson v. Scott, supra. While there may be an instance where proceeding at a rate below the speed limit constitutes negligence, this Court cannot say that the appellee was negligent in operating his vehicle at a speed of twenty miles per hour. The appellants maintain that the appellee was negligent in not applying his brakes when he first noticed the infant. This argument has no merit. Raschka testified that when he was about \\\"two car lengths back\\\" he first saw the boy who ran from behind the hedge for approximately ten feet to the edge of the road, where he continued into the roadway until struck by the appellee's vehicle. In Richardson v. Scott, supra, this Court commented :\\n\\\"The appellants claim that the little girl standing on the grass plot with a background of the green hedge must have been in plain view of the appellee and, therefore, the appellee should have taken proper action to avoid striking the child should she leave the place of safety and move either in front of or against the front portion of the car. Miss Scott had noticed Sue Ann on one prior occasion when the child, with other children, was in the street in the vicinity of her home. She had noticed the child in her own yard on a second prior occasion when she traversed the street. On the third occasion, when the accident occurred, seeing no children in the street and devoting her attention to the street ahead of her which was her primary duty, she, we think, can not be legally held to be negligent in not anticipating that the child, even if it had been seen by her as she approached, would either leave the grass plot and walk or run into the path of her car as she reached the entrance of the driveway.\\\" 232 Md. at 495, 194 A. 2d at 291.\\nSimilarly in Mumford v. United States, 150 F. Supp. 63 (D.C. Md., 1957), an eight year old boy rode his bicycle across a residential street from a driveway in the middle of the block into the path of an approaching truck traveling approximately twenty-five miles per hour. Granting a judgment for the defendant, Chief Judge Thomsen, speaking for the court stated:\\n\\\"If in fact the boy started to ride down the driveway from the parking lot, the driver could have seen him as soon as he came out from behind the house, some 37 feet from the curb, provided his attention had been directed to that point at that time; but the driver would have had the right to assume that the boy would turn to the right or to the left on the sidewalk or in the empty street and would not ride straight across in front of the truck. Belle Isle Cab Co. v. Pruitt, 187 Md. 174, 49 A. 2d 537; R. & L. Transfer Co. v. State, 160 Md. 222, 153 A. 87. If the boy was riding on the sidewalk, the driver had even less reason to expect the boy to turn into the street and to ride entirely across it without looking. The driver was proceeding at a moderate speed and had his truck under control. It was not his duty to sound his horn every time he saw a boy on a bicycle; but it was his duty to sound his horn or to take other appropriate measures to avoid an accident as soon as he saw, or should have seen, that the boy was entering the street without looking at the truck.\\\" 150 F. Supp. at 66.\\nAppellant's contention that Raschka was negligent in tailing to reduce his speed in a school zone also lacks merit since the school was apparently in session and was protected by a fence with a locked gate. See Rodriguez v. Lynch, 246 Md. 623, 229 A. 2d 83, where we indicated that even a sign marked \\\"School Crossing\\\" would have little meaning during the summer vacation.\\n(d)\\nNext, the appellants contend that Raschka was negligent in not sounding his horn. In light of the fact that the evidence established that the appellee first saw the boy when he was \\\"about two car lengths back,\\\" the absence of any sounding of the horn could not be considered as a proximate cause of the accident. As indicated in our per curiam opinion in Bess v. Quinn, 231 Md. 540, 542, 191 A. 2d 243, 244, where a boy darted out between two parked automobiles: \\\"If there had been time to blow the horn when he saw Michele's head, the warning would have been futile in view of the child's running and the immediacy of the impact.\\\" We conclude that Raschka was not negligent in devoting his energy to stopping his automobile. See Mumford v. United States, supra.\\n(e)\\nThe Alinas' fifth contention is that the appellee was negligent in driving an automobile with defective brakes at the time of the accident. They urge that the forty-nine feet of skid marks left only by the left rear tire was sufficient evidence to allow this issue to go to the jury. However, they offered no expert testimony and we conclude that the lower court correctly refused to permit a jury to speculate on the effectiveness of the vehicle's brakes on a road surface that was soft from the heat and slightly crowned. Raschka testified that his brakes had been inspected approximately one month prior to the accident and that he had not had any trouble with them. Officer Witt testified that his official report concerning the accident indicated that there were no apparent mechanical defects in the appellee's vehicle.\\n(f) (g)\\nNext, the appellants urge that the appellee was negligent in not turning to avoid the collision and that he was operating his automobile in the center of the road. Both contentions lack substance. As to the first of these points the appellants are situated similarly to the unsuccessful plaintiff in Rodriguez v. Lynch, supra,, where this Court observed: \\\"Rodriguez makes much of the fact that Lynch did not swerve to the right or to the left. There is nothing in the evidence to show that either course, right or left, would have mitigated or avoided the collision.\\\" 246 Md. at 627, 229 A. 2d at 85. There was no such showing in the present case, and we hold that the lower court properly refused to permit the jury to engage in speculation and conjecture. As to the second of these points, there was no evidence produced at trial which showed that appellee's driving in the center of the road was a proximate cause of the accident. As this Court concluded in Cocco v. Lissato, supra, another case of a child darting out in front of an automobile:\\n\\\"In this particular case defendant cannot be charged with negligence for driving in the center of the road, because the fact that he was driving in the center was not the direct and proximate cause of the accident. As a matter of fact, a person darting into the road from . . . the east side of the road, would be more likely to be struck by a car traveling on the east side of the road than by a car traveling in the center, because the driver would have more chance to see him and to slow down or turn aside to avoid hitting him.\\\" 202 Md. 199-200, 95 A. 2d at 859.\\n(h)\\nFinally, appellants complain that the lower court erred in not allowing the appellee to answer the question \\\"Well, you had time to apply your brakes didn't you?\\\" Assuming, without deciding, that this question did not call for a conclusion of the witness and was proper, the court's refusal to allow an answer was at most harmless error. Our reasoning in Willey v. Glass, supra, ruling upon the admissibility of certain evidence, is apposite: \\\"its admission into evidence did not amount to reversible error because as we point out later there was offered no legally sufficient proof of primary negligence.\\\" 242 Md. at 162, 218 A. 2d at 215-16. After a careful review of the record, this Court has determined that there was a total absence of legally sufficient evidence that the appellee was driving at an excessive speed, or that he was reckless or otherwise violated the rules of the road, or that he could have avoided striking the child by the exercise of due care. Since the appellants failed to make out a prima facie case of primary negligence on Raschka's part, the lower court properly directed a verdict in appellee's favor. Willey v. Glass, Buscemi v. Bensel, Richardson v. Scott, Lenehan v. Nicholson, all supra. See Brantner v. Watkins, supra; Finlayson v. Gruzs, 222 Md. 192, 159 A. 2d 864; and Cocco v. Lissau, supra.\\nJudgment affirmed. Costs to be paid by appellants.\"}"

md/1927967.json

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+"{\"id\": \"1927967\", \"name\": \"COMMISSIONER OF MOTOR VEHICLES v. THE BALTIMORE & ANNAPOLIS RAILROAD COMPANY, et al.; THALHEIMER v. THE BALTIMORE & ANNAPOLIS RAILROAD COMPANY, et al.\", \"name_abbreviation\": \"Commissioner of Motor Vehicles v. Baltimore & Annapolis Railroad\", \"decision_date\": \"1970-04-06\", \"docket_number\": \"No. 299\", \"first_page\": \"529\", \"last_page\": \"537\", \"citations\": \"257 Md. 529\", \"volume\": \"257\", \"reporter\": \"Maryland Reports\", \"court\": \"Court of Appeals of Maryland\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-10T18:49:03.293993+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"COMMISSIONER OF MOTOR VEHICLES v. THE BALTIMORE & ANNAPOLIS RAILROAD COMPANY, et al. THALHEIMER v. THE BALTIMORE & ANNAPOLIS RAILROAD COMPANY, et al.\", \"head_matter\": \"COMMISSIONER OF MOTOR VEHICLES v. THE BALTIMORE & ANNAPOLIS RAILROAD COMPANY, et al. THALHEIMER v. THE BALTIMORE & ANNAPOLIS RAILROAD COMPANY, et al.\\n[No. 299,\\nSeptember Term, 1969.]\\nDecided April 6, 1970.\\nThe cause was argued before Hammond, C. J., and McWilliams, Singley, Smith and Digges, JJ.\\nDouglas R. Due for Commissioner of Motor Vehicles, one of appellants; Martin Moncarz for Edwin J. Thalheimer, other appellant.\\nRobert B. Barnhouse, with whom were Piper & Mar-burg on the brief, for The Baltimore & Annapolis Railroad Company, et al., appellees.\\n. Examples of eases in which such a \\u201cdefinite, factual incident\\u201d has been found to have been shown are Baltimore Transit Co. v. Sun Cab Co., 210 Md. 555, 562 (\\u201crocking, swaying or jiggling of the streetcar that threw the other passengers back and forth\\u201d); Baltimore Transit Co. v. Pue, 243 Md. 256, 261-262 (\\u201c[the plaintiff fell] flat on her back from a standing position, with such force that the driver said he heard her hit the floor\\u201d; \\u201cthe driver, on his own testimony, stopped the bus in the middle of the intersection from a speed of twenty-five miles an hour within a distance of half the length of the bus\\u201d); Kaufman v. Baltimore Transit Co., 197 Md. 141, 146 (dicta \\u2014 seated passenger hurled from his seat against the seat in front of him); United Railways & Elect. Co. v. Phillips, 129 Md. 328, 331 (\\u201csuch a violent jerk that it caused the passengers to scream\\u201d).\", \"word_count\": \"2505\", \"char_count\": \"14029\", \"text\": \"Hammond, C. J.,\\ndelivered the opinion of the Court.\\nThalheimer, a plaintiff below, who was injured when he fell to the floor of a bus, appeals from judgments in favor of the owner and the driver of the bus following directed verdicts at the close of the plaintiff's case. A phantom car was said by the bus driver to have been involved and the jury found for Thalheimer in his suit against the Commissioner of Motor Vehicles. The Commissioner joins Thalheimer in appealing from the judgments in favor of the owner and operator of the bus but does not seriously challenge the jury's finding that he was liable.\\nThe bus, a carrier for hire, was on a regular run and Thalheimer was a regular passenger. After it had discharged passengers at the lower level of the Terminal Building at Friendship Airport and begun its journey on what is referred to as Lower Road towards its next stop, Thalheimer started to walk from a rear seat to a front seat. The bus stopped at the stop sign facing Lower Road. Just beyond that point Lower Road, Upper Road (which runs in front of the upper entrance to the Terminal Building over Lower Road) and Service Road (which runs by the International Building and to the freight area) all merge. Upper Road comes down grade to the right of Lower Road and Service Road is to the right of Upper Road. Lower and Upper Roads are one-way, Service Road is a two-way road, and remains so after the other two fully merge into it.\\nSeeing no traffic ahead or to the right, the bus driver started up. After he had gone about forty feet, he says a small white-topped foreign car cut sharply in front of the bus from the left. The driver stopped the bus in time to avoid contact, the car kept on going, and Thalheimer fell to the floor of the bus.\\nTraffic coming down Upper Road is faced by a \\\"Yield\\\" sign and beyond the sign goes tangentially right until it straightens out on the northbound lane of Service Road. Traffic on Lower Road does likewise. Trafile on both roads is directed into Service Road by arrows painted on the merging area beyond the end of those two roads. Once on Service Road, traffic can proceed onto Elm Road (an extension of Service Road) and out of the Airport.\\nTo the left of the bus as. it sat at the stop sign at the end of Lower Road, there was a parking lot enclosed by a wire fence. Some distance beyond the end of Lower Road, and apparently not visible from the end of Lower Road, is Cedar Road, which at that time was used as an entrance to the parking lot on the left. While Cedar Road apparently was not designed as an exit from the parking lot, the airport authorities had provided for the contingency that a potential parker would find the lot closed and have to turn around and exit by installing a stop sign at the end of Cedar Road and its intersection with the merging area and signs directing a vehicle exiting therefrom to proceed in the proper direction away from the merging area.\\nAll the evidence in the case was produced by the plaintiff. The only eyewitness was the bus driver, an adverse witness, whose deposition was read into evidence. He stated that as the bus sat at the stop sign at the end of Lower Road, he looked to his right and straight ahead to see if traffic was sufficiently clear to permit him to merge. He did not look to his left \\u2014 to do so would have been \\\"unnatural.\\\" Seeing that traffic was clear, he pulled forward into the merging area. After proceeding approximately forty feet, he heard the sound of a car's muffler, or motor, which \\\"could have been off to the [left] side.\\\" He simultaneously looked to the left and downward, saw the car \\\"flash in his eye\\\" directly in front of the bus, and \\\"dynamited\\\" his brakes. The car then continued out of the Airport. The bus came to a stop directly in front of Cedar Road. The driver first stated that the car had come from Cedar Road, but later indicated that it also may have come out of Lower Road and around the left side of the bus.\\nThe other witnesses produced by the plaintiff were the plaintiff himself and the captain of the Airport police, who testified regarding the roads involved.\\nWe think the trial judge correctly directed verdicts for the owner and driver of the bus. The plaintiff in a negligence action bears the burden of establishing that it was the negligence of the defendant which caused his injuries without disclosing the intervention of any independent factor which caused those injuries. Jones v. Baltimore Transit Co., 211 Md. 423, 426. A passenger on a bus who is injured as the result of a stop of the bus establishes an inference that the stop was due to negligence of the driver where he shows that the stop was extraordinarily sudden or violent (so long as in doing so there are not shown other circumstances, besides such negligence, which necessitated the stop). Kaufman v. Baltimore Transit Co., 197 Md. 141, 146. It is, however, well settled in this State that a passenger on a bus or other common carrier who bases a negligence action on the sudden stop of the carrier cannot establish a case \\\"merely by adjectival descriptions of the nature of the stop,\\\" but rather must show in addition some \\\"definite, factual incident\\\" created by the stop which shows it to be so abnormal and extraordinary that it can be legally found to have constituted negligence in operation. Retkowsky v. Baltimore Transit Co., 222 Md. 433, 438.\\nAn examination of the record in the case at bar indicates that no such \\\"definite factual incident\\\" was shown by the plaintiff. The bus driver described the stop and its surrounding circumstances variously as \\\"quick\\\"; \\\"a dynamite stop\\\" (\\\"a quick stop would be what they call a dynamite stop\\\") ; \\\"I hit the brakes and heard a sound of a thud. There he was laying beside me;\\\" \\\"[I] heard the noise [of the car's muffler] and saw the top of that car right on me. That is why I had to dynamite my brakes to stop;\\\" \\\"I dynamited and looked at the same time.\\\" The plaintiff said \\\"he slammed his brakes;\\\" \\\"I'd just started to get up and as I started he slammed his brakes, I was holdin' on to the seat like this, and I was reachin' for the front;\\\" \\\"the way he threw his brakes on I thought I was goin' to go out the window.\\\" He further stated that neither of the two other passengers who were on the bus at the time fell off their seats or showed other signs of disturbance, and that no packages or other things were thrown around.\\nThe only part of this testimony which might be considered a \\\"definite factual incident\\\" as opposed to mere \\\"adjectival description\\\" is the fact that the driver testified that he heard the plaintiff fall with a \\\"thud.\\\" We find that such characterization standing alone is not one which necessarily is indicative of abnormality in the stop and thus not one which will permit the inference that the stop legally constituted negligence. Such a \\\"thud\\\" could be produced by any fall, violent or otherwise, particularly when the passenger fell at a point directly behind the driver.\\nHowever, even assuming that the plaintiff sufficiently proved the abnormality and negligence of the stop, there are other facts and circumstances which prevent the inference that the stop was due to the negligence of the driver. Kaufman v. Baltimore Transit Co., supra. Reasonable minds would not disagree that a driver who is confronted with the sudden appearance of another vehicle directly in front of him acts as a reasonably prudent man by stopping as quickly as possible.\\nThe appellants argue that this was an emergency which the driver himself created, since by his own testimony he admitted that he did not look to the left either prior to or during his exit from Lower Road into the merger area. From this they draw the inference of negligence sufficient to take the case to the jury, saying that had the driver looked he would have seen the car in time to bring the bus to a comfortable stop. The photographs in the record make it clear that upon stopping at the end of Lower Road the reasonable driver would be expected to look only forward and from that point the exit from Cedar Road is not even visible, if the car came from that point. Once the driver begins his exit from Lower Road into the merging area, his attention is naturally directed to the front and the right so that he may successfully avoid traffic both ways on Service Road and that going his way on Upper Road.\\nAgain, if it be assumed that the driver's failure to look to the left might constitute negligence, that negligence was not the proximate cause of the plaintiff's injuries here. The sudden entry into the direct path of the bus described by the bus driver was an intervening superseding cause of the harm to Thalheimer. Even if the driver of the bus had looked to his left and seen the phantom car \\u2014 either behind him, beside him, or at the end of Cedar Road (which are the only possible positions of the car under the testimony produced by the plaintiff) \\u2014he clearly was not bound to anticipate that the car would suddenly pull directly into his path. Jones v. Baltimore Transit Co., 211 Md. 423; Baltimore Transit Co. v. O'Donovan, 197 Md. 274; Oliver v. Baltimore Transit Co., 247 Md. 625.\\nIn Jones it was held that a verdict was properly directed for the Transit Co. in an action for injuries resulting from a sudden stop necessitated by a car, going in the same direction as the bus, suddenly cutting in front of the bus. The plaintiff contended that excessive speed of the bus was a concurrent cause of her injuries. We said (at p. 429 of 211 Md.) :\\n\\\"Appellant's own testimony shows that the sudden stop of the bus was required by a car suddenly cutting in front of the bus. There was, of course, no contradiction of this evidence. The cause of the accident clearly was the unexpected and unforeseeable action of the automobile that violated the rules of the road by invading the lane of the bus.\\\"\\nSimilarly, in O'Donovan it was held that a verdict should have been directed for the Transit Co., in an action for injuries resulting from the bus's collision with a disabled automobile at an intersection when the car, in violation of the boulevard rule, pulled into the bus's path. The plaintiff argued that the driver failed to maintain a proper lookout. Judge (later Chief Judge) Henderson said for the Court (at pp. 278-279 of 197 Md.) :\\n\\\"In the instant case we think the bus driver had the right to assume that the other vehicle, in a place of safety by the grass plot, would remain there and yield the right of way. We find no merit in the contention that the bus driver was at fault in failing to observe the automobile when it made its initial stop by the stop sign, nearly 100 feet from the point of impact.\\n\\\"The chief contention is that the bus driver failed to stop 'when it was, or should have been, apparent to him that the automobile was standing disabled ahead of him.'\\n\\\" Taking [the automobile driver's] testimony in its most favorable light, his car stopped, with its whole length blocking the eastbound lane a matter of seconds before impact.\\nBut whether it could have been stopped sooner or not, the proximate cause of the plain tiff's injury was the unexpected intrusion into or blocking of the eastbound lane by the [automobile] . It was not negligence for the bus driver to make an emergency stop under the circumstances.\\\"\\nThe appellants find solace in Baltimore Transit Co. v. Pue, 243 Md. 256, where it was found that the jury could have found that a concurring and contributing cause of the sudden stop at an intersection made by the bus driver was his failure to maintain a proper lookout. If in the case at bar the phantom car came from behind or beside the bus, Pue is distinguishable from Jones and the case at bar, in that in Pue the car which was coming west on 40th Street as the bus was coming east turned in front of the bus, necessitating the sudden stop, and had to have been seen had the bus driver looked at the road instead of the traffic light at the intersection. The bus driver in Pue never saw the car in its proper lane since his attention was centered exclusively on the traffic light he was approaching. He saw the car turning directly in front of him at the intersection just in time to avoid hitting it.\\nIf, on the other hand, the phantom car in the case at bar emerged from Cedar Road, Pue is distinguishable from O'Donovan and the case at bar in that the boulevard rule did not apply to the Pue situation. Tates v. Toney, 231 Md. 9.\\nThese reasons persuade us that verdicts were properly directed for the appellees.\\nJudgments affirmed, with costs.\"}"

md/1930268.json

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+"{\"id\": \"1930268\", \"name\": \"MARYLAND BUREAU OF MINES, et al. v. POWERS\", \"name_abbreviation\": \"Maryland Bureau of Mines v. Powers\", \"decision_date\": \"1970-06-04\", \"docket_number\": \"No. 388\", \"first_page\": \"379\", \"last_page\": \"385\", \"citations\": \"258 Md. 379\", \"volume\": \"258\", \"reporter\": \"Maryland Reports\", \"court\": \"Court of Appeals of Maryland\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-11T00:41:00.533593+00:00\", \"provenance\": \"CAP\", \"judges\": \"The cause was argued before Hammond, C. J., and McWilliams, Singley, Smith and Digges, JJ.\", \"parties\": \"MARYLAND BUREAU OF MINES, et al. v. POWERS\", \"head_matter\": \"MARYLAND BUREAU OF MINES, et al. v. POWERS\\n[No. 388,\\nSeptember Term, 1969.]\\nDecided, June U, 1970.\\nThe cause was argued before Hammond, C. J., and McWilliams, Singley, Smith and Digges, JJ.\\nCharles R. Goldsborough, Jr., Assistant Special Attorney, with whom were Francis B. Burch, Attorney General, and J. Howard Holzer, Special Attorney, on the brief, for appellants.\\nNo brief filed on behalf of appellee.\", \"word_count\": \"1902\", \"char_count\": \"11446\", \"text\": \"Digges, J.,\\ndelivered the opinion of the Court.\\nThe Circuit Court for Allegany County (Getty, J.) entered a judgment for appellee Frank T. Powers awarding him compensation for permanent partial disability caused by an occupational disease (silicosis). This judgment reversed the decision of the Workmen's Compensation Commission. The Bureau of Mines of the State of Maryland as employer and the State Accident Fund as insurer appealed.\\nThe only testimony before any of the tribunals in question was that of the appellee, Frank T. Powers. His testimony summarized reveals the following: He began working as a coal miner in 1900 at the age of thirteen. In 1918 he commenced employment with the State of Maryland, having been appointed an inspector of coal mines by Governor Harrington. In 1922 the Bureau of Mines of the State of Maryland was created and the claimant continued his duties as mine inspector under the authority of that body. His duties consisted of checking Maryland mines from the viewpoint of safety and in volved his being \\\"all over the mines in every place, six days a week.\\\" In 1949 appellee was appointed Director of the Bureau of Mines. This was primarily an administrative job, and involved his actually entering the mines very little. His visits to the mines were primarily on the occasions of disaster. He did not attempt to estimate how often these would occur. In 1957 appellee was hospitalized for two weeks. The reason for the hospitalization was pneumonia, and appellee stated he had no silicosis at that time. On December 31, 1962 the appellee, then seventy-five years of age, retired from the Bureau of Mines, performing all his duties in a satisfactory manner until his retirement, so far as the record shows.\\nAlthough he was supposed to retire at age seventy, appellee apparently received special dispensation to stay on until he was seventy-five. He retired at that time because he \\\"decided it was long enough\\\" and because the Bureau wanted to employ somebody else. Appellee specifically stated he did not retire because of any disability.\\nIn 1967 appellee learned as a result of an X-ray taken at a mobile unit that he had silicosis, and promptly filed for compensation under the occupational disease sections of the Workmen's Compensation Act. As provided in those sections, Code (1957, 1964 Repl. Vol.) Article 101, sections 27, 28, a hearing was held before the Medical Board composed of three licensed physicians, two of whom were specialists in industrial diseases and one a specialist in roentgenology. The Medical Board following his testimony found as fact that he did have silicosis, but found also that he did not contract the disease in the employ of the Bureau of Mines, and that he was not disabled. Under section 29 of Article 101 appellee filed for review of these findings by the Workmen's Compensation Commission. Although twenty-one issues were considered before the Medical Board, the Commission reviewed and answered only three: 1) Was the disease actually incurred in the employment of the Bureau of Mines? No. 2) If the claimant contracted an occupational disease is his claim barred by the statute of limitations as stated in Article 101, section 26? Yes. 3) Was the claimant exposed to the hazards of silicosis during the sixty day period referred to in section 23 (b) of Article 101 ? No.\\nAppellee then appealed the Commission's decision to the circuit court. Appellants submitted a motion for summary judgment. The trial court after reviewing the record decided the Commission's findings were unsupported by legally sufficient evidence on the first two issues, and irrelevant to the instant case on the third. The court concluded appellee was partially disabled within the meaning of Code (1957, 1964 Repl. Vol.) Article 101, section 24 and awarded him the $1,000 sum fixed under that section before the 1967 amendment. Appellee had not presented a motion for summary judgment on his own behalf, but the court as authorized by Maryland Rule 610 d (2) entered judgment against the moving party (appellee) . Although entry of the judgment was procedurally proper, we conclude the legal basis for the entry did not exist, and it must be reversed.\\nIn the ordinary workmen's compensation appeal to the circuit court, section 56 of Article 101 makes it clear the court has broad powers of review over the decision of the Commission. This review extends both to findings of fact and applicable law, although the decision of the Commission is entitled to prima facie correctness. We have held this section provides for a trial which is essentially de novo. Abell v. Goetze, Inc., 245 Md. 433, 226 A. 2d 253 (1967). However, this same section 56 provides \\\"that in all appeals in which occupational diseases are involved, the findings of fact by the Commission shall be final and not subject to review or modification by the court or be submitted to a jury.\\\" The same prohibition on review of facts is expressed in section 29 of Article 101. The intent of these provisions is to finalize the determinations of the administrative body which the legislature has deemed most qualified to make medical and other factual conclusions in these types of cases. Note, 13 Md. L. Rev. 337 (1953). The legislative judgment as to where finality should rest has fluctuated; between 1951 and 1955 the findings of the Medical Board were by statute presumed to be correct, and unreviewable if supported by legally sufficient evidence. Big Savage Ref. Corp. v. Geary, 209 Md. 362, 121 A. 2d 212 (1956). Except for this period, finality has been vested in the Commission's findings from the time occupational diseases were first included in the coverage of Article 101 in 1939 until the present time. This means the pre-195'1 law on the subject and the post-1955 law are the same. Martin Marietta v. Leius, 237 Md. 217, 205 A. 2d 792 (1965) ; Beth. Spar. Pt. Shipyard v. Bishop, 189 Md. 147, 55 A. 2d 507 (1947).\\nIn spite of the unqualified language of section 56 the findings of the Commission are not totally insulated from review by the court. We have recognized that a finding of the Commission may be reversed when it is based on an erroneous conception of the applicable law. Gower v. Davis Coal & Coke Co., 197 Md. 52, 78 A. 2d 195 (1951). Utilizing this principle our decisions have extended the power of review to the factual field because we have held \\\" [n] otwithstanding the finality which these statutes seek to confer upon such findings of the Commission, they are subject to review if not supported by substantial or legally sufficient evidence (both terms being found in the cases), and the existence of such evidence is a question of law.\\\" Duncan v. McNitt Coal Co., 212 Md. 386, 129 A. 2d 523 (1957) ; Johnstown Coal & Coke Co. v. Dishong, 198 Md. 467, 84 A. 2d 847 (1951).\\nIn the instant case Judge Getty found it unsupportable that the Medical Board and Commission could conclude that Powers' silicosis was not incurred in the employment of the Bureau of Mines, because silicosis is unquestionably an occupational disease and the Bureau was Powers' only employer for the last forty-four years. This finding would necessarily mean that the claimant contracted the disease either before 1918 when he went to work for the Bureau, or after 1962 when he retired. After his retirement there is practically no evidence of claimant's exposure to the hazards of silica dust.\\nThe Medical Board and the Commission had before them evidence that claimant's exposure to the hazards of silica \\u2022dust was minimal after 1949; that no disability from the \\u2022disease was apparent during the entire term of claimant's employment including a five year extension beyond normal retirement; and that at the time of his hospitalization for pneumonia in 1957 the claimant stated \\\"he knew he didn't have it [silicosis] then\\\" (whether X-rays were taken at the time of the hospitalization was uncertain) . Although simple layman's logic would seem to indicate that the Circuit Court for Allegany County is more accurate than the Commission, we find the above evidence was legally sufficient to support the Commission's finding that it was not incurred during that employment. The reason for giving finality to the Commission's findings is that they and the Medical Board are able to employ precisely the sort of specialized knowledge that is not available to laymen or judges. It is clear the burden is on claimant to show that he comes within the provisions of the statute. Failure to show the occupational disease was \\\"actually incurred in his employment\\\" (section 23 (d)) precludes claimant from the benefits under the act. Martin Marietta Corp. v. Leius, supra; Mutual Chemical Co. v. Thurston, 222 Md. 86, 158 A. 2d 899 (1960). We think the words of Judge Finan in General Electric v. Cannella, 249 Md. 122, 133, 238 A. 2d 891 (1968) are equally appropriate in the instant case: \\\"We cannot agree with the construction placed on the Commission's findings by the lower court, without ignoring the finality that should be accorded such findings where supported by legally sufficient evidence and without doing violence to the clear language of Section 24 (b) of the statute.\\\"\\nOur determination here is alone sufficient to block the claimed benefits, so that it becomes unnecessary to rule on the two remaining issues. We do desire to comment, however, that despite the explicit admonitions against in adequate and unclear findings in General Electric v. Cannella, supra at 132-33, and Beechwood Coal Co. v. Lucas, 215 Md. 248, 258, 137 A. 2d 680 (1958) the truncated findings of the Commission leave much to be desired. The transcript of testimony before the Medical Board may well suffice to support purely factual findings by the Commission. Where legal questions are involved as in the statute of limitations, statements that a claim is barred without any expressed basis for that conclusion make review of such statements by the courts, even though they be entitled to make one, Gower v. Davis Coal & Coke, 197 Md. 52, 78 A. 2d 195 (1951), a pointless and frustrating exercise. Judge Getty chose to characterize the decision on limitations as unsupported by the facts. Without approving or condemning this action we note it is a risk the Commission took by failing to list any facts leading to its decision.\\nWith our determination that the facts as found by the Commission are conclusive, there existed no genuine dispute of material facts, and it was error for the trial court to grant a summary judgment for appellee, and fail to grant it for appellant.\\nSummary judgment in favor of appellee reversed. Proceedings remanded with direction to reinstate order of compensation commission. Appellee to pay the costs.\\n. The appellee listed the date of his disablement as December 31, 1962. Presumably this was the basis for awarding compensation under the old section 24. The amended section 24 (effective June 1, 1967) provides for apportioned awards in permanent partial disability cases with a ceiling of $12,500.\"}"

md/1939280.json

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+"{\"id\": \"1939280\", \"name\": \"GRAIN DEALERS MUTUAL INSURANCE COMPANY v. VAN BUSKIRK\", \"name_abbreviation\": \"Grain Dealers Mutual Insurance v. Van Buskirk\", \"decision_date\": \"1965-12-27\", \"docket_number\": \"No. 39\", \"first_page\": \"58\", \"last_page\": \"71\", \"citations\": \"241 Md. 58\", \"volume\": \"241\", \"reporter\": \"Maryland Reports\", \"court\": \"Court of Appeals of Maryland\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-11T00:25:19.496112+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"GRAIN DEALERS MUTUAL INSURANCE COMPANY v. VAN BUSKIRK\", \"head_matter\": \"GRAIN DEALERS MUTUAL INSURANCE COMPANY v. VAN BUSKIRK\\n[No. 39,\\nSeptember Term, 1965.]\\nDecided December 27, 1965.\\nThe cause was argued before Prescott, C. J., and Hammond, Marbury, Barnes and McWilliams, JJ.\\nLeonard B. Cohen, with whom -were Frank, Bernstein, Gutberlet & Conaway on the brief, for appellant.\\nJames B. Hogan, with whom were Arthur J. Hilland and Ferdinand J. Mack on the brief, for appellee.\", \"word_count\": \"3935\", \"char_count\": \"23070\", \"text\": \"Barnes, J.,\\ndelivered the opinion of the Court.\\nThe appellant, Grain Dealers Mutual Insurance Company (Grain Dealers), through an insurance broker, Finney Realty, Inc. of Martinsville, Virginia, issued an automobile policy, with a Virginia uninsured motorist endorsement effective September 30, 1961, to Earle K. Van Buskirk (Earle) who. then lived at Ferrum, Franklin County, Virginia with his wife, Victoria B. Van Buskirk (Victoria) and their minor child, a girl of seven years of age. The Van Buskirks had lived in Ferrum for about one year, Earle being employed as an electrician by the General Electric Company in Salem, Virginia.\\nThe automobile policy was effective for one year\\u2014from September 30, 1961 to September 30, 1962\\u2014and contained an endorsement entitled \\\"Family Protection Against Uninsured Motorists\\\" which obligated Grain Dealers to pay all sums to which the insured became legally entitled to recover as damages because of bodily injury or property damage caused by accident and arising out of the ownership, maintenance or use of the uninsured automobile, subject to the limits of liability, exclusions, conditions and other items of the policy. The limits of liability were for bodily injury, $15,000 for each person and $30,000 for each accident; and for property damage, $5,000 for each accident. The word \\\"insured\\\", if unqualified, was defined in relevant part to mean \\\"The named insured and, while residents in the same household, his spouse and the relatives of either; .\\\" The term \\\"insured automobile\\\" was defined in relevant part as \\\"an automobile which is registered in Virginia and which is owned by the named insured or by his spouse if a resident of the same household; .\\\" Other provisions of the endorsement will later be mentioned.\\nThe insured automobile was owned by Earle and registered in Virginia.\\nIn May of 1962, the Van Buskirk family moved to East Riverdale, Prince George's County, Maryland because Earle had obtained employment as a technical writer with ACF Industries, located near East Riverdale. The infant girl was enrolled in a nursery school in Hyattsville. Earle brought the insured automobile with him to East Riverdale.\\nOn August 27, 1962', Earle was killed in an accident while driving his automobile in East Riverdale, as a result of a head-on collision with an automobile driven by Daisy Marie Paris, who, with her husband, was insured under a policy having limits of $10,000 for one person. The automobile driven by Earle was on the right side of the highway. The automobile driven by Mrs. Paris crossed over on the wrong side of the road where the head-on collision occurred.\\nOn November 30, 1962, Ferdinand J. Mack, attorney for Victoria, wrote to Grain Dealers in Indianapolis, Indiana, and inquired whether that company would discuss Victoria's claim under the uninsured motorist endorsement. Mr. Mack enclosed Earle's death certificate and advised Grain Dealers that Mrs. Paris had been charged with manslaughter by automobile, that her trial was set for December 17, 1962 and that the company might wish to have one of its representatives attend the trial. Receipt of the letter of November 30 was acknowledged by Grain Dealers on December 11.\\nOn November 4, 1963, Mr. Mack, who theretofore had communicated with counsel for Grain Dealers in the District of Columbia, wrote Grain Dealers and enclosed a copy of the declaration in the wrongful death action of State of Maryland, to the use of Victoria, et al, against Mr. and Mrs. Paris. In the letter of November 4, Mr. Mack informed Grain Dealers that the insurance carrier for Mr. and Mrs. Paris had indicated that the Paris' only had $10,000/$20,000 coverage and that the plaintiffs looked to Grain Dealers for payment of the excess under the uninsured motorist endorsement. Mr. Mack also advised the company of service upon Mr. and Mrs. Paris, the time within which those defendants had to plead, and the granting of additional time to plead, at the request of the representatives of Nationwide Insurance Company (Nationwide), the insurance carrier for those defendants. Mr. Mack also stated:\\n\\\"To my knowledge, this is all the information that is required to be provided you under the above-mentioned. If there is any further information you desire, which we can legitimately furnish to you, please let me know immediately.\\\"\\nOn November 20, 1963, Grain Dealers acknowledged Mr. Mack's letter of November 4, enclosed drafts for $1,811 in payment of the collision claim and for $500 in payment of the Medical Payments claim, and stated:\\n\\\"We do not believe we are obligated to pay anything on the Uninsured Motorists claim until the adverse party has been found to be legally liable and the amount of the judgment has been established. Furthermore, we are not entirely satisfied that the adverse party was an uninsured motorist since he did have liability insurance coverage in the amount of $10,000 for each person and $20,000 for each accident. We have referred this claim to our Attorneys Brault and Lewis of Fairfax, Virginia. By copy of this letter, we are asking them to contact you for all further negotiations on the Uninsured Motorists claim.\\\"\\nMr. Mack, in a letter of December 27 to Grain Dealers informed the company of prior settlement negotiations with its representative, the failure of those negotiations and that \\\"appropriate action will be instituted against you at the conclusion of the pending action, to recover that portion of the judgment which is not recoverable from the defendants in the Prince George's Coitnty proceeding.\\\"\\nBefore the wrongful death case was tried, Mr. Mack after investigating the financial position of Mr. and Mrs. Paris, concluded that any judgment obtained over the amounts covered by insurance would be uncollectable. On June 2, 1964, he told Jerrold V. Powers, counsel for Nationwide and for Mr. and Mrs. Paris, that the plaintiffs would be willing to reduce the ad damnum in the declaration against the wife to $15,000. Mr. Powers then stated that Mr. and Mrs. Paris would offer no evidence in defense and .that Nationwide would pay up to $10,-000 on whatever judgment would be entered. Mr. Powers testified that in his opinion there was no defense available to the question of the liability of Mrs. Paris and the best service he could render Mr. and Mrs. Paris was to protect them against any judgment in excess of the amounts of insurance coverage. There was no agreement between counsel in regard to the amount of the judgment, so that the judgment rendered by the court could have been any amount up to $15,000, the amount of the ad damnum. The trial court rendered judgment for the plaintiffs for $15,000 and Mr. Mack advised counsel for Grain Dealers of this judgment in his letter of July 10, 1964, enclosed the docket entries, explained the lack of financial resources of Mr. and Mrs. Paris and indicated that suit would be instituted against Grain Dealers unless prompt action resulted from the company. Grain Dealers referred the matter to Maryland counsel and the case at bar was thereafter instituted by Victoria in the Circuit Court for Prince George's County against Grain Dealers. Before Judge Bowen and in this Court, Grain Dealers raised the following questions:\\n1. Was the appellee, Victoria, precluded from recovery because she failed to have Grain Dealers served with process in the wrongful death action, when the law of Commonwealth of Virginia requires such service?\\n2. Was she precluded from recovery because she settled the wrongful death action in breach of a condition of the endorsement?\\n3. Was she precluded from recovery because she failed to notify Grain Dealers that she had changed her residence from the Commonwealth of Virginia to the State of Maryland, in breach of a condition of the endorsement ?\\nJudge Bowen, sitting without a jury, in an able oral opinion, answered all of these questions in the negative and entered a verdict for the appellee Victoria for $5,000 with interest from date. Judgment absolute was entered on this verdict on February 17, 1965 and from this judgment this appeal was taken.\\nWe have concluded that Judge Bowen answered all these questions correctly and the judgment will be affirmed.\\nI.\\nUnder the statutory law of Virginia, Section 38.1-381 (b) of the Virginia Code (1964 Cum. Supp.), automobile policies issued in Virginia are required to contain an uninsured motorist endorsement. Section 38.1-381 (e) (1) of that Code then provides as follows:\\n\\\"Any insured intending to rely on the coverage required by paragraph (b) of this section shall, if any action is instituted against the owner or operator of an uninsured motor vehicle, serve a copy of the process upon the insurance company issuing the policy in the manner prescribed by law, as though such insurance company were a party defendant; such company shall thereafter have the right to file pleadings and take other action allowable by law in the name of the owner or operator of the uninsured motor vehicle or in its own name; provided, however, that nothing in this paragraph shall prevent such owner or operator from employing counsel of his own choice and taking any action in his own interest in connection with such proceeding.\\\"\\nThe Supreme Court of Appeals of Virginia has held that the requirement of service of process is a condition precedent to recovery under the uninsured motorist endorsement and that the giving of notice of the pending action by the plaintiff did not take the place of the required service of process. State Farm Mutual Automobile Insurance Co. v. Duncan, 203 Va. 440, 125 S. E. 2d 154 (1962).\\nInasmuch as Grain Dealers was not a party to the wrongful death action in Maryland and was not served with process, the question arises as to whether the Virginia statute requiring service of process is substantive or procedural. If the provision is substantive, then the Virginia statute controls. The locus contractus is the place where the last act is performed which makes an agreement a binding contract. Sun Insurance Office v. Mallick, 160 Mid. 71, 81, 153 Atl. 35, 39 (1931). In Mallick, we indicated that the delivery of the insurance policy and the payment of the premium were the final acts which put the insurance contract in force and that the broker in Baltimore acted as the agent of the insurer in doing those acts, so that the policy was a Maryland contract and the substantive law of Maryland, as the lex locus contractus, applied. The same principle applies in the case at bar. See Galford v. Nicholas, Administrator, 224 Md. 275, 167 A. 2d 783 (1961) involving a substantive provision of law in regard to the coverage of the policy.\\nIf, however, the provision of the Virginia statute is procedural, rather than substantive, the procedure in the Maryland litigation is governed by the law of Maryland as the lex fori and not by the law of Virginia. Doughty v. Prettyman, 219 Md. 83, 88, 148 A. 2d 438, 443-444 (1959); Restatement, Conflict of Laws, \\u00a7 584, 585 and 592. See Tobin v. Hoffman, 202 Md. 382, 386, 96 A. 2d 597, 598 (1953); Eastwood v. Kennedy, 44 Md. 563, 571-572 (1876). See also Pritchard v. Norton, 106 U. S. 124, 129, 1 S.Ct. 102, 106, 27 L. Ed. 104, 106 (1882); Wells v. American Employers' Insurance Co., 132 F. 2d 316 (5th Cir. 1942); McArthur v. Maryland Casualty Co., 184 Miss. 663, 186 So. 305, 120 A.L.R. 846 (1939).\\nIt seems clear to us that the provision of the Virginia statute requiring service of process upon the insurance company is procedural, Restatement, Conflict of Laws, \\u00a7 589, and the Supreme Court of Appeals of Virginia so held in Creteau v. Phoenix Assurance Co. of N. Y., 202 Va. 641, 119 S. E. 2d 336 (1961). The Creteau case involved an automobile policy issued prior to the passage of Section 38.1-381 (e) (1). The accident happened after the issuance of the policy, but one week prior to the passage of the statute. As no service was made on the company, the insured contended that the provision was substantive and did not change the terms of the existing policy. In ruling against this contention the Supreme Court of Appeals of Virginia held that the provision was procedural, stating:\\n\\\"The amendment [Sec. 38.1-381 (e) (1) ] is procedural . [M]ere matters of procedure and remedy for their enforcement or preservation may be altered, curtailed or repealed at the will of the legislature (Page 340 of 119 S. E. 2d).\\nThe court of the forum determines according to its conflict of law rule whether the question is one of substance or of procedure, Wells v. American Employers' Insurance Co., supra; Restatement, Conflict of Laws, \\u00a7 584, but we observe that the construction of the statutory provision as procedural by the highest court of Virginia is in accord with our construction of it. Cf. McArthur v. Maryland Casualty Co., supra.\\nProcedure in Maryland is governed by the Maryland Rules of Procedure. See Maryland Rule 1. There is no procedure in Maryland for the service of process upon an insurance company not a party to the litigation, as there is in Virginia. The plaintiffs in the wrongful death action had no way to do this. They advised Grain Dealers of the pendency of the action and sent it a copy of the declaration. If Grain Dealers wished to become a party by intervention, it had ample opportunity to seek to do this.\\nEven if it be assumed, arguendo, that the procedural provisions of the Virginia Code were to be followed by the Maryland courts, the uncontradicted evidence indicates that in this case Grain Dealers has waived its right to rely upon the defense of lack of service of process. For approximately two years during the negotiations between Grain Dealers and Victoria and until the filing of the Bill of Particulars to its general issue pleas in the present case, Grain Dealers asserted that it was refusing to pay Victoria's claim for two reasons: 1) it was not obligated to pay the claim until a judgment had been obtained' against the adverse party and the amount of the judgment determined, and 2) that the adverse party was not an \\\"uninsured motorist\\\" within the meaning of the endorsement. Grain Dealers did not raise any defense of the lack of service of process until after this action was filed. Under the Maryland cases these circumstances resulted in a waiver of the defense. A similar situation arose in McElroy v. John Hancock Life Insurance Co., 88 Md. 137, 41 Atl. 112 (1898) involving a life insurance policy which required that notice of death be given within 90 days. Judge Fowler, for the Court stated:\\n\\\"The following grounds or any one of them have been declared to be sufficient to constitute a waiver of any defect in, or defense arising out of failure to duly give notice and proof of death: 'A proposal to settle' ; 'an absolute refusal to pay on the merits'; 'a denial of all liability'; 'a negotiation with the insured, without making the objection of defective proof of death.' Bliss on Life Insurance, sec. 268; Cooke on Life Insurance, p. 118. In its letter to the plaintiff the defendant, said: 'The papers in themselves are correct enough, but the company has decided not to recognize the claim under this policy.' Not a word here to indicate that its refusal to pay the plaintiff was because of want of seasonable proof of death. It is true it subsequently relied upon this defence, but when it wrote the letter of the 15th of Feb. to him it neither directly nor indirectly placed its refusal to pay upon want of proper proof of death. The letter closed thus: 'We think it might be well for you to see Mr. Thomas, and see whether Miss Dorsey is intending to enter suit as intimated in his letter. Until that matter is settled we are unable to give you any definite information in regard to this case.' The information asked for by the plaintiff was to know if the proofs of death sent by Miss Dorsey were in due form, and if not what he should do to perfect his claim. If the defendant intended to rely upon the defence it now sets up it should have said so.\\\" (Pages 149-150 of 88 Md.; page 115 of 41 Atl.).\\nThis Court cited with approval and followed the McElroy case in Fidelity & Casualty Co. v. Riley, 168 Md. 430, 438-439, 178 Atl. 250, 254 (1935). See Foard v. Snider, 205 Md. 435, 447-448, 109 A. 2d 101, 107 (1954); Eastover Stores, Inc. v. Minnix, 219 Md. 658, 672, 150 A. 2d 884, 891-892 (1959); Hill v. Benevicz, 224 Md. 79, 89-90, 167 A. 2d 104, 110 (1961).\\nThe facts in the case at bar in regard to negotiations and exchange of correspondence without reliance on the defense of lack of service, in our opinion, distinguish the case at bar on the point of waiver from Creteau v. Phoenix Assurance Co. of N. Y., supra and even from State Farm Mutual Automobile Ins. Co. v. Duncan, supra, although it should be noted that the Virginia law as to waiver as set forth in the Duncan case is by no means as broad as the Maryland law in this regard. As the waiver involved in the case at bar involves a procedural matter, the law of the forum would control in any event, as we have already indicated.\\nII.\\nParagraph (b) under exclusions in the endorsement provides: \\\"This endorsement does not apply:\\n\\\"(b) to bodily injury to an insured, care or loss of services recoverable by an insured or injury to or destruction of property of an insured, with respect to which such insured or his legal representative shall, without written consent of the company, make any settlement with any person or organization who may be legally liable therefor.\\\"\\nJudge Bowen found that no \\\"settlement\\\" had been reached between Victoria and Mr. and Mrs. Paris in the wrongful death case. We agree with his finding.\\nThe purpose of the exclusion in regard to settlement is to protect the company from the payment of claims which have not been determined by a court, but merely by agreement of the parties themselves. In the case at bar there was no agreement in regard to the amount of the judgment to be determined by the court in the wrongful death action. The court could have rendered a verdict for any amount up to $15,000, the amount of the ad damnum. There was no prejudice to Grain Dealers by the reduction of the ad damnum to $15,000 in an action involving facts which in the opinion of counsel, would support a verdict of between $40,000 and $50,000. Mr. Powers testified that there was no agreement as to who would receive a verdict in the wrongful death case, nor was there any agreement in regard to the amount of any verdict, except that under the pleadings, after the amendment to reduce the ad damnum to $15,000 the ver diet could not exceed $15,000. There was nothing in writing between the parties or their counsel in regard to a verdict or its amount. There was no release asked for or given. Counsel for the parties in the wrongful death action were apparently careful that there would be no settlement and, in our opinion, the trial court was clearly justified in finding that there was no settlement. Whether or not there was an agreement of settlement, and if so, what were its terms, are, upon conflicting evidence, questions for the trier of fact. John Irving Shoe Co., Inc. v. Dugan, 93 F. 2d 711 (1st Cir. 1937); Central Paper Co. v. Southwick, 56 F. 2d 593 (6th Cir. 1932); see 15 C.J.S. Compromise and Settlement \\u00a7 54, pages 784-786 and the cases of other States cited in Note 61. The evidence in the case at bar was substantially uncontradicted, but if there were any conflict in the evidence, we do not find that the trial court's finding was clearly erroneous, which is the test in considering reversal upon a finding of fact by a trial judge sitting without a jury. Maryland Rule 886 a.\\nIII.\\nGrain Dealers contends that there can be no recovery against it because it was not notified that the named insured, Earle, had moved his residence to East Riverdale, Maryland.\\nThe difficulty with this contention is that there is no provision in the automobile policy which requires that this be done. Grain Dealers seeks to find such a policy requirement by referring to the sixth declaration in the policy that the automobile would be principally garaged in Ferrum, Virginia and also to paragraph 2, under the heading \\\"Conditions\\\", in which the following appears:\\n\\\"Premium: If during the policy period the number of automobiles owned by the named insured or spouse and registered in Virginia or the number of Virginia dealer's license plates issued to the named insured changes, the named insured shall notify the company during the policy period of any change and the premium shall be adjusted in accordance with the manuals in use by the company. If the earned premium thus computed exceeds the advance premium paid, the named insured shall pay the excess to the company; if less, the company shall return to the named insured the unearned portion paid by such insured.\\\"\\nThere is also a provision in the policy called \\\"Maryland Endorsement\\\" which begins \\\"(In case this policy is written, in the State of Maryland, the following applies)\\\"\\u2014(Emphasis supplied).\\nIn our opinion, these provisions do not amount to a requirement that the company be notified of a change in address of the named insured. When the policy was issued it was intended that the automobile would be principally garaged in Ferrum and it was. There was, however, no provision in the policy forbidding the named insured from moving the automobile to another location or requiring the named insured to give the company notice of such a change. The provision in paragraph 2 under Conditions\\u2014above quoted\\u2014applies to additional automobiles owned by the named insured or spouse and registered in Virginia. This never occurred and obviously there would be no change in the premium when there was no additional ownership of automobiles registered in Virginia. The Maryland Endorsement provision clearly does not apply as the policy was written in Virginia and not in Maryland.\\nIt is well established that the provisions of insurance policies, prepared as they are by the insurance companies, are, in the case of ambiguities, to be construed strictly against the company preparing the policy and in favor of the insured. Ebert v. Millers Fire Insurance Company, 220 Md. 602, 155 A. 2d 484 (1959). Although as we have indicated, it is clear to us that the terms of the policy relied on by Grain Dealers do not amount to a requirement that the company be notified of a change of address of the named insured, even if it be assumed, arguendo, that the policy is ambiguous in this regard, such an ambiguity would be resolved against the company and in favor of the insured.\\nJudgment affirmed, the costs to be paid by the appellant.\"}"

md/1950821.json

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+"{\"id\": \"1950821\", \"name\": \"THOMPSON v. WARDEN OF MARYLAND HOUSE OF CORRECTION\", \"name_abbreviation\": \"Thompson v. Warden\", \"decision_date\": \"1957-12-24\", \"docket_number\": \"H. C. No. 47\", \"first_page\": \"604\", \"last_page\": \"605\", \"citations\": \"215 Md. 604\", \"volume\": \"215\", \"reporter\": \"Maryland Reports\", \"court\": \"Court of Appeals of Maryland\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-11T00:41:27.570436+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before Bruns, C. J., and Hbndbrson, Hammond, Prbscott and Hornby, JJ.\", \"parties\": \"THOMPSON v. WARDEN OF MARYLAND HOUSE OF CORRECTION\", \"head_matter\": \"THOMPSON v. WARDEN OF MARYLAND HOUSE OF CORRECTION\\n[H. C. No. 47,\\nSeptember Term, 1957.]\\nDecided December 24, 1957.\\nBefore Bruns, C. J., and Hbndbrson, Hammond, Prbscott and Hornby, JJ.\", \"word_count\": \"210\", \"char_count\": \"1228\", \"text\": \"Hammond, J.,\\ndelivered the opinion of the Court.\\nApplicant for leave to appeal from a denial of a writ of habeas corpus by Judge Sodaro of the Supreme Bench of Baltimore City was sentenced on March 13, 1957, to five years in the House of Correction for robbery. He complains that the trial court would not appoint a lawyer for him and that he was denied the opportunity to contact certain witnesses in his behalf, and that these two denials combined to render his trial unfair and a violation of his constitutional rights.\\nThompson does not allege any facts which show that for want of counsel an ingredient of unfairness operated actively in the process which resulted in his confinement. Bergen v. Warden, 201 Md. 641, 642; Selby v. Warden, 201 Md. 653, 654. The denial of the opportunity to obtain some witnesses, although a proper ground on appeal, relates to the regularity rather than to the validity of the proceedings and likewise cannot be raised on habeas corpus. Gayles v. Warden, 212 Md. 641, 642.\\nApplication denied, with costs.\"}"

md/1950945.json

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+"{\"id\": \"1950945\", \"name\": \"NEWARK TRUST COMPANY v. TRIMBLE et ux.\", \"name_abbreviation\": \"Newark Trust Co. v. Trimble\", \"decision_date\": \"1958-02-26\", \"docket_number\": \"No. 118\", \"first_page\": \"502\", \"last_page\": \"507\", \"citations\": \"215 Md. 502\", \"volume\": \"215\", \"reporter\": \"Maryland Reports\", \"court\": \"Court of Appeals of Maryland\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-11T00:41:27.570436+00:00\", \"provenance\": \"CAP\", \"judges\": \"The cause was argued before Bru\\u00f1e, C. J., and Henderson, Hammond, Prescott and Horney, JJ.\", \"parties\": \"NEWARK TRUST COMPANY v. TRIMBLE et ux.\", \"head_matter\": \"NEWARK TRUST COMPANY v. TRIMBLE et ux.\\n[No. 118,\\nSeptember Term, 1957.]\\nDecided February 26, 1958.\\nThe cause was argued before Bru\\u00f1e, C. J., and Henderson, Hammond, Prescott and Horney, JJ.\\nLeonard H. Lockhart, with whom was Charles M. Huester on the brief, for appellant.\\nNo brief and no appearance for appellees.\", \"word_count\": \"1616\", \"char_count\": \"9091\", \"text\": \"Bru\\u00f1e, C. J.,\\ndelivered the opinion of the Court.\\nNewark Trust Company, the appellant, obtained a judgment by confession in the Circuit Court for Cecil County on August 22, 1956, against the appellees, Samuel B. Trimble and Gladys Trimble, his wife. Judgment was entered by the Clerk and summons was duly served on the appellees on August 24, 1956, both in accordance with what is now Rule 645 of the Maryland Rules (then G.R.P.P., Part Three, II, Rule 1). The judgment was based upon a confessed judgment note purportedly executed by the defendants-appellees, dated April 27, 1956, payable to the order of one Richard Smith at the Newark Trust Company, in monthly instalments beginning one month after date, with a provision for acceleration of the unpaid balance upon default in the payment of any instalment. The note was endorsed, without recourse, by Richard Smith to the Newark Trust Company. It was in printed form, and the signatures of the makers were witnessed by Smith. The amount of the judgment was the face amount of the note, $708.00, plus interest and attorney's fee. No pleading was filed by the defendants within thirty days after service, and on January 25, 1957, a fi. fa. was issued on the judgment. As a result, property owned by the defendants as tenants by the entireties was advertised for sale on March 9, 1957.\\nOn March 1, 1957, the defendant, Gladys Trimble, acting on behalf of both defendants, signed and filed, through counsel, a motion to strike out the judgment and a request for immediate hearing, based upon a claim that the signatures to the notes were forgeries and a further claim that the defendant Samuel B. Trimble was then in an insane asylum and had been insane at the time of the making of the note. The matter was set for hearing on March 7, 1957. On that date counsel for the plaintiff asked for a postponement, which was granted, and at the same time the Circuit Court stayed the sale pending determination of the motion to strike out the judgment.\\nThe matter came on for hearing on June 7, 1957, and further hearings were held on June 13 and June 19, 1957. On the latter date the Circuit Court entered an order striking out the judgment, preserving all liens and allowing the defendants fifteen days to plead. On July 2nd they pleaded forgery and the general issue. (There was no plea of insanity.) On July 16, 1957, the plaintiff appealed from the order of June 19th.\\nThe record contains no transcript of proceedings at the hearings. We were informed by the appellant's counsel at the argument in this Court that there was no court stenographer available at the time and hence there is no stenographic record. The Judge who heard the matter in the Circuit Court retired from office within a day or two after the hearing of June 19th, and no statement or certificate of what transpired at the hearing was presented or requested.\\nThe appellant asks us to reverse the order striking out the judgment. It urges that the appellees, who had due notice of judgment and full opportunity to contest it are now es-topped from attacking it except for fraud, mistake, duress, surprise or coercion in the obtention of the judgment; and it further urges that, even if the signatures to the note were forgeries, this alone would not supply the showing necessary to set aside the judgment. The appellees did not appear in this Court and filed no brief.\\nOur present Rule 645 with regard to the entry of a judgment by confession and its requirement for the service of summons on the defendant and its allowance of thirty days within which to move to strike out such a judgment are the outgrowth of the hardships upon defendants in such cases, which sometimes resulted previously from lack of notice and the consequent lack of an opportunity to interpose defenses before such a judgment became enrolled.\\nIt is true, as a general proposition, that one who has a full and free opportunity to be heard, but who elects to stand mute and so to permit judgment to go against him, is bound. Moss v. Annapolis Savings Institution, 177 Md. 135, 8 A. 2d 881. Prior cases have established the rule that \\\"after a judgment is enrolled it is no longer within the breast of the court and cannot be properly stricken out, except upon allegation and proof of fraud, surprise, deceit or irregularity, and unless it appears that the party has acted in good faith and with ordinary diligence\\\" and that the defendant \\\"must also show that he has a meritorious defense to the cause of action.\\\" Adelburg v. Stryjewski, 200 Md. 346, 89 A. 2d 592. See also, Hamburger v. Standard Lime & Stone Co., 198 Md. 336, 84 A. 2d 74; Harvey v. Slacum, 181 Md. 206, 29 A. 2d 276; and Pioneer Oil Heat, Inc. v. Brown, 179 Md. 155, 16 A. 2d 880. Our present Rules 625 and 645 state the rule as to reopening judgments in somewhat different terms.\\nHowever, in the absence of any record of the evidence adduced at the hearing or hearings on the appellees' motion to strike out the judgment by default, we are in no position to pass upon the correctness of the Circuit Court's action. If we grant that the allegations contained in the appellees' motion did not fully meet the tests set forth in the cases above cited, we cannot overlook the freedom with which amendments are allowed (Rule 320 of the Maryland Rules), nor can we assume that no sufficient showing was made at the hearing to warrant the trial court's action. In the absence of any evidence we cannot tell what excuse for delay the appellees may have asserted or what information, if any, as to the alleged forgery, or tending to put the appellant on notice thereof, the appellant may have had prior to obtaining the judgment by confession. As to forgery or knowledge thereof, in Denton National Bank v. Lynch, 155 Md. 333, 142 A. 103, it was said (155 Md. at 340) : \\\"If the appellant had forged the notes in this case upon which the judgment was entered, it would not be denied, we think, that the judgment was fraudulently obtained. This being so, it is appro priate to inquire what would be the effect thereon if it were shown that the notes, though not forged by the appellant, were forged by another and that fact made known to the plaintiff before the entry of the judgment thereon. The effect upon the defendant would be the same in either case, and if it were necessary in this case to apply the rule, we are inclined to think that the defendant would be entitled thereunder to the relief sought.\\\"\\nOn the record before us, we cannot determine whether the Circuit Court acted correctly or incorrectly in striking out the judgment. We therefore feel constrained to dismiss the appeal pursuant to Rule 835 a 2, Rule 835 b (5) and Rule 828 b 1 (b) of the Maryland Rules. It seems evident that the appellant proceeded with the hearing despite the absence of a stenographer to record the proceedings. The right to a stenographic record can be waived in a criminal case, even though such a waiver may preclude appellate review of the evidence. Banks v. State, 203 Md. 488, 102 A. 2d 267. We think that such a waiver may also be made with like effect in a civil case. See Hayes v. Wills Dairy, Inc., 184 Md. 672, 42 A. 2d 669, in which, under the practice then prevailing, the absence of a bill of exceptions certified by the trial court was held fatal to the right of the appellant to maintain an appeal seeking a review of a judgment N.O.V., despite the fact that the record included a stenographic transcript of the testimony. This Court cited Poe on Pleading & Practice (Tiffany's Ed.) Vol. 2, Sec. 313, as showing that facts might be brought up by a bill of exceptions, an agreed statement of facts, or by depositions filed by order of court, and pointed out that only the absence of a bill of exceptions was involved in the Hayes case. Since that case was decided, the necessity for a bill of exceptions has been done away with, but none of the ways of supplying the equivalent thereof which are authorized under our present rules has been made use of; nor so far as we are informed, has any attempt been made by the appellant to obtain an equivalent of the transcript.\\nThe lack of transcript and of anything else to show what evidence was produced at the hearing is unfortunate from the appellant's point of view, and the appellant's problem with regard to the record was doubtless rendered more difficult by the retirement of the trial Judge almost immediately after the hearing. Yet we cannot supply the lack of the record, nor could the Clerk of the trial court supplement the record by what is not in his possession. We cannot review a case in vacuo. Sunshine Laundry Corp. v. White, 197 Md. 582, 80 A. 2d 1; McBurnie v. McBurnie, 214 Md. 210, 134 A. 2d 78.\\nAppeal dismissed; the costs to be paid by the appellant.\"}"

md/1953986.json

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+"{\"id\": \"1953986\", \"name\": \"JEWELER et ux. v. POTOMAC ELECTRIC POWER COMPANY\", \"name_abbreviation\": \"Jeweler v. Potomac Electric Power Co.\", \"decision_date\": \"1958-07-02\", \"docket_number\": \"No. 285\", \"first_page\": \"458\", \"last_page\": \"466\", \"citations\": \"217 Md. 458\", \"volume\": \"217\", \"reporter\": \"Maryland Reports\", \"court\": \"Court of Appeals of Maryland\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-10T22:51:21.504656+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"JEWELER et ux. v. POTOMAC ELECTRIC POWER COMPANY\", \"head_matter\": \"JEWELER et ux. v. POTOMAC ELECTRIC POWER COMPANY\\n[No. 285,\\nSeptember Term, 1957.]\\nDecided July 2, 1958.\\nThe cause was argued before Bru\\u00f1e, C. J., and Henderson, Hammond, Prescott and Horney, JJ.\\nHerbert M. Bru\\u00f1e, and R. Edwin Brown, with whom was John E. Oxley on the brief, for the appellants.\\nRichard W. Emory, with whom were William J. McCarthy, James IT. Pugh and Venable, Baetjer & Howard on the brief, for the appellee.\", \"word_count\": \"1872\", \"char_count\": \"11001\", \"text\": \"Hammond, J.,\\ndelivered the opinion of the Court.\\nThis appeal from a judgment on a jury's inquisition in a condemnation case was argued with that in Potomac Electric Power Company v. Birkett, 217 Md. 476, recently decided, and presents different aspects of some of the points there decided. Appellants in this case argue that the Potomac Electric Power Company (Pepeo) did not establish proof of its right of eminent domain in Maryland, did not show proper corporate authority to institute the condemnation proceedings or to take a fee simple title to the land sought to be condemned, did not show approval of the Public Service Commission for the extension of its lines, as well as that the form of inquisition was improper and the trial court erred in deciding as a preliminary matter that Pepeo was justified in taking a fee rather than an easement.\\nPepeo replies that its right to condemn land in Maryland was conceded and the requirement that it be shown was waived and that the other objections of appellants are captious and unsubstantial.\\nWhen we decided in the Birkett case that Pepeo had the right of eminent domain in Maryland and that it was proper for the court to decide questions of law in condemnation cases in advance of trial, the heart was cut out of appellants' defense to Pepco's taking of their lands in this case. The verdict of the jury was substantially in excess of the highest estimate the experts put on the land taken, and appellants do not claim that the amount of the award was too low. Their quarrel is with the right to take the, land at all, and, if the taking is inevitable, that a fee rather than an easement was condemned. Pepco's petition to condemn alleges that it was \\\"authorized by law to acquire by purchase or condemnation property or rights necessary for use in connection with the transmitting or selling of electricity Appellants answered that they \\\"neither admit nor deny\\\" those allegations and called for \\\"strict proof thereof.\\\" Pepeo says that under Maryland Rule 372 b, appellants' failure to deny the right to condemn makes the averment of that right deemed \\\"to be admitted.\\\" The landowners say that the rule applies only to equity and that condemnation proceedings are subject to the rules governing actions at law under Code, 1957, Art. 33A, Sec. 4. We find it unnecessary to decide the point. The failure to deny the right of condemnation is significant as indicating that appellants had no real doubt that Pepeo had the power of eminent domain. More important, we find the record to show that appellants did in fact waive proof of this right of Pepeo. That such a waiver was not without the contemplation of the condemnation article at the time the case came to issue is shown by the provision of Sec. 3 of Art. 33A, as the section then read, that upon failure to make timely answer a defendant \\\"shall be regarded as in default, so far as the right of condemnation is concerned.\\\"\\nIn the case before us a pre-trial conference was held on June 4 and another on June 7. At the second conference, Judge Lawlor told counsel for appellants that her notes showed that he had stipulated at the June 4th meeting that Pepeo had the right of eminent domain in Maryland. When the reply indicated that he thought he had not made this concession, Judge Lawlor told him several times that if she were mistaken, he would have an opportunity to make an issue of the point. The ensuing colloquy makes it clear that appellants' counsel did not question the fact that Pepeo had the right of eminent domain but rather went to the point of whether it must prove the necessity of condemning the land in question and the necessity of taking a fee rather than an easement. The conference of June 7 was called to decide, or to arrange for decision of, the latter question. The record in the Birkeit case shows that when Judge Anderson said that: \\\"In the Jeweler case there is no question as to the right to condemn counsel for Pepeo, in the presence, and with the acquiescence, of counsel for appellants in this case, replied: \\\"No, your Honor, in the Jeweler case Mr. Brown said he did not question our power to condemn; he questioned the necessity but not the corporate power.\\\" (We may take notice of the record in other cases that have been before us. Snodgrass v. Stubbs, 192 Md. 287; Fletcher v. Flournoy, 198 Md. 53, 60-61.) Subsequently, in the Birketl case the landowners, by the same lawyer who represented appellants, amended their answers to deny specifically the corporation's right to condemn. We find confirmation of our conclusion that the point was waived in the present case in the failure of the landowners to so amend or otherwise to act on Judge Lawlor's invitation to put the matter in issue, if they so desired.\\nAppellants moved for a directed verdict at the close of Pepco's case and at the close of the whole case, in part on the ground that Pepeo \\\"has failed to show any compliance with any statute or law of the State of Maryland authorizing it to condemn Judge Lawlor denied the motions, we think properly, because Pepco's right of eminent domain in Maryland had been conceded and the necessity of proving it waived by appellants.\\nThere is no substance to the landowners' contention that the agents of Pepeo, who instituted and prosecuted the case against them, did not prove proper corporate authorization for so doing or the necessity of condemning their lands and of taking a fee rather than an easement. Pepeo showed that its planning division makes studies of the necessity for expanding its system; that its decision was that the project here involved was necessary; that, there was substantial support for this decision in testimony that much additional electric power would be needed in the years ahead for the utility and convenience of the public in Washington and surrounding areas; and that Pepeo must provide that additional electricity; that after the details of a proposed expansion are worked out by the engineering department and the route of transmission and the lands needed are designated by the real estate department, the whole proposal \\\"is submitted to the senior vice-president, who in turn submits it to the board of directors for final approval.\\\" The petition for condemnation was signed by the senior vice-president. In Realty Improvement Co. v. Consol. Gas Electric Lt. & Power Co., 156 Md. 581, 586 the. Court rejected arguments similar to those made by the appellants here, saying: \\\"As to the third ground, a lack of authority from the condemning corporation itself to its officers who initiated the proceedings, assuming that the landowner can make an objection on that ground, the bylaws of the corporation, introduced in evidence, give sufficiently broad power for this to the president of the corporation, and the record contains a subsequent express ratification of this particular condemnation proceeding in a resolution of the executive committee of the corporation. And the whole project is clearly shown to have been one decided upon and initiated by the corporation. There is no basis for a finding of lack of authorization of the company's agents and attorneys.\\\" We think the quoted language is applicable here, and, as in the case cited, Pepeo subsequently introduced evidence of explicit ratification of what had been done in resolutions of its board of directors authorizing condemnation of the Jeweler property, in order to make it abundantly clear that its officials, in filing the petition, had acted in accordance with its procedures and with authority.\\nThe argument that the appellee had not obtained permission from the Public Service Commission to construct the proposed transmission facilities for which appellants' land is needed, is not seriously pressed. The only statutory provision relied on is Code, 1957, Art. 78, Sec. 24 (a), providing that \\\"Hereafter, no public service company shall exercise any franchise granted by law except to the extent authorized by the Commission.\\\" That this section has reference only to the exercise of a franchise, not previously exercised, to use the streets or roads of a political subdivision for its lines, is indicated by subsection (d) of Sec. 24, which says that no authority shall be granted under subsection (a) \\\"unless the company has received the required consent of the proper local authorities the reference presumably being to the local consents required by Code, 1957, Art. 23, Secs. 166 and 167. In any event, as was noted in the Birkett case, the Public Service Commission in 1953 authorized Pepeo to exercise in Montgomery County all franchise rights it had obtained from the Great Falls Power Company, and those rights included that of eminent domain for the construction of transmission lines.\\nAppellants' attack on the inquisition has two thrusts. The first challenges the right and propriety of Pepeo (a) condemning the fee title of the strip taken from the landowners while at the same time giving back, as a matter of grace, certain rights to the landowners, and (b) condemning the easement of cutting and trimming trees lying beyond the strip' to be taken. The trial court clearly and explicitly instructed the jury that it was to allow the fee simple value of the land taken and the value of the easement of cutting and trimming without taking into account, in appraising the damages, the fact that the appellants would be allowed certain uses of the land after the taking. The amount of the verdict leaves no doubt that the jury fully valued both takings. In any event, no objection was made to the charge on these points, and, under the rules, they are not open to consideration on appeal. The second attack is on the inquisition as not showing (1) that appellants' lands were being taken for public use, and (2) the purposes for which the land was being condemned. These objections were made for the first time some five months after the inquisition had been submitted to the jury and, like the alleged defects in the charge, cannot be considered on appeal, under Maryland Rules 560 b, 554 a, 554 d, and 554 e.\\nAs the Birkett case decided, there was no error on the part of the trial court in deciding preliminarily, as a question of law, that Pepeo had the right to take a fee rather than an easement. On the merits, the testimony leaves no doubt that Pepeo showed the necessity for taking the fee so that this assignment of alleged error cannot help appellants.\\nThe record reveals no prejudice to the landowners, and the judgment will be affirmed.\\nJudgment affirmed, with costs.\"}"

md/1957840.json

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+"{\"id\": \"1957840\", \"name\": \"ARUNDEL CORPORATION v. JASPER\", \"name_abbreviation\": \"Arundel Corp. v. Jasper\", \"decision_date\": \"1959-04-15\", \"docket_number\": \"No. 199\", \"first_page\": \"519\", \"last_page\": \"531\", \"citations\": \"219 Md. 519\", \"volume\": \"219\", \"reporter\": \"Maryland Reports\", \"court\": \"Court of Appeals of Maryland\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-11T01:05:57.924685+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"ARUNDEL CORPORATION v. JASPER\", \"head_matter\": \"ARUNDEL CORPORATION v. JASPER\\n[No. 199,\\nSeptember Term, 1958.]\\nDecided April 15, 1959.\\nThe cause was argued before Bru\\u00f1e, C. J., and Henderson, Hammond, Prescott and Horney, JJ.\\nWilliam C. Holland, for appellant.\\nI. Duke Avnet, with whom were Avnet & Avnet and Martin Moncars on the brief, for appellee.\", \"word_count\": \"3826\", \"char_count\": \"21626\", \"text\": \"Horney, J.,\\ndelivered the opinion of the Court.\\nThis is an appeal from a judgment entered by the Superior Court of Baltimore City on the verdict of a jury in favor of Frank W. Jasper (Jasper or employee) against the Arundel Corporation (Arundel or employer). The action involved an injury sustained by Jasper from a fall on board a dredge belonging to Arundel. The suit was brought under the provisions of 46 U. S. C. A., \\u00a7 688, usually referred to as the Jones Act. The first count alleged negligence under the Jones Act. The second charged unseaworthiness under the general maritime law.\\nOn July 29, 1957, the employee was working as an oiler on the dredge Governor Herrick. The employee\\u2014because he disregarded the old sea adage: \\\"One hand for the ship and one for yourself,\\\" which he probably had never heard of\\u2014 was injured when a loose and slippery step of a ladder tilted while he was descending to the lower engine room, causing him to fall to the deck below and injure his back. There was evidence from which a jury could find that the employer was negligent in allowing the ladder to remain in a dangerous condition.\\nThe Governor Herrick was a non-registered, non-self-propelled dredge, approximately 132 feet long and 52 feet wide, with a 12-foot draft at the bow, and a 10-foot 6-inch draft at the stern. It contained steam-driven machinery for the purpose of operating the dredging bucket and equipment. It depended on tugboats for all travel except when the bucket was touching bottom, when, by exerting pressure on the bottom through the boom, it could \\\"creep\\\" a few feet and change its position. However, in over 57 feet of water the dredge could not reach bottom either to work or to move to a new position. The dredge had been built in Massachusetts in 1912. Its home port was New York City. It was towed to Baltimore in 1955. During the course of the trip down the coast, the dredge carried only a skeleton crew to keep up the steam to man the pumps and maintain the dredging machinery. After its arrival in Baltimore it had engaged in maintaining ship channels in the harbor prior to mid-July 1957.\\nOn July 15, 1957, the dredge commenced work on the Baltimore Harbor Tunnel Project and was thus engaged on July 29, 1957, the date of the accident. At that time the dredge was digging backfill sand off of Wagner's Point for use in covering the newly laid tubes of the tunnel. The dredge would transfer the silt or sand dug from the bottom to scows which would dump the material on the tubes. While so engaged, the dredge was approximately 600 feet from shore in about 14 feet of water.\\nThe employee was employed on 8-hour shifts. He lived at his home in Baltimore and traveled each day to the dredge by means of a crewboat. He never slept on the dredge although there were quarters on board for the crew. He would eat at the crew's mess when a mealtime occurred during the course of his shift but he paid for such meals. He had worked for the employer for approximately eighteen months prior to the accident. Originally a handyman, he had engaged in substituting for deckhands who were off duty, but after a layoff, he began working as an oiler on the Governor Herrick as well as the dredge Maryland. During the entire period he had worked only in Baltimore Harbor. Prior to then he had been a truck driver and had never worked on the water. He did not have seaman's papers. His duties as an oiler consisted of oiling the dredging machinery in the engine room. He took his orders from the chief engineer. If the dredge were to be moved to another location outside Baltimore, he could accompany it as part of the skeleton crew which was usually drawn from the older, more experienced crew members. His duties, then, would be merely to help keep the steam up for the pumps.\\nTitle 46 U. S. C. A., \\u00a7 688 [the Jones Act] provides in part:\\n\\\"Any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right of trial by jury, and in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply\\nA seaman may institute an action under the Jones Act in a state court for the negligence of his employer resulting in personal injury. If he does, he would have a right of trial by jury, and all statutes of the United States modifying or extending the common law right or remedy in cases of personal injury to railway employees apply as if suit had been brought in a Federal court. The seaman has the burden of proving negligence, but\\u2014since the doctrine of comparative negligence is applicable\\u2014his contributory negligence would only subject him to a reduction of the damages allowed in proportion to the amount of the negligence attributable to him. The seaman is also excused from any assumption of risk. Curtis Bay Towing Co. v. Dean, 174 Md. 498, 199 A. 521 (1938); Farrell Lines, Inc. v. Devlin, 211 Md. 404, 127 A. 2d 640 (1956).\\nThe employer contends that the employee was not a seaman within the purview of the Jones Act, and that his remedy is limited to the Longshoremen's and Harborworkers' Compensation Act [33 U. S. C. A., \\u00a7 901-950]. In 1926, the Supreme Court in International Stevedoring Co. v. Haverty, 272 U. S. 50 (1926), held that a longshoreman in the employ of a stevedoring company was a seaman and was entitled to recover under the Jones Act, since the work performed by such men was a maritime service formerly performed by a ship's crew. Flowever, in 1927, the Longshoremen's and Harborworkers' Compensation Act was enacted. This act specifically excluded the \\\"master or member of a crew\\\" of a vessel. 33 U. S. C. A., \\u00a7 903 (a) (1). Thus, this act restricts and limits the scope of the Jones Act, by means of negative implications, to seamen who are also either masters or members of a crew of a vessel. See South Chicago Co. v. Bassett, 309 U. S. 251 (1940); Carumbo v. Cape Cod S. S. Co., 123 F. 2d 991 (C. A. 1st Cir., 1941). In these and in subsequent cases the courts developed three tests to determine whether a seaman was to be entitled to the benefits of the Jones Act: (i) that there be a vessel in navigation; (ii) that there be some more or less permanent connection with that vessel; and (iii) that the employee be aboard primarily to aid in navigation. Carumbo v. Cape Cod S. S. Co., supra; Wilkes v. Mississippi River Sand & Gravel Co., 202 F. 2d 383 (C. A. 6th Cir., 1953), certiorari denied, 346 U. S. 817 (1953); Nelson v. Greene Line Steamers, 255 F. 2d 31 (C. A. 6th Cir., 1958), certiorari denied, 358 U. S. 867 (1958).\\nThe Bassett case, supra, stated that whether or not an employee is \\\"a member of a crew\\\" turns on questions of facts and that, if a finding on this question has evidence to support it, the finding is conclusive. This decision, however, appears to have been temporarily narrowed by the Supreme Court in Swanson v. Marra Bros., Inc., 328 U. S. 1 (1946), which upheld the dismissal of a longshoreman's complaint by stating that recovery is available under the Jones Act only \\\"to the members of the crew of a vessel plying in navigable waters,\\\" and in Desper v. Starved Rock Ferry Co., 342 U. S. 187 (1952), where it was held that a petitioner was not a seaman despite the finding of the jury in the District Court that he was in that category.\\nNevertheless, in Summerlin v. Massman Const. Co., 199 F. 2d 715 (C. A. 4th Cir., 1952), where the facts were quite similar to the facts in the instant case, Judge Soper for the Court, ruled that a fireman on a floating derrick anchored in the York River and pouring concrete into forms incident to building a bridge across the river could be considered to be a seaman under the Jones Act. In the Summerlin case the floating derrick\\u2014which had no sleeping quarters for the crew members\\u2014had to be moved in the water from time to time to facilitate the construction of the bridge since it had no motive power of its own. The District Court, at a hearing on the pleadings under a stipulated statement of facts, found that the injured fireman was not a seaman or a crew member of a vessel engaged in navigation on navigable waters. But the Circuit Court reversed and remanded the case because it found the exact opposite.\\nAnd in Texas Company v. Gianfala, 222 F. 2d 382 (C. A. 5th Cir., 1955), the decedent was a boilerman working aboard a submersible drilling barge which was resting on the bottom of a bay. The barge was moved from one location to another about once a year. The duties of the decedent consisted of firing the boilers and, in the event that the barge was moved, of opening the valves that raised it. The facts were uncontroverted. The jury returned a verdict for the widow of the decedent. The Court of Appeals of the Fifth Circuit reversed, holding that the evidence was insufficient to justify such a finding in that the decedent was a member of a drilling crew and not a member of a ship's crew. The Court also held that the vessel was not in navigation. The Supreme Court reversed the Fifth Circuit in a memorandum opinion [Gianfala v. Texas Company, 350 U. S. 879 (1955), rehearing denied 350 U. S. 960 (1956)], although the facts were uncontroverted. In so doing, the Supreme Court cited the Bassett case, supra, the Summerlin case, supra, the Wilkes case, supra, and the Gahagan case, infra.\\nThe Supreme Court, however, removed any doubt as to its position in this area in Senko v. LaCrosse Dredging Corp., 352 U. S. 370 (1957). In that case the petitioner was employed as a handyman to assist in dredging operations in a slough dug to by-pass a rocky section of the Mississippi River. The dredge was never moved during the course of the petitioner's employment, although it was moved from time to time as the work progressed. The petitioner was a member of the Common Laborers' Union which sent him to the defendant dredging company as a laborer. His duties entailed carrying supplies from the shore to the dredge, cleaning up the dredge, filling the water cooler, cleaning the lights and placing' them when the construction work continued at night, and taking soundings to measure the amount of silt pumped from the slough. He lived at home and worked an eight-hour shift. He was injured by the explosion of a coal stove while he was placing signal lanterns from the dredge on the river bank. The jury returned a verdict for the petitioner, but this was set aside by the Illinois Appellate Court on the ground that there was insufficient evidence to support a finding that he was a \\\"member of the crew.\\\" The Supreme Court reversed stating that the decision of a jury is final if it has a reasonable basis, whether or not an appellate court agrees with the estimate of the jury. The Supreme Court stated at page 372:\\n\\\"It is true that the dredge w\\u00e1s anchored to the shore at the time of petitioner's injury and during all the time petitioner worked for respondent. It is also true that this dredge, like most dredges, was not frequently in transit. We believe, however, that there is sufficient evidence in the record for the jury to decide that petitioner was permanently attached to and employed by the dredge as a member of its crew.\\\"\\nAfter stating that a jury could reasonably have believed that the petitioner would have the responsibilities of a deck hand in the event that the dredge were moved, the Court stated at page 374:\\n\\\"We believe, however, that our decision in South Chicago Co. v. Bassett, supra, has not been fully understood. Our holding there that the determination of whether an injured person was a 'member of a crew' is to be left to the finder of fact meant that juries have the same discretion they have in finding negligence or any other fact. The essence of this discretion is that a jury's decision is final if it has a reasonable basis, whether or not the appellate court agrees with the jury's estimate.\\n\\\"Because there was testimony introduced by petitioner tending to show that he was employed al most solely on the dredge, that his duty was primarily to maintain the dredge during its anchorage and for its future trips, and that he would have a significant navigational function when the dredge was put in transit, we hold there was sufficient evidence in the record to support the finding that petitioner was a member of the dredge's crew.\\\"\\nIn the next term, the Supreme Court decided two more cases in this area. In Grimes v. Raymond Concrete Pile Co., 356 U. S. 252 (1958), the petitioner sought damages for injuries suffered while being transferred at sea in a Navy life ring from a tugboat to a \\\"Texas Tower\\\" which the respondents were constructing under a Government contract. The petitioner lived on the tower and kept it in condition by operating air compressors, generators and pumps. The District Court directed a verdict for the respondents, indicating its view that the evidence created a fact question on the issue as to whether the petitioner was a crew member, but holding that the petitioner's exclusive remedy was under the Defense Bases Act [42 U. S. C. A\\\" \\u00a7 1651-1654]. The Circuit Court held that the Defense Bases Act did not provide an exclusive remedy, but affirmed the District Court on the ground that the evidence was not sufficient to create a factual question as to whether the petitioner was a crew member. The Supreme Court remanded the case holding that the petitioner's evidence presented an evidentiary basis for a finding by a jury as to whether or not the petitioner was a member of the crew of a vessel.\\nIn Butler v. Whiteman, 356 U. S. 271 (1958), the decedent was employed as a laborer doing odd jobs around the wharf of the respondent. The employee disappeared after being last seen running between a barge and the tug. On the morning of the accident he had been engaged in cleaning the boiler. For some months before the accident the tug had been withdrawn from navigation because it was inoperable. During the entire year the tug had neither captain nor crew and reported no earnings. At the time of the accident the tug was undergoing rehabilitation preparatory to a Coast Guard inspection. In a short per curiam opinion the Supreme Court held that there was an evidentiary basis for the jury's findings as to (i) whether or not the tug was in navigation; (ii) whether or not the petitioner's decedent was a seaman and member of the crew of the tug within the meaning of the Jones Act; and (iii) whether or not the employer's negligence played a part in producing the decedent's death.\\nThere has been much speculation as to whether all three tests hereinbefore referred to are still required in order to decide whether a petitioner can recover under the Jones Act after the Senko decision. See Gisevius and Leppert, Modern Maritime Workers, 9 Loyola L. Rev. 1 (1958). See also the subtopic entitled \\\"The Elusive 'Crew Member' \\\" of the comment entitled \\\"Injured Harborworkers,\\\" 67 Yale L. J. 1205, 1229 (1958). At least one case seems to have decided to ignore the former requirements that there be a vessel in navigation and that the worker be aboard primarily to aid in navigation, and states that the real test is whether the claimant is more or less permanently employed aboard the vessel in a capacity which contributes to the accomplishment of her mission. Perez v. Marine Transport Lines, 160 F. Supp. 853 (E. D. La., 1958). Other cases, in form at least, seem to rely on all of the requirements, but leave the determination as to whether the petitioner had fulfilled them to the trier of the facts. Brannan v. Great Lakes Dredge & Dock Co., 91 N. W. 2d 166 (Minn., 1958); Nelson v. Greene Tine Steamers, supra. We agree that the three requirements should be considered by the jury. What tests shall be applied is a matter of Federal law.\\nIn the case now before us the employee fulfilled the tests sufficiently to enable the jury to find that he could recover under the Jones Act. The dredge was in navigable waters in Baltimore Harbor, even though it was outside the shipping lanes at the time of the accident, and was engaged in supplying fill for the tunnel which had been constructed under the ship channels in the harbor. Cf. Senko v. LaCrosse Dredging Corp., supra. The employee, who was a regular worker on the dredge'and had been for eighteen months, had a per manent connection with the dredge. And he was playing a part in the operation and welfare of the dredge. This last requirement does not mean that he must be one who can \\\"hand, reef and steer,\\\" but applies to all of the employees aboard a ship whose duties contribute to the operation and welfare of the vessel, including cooks, bartenders, musicians, clerks and oilers. See Wilkes v. Mississippi River Sand & Gravel Co., supra; Peres v. Marine Transport Lines, supra.\\nIn addition to claiming that the trial court erred in its instructions to the jury with reference to the past and future activities of the dredge and the possibility that Jasper might be employed at other times and places, hereinbefore alluded to and sufficiently answered [Senko v. LaCrosse Dredging Corp., supra], Arundel also contends that the trial court did not properly state the requirements of the law with respect to recovery under the Jones Act. It is true that the instructions did overemphasize what was necessary to support a finding of negligence on the part of the employer, a fact of which there appears to have been ample proof and was virtually undisputed. It is likewise true that the instructions with respect to the tests that must be met in order to prove that the employee was a seaman or a member of a crew were stated in a somewhat haphazard fashion. There is also no doubt that it would have been better had the court set out the essential requirements in a more logical and methodical sequence, but we have often ruled that a trial judge should not be \\\"put in a strait jacket\\\" with respect to jury instructions. If such instructions \\\"fully and comprehensively\\\" cover the question or point of law involved that is sufficient. Casey v. Roman Catholic Arch., 217 Md. 595, 612, 143 A. 2d 627 (1958), and the cases therein cited. Moreover, in the present case, we cannot overlook the fact that the trial judge was required to instruct the jury on points or questions of law, which, it is apparent, are not yet finally and completely clarified and settled.\\nIn reviewing the instructions, we find that the essential requirements were included therein. The court instructed the jury that it must find whether the dredge \\\"was a vessel engaged in work on navigable waters.\\\" Later, the jury was advised that it would \\\"have to find out what the facts are concerning this man being a member of the crew and was he acting at that time upon navigable waters,\\\" and then informed it that the Patapsco River was a navigable body of water. Still later, he properly instructed the jury that it should find \\\"that the employees on the dredge were more or less permanently attached to her and assisted in her operation while in a stationary position and could be called upon to assist when the dredge would be towed from one point to another in navigable waters,\\\" in order to find that Jasper was entitled to recover under the Jones Act. It is apparent that this last part of the instructions adequately stated the requirement that Jasper be aboard primarily in aid of navigation as the decisions clearly state. See Gahagan Const. Corp. v. Armas, 165 F. 2d 301, 305 (C. A. 1st Cir., 1948), certiorari denied, 333 U. S. 876 (1948); Senko v. LaCrosse Dredging Co., supra. Although the instructions were not copious they were not inadequate and they were properly stated.\\nFinally, there is no merit in Arundel's third contention that the admission of hearsay evidence\\u2014consisting of the somewhat humorous exchange of quips between the chief engineer and the company doctor\\u2014had prejudicially affected the amount of the verdict. During the course of the trial Jasper testified that when he was released by the company doctor he was told to report for work. He promptly telephoned the engineer and told him that he was ready to come back to work though he was still wearing a corset. The engineer informed him that the company was \\\"not running a convalescent home.\\\" When the employee returned to the doctor and told him what the engineer had said, the doctor advised him to tell the engineer that he was \\\"not running a workshop either.\\\" This \\\"relayed\\\" colloquy between two of the employees of the company instead of being inadmissible hearsay testimony was in fact admissible as \\\"verbal acts.\\\" See Bowie v. Martin, 199 Md. 58, 64, 85 A. 2d 786 (1952). Since it is assumed that the person who answers a call at his place of business is the person he purports to be, the telephone conversation of the employee, who made the call, was admissible. See Rowan v. State, 175 Md. 547, 558, 3 A. 2d 753 (1939) ; Knickerbocker Co. v. Gardiner Co., 107 Md. 556, 69 A. 405 (1908). These verbal acts did no more than show that the employee had tried to mitigate his damages by showing that the reason why he had not returned to work sooner. The admission of the testimony was not reversible error.\\nThe judgment will be affirmed.\\nJudgment affirmed, the costs to be paid by the appellant.\"}"

md/1963233.json

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+"{\"id\": \"1963233\", \"name\": \"BICHELL v. STATE\", \"name_abbreviation\": \"Bichell v. State\", \"decision_date\": \"1960-05-17\", \"docket_number\": \"No. 212\", \"first_page\": \"418\", \"last_page\": \"421\", \"citations\": \"222 Md. 418\", \"volume\": \"222\", \"reporter\": \"Maryland Reports\", \"court\": \"Court of Appeals of Maryland\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-11T00:41:34.716876+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"BICHELL v. STATE\", \"head_matter\": \"BICHELL v. STATE\\n[No. 212,\\nSeptember Term, 1959.]\\nDecided May 17, 1960.\\nThe cause was argued before Brune, C. J., Henderson, Hammond, Prescott and Horney, JJ.\\nStanley J. Schapiro for the appellant.\\nThe Court declined to hear argument for the appellee.\\nC. Ferdinand Sybert, Attorney General, Joseph S. Kaufman, Assistant Attorney General, Saul A. Harris, State\\u2019s Attorney for Baltimore City, and Dene L- Lusby, Assistant State\\u2019s Attorney for Baltimore City, on the brief, for the appellee.\", \"word_count\": \"563\", \"char_count\": \"3320\", \"text\": \"Per Curiam.\\nRobert Edward Bichell (Bichell or defendant), claiming prejudicial error in certain rulings on the evidence and that the evidence as a whole was insufficient to sustain his conyiction for conspiracy to commit larceny, seeks a reversal of the judgment and a new trial.\\nOn August 14, 1959, at about 12:30 a.m., two Baltimore City police officers apprehended three men who had been tampering with parking meters on St. Paul Street. A further investigation disclosed that other meters in the vicinity had been opened with a key. None had been damaged. Coins were found scattered on the floor of the automobile they had been driving and there was a bag of coins in the rear of the vehicle. One of the men had several dollars in nickels in his possession. A \\\"pronged key instrument\\\" was also found in the automobile and a second key capable of unlocking the meters was found on the pavement nearby where it had been dropped or thrown. The officers took the three men to the apartment of one of them, where a fourth man and two women were found. No evidence was discovered there. The six were arrested and subsequently charged along with the defendant Bichell, who surrendered himself through his attorney ten days later.\\nSeveral of the witnesses, some of them co-defendants, testified that the defendant knew of the larcenies, that he had participated in planning them, that he had made the keys used to open the meters and that he had shared in the money taken. The defendant's motion for a directed verdict was overruled. There was ample evidence to support the ruling. The knowledge, planning, key-making and sharing in the take, ascribed to Bichell by several witnesses, showing as it did a connection with the common scheme or design to steal, was, if believed, sufficient to sustain the conclusion the trial court reached that the defendant had participated in the conspiracy. Piracci v. State, 207 Md. 499, 115 A. 2d 262 (1955). Since we cannot say the court was clearly erroneous, we must affirm. Maryland Rule 741c.\\nNor do we find the trial court erred when it refused to strike out the answer to a question propounded by it concerning the area in which the pilfered parking meters were located. The objection made by one of the defendants\\u2014not Bichell\\u2014was based on the lack of responsiveness in the answer rather than the relevancy of the question asked. Since there was a probability of a connection between the area described and the defendants, the evidence was admissible. Braxton v. State, 214 Md. 370, 135 A. 2d 307 (1957).\\nThe trivial objection raised now for the first time that the court erred when in another question asked of a witness it referred to the defendant as \\\"him\\\" rather than \\\"they,\\\" not having been seasonably preserved below, was waived and may not be considered here. Rule 522 d 2.\\naffirmed.\"}"

md/1965008.json

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+"{\"id\": \"1965008\", \"name\": \"CUMMINGS v. STATE\", \"name_abbreviation\": \"Cummings v. State\", \"decision_date\": \"1960-12-13\", \"docket_number\": \"No. 99\", \"first_page\": \"606\", \"last_page\": \"612\", \"citations\": \"223 Md. 606\", \"volume\": \"223\", \"reporter\": \"Maryland Reports\", \"court\": \"Court of Appeals of Maryland\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-11T01:05:56.619223+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"CUMMINGS v. STATE\", \"head_matter\": \"CUMMINGS v. STATE\\n[No. 99,\\nSeptember Term, 1960.]\\nDecided December 13, 1960.\\nThe cause was argued before Bru\\u00f1e, C. J., and Henderson, Hammond, Prescott and Horney, JJ.\\nFred B. Weis gal, with whom were Weisgal & Sollins on the brief, for the appellant.\\nRobert C. Murphy, Assistant Attorney General, with whom were C. Ferdinand Sybert, Attorney General, Saul A. Harris, State\\u2019s Attorney for Baltimore City, and Julius A. Romano and John W. Sause, Jr., Assistant State\\u2019s Attorneys, on the brief, for the appellee.\", \"word_count\": \"1734\", \"char_count\": \"9835\", \"text\": \"Prescott, J.,\\ndelivered the opinion of the Court.\\nThe appellant was found guilty of murder in the first degree by two judges in the Criminal Court of Baltimore, and sentenced to life imprisonment in the Maryland Penitentiary. After his motion for a new trial was denied by the Supreme Bench of Baltimore City, he appealed.\\nThere is no necessity for any extended or elaborate discussion, in this opinion, as to the divisions of homicide in Maryland. The sole question raised by the appellant is a claim that the evidence produced at his trial below was insufficient to support a finding of a \\\"wilful, deliberate and premeditated killing\\\" upon his part, so as to constitute first degree murder under the Code (1957), Article 27, Section 407. He con cedes that the evidence was sufficient to support a conviction of murder in the second degree, but argues that the State failed to show that the homicide was wilful, deliberate and premeditated, as it must do, to raise the offense to first degree murder.\\nThe testimony need not be set forth at undue length; it was sufficient to support a finding of the following facts:\\nThe appellant, a father of five children, and the deceased lived with their respective spouses in the city of Chicago, and had known each other for a number of years. An intimate, clandestine relationship between them had developed. They were in the habit of taking extended automobile trips together, especially over weekends and during vacations. The appellant testified he loved her.\\nOn July 28, 1959, the deceased left Chicago with her sister, and drove by automobile to the home of relatives in the Cherry Hill area of Baltimore. The appellant had expected that he and the deceased would make the trip together, by themselves. Early on the morning after her departure, the appellant followed, alone, in his car. He drove all day and part of the night. At 11:00 P.M., he called the deceased and talked to her over the telephone. Later that night, he finally reached Baltimore, and spent the remainder thereof asleep on the front seat of his car.\\nIn accordance with arrangements made when they had talked over the phone, appellant and deceased met early the following morning at the Cherry Hill Shopping Center. She had promised to have breakfast with him, but when she arrived, she stated that this would be impossible, as she had arranged to take some children on a picnic. However, if he would eat breakfast alone, she would meet him later in the day. He was naturally disappointed. Thereafter, he waited a long time for her. \\\"It was hot. There wasn't any shade. It was miserable. I [the appellant] was disturbed. I was tired.\\\"\\nThe deceased finally reappeared shortly before 12:30 P.M., driving a station wagon, which she parked near the appellant's Cadillac. She was accompanied by Marjorie Shelter, aged 20, and a nephew, aged 10. She went to his car, and was in a \\\"bad mood.\\\" He told her he was tired and hot, and felt sick. \\\"It looked like I couldn't hardly bear it.\\\" A \\\"heated\\\" argument ensued during which she told him she was late for the picnic, and did not have time to take him to, or to show him, any place where he could stay or rest. The appellant threatened to return to Chicago, and requested the victim to give him directions. She replied that she did not want him to leave; that if he did so, he would do it on his own; and he would have to request the police for directions. He told her: \\\"If that is the way you feel, I am finished.\\\"\\nWhile this conversation was taking place between the appellant and deceased, witnesses saw the deceased return to her station wagon and start the engine. The appellant called to her, and she . returned to his car. She seemed to be angry at the appellant, and started to return to her automobile. She got a few feet from him, when the appellant took a pistol, which he had on the front seat of his car beside him, and shot her in the back through the open window of his automobile. He then opened the door, walked around it, and shot her six times more, apparently emptying the pistol without missing a single time.\\nOfficer Freeman of the Police Department had been standing about 110 feet from the scene of the shooting, and was an eye witness thereof. He immediately ran to the scene. The appellant dropped the gun on the victim's body; he offered no resistance; did not seem nervous nor angry; but was \\\"perfectly passive\\\" about the whole thing. In response to an inquiry as to why he had done the shooting, he replied: \\\"I might go to jail, but I am glad I . done it. It is a lot of things, man. It is a lot of things.\\\"\\nWhen reviewing the conclusion reached by a trial court, sitting without a jury, in a criminal case, it is not our function to determine whether we are convinced of the accused's guilt beyond a reasonable doubt; our task is to determine whether the evidence produced and the proper and rational inferences from that evidence, were-of such a nature and char acter that the trial court could fairly be convinced beyond a reasonable doubt of guilt, and the findings of fact of the trial court will not be set aside, unless clearly erroneous. Maryland Rule 741 (c); Basoff v. State, 208 Md. 643, 119 A. 2d 917; Cooper v. State, 220 Md. 183, 152 A. 2d 120.\\nWe think the evidence, as set forth above, is clearly sufficient to support the finding of guilty of murder in the first degree. In Chisley v. State, 202 Md. 87, 106, 95 A. 2d 577, the Court quoted from Hochheimer, Criminal Law (2nd Ed.), Section 347, and said that \\\"wilful,\\\" when used in a murder indictment, means there must be a specific purpose and design to kill; \\\"deliberate\\\" means there must be full and conscious knowledge of the purpose to do so; \\\"premeditated\\\" means the design must have preceded the killing by an appreciable length of time, time enough to deliberate; and, in order to justify a conviction of murder in the first degree, the trier of facts must find the actual intent, the fully formed purpose to kill with enough time for deliberation and premeditation to convince the trier of facts that this purpose is not the immediate offspring of rashness and impetuous temper, but that the mind has become fully conscious of its own design. The Court then cited several New York cases and pointed out that although the design to kill must precede the killing by some appreciable length of time, that time need not be long. If the killing be not the instant effect of impulse, if there be hesitation or doubt to be overcome, a choice made as the result of thought, however short the struggle between the intention and the act, it is sufficient to characterize the crime as deliberate and premeditated murder. Practically the same language was used in the later case of Faulcon v. State, 211 Md. 249, 257-258, 126 A. 2d 858, wherein it was stated that the existence of the elements of wilfulness, deliberation and premeditation must be determined on the facts of each particular case.\\nIt does not require any extended or elaborate discussion to show that the trial judges were justified in finding that the appellant had \\\"a specific purpose and design to kill,\\\" and that he had a \\\"full and conscious knowledge of his purpose to do so,\\\" when it was shown, and admitted, that he shot the de ceased seven times with a deadly weapon at point-blank range, and then, calmly, laid the pistol on her dead body, stating: \\\"I might go to jail, but I am glad I done it.\\\" To elaborate upon something that is obvious is futile. The fact that the gun was available on the front seat beside him was one that the judges were entitled to consider and weigh. Whether he had contemplated, for some time, bodily harm to the deceased is a subjective matter not brought out in the evidence. (He claimed that it was his custom to carry the gun with him when on trips.) In any event, the judges may well have inferred that the appellant had fully formed his purpose to kill the deceased when he called her back to his car, and decided there was sufficient time between then and when he fired the shots to convince them that his actions were not \\\"the immediate offspring of rashness and impetuous temper.\\\" Or they may have decided he formed his intent to kill shortly before he discharged the first shot, and concluded that there was enough time for reflection and decision between then and when he fired the last one and laid the gun on her body, so as to constitute premeditation as that term is used in a murder indictment. In either event, the evidence is, we think, sufficient to support their finding. See Chisley v. State, supra, [appellant shot the deceased twice with a short interval between shots]; Grammer v. State, 203 Md. 200, 225, 100 A. 2d 257, [appellant saw a piece of pipe on the ground, got out of his car, picked it up, returned to the car and killed the deceased with the pipe]; Kier v. State, 216 Md. 513, 523, 140 A. 2d 896, [protracted period, during which assault continued] ; Elliott v. State, 215 Md. 152, 160, 137 A. 2d 130, [appellant, with shot gun, watched deceased approach until within range]; in all of which cases, the evidence was held sufficient to support a finding of premeditation.\\nJudgment affirmed.\\n. Medical evidence established cause of death as hemorrhage from multiple gunshot wounds and transection of the spinal cord.\"}"

md/2003599.json

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+"{\"id\": \"2003599\", \"name\": \"THE IRVINGTON REAL ESTATE CO. OF BALTIMORE CITY VS. EDWARD V. O'KEEFE\", \"name_abbreviation\": \"Irvington Real Estate Co. v. O'Keefe\", \"decision_date\": \"1897-06-24\", \"docket_number\": \"\", \"first_page\": \"665\", \"last_page\": \"667\", \"citations\": \"1 Balt. C. Rep. 665\", \"volume\": \"1\", \"reporter\": \"Baltimore city reports, comprising opinions of the various courts of Baltimore city since 1888...\", \"court\": \"Baltimore City Circuit Court\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-11T00:05:49.794583+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"THE IRVINGTON REAL ESTATE CO. OF BALTIMORE CITY VS. EDWARD V. O\\u2019KEEFE.\", \"head_matter\": \"CIRCUIT COURT NO, 2 OF BALTIMORE CITY.\\nFiled June 24, 1897.\\nTHE IRVINGTON REAL ESTATE CO. OF BALTIMORE CITY VS. EDWARD V. O\\u2019KEEFE.\\nGans & Haman for plaintiff.\\nRichard Bernard & Son for defendant.\", \"word_count\": \"1820\", \"char_count\": \"10267\", \"text\": \"STOOKBRIDGE, J.\\nThe bill has been filed in this case for the purpose of having a contract of sale entered into between the parties to this cause on the 16th of October, 1894, reformed, and when so reformed, then of having it specifically enforced. There is practically no question of law in the case which is controverted, only questions of fact, and the case is, therefore, one to be determined from the testimony. A bill was previously filed by this same plaintiff for the specific enforcement of the contract, which is the subject-matter of litigation in this case, which bill was, after testimony and argument, dismissed by the Circuit Court \\\"without prejudice,\\\" thus making it competent for this Court to consider the issues now presented, if the Court shall find that the contract ought to be reformed, but if not, then in view of the former determination this case would clearly be res adjud\\u00edcala.\\nWritten instruments may be reformed by a Court of Equity in cases of fraud or mistake only. There is no question of fraud in this case, but it is alleged that there is a mistake, and that the terms of this contract do not correctly represent that which was the clear understanding of the parties to it at the time that it was entered into.\\nCourts are naturally and properly loath to modify the terms of a written instrument after a long lapse of time, and therefore it is required first that the mistake be material, second that it was mutual, third that it was unintentional, and fourth that there shall have been no negligence upon the part of the party discovering the mistake, in moving for its correction. It is further required that the proof of the mutuality of the mistake sought to be corrected shall be proven, not merely by a preponderance of the testimony, but so clearly as to make the conclusion practically irresistable that the mistake alleged was in fact a mistake, and that it was the mutual mistake of both the parties.\\nThe contract of sale in this case after describing the property, declares that it is \\\"subject to the opening of streets and alleys as contemplated by Company and as to grades established by Mr. Mavin, surveyorand the bill of complaint alleges that it should read \\\"as to grades to be established by Mr. Mavin, surveyor.\\\" Thus while the' paper itself seems to refer to certain grades as already established at the time of its execution, the allegation is that it should read so as to be subject to grades to be established by the surveyor at some future time. The question is therefore presented what was the mutual understanding of the parties to the agreement in this regard at the time of its execution, on the 16th day of October, 1894. There are but two of the witnesses who testify upon this matter: Mr. John F. Williams, who was at that time the President of the present plaintiff, and who prepared the contract of sale, and Mr. O'Keefe, the defendant in the case. Mr. Williams testifies that his recollection is distinct and clear, that he and Mr. O'Keefe'discussed the matter, that he, Williams, told O'Keefe that the grades were not established, that Mr. Mavin, the engineer, was engaged upon the work, and that the contract would have to be drawn in such a way as to leave the Company in control of the grades and opening of the streets, that his purpose in drawing the contract was to leave in the Company the right to control and the power to open the streets where it saw fit, and to establish the grades, and that Mr. O'Keefe agreed to and understood clearly. This testimony is in no wise shaken by the cross-examination, but is substantially repeated with the addition that O'Keefe took the risk of the grades to be established by the Company.\\nMr. O'Keefe upon direct examination denies in general terms that anything was said at his interview with Mr. Wiliams from which he could infer that the grades in front of the property about to be agreed to be purchased by him were not established; and then, upon cross-examination, materially qualifies his denial by saying that if such a conversation took place that he did not hear it; that he paid no attention to the conversation, and that he would have signed the contract whatever was in it; and in his next answer excepts the provision with regard to grades to be established from the sweeping admission just made: then a moment later he declares that he read the contract as being subject to \\\"the grade to be established by Mavin,\\\" and in the very next answer following says his understanding was that the contract spoke of the grade as \\\"now established.\\\"\\nIt is to be borne in mind that this interview took place within about one month after the plaintiff had purchased the property, which was a very considerable tract that it was about opening up for improvement by the building of suburban cottages thereon, and the conclusion is irresistible that the witness O'Keefe told the exact truth when he testified that he -paid no special attention to the conversation with Mr. Williams, which conversation is positively testified to by Mr. Williams, and not denied by Mr. O'Keefe, and that on the 16th day of October, 1894, O'Keefe would have signed the contract whatever which had been presented to him by Mr. Williams, provided only, it contained a reasonably accurate description of the property that he desired to purchase, and stated correctly the amount of the purchase money that he had offered for it, and that in all other matters he was ready to assent, and did in fact assent, to whatever conditions the company saw fit to impose. So clear is this that the Court has no hesitation in determining that the contract should be reformed and taken so as to read as to grades to be established by Mr. Mavin, surveyor.\\nThe contract of sale already mentioned having been entered into, the plaintiff proceeded with the improvement of its property and in the course of this, at some time, which is not definitely fixed by the evidence, Mr. Mavin, the surveyor, laid out the profile of the street in front of the property sold to the defendant, and drew thereon by the direction of a general manager of the company, Mr. Joseph M. Cone, a line to indicate the grade of the street, but in so doing the surveyor protested to Mr. Cone that the grade as platted by this line would not be satisfactory, and that it should be lower in front of property sold to O'Keefe, than indicated by the line so drawn. Mr. Cone, however, preferred to see the grade laid out on the land, as it had been suggested by him. and the graders went to work and graded the land to somewhere in the vicinity of the grade as laid out by what I will call the Cone line, and then suspended operations for a time, but tlie anticipations of the engineer proving correct, this experimental grade was abandoned and the grade originally urged by the surveyor was adopted and the street graded in accordance therewith. Mr. O'Keefe has not complied with his part of the argeement of sale, and bases his refusal so to do upon the ground that the street has been graded to a greater depth in front of his property than the grade established by Mr. Mavin, surveyor, and that the result of such extra grading has been to seriously damage the value of his property. With the (piestion of damage, this Court has nothing to do.\\nAs to' the establishment of a grade, the weight of evidence is overwhelming that no grade whatever had been established at the time of the signing of the contract, on the 16th of October. Mr. O'Keefe testifies that before the signing of the paper, he called on the surveyor, and was told by him that the grade in front of his property would bo \\\"about six or seven feet,\\\" but in this he is flatly contradicted by the surveyor and all the evidence in the case tends to substantiate the testimony of the surveyor rather than that of Mr. O'Keefe. But it is further suggested that when Mr. Mavin, the surveyor, drew upon the profile plat the grade line as recommended by Mr. Cone, that such act became and was the establishment of the grade of the street at that point, by the surveyor, and that his power in that direction was exhausted and at an end. The word \\\"establish\\\" is defined by the lexicographers to mean, to settle and fix firmly, to place on a permanent footing, to make firm, stable and constant, to render valid by approval; and these definitions all imply that such act shall be done by some one having the authority to settle or render valid the specific act. Now, in this case, the contract specifies that the surveyor is the repository of this power; it nowhere intimates that it was the general manager, nor is there a scintilla of proof that Mr. Cone, as general manager, had any such authority, and even if he had, Mr. Cone distinctly testifies upon the stand that the original line was an experimental one, not determined on, but one which he hoped might be, so as to save the company additional expense in grading. There is not a particle of testimony in the case from which the Court can reasonably conclude that the line drawn by Mr. Mavin at the direction of Mr. Cone, ever received the definite, final approval of a single stockholder, officer or even employee of the company, including Mr. Cone himself, even Mr. O'Keefe, in his testimony does not throw any doubt upon this, for he seems all along to have acted purely upon assumption, his testimony constantly abounds in the expression: \\\"I took it for granted\\\" when speaking of this grade there is a vast difference between wliat he may have assumed or taken for granted and the deliberate act of the company in the definite establishment of a grade.\\nI do not find, therefore, any violation of the contract on the part of the plaintiff, as it will be reformed in accordance with the views before expressed, and it is conceded that the defendant, has not complied with its terms, and a decree for its specific performance will, therefore, be signed; 1 do not, however, regard the insurance placed by the plaintiff upon the property as a proper charge against the defendant. Costs to be paid by the defendant.\"}"

md/2003635.json

@@ -0,0 +1 @@
+"{\"id\": \"2003635\", \"name\": \"HAHN VS. LANDSTREET\", \"name_abbreviation\": \"Hahn v. Landstreet\", \"decision_date\": \"1890-04-02\", \"docket_number\": \"\", \"first_page\": \"103\", \"last_page\": \"103\", \"citations\": \"1 Balt. C. Rep. 103\", \"volume\": \"1\", \"reporter\": \"Baltimore city reports, comprising opinions of the various courts of Baltimore city since 1888...\", \"court\": \"Baltimore City Circuit Court\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-11T00:05:49.794583+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"HAHN VS. LANDSTREET.\", \"head_matter\": \"CIRCUIT COURT OF BALTIMORE CITY\\nFiled April 2, 1890.\\nHAHN VS. LANDSTREET.\\nGordon \\u00e9 Sams for plaintiff.\\nlioirm & Daickmn and F. G. Sling-luff for defendant.\", \"word_count\": \"584\", \"char_count\": \"3252\", \"text\": \"DENNIS. J.\\nI am of the opinion that the executor, Landstreet, had the right to come into the Court of equity to administer the trusts imposed on him under the will of Towner. In Keplinger vs. McCubbin, 58 Md. 212, when the administrator went into equity, instead of administering the trusts under the direction of the Orphans' Court, the Court of Appeals said: \\\"He has, as such administrator and also in his own right as devisee under the will filed an original bill, to which all parties in interest are, or can be. made parties. In this bill lie prays, for reasons therein stated, that he may be allowed to administer the estate, and to execute the powers of sale under the protection and direction of a Court of equity. AVe entertain no doubt as to the jurisdiction in equity under such a bill. In the case of Eichelberger vs. Hawthorne, 33 Md. 588, the executors were empowered to sell the testator's real estate after the death of his wife, to whom he gave a life estate therein, and acting under the jurisdiction given to the Orphans' Court, they made the sale and reported the same to that Court for ratification; but it was held by this Court that they could, if they had chosen, have invoked the aid of a Court of equity and administered the trusts under its supervisory power.\\\"\\nUnder this statement of the law upon the subject, Landstreet was authorized to come into this Court for the administration of the duties and trusts imposed upon him by the will; and while the present plaintiffs may not be bound by the decree, because not parties to the suit; yet, as in the language of the Court of Appeals in the ease above quoted, they \\\"can be made\\\" parties, they must adopt that course and prosecute in that proceeding whatever rights they may have. It is conceded that the loss of the trust estate occurred after the decree assuming its administration in this Court, and for such loss, if it occurred by the trustee's default, there is a remedy against him on proper proceedings by the substituted trustee. But if, as executor, he had the right in the first instance to come into this Court for the administration of his trust the present plaintiffs cannot, as they seek to do, have the whole proceedings1 set aside as null and void. They must make themselves parties to the suit and seek their rights by proper proceedings through the substituted trustee. I am, moreover, of the opinion that whatever contingent rights the plaintiffs may have, they have no present interest in the income of the estate, under the clause of the will, which devises to their mother one-fourth of the net income, \\\"to be used for herself and children (if any during her lifetime), and thereafter the said children.\\\" The words \\\"to be used for herself and the said children,\\\" following the absolute devise to the mother, are not to be construed as creating a trust in favor of the children, but simply as an expression of the testator's1 motive for the gift. The case of In re Robertson's Trust, 6 W. R. 405, seems to be conclusive on this point. See also 33 L. R. U. S. 221; 44 L. T. U. S. 202; 14 L. R. 49.\"}"

md/2003751.json

@@ -0,0 +1 @@
+"{\"id\": \"2003751\", \"name\": \"MARY E. GRIFFITH VS. JOHN L. V. GRAHAM, EXECUTOR OF THE LAST WILL OF AMELIA DOYLE, DECEASED\", \"name_abbreviation\": \"Griffith v. Graham\", \"decision_date\": \"1891-07-13\", \"docket_number\": \"\", \"first_page\": \"204\", \"last_page\": \"205\", \"citations\": \"1 Balt. C. Rep. 204\", \"volume\": \"1\", \"reporter\": \"Baltimore city reports, comprising opinions of the various courts of Baltimore city since 1888...\", \"court\": \"Baltimore City Superior Court\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-11T00:05:49.794583+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"MARY E. GRIFFITH VS. JOHN L. V. GRAHAM, EXECUTOR OF THE LAST WILL OF AMELIA DOYLE, DECEASED.\", \"head_matter\": \"SUPERIOR COURT OF BALTIMORE CITY\\nFiled July 13, 1891.\\nMARY E. GRIFFITH VS. JOHN L. V. GRAHAM, EXECUTOR OF THE LAST WILL OF AMELIA DOYLE, DECEASED.\\nRichard B. Tippett & Bro. for plaintiff.\\n\\u2022 Findlay & Mackenzie for defendant.\", \"word_count\": \"1026\", \"char_count\": \"5782\", \"text\": \"STEWART, J.\\u2014\\nThis suit was brought by the plaintiff against the defendants as executor of the last will of Amelia Doyle, deceased. The account filed with the declaration is made out against the estate of Amelia Doyle, John Y. L. Graham, executor, and on its face purports to be for nursing deceased and attention during sickness. The affidavit sets forth that there is justly due and owing by the defendant, as executor of Amelia Doyle, deceased, the sum stated in the account annexed.\\nThe defendant duly appeared by counsel, but having failed to file a plea with affidavit as required by Section 167, of Article 4, of the Code of Public Local Laws, judgment by default for the amount of the claim was entered and extended against the defendant as executor of Amelia Dorsey, deceased, on 27 May, 1891. Immediately thereafter, the defendant moved to strike out the judgment by default and the extension of the judgment, for various reasons set forth in the motion. It is evident from an examination of the pleadings, that the judgment by default in this case was improperly entered.\\nThe declaration and affidavit should agree, but in this case it would be in vain to find out from reading the one, that services rendered the deceased testatrix were involved in the suit; while in reading the other, it is equally vain to discover that the defendant is in any way connected with the services for which suit is brought, except in his representative character. Each of the six counts in the declaration sets forth transactions with the defendant, while the affidavit alleges that the services were rendered to a person, now deceased, of whose last will the defendant is executor. In a case of this character, the Code of Public General Laws has made provision (Art. 75, Sec. 96) that causes of action may be stated against executors and administrators in the same manner as if they were the original parties thereto, except that proper words must be used to show that the claim- was against the deceased in his lifetime. The only count in the declaration on which a recovery could be had is the second, \\\"for work done and materials furnished for the defendant at his request,\\\" which should have read \\\"for work done and materials provided for the defendant's testatrix in her lifetime, at her request.\\\"\\nII a demurrer lmd been filed to the declaration it would have been sustained, and the plaintiff would have had to amend the same, so as to conform to the requirements of the law. The point was raised in the argument on this motion, whether a judgment by-default could be rendered against an executor for want of an affidavit of defence. The oath required could only be made by a party having personal knowledge of the facts set forth therein, and ns an executor could rarely have the knowledge which his testator possessed in regard to his business transactions, it would be almost an impossibility that he should be able to prevent a judgment against an estate represented by him, if he be required to say on oath that every plea which he may file, denying the merits of the claim for which suit is brought, is true.\\nThe Court of Appeals, while not deciding the question, because the point was not raised in the case, has very broadly intimated in May vs. Wolvington, 69 Md. 124, that the affidavit required of defendants under the above mentioned section of the Code does not apply to cases in which the defendants are executors. In regard to the question whether a judgment rendered against the executor of Amelia Dorsey can be entered in the dockets and records of the court in a suit against the executor of Amelia Doyle, an interesting point has been discussed.\\nIt seems that the motion for the judgment was not signed by the plaintiff's attorneys, but was signed in their name and with their consent, by one of the deputy clerks in the office of the clerk of this court, and it is contended that this action of a deputy clerk is irregular and unlawful. The law (Art. 4, Sec. 163, of the Local Code) says distinctly that judgment by default for want of a plea shall be entered by the court, or olerk thereof, upon motion in writing made by the plaintiff, or his attorney. The General Law (Art. 10, Sec. 15) says that no clerk of any Court shall practice as attorney at law in any of the Courts of this State whatsoever, nor shall any deputy clerk of any Court, practice as attorney at law in any Court of this State, of which he is an officer, or to which he may be attached as a deputy or assistant officer.\\nIf a clerk be permitted to act as the agent of the plaintiff's attorney in making a motion for a judgment by default, in his capacity as clerk it is not difficult to perceive that such power, if recognized by the Courts, will soon lead to abuse. While no evil may have arisen from such action heretofore, if it has been practiced, as alleged, the practice is fraught with danger and should be discontinued. The clerk owes it to himself and to the due administration of the law that the spirit, as well as the letter of the law, should be observed and that no motion should be filed, except signed as the law requires by the plaintiff or his attorney. Other points than those above mentioned were raised by the defendant, but as they relate to the merits of the case and are more properly subjects for discussion before the jury, the Court declines to express an opinion upon them. It follows from what has been said that the judgment by default was irregularly entered and that both the judgment and the extension thereof must be stricken out.\"}"

md/2005872.json

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+"{\"id\": \"2005872\", \"name\": \"GOTTLIEB, KNABE & COMPANY OF BALTIMORE CITY ET AL. VS. CHARLES MACKLIN ET AL., COMPRISING THE FIELD OFFICERS OF THE FOURTH REGIMENT OF INFANTRY OF THE MARYLAND NATIONAL GUARD, AND THE MAYOR AND CITY COUNCIL OF BALTIMORE, ETC.\", \"name_abbreviation\": \"Gottlieb, Knabe & Co. v. Macklin\", \"decision_date\": \"1908-07-20\", \"docket_number\": \"\", \"first_page\": \"557\", \"last_page\": \"559\", \"citations\": \"2 Balt. C. Rep. 557\", \"volume\": \"2\", \"reporter\": \"Baltimore city reports, comprising opinions of the various courts of Baltimore city since 1888...\", \"court\": \"Baltimore City Circuit Court\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-10T19:28:50.597923+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"GOTTLIEB, KNABE & COMPANY OF BALTIMORE CITY ET AL. VS. CHARLES MACKLIN ET AL., COMPRISING THE FIELD OFFICERS OF THE FOURTH REGIMENT OF INFANTRY OF THE MARYLAND NATIONAL GUARD, AND THE MAYOR AND CITY COUNCIL OF BALTIMORE, ETC.\", \"head_matter\": \"CIRCUIT COURT OF BALTIMORE CITY.\\nFiled July 20, 1908.\\nGOTTLIEB, KNABE & COMPANY OF BALTIMORE CITY ET AL. VS. CHARLES MACKLIN ET AL., COMPRISING THE FIELD OFFICERS OF THE FOURTH REGIMENT OF INFANTRY OF THE MARYLAND NATIONAL GUARD, AND THE MAYOR AND CITY COUNCIL OF BALTIMORE, ETC.\\nCarroll T. Bond and Marbury & Gosnell for plaintiffs.\\nHill, Ross & Hill and N. Rufus Gill & Sons for defendants.\", \"word_count\": \"1316\", \"char_count\": \"7521\", \"text\": \"ELLIOTT, J.\\u2014\\nThis canse has been instituted by certain corporations which own and maintain in the City of Baltimore buildings and halls devoted to the purpose of being rented for concerts, meetings, exhibitions and other entertainments, against certain persons described as the Field Officers of the Fourth Regiment Infantry of the Maryland National Guard and the Mayor and City Council of Baltimore.\\nThe object of the bill is to secure the issue of an injunction preventing the use of a certain building owned by the Mayor and City Council of Baltimore, .and located on West Fayette street, between Paca and Greene streets, and rented by it to the other defendants for the purpose of being used as the armory of the regiment above named which other defendants it is alleged are about to use the said building for the purposes for which the buildings of the plaintiffs are maintained.\\nThe burden of the complaint made by the plaintiffs is that such proposed use of said building is not only beyond the power of the Mayor and City Council of Baltimore, and hostile to the objects for which said building was leased by it, but that such use of it necessarily brings said building in competition with the buildings owned by the plaintiffs in such a way as to deprive them of income which would otherwise accrue to them from the use and rental of their own buildings.\\nTo the bill filed by the plaintiffs demurrers have been interposed by the defendants and the question is raised as to whether or not the plaintiffs have stated a case which authorizes this court to interfere by its writ of injunction.\\nIt goes without saying that if the proposed or suggested use of the building hereinbefore referred to is such as neither of the parties defendant are authorized or permitted in law to make of it, then this court has the power to' enjoin such use either upon the application of a citizen and taxpayer of the Mayor and City Council of Baltimore or at the instance of some plaintiff suffering special damage by such illegal and unauthorized use.\\nThe question of primal importance therefore is, as to whether or not the suggested use of a building owned by municipality of Baltimore, and leased by it to a militia regiment for the purpose of an armory is illegal and ultra vires.\\nTo put the matter in another form the question is as to -whether or not the City of Baltimore owning property which has ceased to be necessary for public purposes, may or may not instead of selling the property, rent it to persons or corporations who might use it in such a way as to bring it in competition with the enterprises of individual and private citizens or taxpayers.\\nAnswering this question, it would seem that there can be no good reason why the Mayor and City Council of Baltimore should be compelled immediately upon the disuse of a public building to dispose of it by sale rather than by lease, and even were it evidently a better business proposition to sell rather than to lease, I know of no power in an equity court which would justify it in enforcing a substitution of its own opinion in the place and stead of that of the legally constituted authorities of the municipality.\\nAnd so it would seem that no injunction should be issued by this court to prevent a disposition by the municipality of its unused property, so long as such disposition is not of itself illegal or violative of the rights of the citizens generally, even though the result of such disposition might be injurious to the business opportunities of some of such citizens.\\nThe principals above suggested seem to be clearly established and warranted by the decision of the Court of Appeals of Maryland, in the case of Rittenhouse vs. The Mayor and City Council of Baltimore, as reported in 25th Md., pages 346 and 347. That decision clearly recognizes the right of a municipality to hold property other than that used by it for municipal purposes and to deal with it as any private citizen or other proprietor might do.\\nThere is, however, another question remaining for decision and that is, as to whether or not granting the right of the municipality to lease its property not used by it for municipal purposes, to the Field Officers of the Fourth Regiment for the purposes of an armory, said field officers can be enjoined from using it for purposes other than of an armory.\\nIt would probably not be productive of any practical or beneficial result were this court to enter into any fine distinctions as to what are or might be the purposes of an armory and it would certainly have the tendency to involve this court in any number of perplexing-details should it give its adherence to the theory that it would be invoked, first, to determine whether the field officers were strictly keeping within their powers, and then to prevent any misuse of those powers so far as using the building only for the purposes of an armory would be concerned. Many things which might not appeal to the court, inexperienced as it would likely be in military affairs, might be imme diately recognized by tlie field officers as necessary to tlie very existence o\\u00a3 an armory, and the consciousness of this fact might well bo calculated to make the court hesitate before interfering.\\nThe situation, however, in this case is, after all, not really so difficult as might at first appear.\\nA plain simple statement of it is that the Meld Officers of the Fourth Itegiment have been renting and propose to rent the armory building at a time when not in actual use by the regiment and in such a manner as not to interfere with such use, for the purpose of raising additional income to be devoted to the purposes of the regiment and it happens by such renting the building is brought in competition with those owned by the plaintiffs.\\nIt is true that the bill alleges that such renting tends to increase the risk of injury to the building and to the property of the State located therein, but even were that so it is entirely possible to insure against such additional risk, and even were it not, it would seem to be a matter rather for the executive departments of the city and State than for the judicial.\\nAnd so we must come back to the single consideration as to whether or not the renting of the Fourth Ilegiment Armory for concerts, public exhibitions and entertainments is to be enjoined by this court, because such use of it will be in competition with other buildings located in the city, constructed and maintained for the same purposes and owned by private citizens, whether individually or as stockholders in corporations.\\nAddressing myself to this single question, while remembering and recognizing the great and proper powers vested in a Court of Equity to restrain and prevent injuries which are likely to be the result of an unwarranted use of power or to flow from illegal and invalid acts of individuals or of the public authorities, I am unable to see that there is anything alleged or involved in the cause instituted by the plaintiffs which calls for the intervention of an equity court.\\nIt follows, therefore, that the demurrers filed by the defendants must be sustained.\"}"

md/2005916.json

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+"{\"id\": \"2005916\", \"name\": \"MARIA REID VS. THE JOHN F. WIESSNER & SONS' BREWING COMPANY OF BALTIMORE CITY\", \"name_abbreviation\": \"Reid v. John F. Wiessner & Sons' Brewing Co.\", \"decision_date\": \"1899-01-26\", \"docket_number\": \"\", \"first_page\": \"6\", \"last_page\": \"6\", \"citations\": \"2 Balt. C. Rep. 6\", \"volume\": \"2\", \"reporter\": \"Baltimore city reports, comprising opinions of the various courts of Baltimore city since 1888...\", \"court\": \"Baltimore City Circuit Court\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-10T19:28:50.597923+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"MARIA REID VS. THE JOHN F. WIESSNER & SONS\\u2019 BREWING COMPANY OF BALTIMORE CITY.\", \"head_matter\": \"CIRCUIT COURT NO. 2 OF BALTIMORE CITY.\\nFiled January 26, 1899.\\nMARIA REID VS. THE JOHN F. WIESSNER & SONS\\u2019 BREWING COMPANY OF BALTIMORE CITY.\\nC. Dodd McFarland for plaintiff.\\nJno. M. Requardt for defendant.\", \"word_count\": \"618\", \"char_count\": \"3394\", \"text\": \"STOCKBRIDGE, J.\\u2014\\nThis case comes before the Court at this time upon a bill of complaint, and plea of res adjudicata.\\nThe prayer of the bill is for the payment by the defendant of the sum of $300, for the rent of certain premises leased by the plaintiff to one. Miller, the lease of which had been, ' on the day of its execution, assigned by Miller to the present defendant, and some time subsequently again assigned by the defendant to one Jones.\\nTo recover the rent now claimed as due, together with one month additional, a suit was brought in the Superior Court of Baltimore City, and defended upon the ground that there being no privity of contract between the parties to the suit, no action at law would lie after the assignment by the defendant to Jones. The validity of the assignment to Jones was denied by plaintiff, but sustained by the Court. This was held to be an effectual defense by that Court, and the judgment was subsequently affirmed by the Court of Appeals. Thereupon, the present bill was filed to which the plea of res adjudicata is interposed as a bar.\\nThe principle is too well established to require any citation of authorities, that where the cause of action and the parties are the same, and a suit is prosecuted to final judgment, that determination is conclusive, not only upon the issues that may have been raised in such original trial, but as to any which might have been raised in it.\\nTrayhern vs. Colburn, Exr., 60 Md. 267.\\nWalsh vs. C. & O. Canal, 59 Md. 423.\\nIn the present case, however, it is difficult to see how the issues sought to be raised by the suit could have been passed upon at all by the jury empaneled in the first case, and did the law go no further, the Court would be inclined to overrule the plea.\\nThere can be no question that before any suit at all had been brought, the plaintiff had the option between bringing a suit at law and filing a bill in equity, and that option continued to be hers down to the time that the ease at law was actually submitted to a jury, or closed by a decree, but it has been repeatedly determined in this State that, \\\"if a party has a choice between two actions upon the same demand, and he selects one, which is decided by a competent tribunal either for or against him as a general rule, he will not be permitted to resort to the other.\\\"\\nWalsh vs. C. & O. Canal, 59 Md. 427.\\nFisher vs. Boyce, 81 Md. 46.\\nKeedy vs. Long, 71 Md. 385.\\nIt is not the institution of 'a suit which is abandoned before final judgment is reached that operates as the estoppel, but the selection by the plaintiff of one of two remedies that were open to him, and a decision thereon by a competent tribunal that precludes a resort to the other remedy. \\\"Where the remedies are alternative, not cumulative, his choice of the one and pursuit of it to final judgment, will exclude the other or opposite remedy, and having repudiated the latter, he cannot afterwards ignore the judgment actually rendered, change his position and adopt the remedy he had repudiated and repudiate the one he had adopted.\\\"\\nBolton Mines Co. vs. Stokes, 82 Md. 59.\\nIn view of the overwhelming weight of authority, therefore, the plea will be held good.\"}"

md/2007823.json

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+"{\"id\": \"2007823\", \"name\": \"THE PAYE BUS COMPANY VS. DANIEL C. AMMIDON, ALRRED S NILES, CLARENDON I. T. GOULD, BOARD OF POLICE COMMISSIONERS, AND ROBERT D. CARTER, MARSHAL OF POLICE\", \"name_abbreviation\": \"Paye Bus Co. v. Ammidon\", \"decision_date\": \"1915-09-23\", \"docket_number\": \"\", \"first_page\": \"370\", \"last_page\": \"372\", \"citations\": \"3 Balt. C. Rep. 370\", \"volume\": \"3\", \"reporter\": \"Baltimore city reports, comprising opinions of the various courts of Baltimore city since 1888...\", \"court\": \"Baltimore City Circuit Court\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-10T17:14:01.543184+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"THE PAYE BUS COMPANY VS. DANIEL C. AMMIDON, ALRRED S NILES, CLARENDON I. T. GOULD, BOARD OF POLICE COMMISSIONERS, AND ROBERT D. CARTER, MARSHAL OF POLICE.\", \"head_matter\": \"CIRCUIT COURT NO. 2 OF BALTIMORE CITY.\\nFiled September 23, 1915.\\nTHE PAYE BUS COMPANY VS. DANIEL C. AMMIDON, ALRRED S NILES, CLARENDON I. T. GOULD, BOARD OF POLICE COMMISSIONERS, AND ROBERT D. CARTER, MARSHAL OF POLICE.\\nMoLanahan, Franco and llousor for the complainants.\\nRobert F. Stanton for the defendants.\", \"word_count\": \"1108\", \"char_count\": \"6481\", \"text\": \"ELLIOTT, J. \\u2014 -\\nOn July 17, 1915, the Bill of Complaint and for injunction was filed in this cause by the complainant, seeking to prevent the enforcement by the respondents of the terms and provisions of an ordinance adopted by the Mayor and City Council of Baltimore on the ninth day of July, 1915, entitled \\\"An ordinance providing a tax upon the privilege of operating jitneys, automobiles and motor cars for the carriage of passengers for hire; regulating the operation of jitneys and requiring a license therefor; and providing a penalty for the violation of this ordinance.\\\"\\nThe ordinance is asserted to bo null and void, and of no effect, for a number of reasons set out in said bill, and this Court is asked to enjoin its enforcement by the Board of Police Commissioners and the Marshal of Police, and a preliminary injunction has issued. A motion has been made to dissolve the injunction, and a hearing having been had, it becomes necessary for this Court to determine the questions raised by said motion.\\nIt is not necessary to discuss all the reasons of objection recited in said bill, but it appears proper to analyze the ordinance itself, in order to discover its scope, and the avowed object of its passage. Tliat object is said ill the title to be:\\n(1) To provide a tax for the privilege of operating jitneys, automobiles and motor cars for the carriage of passengers for hire.\\n(2) For regulating the operation of jitneys, and requiring a license therefor.\\n(3) To provide a penalty for the violation of the ordinance.\\nIt is to be noticed that the title comprehends a tax upon \\\"jitneys, automobiles and motor cars for the carriage of passengers for hire.\\\"\\nSection 1 of the ordinance contains no provision relating to automobiles or motor cars, but applies entirely to \\\"jitneys.\\\"\\nSection 2 contains a number of provisions for the regulation of \\\"jitneys\\\" with, against, an entire absence of any reference to \\\"automobiles and motor cars.\\\"\\nSection 3 provides for the license and tax, again limiting the provision for such license and tax to \\\"jitneys\\\" and containing not even a reference to \\\"automobiles\\\" or \\\"motor cars.\\\"\\nSection 1 contains a definition of the word \\\"jitney\\\" as used in the ordinance, and it is said \\\"to mean every motor car operated over any of the public highways of Baltimore City, by a regular route, for the purpose of carrying iiassengers for hire.\\\" \\\"Every motor vehicle which comes under the definition of jitney, as herein provided, shall be subject to the provision of this ordinance whenever being operated for the carriage of passengers for hire, whether on its regular route or not.\\\" \\\"Nothing in this ordinance shall be construed to relieve any person or operator from any regulation imposed by the \\u00a1\\u00e1tate of Maryland, or by lawful authority in pursuance thereof.\\\"\\nSection 3 devotes the whole proceeds of the tax under the ordinance to \\\"be used for the purpose of paving, repaving or repairing streets.\\\"\\nSection 6 provides a fine for every person operating, and for every owner who permits to be operated, in violation of this ordinance, any jitney, automobile or motor cur, of from ten to one hundred dollars for every day's operation.\\nIt is worth while to make further quotation from the ordinance by reciting the provisions for the tax.\\nSection 3 contains the stipulation that \\\"for each jitney having a seating capacity of not more than four passengers, a tax of one hundred dollars per annum.\\\" For each jitney having a seating capacity of moni than four passengers, a tax of one hundred dollars per annum, and an additional sum of twenty-five dollars per annum for each passenger in excess of four for which such jitney has a seating capacity.\\nTaking the definition of a jitney as provided in tlie ordinance, it goes without saying that any motor car operated over the public highways of the city, for the carriage of passengers, for hire, is liable to the license and tax, and the term motor car is broad enough to include automobiles and street cars. But it is evident from Section 4 that the ordinance is not. intended to apply to motor cars generally, because that section expressly provides that \\\"Every motor vehicle which comes under the definition of jitney, as herein provided, etc., necessarily implying that the ordinance is not intended to apply to motor vehicles which do not come under the definition of \\\"jitney.\\\"\\nWe have therefore a discrimination with regard to motor vehicles, not based on any inherent differences as among the vehicles themselves, but upon the arbitrary distinction which the ordinance itself makes.\\nMoreover, although \\\"automobiles and motor cars\\\" are expressly mentioned in the title, they are entirely omitted from any of the prohibitive sections of the ordinance, and there is no penalty annexed to the running of automobiles or motor cars.\\nNor is this the only discrimination made by the ordinance.\\nIt is not the use of the public streets by motor cars \\\"for hire\\\" that is to be licensed and taxed, but the use of the streets by motor cars, coming under the definition of jitneys, carryiny panxen.</ers, that is to be taxed.' The result is that motor cars carrying freight and merchandise, for hire, need pay no tax, and there is another arbitrary discrimination and distinction between passengers and freight.\\nAt the hearing of this cause much point was made of the suggestion that the use of the streets and the injury thereto was the reason for the tax; but when it is recalled that the heavy freight motor cars injure the streets more than jitneys, it becomes evident that we must look elsewhere for the reason for the tax.\\nThere can be no doubt that there is much in the ordinance which was entirely within the power of the Mayor and City Council of Baltimore to enact ; but when it singles out the owners of \\\"jitneys\\\" and taxes them to an amount that seems to be, if it is not really so, prohibitive, leaving other motor cars or vehicles untaxed, there would appear to be an unjust and unfair discrimina tion which should be enjoined by this Court.\\nThe Court will therefore overrule the motion to dissolve the injunction and will pass an order making final the injunction already issued.\"}"

md/2007947.json

@@ -0,0 +1 @@
+"{\"id\": \"2007947\", \"name\": \"MARGARET McCAFFERTY VS. THE UNITED STATES LIFE INSURANCE COMPANY OF NEW YORK\", \"name_abbreviation\": \"McCafferty v. United States Life Insurance Co. of New York\", \"decision_date\": \"1911-11-24\", \"docket_number\": \"\", \"first_page\": \"159\", \"last_page\": \"163\", \"citations\": \"3 Balt. C. Rep. 159\", \"volume\": \"3\", \"reporter\": \"Baltimore city reports, comprising opinions of the various courts of Baltimore city since 1888...\", \"court\": \"Baltimore City Superior Court\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-10T17:14:01.543184+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"MARGARET McCAFFERTY VS. THE UNITED STATES LIFE INSURANCE COMPANY OF NEW YORK.\", \"head_matter\": \"SUPERIOR COURT OF BALTIMORE CITY.\\nFiled November 24, 1911.\\nMARGARET McCAFFERTY VS. THE UNITED STATES LIFE INSURANCE COMPANY OF NEW YORK.\\nIsaac Lobe Straus and Joshua Horner. Jr., for plaintiff.\\nAlbert Richie for defendant.\", \"word_count\": \"3102\", \"char_count\": \"16505\", \"text\": \"GORTER, J.\\n(Orally)\\nNow gentlemen, I have endeavored to keep my mind ox>en, so as to reach, as correctly as I might be able, tlie law that would be applicable and control this case. I have certainly done so, because I was not able to reach a conclusion as to how I ought to decide it, until I lmd to reach a conclusion. Whether my conclusion is right or wrong can very easily be determined, with comparatively little expense, by the higher court, which, after all, is the tribunal that makes the law.\\nThe case was very fully argued, and I wanted it to be very fully argued; because it seemed to me to be a very important one, but after the argument the case really reduced itself to a very narrow compass, and the learned counsel for the plaintiff it seemed to me, al most, if not entirely, stated the sphere within which it stood.\\nI think that this is not a case as to whether or not the defendant furnished something for which the plaintiff: did not ask, and, therefore, that there was a mistake and no contract. In my judgment, if that were all, it would be a question that undoubtedly, under the evidence in the case, should go to the jury. But what I think the ease is, is this: Conceding that the plaintiff got a policy different from the one that he expected to get, and one which the agent of the company said he would get, he has not, by holding on to that policy for twenty years, accepted by his conduct the terms and conditions which the company made in the policy itself? Now, that is the case.\\nIn other words, can a man take a policy which he could read in fifteen or twenty minutes, although the agent has told him it is something different from what he really gets, and can he keep that policy for twenty years without reading it, and after he had had his insurance for twenty years, during any time wherein, if he had died, the policy would have been paid; and then at the end of twenty years read it and say, This is not what I wanted; this is not what I contracted to get; now, I don't want it; it was a mistake; I w\\u00e1s induced to take it by the misrepresentations of the agent, and I ask the company to hand me back my money, with interest? That seems to me to be this case. Can a person do that in law?\\nI have been referred to the Minnesota case \\u2014 the strongest case for the plaintiff \\u2014 and in that, the application was made, if my recollection is correct, six weeks after the policy was delivered. I rather think the Bostwick case, the one which I have before me, was six months after the policy was delivered, and the MeMaster case was a year after the policy was delivered.\\nIn the first and in the last, the plaintiff was allowed to recover ; in the second, one of the plaintiffs was allowed to recover, but the other two were not allowed to recover. We see what tremendous resistance was offered by the company and the doubt that existed in the minds of the court in those cases, even to allow the recovery to be had.\\nWe have not a case like those before us now. We have a case in which the plaintiff waited twenty years, during all of which time he was insured, and then at the end of the twenty years he realizes, or wakes up to the fact that what he has, was not what he claims he contracted to get; his chief disappointment is that he does not get the $5,500, but only less than half of that amount, when he thought that the policy which he had, according to his testimony, guaranteed him the $5,500.\\nFrom the reading of the cases and the principles involved, I have reached the conclusion that the law will not allow him to do that. Reading from page 748 of the opinion of the Wisconsin Supreme Court, Bostwick against the Mutual Insurance Company; \\\"Those principles apply with great force to this class of cases. The respondent had the full benefit of his insurance for nearly a year before he repudiated the transaction, and his assignees had the benefit of theirs for months before they acted in that regard. The entire period covered by the first premium upon respondents' policy had, before he refused to abide by such policy nearly expired. No one would venture to claim that, if he had died during such period of delay, the company would not have been bound by the policy, and his personal representatives would not have enforced it.\\nRuring all that time the money paid by respondent for his policy formed a part of the fund relied upon by the other policy holders for their protection, pait of the assets of the company upon which all its operations were based. It was not guilty of any moral turpitude except by imputation. Its officers were not guilty of any wrongdoing whatever. They supposed, and had a right to suppose, for months, that the company's soliciting agent acted honestly in obtaining the applications for the policies. They knew that the policies issued, received and retained, were in strict accordance with the applications. They carried the risk assumed on their books as part of their liabilities and the premiums paid, as before indicated, as part of their assets. All the policy holders of the company were interested in the fund of which the money sought to be recovered formed a part, and many of which, we may rightly assume, joined the company during the period of delay.\\\"\\nAgain on the next page I read:\\nMr. Ritchie. Is your Honor reading from 67 L. R. A.?\\nTlie Court; Yes, from page 748. Now I am going to read from page 749. \\\"A diligent attention to one's own concerns, as well as good faith to others, is a virtue; and the law, while it recognizes the rules which tend to preserve the latter, at the same time is careful to guard the principles which prompt to the exercise of the former. With respect to points plainly within the reach of every man's observation and judgment, and where an ordinary attention would lie sufficient to guard against imposition, the want of such attention is, to say the least, an inexcusable negligence. To one thus supinely inattentive to his own concerns, and improvidently and credulously confiding in the naked and interested assertions of another, the maxim, Vigilan,tibns, et non dormientibus. jura subveniunt. emphatically applies, and, opposes an insuperable objection to his obtaining the aid of law.\\\"\\nNow, again on the next page, 750, I read ; \\\"If he rescinds on the ground of fraud, he must do so at once on discovering the fraud. Any delay, especially if if be injurious to the other party, would be regarded as a waiver of liis right. The mere lapse of time, if it be considerable, goes far to establish a waiver of this right, and if it be connected with an obvious ability on the part of the defrauded person to discover fraud at a much earlier period, by the exercise of ordinary care and diligence, if would be almost conclusive.\\\"\\nAgain, I read at the bottom of page 751: \\\"Constructive notice was not formerly held to be under any circumstances a 'cover for fraud.' It was held to be evidence of assent, regardless of the fraud, or, if not such, of inexcusable negligence, waiving judicial remedies for fraud, and not apparent mere assumption, but upon the authority of this court's previous decisions, and of most other courts.\\\"\\nTherefore, gentlemen, not without considerable doubt and hesitation. I have reached the conclusion that if a party keeps a policy for the length of time Mr. McOafferty did, he has in law assented to the terms of that policy, and he can not come into a court and ask the court to relieve him from the position that he is in. His neglecting the serious obligation of reading the policy that insured his lite has lost him that right, notwithstanding he may have relied upon the statement of the company's agent as to the terms of the policy. Now that is the best conclusion that I have been able to reach.\\nOn the other hand, I do see that the other side, in the prospectus which has been handed out, represented something which has distressingly failed to come up to the expectations of the insured. The criticisms that have been made upon the slip which was attached to the policy have some foundation and support. But notwithstanding that, I think that the plaintiff by his conduct under the law as I get it from these cases, and under the law as it seems to me it must be, is iirecluded from recovery in this case.\\nI have realized that the certainty and the stability that is given to written contracts is one of the safeguards of commercial transactions \\u2014 that, if you can get away from it in a $5,000 policy, you can get away from it in a $100.000 policy; and, if you can get away from it in a $100.000 policy, you can do it in contracts which may run up into $500,000 or a $1,000,000, possibly \\u2014 not that they are matters of any more interest to the people concerned in them than the $5,000 is to'Mr. Mc-Cafferty; because a small amount to the man who hasn't much is of as much interest to him as the large amount is to the men who have much more. Still, I believe that that principle in the main gives us more stability in business, and enables us to prosper and progress more, than a rule which will enable a person, after a considerable, length of time, although induced by fraud, to repudiate a contract which he has, printed, in his possession.\\nSo I feel that I will have to grant the motions of the defendant and the prayers.\\nMr. Straus. Do you grant the motion to strike out the evidence?\\nThe Court. Yes.\\nMr. Straus. You grant that?\\nThe Court. Tes, I might as well grant them all in order to give you every possible exception; I might as well give you everything, so that you can have your decks cleared for action. I don't see that that prejudices you at all in that regard.\\nMr. Ititcliie. Before you come to the form of the verdict I want to say a word, because this is a case under a special statute, and there is a special case which deals with the proper form of the verdict in this case.\\nThe Court. I will come back to you. Now, gentlemen, ordinarily, I think, that courts in taking a case away from a jury, just grant the prayer and say nothing; but I am going to try to explain the case to you, because you are here and are a part of the administration of justice, and have a very important function to perform; and I would like you, therefore, to understand the nature of the case that you have listened to so patiently.\\nIt is not my duty to make the law. What I have said is not what I may think; it is what I think the law is, from these cases which these gentlemen have been reading to me for the last two or three days. If I am wrong the Court of Appeals, at Annapolis, at a very little cost, for this (indicating) is all the record consists of, will reverse me and send the case back to be tried by a jury. If I am right, they will let my rulings stand, because such is the law of Maryland, and we are all bound by it.\\nNow, I have said this: I have said that this is not a case to go to the jury, and I want to illustrate that to you gentlemen. If you gentlemen all take out an insurance policy for $5,000, the twelve of you, and you pay a premium of $150 a year and it is a twenty year policy, you each pay in about $3,100, and with 6 per cent, interest on. your money, it will make $5,000, and so, if you all live, there will be $60,000 to be divided among you twelve gentlemen, and you will each get $5,000 back, which is the amount of this policy, which, it is estimated would be returned. I make it even figures, because my calculations would be more difficult if I went into the hundreds.\\nThat is all right if you all live, but if you, Mr. Foreman, the gentleman next to you, and 'the two gentlemen back of you, were to die the first year after the policy is taken out, you all will not have $60,000, because you four will not put in your respective amounts; and each of your families will get $5,000. Therefore, you would take, away from that-fund of $60,000 the $20,000 which you have not put in, and the $20,000 which your families \\u2022take out, and there would be left for you gentlemen who live beyond the twenty years a fund of $20,000, to be divided equally among you, and each of the eight will get $2,500-\\nThat is a plain proposition. But suppose the next four gentlemen say, \\\"Why, the agent told me I was going to get $5,000, and here the company only gives me $2,500, and I believed him, and he made a fraudulent representation that that was in my policy, and when I got my policy I put it in the drawer, and I did not look at it; it stated that it was only estimated; but I did not look at it; and he told me I was going to get $5,000, and I would not have gone into it if I had known that I was not going to get my $5,000 back; I am going into a court of law and ask the court of law' to give me back my $5,000.\\\" Each one of you say that and you come into a court of law and you say the agent told you that. The other side would say, \\\"Why, gentlemen, why didn't you read your policy?\\\" \\\"Oh,\\\" you say, \\\"I depended upon what the agent said; he lulled me into a feeling of security and whenever he met me. he would call me 'lucky boy,' and tell me how much I was going to get, and I did not take the trouble to read the policy.\\\" And the court and jury give you back $5,000 each.\\nNow', w'hat are the other four gen.ttemen on the end to get? No money left. They say, \\\"We did read our policy ;. we understood that the insurance wras not going to anybody, except for protection for their w'ives and families ; when you come to say insurance is an investment, that each of your families can have that amount, we know better; we know we are young men and that we may die, and w'hile wre are getting our salaries we are willing to pay you a part of our salaries to protect our w'ives and children in ease we die; and w'e did read our policies; wre do understand our policies; we know that if everybody had lived, we w'ould have gotten $5,000; we know that if the company was fortunate enough to buy land out west at $2 an acre and later sell it for $200 an acre, we would get more than that; but, in the ordinary course of business, knowing the company could not ordinarily do better than 6 per cent., we thought, very well; although they told us w'e would get $5,000, as thoughtful men reasoning out the transaction we have entered into, we only really expected to get, if we live, about $2,500, because that is about what we would reasonably expect. to receive, and we want our $2,-500.\\\" The insurance company would say: \\\"We haven't, it to give you: the other four gentlemen, who- did not read their policies, who did not take the trouble to read theirs \\u2014 a jury and a judge have given them all the money and, therefore, yon gentlemen who read your policy and understood the transaction get. nothing. We haven't any money to give you.\\\"\\nNow, T think that principle runs through all the insurance companies, if they are honestly conducted. You need not expect, if you give a verdict against an insurance company, that you are going to get any of Mr. Pierpont Morgan's money, or Mr. Rockefeller's; you are going to get the money of the other gentlemen on the jury, or of other people like yourself, who are struggling to make the world move, and who- send their money on to the insurance companies ; what yon get is the money of the other people who are insured.\\nFor these reasons I believe the law compels me to say that, taking all the evidence in this case, the law is \\u2014 and I must tell you what it is as I understand it to he, and if I am wrong there is a court above me to correct me\\u2014 the law is that I must instruct you to bring in your verdict, 1 will say, for the defendant.\\nBut I am going to hear them. The defendant has put in the court this twenty-two hundred or twenty-three hundred dollars, and now I am going to hear the lawyers as to how they think your verdict, ought to he rendered. When you give your verdict, there is a higher court that will review what I have done, so that you need not feel you are guilty of an injustice to anyone, no matter what your views may be.\\nMr. Straus: Exceptions are reserved by the plaintiff to all the rulings of the court, both as to motions and to prayers, and we reserve an exception as to the form of verdict.\\nThe jury assessed the damages at $2,256.95, the amount paid into court. The verdict as found was rendered under the direction of the court.\"}"

md/2009985.json

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+"{\"id\": \"2009985\", \"name\": \"THOMAS MACKENZIE, ET AL., VS. THOMAS MACKENZIE, EXECUTOR, ETC.; PETITION OF JOHN A. REILLY, TRUSTEE, VS. THOMAS MACKENZIE, TRUSTEE\", \"name_abbreviation\": \"Mackenzie v. Mackenzie\", \"decision_date\": \"1926-02-16\", \"docket_number\": \"\", \"first_page\": \"450\", \"last_page\": \"452\", \"citations\": \"4 Balt. C. Rep. 450\", \"volume\": \"4\", \"reporter\": \"Baltimore city reports, comprising opinions of the various courts of Baltimore city since 1888...\", \"court\": \"Baltimore City Circuit Court\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-10T21:59:38.918648+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"THOMAS MACKENZIE, ET AL., VS. THOMAS MACKENZIE, EXECUTOR, ETC. PETITION OF JOHN A. REILLY, TRUSTEE, VS. THOMAS MACKENZIE, TRUSTEE.\", \"head_matter\": \"CIRCUIT COURT OF BALTIMORE CITY.\\nFiled February 16, 1926.\\nTHOMAS MACKENZIE, ET AL., VS. THOMAS MACKENZIE, EXECUTOR, ETC. PETITION OF JOHN A. REILLY, TRUSTEE, VS. THOMAS MACKENZIE, TRUSTEE.\\nThomas Mackenzie for Thomas Mackenzie, trustee, and Charles M. Rahe, Jr.\\nEdward H. Burke for John A. Reilly, trustee in bankruptcy.\", \"word_count\": \"1491\", \"char_count\": \"8330\", \"text\": \"FRANK, J \\u2014\\nThe first question involved in this controversy is whether the interest of Charles M. Rahe, Jr., under the will of his father, Charles M. Rahe, was of such a character as to pass to the petitioner, John A. Reilly, Trustee in Bankruptcy of Charles M. Rahe, Jr. The testator died on September 12th, 1904, leaving a wife, Mary E. Rahe and eight children surviving him. Charles M. Rahe, Jr., was adjudicated a bankrupt on December 10th, 1923. The widow, Mary E. Rahe, died on December 28th, 1925.\\nIf the bankrupt had in December, 1923, such an interest under the said will as he could have then transferred, his trustee in bankruptcy is entitled thereto. If, however, his said interest was not then alienable, it did not pass to his trustee under the provisions of Section 70 of the Bankruptcy Act.\\nAfter making certain provisions to have effect, during the lifetime of the widow, the will provided by Clauses D and E of paragraph Three as follows:\\n\\\"D Upon the death of my wife, Mary E. Rahe, I direct that the whole corpus of my estate, including the dwelling and furniture devised to my wife for life, shall be divided into eight equal parts, and one of said parts shall be paid over by said trustee to each of my said eight children (should they then be living) excepting to the share of my said son John Gerhardt Rahe, which shall be held by the said trustee and invested and reinvested, and the net income only paid over to my said son, in quarterly installments, until he shall reach the age of forty (40) years, when the trust as to his share shall cease, and his portion of the corpus shall be paid over to him absolutely. But my said son shall have no power to anticipate said income, nor to assign it, and his receipt only shall be sufficient acquittance to the said trustee.\\\"\\n\\\"E Should any of my said children die before my said wife, or should my said son John Gerhardt Rahe die before reaching forty years of age, leaving a child or children living, then the share in the said corpus of the child so dying shall vest in the said child or children so left, to be paid over to them upon the death of my said wife. But should any of my said children die without leaving a child or children living at his or her death, then the said share in the corpus of the said child so dying shall vest in the survivors of my said children, and the child or children of any deceased child, the latter to take the share of its or their parent, to be paid over to them upon the death of my said wife, except as to any share that may pass to the use of my said son, John Gerhardt Rahe, which shall be held in trust as hereinbefore provided as to his share until he attains the age of forty years.\\\"\\nTestamentary dispositions of this general character are not infrequent and have given rise to much litigation. Roughly speaking they may be divided into three classes:\\nFirst: Dispositions to persons actually named or definitely described and determined in the will, such dispositions to take effect only upon the happening of some future contingency. Such interests even though contingent, are alienable and transmissible by descent and devisable. Fisher vs. Wagner, 109 Md. 243 and cases there cited.\\nSecond: Dispositions in futuro to classes of persons, such as children, wherein either the language of the will expressly states that the persons to make up the class are determined as of the date of the death of the testator, or no language appears indicating an intention of the testator to postpone the period of such determination beyond the death of the testator. The law favors the early vesting of estates. In both of these cases, the individuals comprising the class at the death of the testator are held to take vested estates subject to be divested in whole or part to gratify the other requirements of the will as to matters happening between the date of testator's death and the date of the vesting of the estates in possession and enjoyment. Such interests, being vested, are alienable and transmissible, subject to being divested in whole or part in whomsoever's hand they may be. Taylor vs. Mosher, 29 Md. 443; Dulaney vs. Middleton, 72 Md. 67; Roberts vs. Roberts, 102 Md. 131; Lee vs. Waltjen, 141 Md. 450; Cole vs. Safe Deposit & Trust, 143 Md. 90.\\nThird: Dispositions in futuro to classes of persons, the will containing words postponing the determination of the actual persons to compose the class, until some future happening, often the death of the tenant of a particular estate. The interests of persons comprising such classes are contingent upon their being in esse at the time of such happening. Indeed they are not in the class unless then in esse. Such interests are neither alienable, or transmissible. Lee vs. O'Donnell, 95 Md. 538; Lansdale vs. Linthicum, 139 Md. 155; Stahl vs. Emery, 147 Md. 123 and cases there cited.\\nIn the will of Mr. Rahe, after the provisions for the benefit of his wife and for the payment of a balance of net income in quarterly installments to his eight children during the life of the wife, the testator directed that upon the death of the wife the whole corpus of the estate shall be divided into eight equal parts and one of said parts shall be paid to each of the eight children, \\\"should they then be living,\\\" except in the ease of one son. Should any of said children die before the wife leaving a child or children living, \\\"then the share in the said corpus of the child so dying shall vest in the said child or children so left, to be paid, over to them upon the death of my said wife.\\\" If any of testator's said children die \\\"without leaving\\\" children living at his or her death, then the said share in the corpus of the said child so dying, shall vest in the survivor of my said children to be paid over to them upon the death of my wife.\\\" (Italics mine.)\\nThe division of the corpus of the estate into eight equal parts is to be made only upon the death of the wife, the payment of one of the eight parts to each of testator's eight children only if they be then living. \\\"Should they be then living,\\\" can have only the meaning, \\\"provided that,\\\" or \\\"in condition that,\\\" or \\\"only if,\\\" they be then living. Should any of testator's children die before his wife then provision is made for the passage of his share upon her death. The distinction is between phrases such as the above which are said to be \\\"the usual and proper phrases to constitute conditions precedent,\\\" and in their absence the use of such phrases as \\\"from and immediately after the death, etc.,\\\" which are often held to refer merely to the time of possession and enjoyment. Cole vs. Safe Deposit & Trust Co., 143 Md. 90, 96, and cases there cited.\\nI have been referred to no case holding a vested remainder to have been created where such words constituting condition precedents were used.\\nI am of the opinion that the provision thus made for the 'benefit of Charles M. Rahe, Jr., belong to the third class of cases above enumerated and in December, 1923, over two years before his mother's death, Rahe, Jr., did not have such a vested estate as was alienable or transmissible and thus did not pass to his trustee in bankruptcy, the petitioner herein.\\nAs to the small amount of income in the hands of the trustee under the will, it was directed to be paid to Rahe, Jr., \\\"without power to anticipate his share of said income, and the receipt of said (Rahe, Jr.). alone to be a sufficient acquittance to the said trustee.\\\" The trustee could not be protected in making payments of income except by Rahe's receipt. He-could not administer the trust according to its terms without such receipt. This, of course, could not be secured by a payment to the trustee in 'bankruptcy or any other person than Rahe. I hold that a spendthrift trust was intended by the testator. Smith vs. Towers, 69 Md. 88; Jackson Sq. Assn, vs. Bartlett, 95 Md. 661, 662.\\nThe trustee in bankruptcy is not entitled to such income.\\nI shall sign a decree in accordance herewith.\"}"

md/2010080.json

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+"{\"id\": \"2010080\", \"name\": \"EX PARTE IN THE MATTER OF THE TRUST ESTATE UNDER THE WILL OF JOHN Q. A. HOLLOWAY. SAFE DEPOSIT AND TRUST COMPANY OF BALTIMORE, A BODY CORPORATE, TRUSTEE, PETITIONER, VS. GRACE SUZANNE HOLLOWAY, INFANT. A NON-RESIDENT, MARIE CALOU. PURPORTING EXECUTRIX OF THE WILL OF JOHN E. HOLLOWAY, DECEASED, A NON-RESIDENT, ET AL., RESPONDENTS\", \"name_abbreviation\": \"Safe Deposit & Trust Co. v. Holloway\", \"decision_date\": \"1925-12-01\", \"docket_number\": \"\", \"first_page\": \"425\", \"last_page\": \"429\", \"citations\": \"4 Balt. C. Rep. 425\", \"volume\": \"4\", \"reporter\": \"Baltimore city reports, comprising opinions of the various courts of Baltimore city since 1888...\", \"court\": \"More City Circuit Court\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-10T21:59:38.918648+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"EX PARTE IN THE MATTER OF THE TRUST ESTATE UNDER THE WILL OF JOHN Q. A. HOLLOWAY. SAFE DEPOSIT AND TRUST COMPANY OF BALTIMORE, A BODY CORPORATE, TRUSTEE, PETITIONER, VS. GRACE SUZANNE HOLLOWAY, INFANT. A NON-RESIDENT, MARIE CALOU. PURPORTING EXECUTRIX OF THE WILL OF JOHN E. HOLLOWAY, DECEASED, A NON-RESIDENT, ET AL., RESPONDENTS.\", \"head_matter\": \"CIRCUIT COURT NO. 2 OF MORE CITY.\\nFiled December 1, 1925.\\nSee 151 Md. 821.\\nEX PARTE IN THE MATTER OF THE TRUST ESTATE UNDER THE WILL OF JOHN Q. A. HOLLOWAY. SAFE DEPOSIT AND TRUST COMPANY OF BALTIMORE, A BODY CORPORATE, TRUSTEE, PETITIONER, VS. GRACE SUZANNE HOLLOWAY, INFANT. A NON-RESIDENT, MARIE CALOU. PURPORTING EXECUTRIX OF THE WILL OF JOHN E. HOLLOWAY, DECEASED, A NON-RESIDENT, ET AL., RESPONDENTS.\\nIsaac Lobe Straus, J. Paul Schmidt for Marie Calou, et al.\\nJohn B. Deming, Edgar Allan Poe, Robert R. Carman, Henry H. Dinneen for various interests of the estate.\", \"word_count\": \"3455\", \"char_count\": \"19347\", \"text\": \"STANTON, J.\\nThe Safe Deposit and Trust Company of Baltimore, a body corporate of the State of Maryland, trustee, filed a petition in the above entitled cause to obtain the construction of certain clauses in the last will and testament of John Q. A. Holloway. The testimony shows that John Q. A. Holloway died on or about the 34th day of January, 1904, leaving a last will and testament, under which certain trusts were created, the administration of which trusts has been brought under the jurisdiction, of this Court. He left surviving at the time of his death Susanna Holloway, his widow, and four children, John E. Holloway, Edward L. Holloway, Anna Elizabeth Holloway and Clarence J. Holloway. The widow, Susanna Holloway, departed this life on the 5th day of December, 1911, leaving a last will and testament, in which certain trusts were created, and under a bill of complaint filed on the 2nd day of March, 1925, jurisdiction of the administration of these trusts was assumed by this Court. The Safe Deposit and Trust Company, trustee, under the will of Susanna Holloway, has submitted the same for construction and direction under Clause Eleven of said will. The questions to be determined arise out of the following facts:\\nJohn E. Holloway married Ann McClellan Holloway in the City of Lexington, Kentucky, about June 6th, 1889. There was one child born as a result of this marriage, but it lived only a few hours after birth. Shortly after their marriage, John E. Holloway and his wife traveled extensively, finally locating in Biarritz, France. While living in France differences arose between them resulting in an agreement of separation, which was executed May 5th, 3911, and in which certain provisions were made for the wife, out of the income of the trust estate in favor of John E. Holloway under the last will and testament of his father. This agreement has been considered by the Court of Appeals of Maryland in two cases, and has been ratified and confirmed. John E. Holloway, while living in Biarritz, became acquainted with Marie Calou, one of the defendants in this cause, and his interest in and association with Marie Oalou is said to be the reason for the separation between him and his wife.\\nIn the year 1912, after the agreement of separation was executed, John E. Holloway and Marie Calou came to the United States of America, and took up their residence in the City of Reno, State of Nevada. On September 23rd, 1912, Grace Suzanne Holloway, the infant defendant in this cause, was born in the City of Reno. Marie Calou is her mother, and John E. Holloway is her father. John E. Holloway, Marie Oalou and Grace Suzanne Holloway lived together as a family in the City of Reno until 1915, when they moved to the City of Berkely, State of California, and there they lived together as a family until January 29th, 1925, on which day John E. Holloway died.\\nHe left a last will and testament, whereby he appointed Marie Calou his executrix, and gave or sought to give all of his residuary property in the estate to the infant defendant, Grace Suzanne Holloway, whom he described as his daughter, born of Marie Calou, and in whose favor he endeavored \\\"to exercise the power of testamentary appointment in remainder, conferred upon him under the will of his mother, as well as that of his father, John Q. A. Holloway.\\nAfter residing in Reno for a period of time, John E. Holloway instituted a divorce proceeding against Ann M. Holloway on January 21st, 1913. The defendant appeared in this proceeding and answered under date of April 19th, 1913. This proceeding was dismissed on the 21st day of May, 1913, and no divorce was ever obtained by him or his wife.\\nAt the time of the birth of Grace Suzanne Holloway, the birth certificate was filled out and signed by John E. Holloway, in which he declared himself to be the father of Grace Suzanne Holloway. Since her birth she has lived in his home, has been supported and provided for by him, acknowledged and proclaimed to the world as his child. It is contended for Grace Suzanne Holloway that by virtue of, and under the provisions of the law of the State of Nevada, and since 1915, by virtue of, and under the law of the State of California, Grace Suzanne Holloway has been legitimated as the child of John E. Holloway, and having acquired the status of legitimacy in those States she is entitled to come into the Courts of this State, with all the rights and privileges that were conferred upon her as the legitimated child of John E. Holloway. This contention raises sharply the question to be determined under the will of John Q. A. Holloway, wherein he said in the eighth clause of his will, \\\"and at the death of my said son John E. Holloway, in trust to divide the corpus or principal of the property and estate so theretofore held in trust for him among .his children and descendants in such portions as my said son shall hy last will and testament direct or appoint.\\\"\\nThe clauses of the last will and testament of John Q. A. Holloway, which are now before the Court, as particularly bearing on the matter at issue, are Sub-paragraph (B) of Paragraph Eight and Paragraph Nine, reading as follows:\\n\\\"(b) One-sixth of the entire residue of my property, and estate I gave, devise and bequeath to the Safe Deposit and Trust Company of Baltimore, in trust to invest the same in such manner as to the said trustee shall seem best, and to collect the income from time to time arising from the investment sd to be made by it, and after paying thereout all proper charges, to pay over the net income at stated periods to my son John E. Holloway, so long as he shall live, and at the death of my said son John E. Holloway, in trust to divide the corpus or principal of the property and estate so theretofore held in trust for him among his children and descendants in such portions as my said son shall by last will and testament direct or appoint, but if my said son shall die without having exercised such power of testamentary appointment, then at his death' said trustees shall divide the same in equal portions among the children of my said son John E. Holloway, if any he shall have then living, and the then living issue of any child of his who may then be dead, such issue to represent its or their parent in the distribu\\u00ed ion. and to take only the share or portion to which the parent if then living would be entitled. But if my said son John E. Holloway shall die without leaving children or descendants him surviving, then and in that event, the said trustee shall at his death pay over and deliver absolutely one-third of the corpus or principal of said trust fund and property to my son Edward Lee Holloway, free and clear of all trust, and shall continue to hold the remaining two-thirds thereof in trust in equal shares for my daughter Anna Elizabeth Holloway and my son Clarence J. Holloway, in accordance in all respects with sub-paragraphs \\\"d\\\" and \\\"e\\\" of this paragraph of my will, and upon the same terms and limitations and with the same powers as it holds the portions of my estate thereby given in trust for their benefit respectively, including the powers set forth in the ninth paragraph hereof; with the proviso however, that in any event if my said son John E. Holloway shall leave a widow him surviving and born in my lifetime, the trustee shall at Ms death retain for division at her death or remarriage, whichever shall first occur, one hundred thousand dollars of the trust fund and property, and shall only during her life or widowhood, pay over to her at regular stated periods the income arising from said sum of one hundred thousand dollars, which principal sum it shall divide as herein-before provided at the death or remarriage. of such widow.\\\"\\n\\\"Ninthly. In order to facilitate the management; of the portions of my property and estate given by this my will in trust, as hereinbefore set forth, to the Safe Deposit and Trust Company of Baltimore, I do hereby grant to, and confer upon the said trustee full power and authority in its discretion, from time to time, to sell, mortgage, lease, dispose of, assign or convey absolutely or otherwise, the whole or any portion or portions of the property and .estate so given to it in trust, and, in the event of any such disposition of any portion of my property and estate by said trustee in pursuance of the power hereby conferred upon it, the proceeds of all such sales or other dispositions of any of said property shall be reinvested by the trustee having made such sales, or other dispositions, in such manner as to it shall seem best, and shall be held by it, or its successors, if any such there shall be, on the same trusts and for similar uses, and with like powers in relation thereto, as the property and estate so sold or disposed of had boon theretofore held by it. And I do hereby likewise grant to and confer upon my said trustee full power and authority in its discretion to sell any portion of the trust property for the purpose of making any division required by the provisions of this my will, and I do likewise authorize and empower my said trustee to make any division in kind of the trust estate or any part thereof which may be requisite to carry into effect the provisions hereof. And 1 hereby authorize said trustee to execute, acknowledge and deliver all conveyances or instruments of writing which may be necessary to fully execute the powers conferred upon it by this my will, and I declare that purchasers from the said trustee shall not be liable to see to the application of the purchase money. And I further declare that all powers conferred upon said trustee shall be exercisable to their full extent by its successors in trust, if any such there shall be. And I also declare it to be my desire that the trusts by this my will created be administered by the trustee under the supervision of a Court of Equity.\\\"\\nThe determination of the powers of testamentary disposition, as well as the class of persons to take under the will of John Q. A. Holloway, will determine the same issues that arise under the will of Susanna Holloway, the mother of John E. Holloway.\\nThere are two concessions made in the argument which have a bearing in the determination of this case. First, John Q. A. Holloway having died in the City of Baltimore, and his last will and testament having been probated in this State, his will is to be construed under the laws of this State; and, secondly, that wherever the word \\\"child\\\" or \\\"children\\\" is used in his will it means legitimate child or children, generally understood as children born in wedlock. The solicitor for the infant defendant contends that although born out of wedlock, she comes squarely within the class of legitimate child, because she acquired that status in the State of Nevada, and that by the comity of States, she maintains that status in this jurisdiction, with the rights of inheritance and succession that flows therefrom. But a review of the authorities submitted in the arguments and in the briefs has led the Court to the conclusion that the status conferred by the laws of the States of Nevada and California, do not give the infant defendant the right to the trust property covered by the will of John Q. A. Holloway or Susanna Holloway, the mother and father of John E. Holloway.\\nBegining with the case of Barnum vs. Barnum, in 42 Md., page 251, our Court of Appeals at various times has had before it for determination in several different eases one or more of the issues involved in this case, and these decisions when read and applied to the facts of this case are conclusive of the issues to be decided.\\nJackson vs. Jackson, 82 Md. 17; Harding vs. Schapiro, 120 Md. 541.\\nThe case of Barnum vs. Barnum involved a special Act of the Legislature, of Arkansas to legitimate John R. Barnum, a natural son of Dr. Richard Barnum. It undertook to confer on John R. Barnum the rights of heirship. But our Court of Appeals said, when the matter was submitted to it for determination, that the special act of the Legislature of Arkansas could have no extra-territorial effect in this State, and conferred no inheritable rights on John R. Barnum in his effort to obtain property, the distribution of which was controlled by the laws of the State of Maryland. The Court says in that case:\\n\\\"But as to capacity to acquire property beyond the State passing the Act, by virtue of the particular status given the party, that the Legislature could not confer. Even if the act had professed to legitimate John R. Barnum, without reference to previous marriage, it could have no operation here and no rights involved in this case could be affected by it. This would seem to be clear both on reason and authority.\\\"\\nThe rights claimed for the infant in this case are strikingly analogous to those claimed by John R. Barnum. It is contended for the infant defendant that in the Barnum case the Court did not go any further than to decide that the Act of the Legislature of Arkansas had no extra-territorial effect, and could not confer inheritable rights in this jurisdiction when it undertook to declare John R. Barnum to be an \\\"heir\\\" of Doctor Richard Barnum. Nevertheless, the principles announced in that case are controlling in this case, even if it should be true, as argued by the solicitor for the infant, that the precise point now before the Court was not involved in that case. But this Court cannot accept such a construction of the decision in that case \\u2014 because first \\u2014 Dr. Richard Barnum left a will (42 Md. 268) and John R. Barnum was claiming under that will. Secondly, the Court of Appeals had before it and was dealing with the right to acquire property by virtue of a particular status given John R. Barnum, and these conditions make the decision applicable to this case.\\nIt is immaterial, if it were true, that his rights as heir were sought to be enforced; whereas in this case personal property is involved.\\nJudge Gray, in the opinion in Ross and Ross, in \\u00cd29 Mass., page 243, comments on Barnum vs. Barnum, and says that the point decided was that the child was not an heir \\\"of the latter within the meaning of the' will of the latter's father, who nine years before the passage of the Arkansas statute, died domiciled in Maryland, the law of which does not appear to have permitted the creation of an heir in that manner.\\\"\\nNeither does the law of Maryland permit a child born out of wedlock to be legitimated in the manner which is permitted by the laws of Nevada. Code, Article 46, section 6, says: \\\"If any man shall have a child or children by any woman whom ho shall afterwards marry, such child or children, if acknowledged by the man, shall in virtue of such marriage and acknowledgment be hereby legitimated and capable in law to inherit and transmit inheritance as if born in wedlock.\\\" A comparison of the statutes of the three States will show that the legitimating statutes of Nevada and California are in conflict with those of Maryland, and our Court of Appeals has said in Harding vs. Schapiro, 120 Md., page 548, \\\"that the status or condition of any person with inherent succession capacity or inheritance is to be ascertained by the law of his domicile which creates the status, at least when the status is one which may exist under the laws of the State in which it is called in question, and when there is nothing in those laws to prohibit giving full effect to the status and capacity acquired in the State of the domicile. Speaking generally, it may be said that the capacity of the donee to take is governed by the law of the domicile.\\\"\\nThis statement is taken from the ease of Ross and Ross, which is. so strongly relied on by the solicitor for the infant defendant. The Court in that case was dealing with the rights of a child who had been adopted, and was endeavoring to assert inheritable rights in the estate of its foster .father. In this case, we have a child born out of wedlock and legitimated in Nevada claiming the rights of that status in the State of Maryland, and also claiming to be included within the class of child or children which were in the contemplation of John Q. A. Holloway at the time that he exeuted his will. The issue in this ease is not the same issue that was involved in Ross and Ross, because the rights sought to be enforced are not such as flow from the relationship between the infant defendant and John E. Holloway, its natural father, but are rights sought to be conferred by the exercise of a power of appointment given John E. Holloway under the will of his father. Grace Suzanne Holloway was not born at the time of the death of John Q. A. Holloway, and certainly he could never actually have had her in mind, nor was she born in wedlock, and it is conceded that it is only such children who are recognized as legitimate, and come within the language of the will when it defines \\\"child\\\" or \\\"children.\\\" It seems irresistibly true that if any child born out of wedlock could be brought within the class defined in the will of John Q. A. Holloway it could only be children who were born out of wedlock, but subsequently legitimated by marriage of the man and woman and acknowledgment of the ehild by the father, in compliance with the laws of the State of Maryland.\\nMarriage is a status. But it is not every status acquired in a foreign State which will be recognized in this State. Illustrations have been given in llxe decisions of the Court of Appeals as in case of polygamy, incest and miscegenation, and it has been stated such a status would not be recognized under the laws of this State.\\n82 Md., pages 29 and 30.\\nThe public policy of each State affecting public morals and the good order of society is in its own keeping, and its laws to maintain its standards, are not set aside because they are in conflict with those of another State in the Union, which might be more liberal or modern in its policy.\\nThere is a strong sympathetic appeal on behalf of the infant defendant at almost every angle from which this case might be considered. But the law cannot mitigate the embarrassment which she suffers in this jurisdiction in her effort to enforce property rights, and the responsibility for her perdicamen.t is on the man and woman who brought her into- this world.\\nFrom the foregoing it would appear that Grace Suzanne Holloway does not take any part of the trust estate created by the wills of John Q. A. Holloway and Susanna Holloway because she is not a child of John H. Holloway within the language and contemplation of those wills and the property has passed in remainder to the devisees named by them who were to take in remainder upon the contingency of the death of John E. Holloway without children him surviving, and a decree will be signed accordingly.\"}"

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+"{\"id\": \"2014022\", \"name\": \"STATE of Maryland v. Donald THOMAS\", \"name_abbreviation\": \"State v. Thomas\", \"decision_date\": \"1992-12-09\", \"docket_number\": \"No. 30\", \"first_page\": \"541\", \"last_page\": \"566\", \"citations\": \"328 Md. 541\", \"volume\": \"328\", \"reporter\": \"Maryland Reports\", \"court\": \"Court of Appeals of Maryland\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-10T20:33:34.930302+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"STATE of Maryland v. Donald THOMAS.\", \"head_matter\": \"616 A.2d 365\\nSTATE of Maryland v. Donald THOMAS.\\nNo. 30,\\nSept. Term, 1992.\\nCourt of Appeals of Maryland.\\nDec. 9, 1992.\\nGwynn X. Kinsey, Jr., Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., both on brief), Baltimore, for appellant.\\nH. Mark Stichel (Edward K. Dunn, III, Piper and Marbury, William Kanwisher, Asst. Public Defender, all on brief), Baltimore, for appellee.\\nArgued before MURPHY, C.J., ELDRIDGE, RODOWSKY, McAULIFFE, CHASANOW, KARWACKI and ROBERT M. BELL, JJ.\", \"word_count\": \"7386\", \"char_count\": \"45806\", \"text\": \"KARWACKI, Judge.\\nIn this post conviction case, we once again consider the issue of whether Donald Thomas is entitled to a new sentencing hearing for his murder of Sarah Spurling, on October 2, 1981, in Baltimore County. See State v. Thomas, 325 Md. 160, 599 A.2d 1171 (1992) (Thomas II); Thomas v. State, 301 Md. 294, 483 A.2d 6 (1984) (Thomas I), cert. denied, 470 U.S. 1088, 105 S.Ct. 1856, 85 L.Ed.2d 153 (1985). In Thomas II, we set forth the proceedings which preceded our review of an order of the post conviction court vacating the death sentence imposed upon Thomas and ordering that he be granted a new sentencing hearing:\\n\\\"On November 18, 1982, a jury in the Circuit Court for Baltimore County convicted Donald Thomas of the first degree murders of Donald Spurling and his wife, Sarah. * At the same trial, Thomas was also found guilty of the first degree rape of Noel Wilkins, of committing two first degree sexual offenses upon Ms. Wilkins, and of robbing her at knife point. Having been previously given the required statutory notice that the death penalty would be sought for the first degree murders, Thomas elected to have the trial judge decide whether he should be executed for those crimes.\\n\\\"On December 13, 1982, Thomas was sentenced to life imprisonment for the murder of Donald Spurling, death for the murder of Sarah Spurling, concurrent terms of life imprisonment for the first degree rape and first degree sexual offenses, and a twenty-year consecutive sentence for the armed robbery. This Court affirmed the judgments of the circuit court as to both the convictions and the sentences, including imposition of the death sentence. [Thomas I, supra.] The Supreme Court of the United States denied Thomas's petition for writ of certiorari.\\n\\\"Thomas then filed a petition for post conviction relief. Thomas sought a new trial, or in the alternative, a new sentencing hearing. After conducting an evidentiary hearing on the petition, the court found no merit in the claims that Thomas had been improperly convicted but vacated his death sentence and ordered a new sentencing hearing. This relief was granted because the court concluded that trial counsel had failed to render Thomas effective assistance when he permitted Thomas to be reexamined by Dr. Michael Spodak following his convictions in preparation for Dr. Spodak's testimony at the sentencing hearing.\\\"\\nThomas II, 325 Md. at 165-66, 599 A.2d at 1173 (citations omitted). Also, in Thomas II, we recited the factual predicate for the order of the post conviction court:\\n\\\"In an indictment filed on November 9, 1981, Thomas was charged with the crimes of which he now stands convicted. He entered pleas of not guilty by reason of insanity and incompetency to stand trial. Pursuant to Maryland Code (1957, 1979 Repl.Vol.), Art. 59, \\u00a7 23-28, the court ordered that he be transferred to the Clifton T. Perkins Hospital Center for a mental examination and evaluation.\\n\\\"Dr. Spodak, a member of the staff at Clifton Perkins, after conducting a psychiatric examination of Thomas, prepared a 'psychiatric case work up report.' Reports were also prepared by one of the hospital's social workers who had interviewed Thomas and by a clinical psychologist who related his findings upon his testing of Thomas. On February 4, 1982, Thomas appeared at a conference at Clifton Perkins attended by Dr. Spodak, the social worker who had interviewed him, the clinical psychologist who had tested him, and three other staff psychiatrists. Thomas was further interviewed at this conference. It was the unanimous opinion of the psychiatrists present at that conference that [Thomas was competent to stand trial, and]\\n\\\" 'At the time of the alleged offenses, Mr. Thomas was not suffering from a mental disorder which caused him to lack substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law.' \\\"\\nThose conclusions were reported to the court____\\n\\\"In light of the Clifton Perkins evaluation, R. Clark Kinsley, Esq., the public defender assigned as Thomas's trial counsel, arranged to have him examined by a psychiatrist of his choice, Dr. B.F. Beran. That examination produced no evidence with which to contest the evaluation of the Clifton Perkins staff, and Mr. Kinsley so advised the court at the outset of the trial on October 18, 1982. The court concluded that Thomas was competent to stand trial. Thomas was then re-arraigned and entered a plea of not guilty to all of the charges pending against him.\\n\\\"After the jury returned its verdicts, the State petitioned the court for permission to conduct a pre-sentence psychiatric evaluation of Thomas. It represented in that petition:\\n\\\" '1. That the Defendant was evaluated at the Clifton T. Perkins Hospital Center following his entry of a plea of not guilty by reason of insanity;\\n\\\" '2. That the findings of the Hospital Center are contained in a report to the Court dated February 4,1982;\\n\\\" '3. That it is desirable to supplement the original insanity evaluation with further interview(s) of the Defendant to develop material for presentation at sentencing;\\n\\\" '4. That Dr. Michael Spodak, who participated in the insanity evaluation, can conduct such further interview with the Defendant at the Baltimore County Detention Center and can do so within a few days of a court order authorizing such evaluation;\\n\\\" '5. That counsel for the Defendant has no objection to such an evaluation.' The court granted that petition, and Dr. Spodak interviewed Thomas on November 27, 1982. Before the interview began, Dr. Spodak advised Thomas that he had been 'retained by the State's Attorney's office . to evaluate him on certain issues concerning the death penalty and that depending on what he said and depending on my findings, I might very well be called as a witness to testify at the sentencing phase.' Dr. Spodak also testified that Thomas indicated that he understood that explanation and was willing to be interviewed at that time.\\n\\\"Dr. Spodak wrote to the office of the State's Attorney on November 30, 1982. He stated that based upon his several interviews with Thomas as a member of the staff of Clifton Perkins, the interview he conducted on November 27, and the review of records associated with the case he was of the opinion to a reasonable medical certainty that the murders of Donald and Sarah Spurling were not committed while the capacity of Thomas to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was substantially impaired as a result of mental incapacity, mental disorder, emotional disturbance or intoxication. He further opined that it is not unlikely that Thomas would engage in further criminal activities that would constitute a continuing threat to society. These opinions negated two possible circumstances which might mitigate against the death penalty pursuant to Md.Code (1957, 1982 Repl.Vol.), Art. 27, \\u00a7 413(g)(4) and (7).\\n\\\"At the sentencing hearing, the State called Dr. Spodak as a witness. Mr. Kinsley, who had been provided a copy of Dr. Spodak's report to the State's Attorney's office on November 30, 1982, objected to any opinions being expressed by Dr. Spodak. He argued that he was under the impression that Dr. Spodak would interview Thomas as a neutral expert from the Clifton T. Perkins Hospital Center when he consented to the interview of Thomas following the jury's verdicts. He stressed that, had he been aware that Dr. Spodak had been employed by the State's Attorney's office to conduct that evaluation, he would not have consented to the evaluation. The court overruled the objection and admitted Dr. Spodak's testimony and his November 30, 1982 report____\\n\\\"In his petition for post conviction relief, Thomas asserted that Kinsley, in allowing him to be interviewed without counsel by Dr. Spodak post-verdict and pre-sentence, had rendered him ineffective assistance of counsel, prejudicing him at sentencing in violation of his right to counsel under the Sixth Amendment. At the post conviction hearing, Thomas called Kinsley as his witness and questioned him extensively on his rationale for allowing Thomas to be re-examined by Spodak. Kinsley explained that he believed that Spodak's role in re-examining Thomas was that of a neutral expert from the Clifton T. Perkins Hospital Center, and that Spodak would therefore be impartial. He further testified that he instructed Thomas to cooperate fully with Spodak in the hope that something beneficial to Thomas might come from the examination. During cross-examination, the State attempted to elicit testimony from Kinsley regarding the results which he had received of Dr. Beran's pretrial psychiatric examination of Thomas. The court sustained Thomas's objection to that line of questioning. Following . the hearing ., the hearing judge . grant[ed] Thomas a new sentencing hearing but den[ied] him any post conviction relief from his convictions.\\\"\\nThomas II, 325 Md. at 166-69, 599 A.2d at 1173-75.\\nIn Thomas II, we held that the post conviction court committed reversible error when it sustained Thomas's objection to the State's attempt to elicit from Kinsley his understanding of the results of Dr. Beran's psychiatric evaluation. 325 Md. at 173, 599 A.2d at 1177. In reaching that conclusion, we rejected Thomas's assertion that any conclusions reached by Dr. Beran were protected from disclosure by Kinsley because of the attorney-client privilege. Id. at 173-74, 599 A.2d at 1177-78. In light of the post conviction court's error and the standards by which we measure ineffective assistance of counsel, which were set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), we \\\"remandfed] the case for admission of that excluded testimony and further consideration, in light of that evidence, of the reasonableness of Kinsley's decision to permit Dr. Spodak's post-verdict, pre-sentence interview.\\\" Thomas II, 325 Md. at 173, 599 A.2d at 1177.\\nWe recognized that \\\"[t]he Supreme Court [had] stressed in Strickland that '[a] court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct.' \\\" Thomas II, 325 Md. at 173, 599 A.2d at 1177 (quoting Strickland, 466 U.S. at 690, 104 S.Ct. at 2066, 80 L.Ed.2d at 695) (emphasis in Thomas II). In remanding the case to the post convic tion court, we stated that \\\"what Dr. Beran related to Mr. Kinsley with regard to his psychiatric evaluation of Thomas was highly relevant to the reasonableness of the strategy employed by Kinsley in agreeing to permit Dr. Spodak to interview Thomas.\\\" Thomas II, 325 Md. at 175, 599 A.2d at 1178.\\nIn Thomas II, in addition to Kinsley's decision to permit Dr. Spodak's post-verdict, pre-sentence interview, Thomas alleged that Kinsley rendered ineffective assistance of counsel when he failed to consult with another psychiatrist or psychologist prior to Thomas's sentencing hearing. 325 Md. at 178-79, 599 A.2d at 1179-80. Again, in light of the post conviction court's error and the teachings of Strickland, we held \\\"that without the admission of evidence revealing what Kinsley knew from Dr. Beran's pre-trial psychiatric evaluation of Thomas, a court cannot fully evaluate Kinsley's effectiveness in this regard.\\\" Id. at 179, 599 A.2d at 1180.\\nWe, therefore, remanded the case to the post conviction court for admission of the erroneously excluded evidence and further consideration, in light of that evidence, of the reasonableness of both of these decisions by Kinsley.\\nI.\\nOn April 9, 1992, the circuit court held the supplemental post conviction hearing mandated by Thomas II. At this evidentiary hearing, Thomas presented testimony from two witnesses, Dr. Beran and R. Clark Kinsley. Dr. Beran testified on direct examination that prior to Thomas's trial he had never indicated to Kinsley that he, Dr. Beran, had reached any preliminary or informal conclusions adverse to the defense on insanity, competency, or any other psychiatric or psychological issues that might arise at the sentencing phase of Thomas's trial. In fact, Dr. Beran testified that he was \\\"quite optimistic in terms of . providing very significant data to help [Thomas's] insanity defense,\\\" and that he had communicated this to Kinsley. Dr. Beran testified that he was prevented from reaching any formal conclusion because Kinsley had failed to provide the necessary \\\"leadership,\\\" particularly in failing to help Dr. Beran formulate the proper questions that he was to ask Thomas as the examining psychiatrist.\\nOn cross-examination, Dr. Beran acknowledged that he had evaluated other defendants who had been charged with murder for the purpose of determining the validity of an insanity defense. Dr. Beran conceded that there was much correspondence from Kinsley that was materially inconsistent with Dr. Beran's current testimony that he could have provided Thomas with helpful opinions but for Kinsley's lack of \\\"leadership\\\" and support. Dr. Beran acknowledged receiving a letter written by Kinsley in which Kinsley authorized and urged Dr. Beran \\\"to do all needed and necessary tests and bring in any required discipline to augment [his psychiatric] studies in this case.\\\" Moreover, Kinsley stated in this letter that he was willing to obtain whatever court order necessary to authorize any such tests.\\nDr. Beran also testified on cross-examination that he had made some partial findings, which he had conveyed to Kinsley, that supported Thomas's insanity defense. For example, Dr. Beran testified that \\\"from the interviews [with Thomas] I could see that the patient had what we call poor ego boundary definition. There was a problem consistent with possible occurrences of psychosis at different times, possible homosexual panic, possible paranoid kind of development, and that needed to be explored further.\\\" Dr. Beran stated repeatedly on cross-examination that he had conveyed these findings to Kinsley. When confronted with his only letter to Kinsley dated October 14, 1982, in which none of these findings is mentioned, Dr. Beran testified that he communicated these findings orally to Kinsley. During cross-examination, Dr. Beran acknowledged that in evaluating Thomas he had read a psychological evaluation report on Thomas written by Professor Robert Brown, a psychologist whom Kinsley had authorized Dr. Beran to retain. Brown's report indicated among other things that there was \\\"no indication for psychosis, for obvious CNS dysfunction, nor for major emotional distress.\\\" While disputing Brown's findings as being contrary to his findings that he purportedly had conveyed orally to Kinsley, Dr. Beran conceded, under questioning by both the State and the trial court, that Brown's findings were consistent with a conclusion that Thomas was not only sane but had a propensity for future dangerousness.\\nFollowing Dr. Beran's testimony, Thomas called Kinsley as his second witness. Under questioning by Thomas's post conviction counsel, Kinsley testified that Dr. Beran had communicated unequivocally his unsuitability to being called as a defense witness in Thomas's case. Kinsley testified as follows:\\n\\\"I do recall that [Dr. Beran] was very much obsessed with the thought that there was no help that he could give this Defendant. He asked me repeatedly don't call me as a witness, I can't help your man, and indeed it is possible I could be very harmful to him, very harmful. He emphasized that over and over again.\\\"\\nIn a colloquy with the trial court, Kinsley repeated his recollection of Dr. Beran's communications:\\n\\\"THE COURT: When did he say to you don't call me as a witness?\\n\\\"[KINSLEY]: On my last \\u2014 probably on the telephone, but specifically I know for sure when I looked him eyeball to eyeball in his office and pinned him down; I can't help you, I can't help you, don't call me as a witness, I could be dangerous, you wouldn't want me as a witness, I could hurt him.\\n\\\"Well, he convinced me that he could hurt [Thomas]. So, there was nothing that would support the insanity plea, number one.\\\"\\nContrary to Dr. Beran's testimony, Kinsley testified that he inquired of Dr. Beran whether he could help Thomas, should he be convicted, by testifying at the sentencing hearing on issues of mitigation. In recalling why he decid ed not to call Dr. Beran to testify at the sentencing hearing, Kinsley testified:\\n\\\"I'll tell you what he said and, more particularly, what he did. I think it was his body language more than what he said. When I was discussing what possible help he could be at the sentencing hearing and, in particular, what kind of person could we expect if he was ever released back into society, I recall very vividly the expression on his face as though he had bit into a sour lemon and squeezed up like he was experiencing a chill. When I asked him what kind of man he would be, he said, Bad, bad man. Now, you don't go back to a guy like that and put him on the stand.\\\"\\nKinsley also testified to the impact that Professor Brown's psychological evaluation report on Thomas had on his decision to permit Dr. Spodak's post-verdict, pre-sentence interview of Thomas. During his testimony, Kinsley was referred to the following two particularly damning statements that appeared in Brown's report:\\n\\\"[Thomas's] tendency to present himself as passively compliant, unassertive, and emotionally unreactive also leaves him susceptible to being overwhelmed by strong affect, with a potential for sudden explosive outbursts (as e.g. of angriness or rage) that may not seem to make much sense to himself or others. In the present instance any perceived threat to his life (or to manly self-esteem) might well have acted to trigger the uncontrolled explosion of fear and rage which apparently took place, and for which he seems to have little clear recollection.\\\"\\nReferring to the first sentence, Kinsley testified that that sentence \\\"worried the devil out of me to have the judge hear that when I'm asking in mitigation.\\\" Kinsley testified that in his opinion, the second sentence reflected adversely on Thomas's aggressiveness and potential for violence in the future. In fact, he testified that he believed \\\"it was dynamite against us.\\\" Kinsley's testimony indicated that his post-trial decision to permit Thomas to be interviewed by Dr. Spodak was influenced significantly by both Dr. Beran's communications and the report by Professor Brown. Kinsley testified:\\n\\\"Well, there was nothing to indicate that [Thomas's] personality changed so that he wouldn't have this sudden explosion of rage. So, I would be very naive to think that it couldn't possibly happen again. Then you couple that with what I found out from Dr. Beran, that if released to society what kind of person he would be, he would be bad, bad, you don't need much more to convince you.\\\"\\nKinsley's responses to the following questions asked of him during the supplemental post conviction hearing are particularly instructive on characterizing the reasonableness of his actions. Two of these questions were propounded by the post conviction court and answered as follows:\\n\\\"THE COURT: Once [Dr. Beran] said to you I can't help you, don't call me to the stand, what steps did you take to get another doctor involved on behalf of your client?\\n\\\"[KINSLEY]: Well, . the file contains a very fine written medical report from Professor Brown which lent no help to me.\\n\\\"So we have three psychiatrists at Clifton T. Perkins saying he is sane,[ ] nothing more than a bland report really; we had two medical men that we brought into the case saying he is sane, there is nothing we can do to help you. The Public Defender doesn't have the money to shop around for a favorable report. I had enough information from five medical people to convince me that shopping around for a favorable report wasn't our business and I didn't do any more shopping or didn't do any shopping____\\n\\\"THE COURT: . What were you thinking at the time that you said sure, go ahead? Why did you let [Thomas] go [to the interview with Dr. Spodak]?\\n\\\"[KINSLEY]: I was thinking that Dr. Spodak, who I thought was still an employee of the State of Maryland, that he was a disinterested, fair, impartial psychiatrist. I could get nothing out of my medical magicians and I thought that if we have Spodak go down who gave us a report initially, gave it to the State as well as a copy to me, it was a bland report, I thought there was a possibility, not having anything of my own to support insanity or let's say a mitigating medical opinion, I thought why not.\\\"\\nKinsley's responses to two questions propounded by James Gentry, the Assistant State's Attorney, are particularly salient:\\n\\\"[MR. GENTRY]: Did you have the hopes of obtaining a favorable opinion or favorable diagnosis from Dr. Spodak at the time of sentencing when [Thomas] was being interviewed for the purposes of sentencing?\\n\\\"[KINSLEY]: Something to hang my hat on. Whether you call it a diagnosis or not, I don't know, but anything to convince poor Judge Hormes \\u2014 I wish he were alive today to testify \\u2014 something to convince him that the death penalty should not have been imposed against this poor person.\\n\\\"[MR. GENTRY]: Correct me if I'm wrong. The reason that you were hopeful and the reason that you didn't object to Dr. Spodak's interview is because the other doctor's had given you nothing favorable and you were hopeful at least that you would have something favorable to hang your hat on?\\n\\\"[KINSLEY]: That is exactly the case.\\\"\\nFollowing the conclusion of Kinsley's testimony, the post conviction court heard final arguments and issued its ruling on April 20, 1992. The post-conviction court determined that Thomas was denied effective assistance of counsel when Kinsley permitted Dr. Spodak's post-verdict, pre-sen tence interview, and for the second time, granted Thomas a new sentencing hearing.\\nThe post conviction court based its ruling on two grounds. First, the court stated that, in light of Dr. Beran's communications to Kinsley that he could not help Thomas and may in fact harm Thomas if called at the sentencing hearing, no reasonable defense attorney would allow even an independent psychiatric investigation. The post conviction court reasoned that \\\"[i]f your own expert says I'll hurt, then it is absurd to suggest that an independent qualified expert is going to find something that will help.\\\" For the second ground on which the post conviction court relied in granting Thomas relief, the court stated that, even if the decision to permit the interview by Dr. Spodak was permissible, Kinsley should have attended the interview and failing to do so rendered ineffective assistance of counsel.\\nAdditionally, on the issue of whether Kinsley rendered ineffective assistance of counsel by failing to consult with another psychiatrist or psychologist prior to Thomas's sentencing, which was the second question in Thomas II that was to be answered on remand, the post conviction court rejected this claim and denied Thomas any relief on this ground.\\nAfter a brief review of the well established Strickland principles, we will address in seriatim each of the post conviction court's conclusions as to Kinsley's performance.\\nII.\\nAs noted earlier, the standards by which we measure whether Thomas received effective assistance of counsel were promulgated by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In Thomas II, 325 Md. at 170, 599 A.2d at 1176, we quoted the standard established by the Strickland Court at 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693:\\n\\\" 'A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a convic tion or death sentence has two components. First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.' \\\"\\nAs noted in Thomas II, 325 Md. at 172, 599 A.2d at 1177, we first applied the Strickland tests in Harris v. State, 303 Md. 685, 496 A.2d 1074 (1985), revisited its teachings in State v. Tichnell, 306 Md. 428, 509 A.2d 1179, cert. denied, 479 U.S. 995, 107 S.Ct. 598, 93 L.Ed.2d 598 (1986), rehearing denied, 479 U.S. 1060, 107 S.Ct. 942, 93 L.Ed.2d 992 (1987); State v. Colvin, 314 Md. 1, 548 A.2d 506 (1988); and Bowers v. State, 320 Md. 416, 578 A.2d 734 (1990), and since Thomas II, have utilized its teachings again in Williams v. State, 326 Md. 367, 605 A.2d 103 (1992).\\nTo establish that counsel's performance was deficient, a \\\"defendant must show that counsel's representation fell below an objective standard of reasonableness.\\\" Strickland, 466 U.S. at 688, 104 S.Ct. at 2064, 80 L.Ed.2d at 693; Bowers, 320 Md. at 424, 578 A.2d at 738. In Thomas II, we discussed the deferential review that is accorded to counsel's performance:\\n\\\" 'Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. A fair assessment of attorney performance requires that every effort be made to elimi nate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.' ' \\\"\\n325 Md. at 171, 599 A.2d at 1176 (quoting Strickland, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed.2d at 694-95) (citations omitted). Thus, as the Supreme Court cautioned in Strickland and we repeated in Thomas II:\\n\\\"[A] court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct.\\\"\\n466 U.S. at 690, 104 S.Ct. at 2066, 80 L.Ed.2d at 695; 325 Md. at 172, 599 A.2d at 1177.\\nEven if a defendant is able to satisfy the deficient performance prong of Strickland's two-prong test, the defendant must show that the deficient performance prejudiced the defense. 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693; Thomas II, 325 Md. at 170, 599 A.2d at 1176. In Bowers v. State, we interpreted the prejudice component to require a substantial or significant possibility, rather than a reasonable probability, that but for counsel's unprofessional errors the result of the proceeding would have been different. 320 Md. at 425-27, 578 A.2d at 738-39. We applied this prejudice standard in Williams v. State, 326 Md. 367, 605 A.2d 103 (1992) and will not retreat from it in the instant case.\\nAs we recognized in Harris, \\\" 'a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.' \\\" 303 Md. at 696, 496 A.2d at 1079 (quoting Strickland, 466 U.S. at 697, 104 S.Ct. at 2069, 80 L.Ed.2d at 699). The Supreme Court stated: \\\"If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.\\\" 466 U.S. at 697, 104 S.Ct. at 2069, 80 L.Ed.2d at 699. Finally, \\\"both the performance and prejudice components of the ineffectiveness inquiry are mixed questions of law and fact.\\\" Strickland, 466 U.S. at 698, 104 S.Ct. at 2070, 80 L.Ed.2d at 700; Harris, 303 Md. at 696, 496 A.2d at 1079.\\nIII.\\nIn determining that Thomas received ineffective assistance of counsel, the post conviction court concluded that Kinsley's decision to allow the post-verdict, pre-sentence interview of his client by Dr. Spodak, after having received categorically adverse psychiatric opinions from Dr. Beran, fell below the objective standard of reasonableness demanded by Strickland. On remand, the post conviction court was confronted with two distinct versions of the nature of the communications that occurred nearly ten years ago between Dr. Beran and Kinsley. Dr. Beran testified that he was optimistic about providing data to support Thomas's insanity defense and denied that he had communicated any conclusions to Kinsley regarding possible sentencing issues. Directly contrary to Dr. Beran's testimony, Kinsley testified that Dr. Beran indicated that he could not provide support for Thomas's insanity plea. Moreover, Kinsley testified repeatedly that Dr. Beran urged Kinsley not to call him as a defense witness at either the trial or the sentencing hearing, inasmuch as his testimony could harm Thomas. The post conviction court resolved this dispute by accepting Kinsley's version of the communications. The post conviction court stated: \\\"I am satisfied that Kinsley was told more than I cannot help. I'm satisfied Kinsley was told my testimony would affirmatively harm him.\\\"\\nIn light of Dr. Beran's communications to Kinsley, the post conviction court concluded that no reasonably competent defense attorney would have permitted Thomas to be interviewed by an independent psychiatrist following the verdict and prior to sentencing. We disagree.\\nWere we to conclude that Kinsley's decision amounted to ineffectiveness of counsel, we would be ignoring several of Strickland's tenets. The Strickland Court stated that the performance inquiry is simply \\\"whether counsel's assistance was reasonable considering all the circumstances.\\\" 466 U.S. at 688, 104 S.Ct. at 2065, 80 L.Ed.2d at 694. In addition, \\\"strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.\\\" Id. at 690-91, 104 S.Ct. at 2066, 80 L.Ed.2d at 695. Moreover, in deciding ineffectiveness claims, we must apply a heavy measure of deference to counsel's judgments and \\\"judge the reasonableness of counsel's challenged conduct on the facts of the particular case viewed as of the time of counsel's conduct.\\\" Id. at 690, 104 S.Ct. at 2066, 80 L.Ed.2d at 695.\\nAt the time Kinsley consented to Dr. Spodak's post-verdict, pre-sentence interview, Kinsley's client stood convicted of two first degree murders and was awaiting the sentencing hearing at which the State was seeking the death penalty. At that time, Thomas had been pronounced sane and competent to stand trial by four independent psychiatrists employed at the Clifton T. Perkins Hospital Center, one of whom was Dr. Spodak. Similarly, the experts brought into the case by Kinsley, Dr. Beran and Professor Brown, could not provide any favorable medical opinions at the sentencing hearing. Kinsley recognized that he did not have unlimited funds to shop around for a favorable report. At the time Kinsley made the strategic and tactical decision to allow Thomas to be interviewed by Dr. Spodak, he was trying to obtain something that he did not have, i.e., a favorable medical opinion which he could use at sentencing.\\nOnly by viewing Kinsley's decision in a vacuum, by using \\\"the distorting effects of hindsight,\\\" 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed.2d at 694, and by failing to accord a heavy measure of deference to Kinsley's judgment, Id. at 691, 104 S.Ct. at 2066, 80 L.Ed.2d at 695, could we conclude that Kinsley's decision to permit the Dr. Spodak interview was not a reasonable tactical decision. Each of these qualifications is contrary to Strickland's teachings. We, therefore, reject Thomas's assertion that Kinsley's decision to permit the Dr. Spodak interview was not within the wide range of professionally reasonable judgments allowable under Strickland. Id. at 689, 104 S.Ct. at 2065, 80 L.Ed.2d at 694.\\nIn Thomas II, 325 Md. at 173, 599 A.2d at 1177, we hypothesized: \\\"[I]f Kinsley had been told by Dr. Beran that Thomas suffered from no mental impairments and exhibited the likelihood of future danger to society, then Kinsley's decision to allow further examination in the hope of obtaining favorable diagnosis may well have been reasonable.\\\" Today, we answer affirmatively our own hypothetical and end Thomas's \\\"Monday morning quarterbacking.\\\" Based on the testimony introduced upon remand and the post conviction court's findings of fact, we hold that Kinsley's decision to permit the post-verdict, pre-sentence interview was a reasonable tactical decision consistent with Thomas's constitutional guarantee of effective assistance of counsel.\\nIV.\\nIn granting Thomas a new sentencing hearing, the post conviction court alternatively ruled that, even if the decision to permit the interview by Dr. Spodak was reasonable, Kinsley nevertheless rendered ineffective assistance of counsel by failing to attend the interview. For the reason that Thomas has not satisfied either prong of the Strickland test regarding this decision by Kinsley, we disagree.\\nKinsley testified that he believed the post-verdict interview with Dr. Spodak would be conducted in a manner similar to the normal pretrial competency or insanity evaluations, in which impartial psychiatrists employed by the Clifton T. Perkins Hospital conduct the examination. Kinsley testified that counsel normally did not attend those psychiatric evaluations. Due to Dr. Spodak's affiliation with the Clifton T. Perkins Hospital, Kinsley testified that he saw no reason to protect Thomas from an ostensibly neutral psychiatrist and testified further that he believed it was beneficial for Dr. Spodak to interview Thomas alone.\\nSimilar to Kinsley's decision to allow the post-verdict interview, the decision not to attend the interview was a reasonable strategic decision. As we previously noted, the Strickland Court stated that \\\"strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.\\\" In light of his testimony regarding the reasons why he did not attend the interview and Strickland's heavy measure of deference accorded to Kinsley's judgments, we hold that Kinsley's decision not to attend the interview was a professionally reasonable judgment.\\nAssuming arguendo that Kinsley's decision not to attend the interview was professionally unreasonable, Thomas has made no showing of prejudice regarding Kinsley's failure to attend the interview. As we noted in Harris, to satisfy the Strickland test a defendant must show both that counsel's performance was deficient, and that the deficient performance prejudiced the defendant. 303 Md. at 696, 496 A.2d at 1079. To satisfy the prejudice prong, Thomas must show that there is a substantial or significant possibility that had Kinsley attended the interview the result of the sentencing hearing would have been different. Bowers, 320 Md. at 427, 578 A.2d at 739. In his brief, Thomas failed to address the issue of prejudice regarding Kinsley's decision not to attend the interview. At oral argument, Thomas similarly failed to point to any evidence of prejudice.\\nThus, Thomas has failed to satisfy both the deficient performance component and the prejudice component of the Strickland test regarding Kinsley's decision not to attend the interview.\\nVI.\\nOn the second issue left open on remand, whether Kinsley rendered ineffective assistance by failing to consult with another psychiatrist or psychologist prior to Thomas's sentencing hearing, the post conviction court rejected Thomas's claim and denied him any post conviction relief on that ground. The post conviction court resolved a dispute between the testimony of Dr. Beran and Kinsley when it found that Kinsley did consult Dr. Beran regarding sentencing issues. The post conviction court found that Kinsley decided not to call Dr. Beran or Professor Brown as defense witnesses as their testimony might harm Thomas. Having consulted with Dr. Beran with regard to sentencing issues and examined Professor Brown's psychological evaluation report on Thomas, Kinsley acted reasonably in not seeking to consult another psychiatrist or psychologist.\\nSimilar to Kinsley's other tactical decisions which Thomas has attacked, we agree with the post conviction court and hold that Kinsley's decision not to consult with another psychiatrist or psychologist prior to the sentencing hearing was a professionally reasonable judgment.\\nJUDGMENT REVERSED; CASE REMANDED TO THE CIRCUIT COURT FOR BALTIMORE COUNTY WITH INSTRUCTIONS TO DENY THE PETITION FOR POST CONVICTION RELIEF.\\n. A statement of facts describing the murders of Sarah Spurling and her husband, Donald Spurling, appears in Thomas I, 301 Md. at 301-06, 483 A.2d at 10-12.\\n. The record indicates that there were actually four psychiatrists, including Dr. Spodak, that took part in the psychiatric evaluation at the Clifton T. Perkins Hospital Center on February 4, 1982. See supra p. 545.\\n. As pointed out by one of the dissenters in Thomas II:\\n\\\"The State does not seriously contend, except insofar as the argument regarding counsel's failure to attend the psychiatric interview is concerned, that counsel's conduct, if deficient, did not prejudice [Thomas]. In any event, the trial court's findings in that regard are quite clear, and to my mind, amply supported by the record.\\\"\\nThomas II, 325 Md. at 193 n. 1, 599 A.2d at 1187 n. 1 (Bell, J., dissenting). In addressing Kinsley's decision to permit the post-verdict, pre-sentence interview, we agree with Judge Bell on the issue of prejudice. In determining whether the decision to permit the interview amounted to ineffective assistance of counsel, we address only the deficient performance prong of Strickland.\\n. The Supreme Court has acknowledged \\\"that 'an attorney present during the psychiatric interview could contribute little and might seriously disrupt the examination.'\\\" Estelle v. Smith, 451 U.S. 454, 470 n. 14, 101 S.Ct. 1866, 1877 n. 14, 68 L.Ed.2d 359, 374 n. 14 (1981) (quoting Estelle v. Smith, 602 F.2d 694, 708 (5th Cir.1979)).\"}"

md/2045028.json

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+"{\"id\": \"2045028\", \"name\": \"STATE of Maryland v. Junius Edward SHAW\", \"name_abbreviation\": \"State v. Shaw\", \"decision_date\": \"1990-12-06\", \"docket_number\": \"No. 113\", \"first_page\": \"247\", \"last_page\": \"247\", \"citations\": \"321 Md. 247\", \"volume\": \"321\", \"reporter\": \"Maryland Reports\", \"court\": \"Court of Appeals of Maryland\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-10T20:43:25.019480+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"STATE of Maryland v. Junius Edward SHAW.\", \"head_matter\": \"582 A.2d 793\\nSTATE of Maryland v. Junius Edward SHAW.\\nNo. 113\\nSept. Term, 1990.\\nCourt of Appeals of Maryland.\\nDec. 6, 1990.\\nJ. Joseph Curran, Jr., Atty. Gen. and Sarah E. Page, Asst. Atty. Gen., Baltimore, for petitioner.\\nStephen Harris, Public Defender and Jos\\u00e9 Felip\\u00e9 Anderson, Asst. Public Defender, Baltimore, for respondent.\\nSubmitted to MURPHY, C.J., and ELDRIDGE, RODOWSKY, McAULIFFE and CHASANOW, JJ.\", \"word_count\": \"168\", \"char_count\": \"980\", \"text\": \"ORDER\\nPER CURIAM.\\nThe Court having considered and granted the petition for writ of certiorari in the above captioned case, it is this 6th day of December, 1990\\nORDERED, by the Court of Appeals of Maryland, that the judgment of the Court of Special Appeals be, and it is hereby, reversed and the case remanded to the Court of Special Appeals for reconsideration in light of State v. Hall, 321 Md. 178, 582 A.2d 507 (1990) (No. 2, September Term, 1990, decided on December 3, 1990). Costs in this Court and in the Court of Special Appeals to be paid by Junius Edward Shaw.\"}"

md/2064061.json

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+"{\"id\": \"2064061\", \"name\": \"ST. LEONARD SHORES JOINT VENTURE v. SUPERVISOR OF ASSESSMENTS OF CALVERT COUNTY\", \"name_abbreviation\": \"St. Leonard Shores Joint Venture v. Supervisor of Assessments\", \"decision_date\": \"1986-09-30\", \"docket_number\": \"No. 54\", \"first_page\": \"441\", \"last_page\": \"449\", \"citations\": \"307 Md. 441\", \"volume\": \"307\", \"reporter\": \"Maryland Reports\", \"court\": \"Court of Appeals of Maryland\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-11T02:38:14.924356+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"ST. LEONARD SHORES JOINT VENTURE v. SUPERVISOR OF ASSESSMENTS OF CALVERT COUNTY.\", \"head_matter\": \"514 A.2d 1215\\nST. LEONARD SHORES JOINT VENTURE v. SUPERVISOR OF ASSESSMENTS OF CALVERT COUNTY.\\nNo. 54,\\nSept. Term, 1985.\\nCourt of Appeals of Maryland.\\nSept. 30, 1986.\\nStephen L. Clagett, Prince Frederick, for appellant.\\nKaye Brooks Bushel, Asst. Atty. Gen. (Stephen H. Sachs, Atty. Gen., on the brief), Baltimore, for appellee.\\nArgued before MURPHY, C.J., and SMITH , ELDRIDGE, COLE, RODOWSKY, COUCH and McAULIFFE, JJ.\\nSmith, J., now retired, participated in the hearing and conference of this case while an active member of this Court; after being recalled pursuant to the Constitution, Article IV, Section 3A, he also participated in the decision and adoption of this opinion.\", \"word_count\": \"1982\", \"char_count\": \"11771\", \"text\": \"COLE, Judge.\\nThe question presented in this case is whether the Supervisor of Assessments of Calvert County erred in determining the full cash value, for property tax purposes, of 105 unsold lots in a subdivision without taking into account the projected \\\"sell-out period\\\" of the lots.\\nWe distill the facts giving rise to this issue as follows. In 1978, appellant, St. Leonard Shores Joint Venture, purchased a large tract of waterfront land in Calvert County, Maryland. In July and August of 1979, appellant recorded subdivision plats, which subdivided the property into 117 lots. From the time of subdivision to January 1, 1982, only 12 of the lots were sold. Appellee, the Supervisor of Assessments of Calvert County (\\\"Supervisor\\\"), determined the full cash value of the remaining 105 lots to be $2,635,-000 as of January 1, 1982, the date of finality. The Supervisor reached this figure by determining the full cash value of each individual subdivision lot and by combining these values. The Supervisor used this method of assessment based on a directive issued by the State Department of Assessments and Taxation (SDAT). The SDAT directive, issued November 13, 1980, provides,\\nThe valuation of subdivided lots should consider each lot as a single legal entity. Each lot should be valued at its full cash value as of the date of finality regardless of ownership. This valuation should consider the highest and best use of each individual lot. Bulk ownership should not be considered.\\nAppellant appealed the valuation of the lots to the Property Tax Assessment Appeal Board for Calvert County and argued that the Supervisor had assessed the lots at more than full cash value. The Board rejected appellant's argument and affirmed the Supervisor's assessment. Appellant then appealed to the Maryland Tax Court and that court, after a hearing held before one of its examiners, also affirmed the assessment. Still seeking redress, appellant next appealed to the Circuit Court for Calvert County. By opinion and order filed February 2, 1984, the circuit court reversed the Tax Court's decision. In so doing, the circuit court declared that the \\\"sell-out period\\\"\\u2014the estimated period of time required to sell all of the lots\\u2014must be considered in determining the full cash value of the lots and that the SDAT directive should be disregarded because it removes the \\\"sell-out period\\\" from the assessor's considera tion. Because the Supervisor failed to consider the \\\"sell-out period\\\" in assessing the property in question, the circuit court concluded that his assessment of the lots was erroneous. The Supervisor appealed the circuit court's decision to the Court of Special Appeals. In Supervisor v. St. Leonard Shores Joint Ven., 61 Md.App. 204, 486 A.2d 206 (1985), the intermediate appellate court reversed the circuit court and held that the circuit court had erroneously reversed the Tax Court. We granted appellant's petition for certiorari in order to address the important question presented.\\nI\\nAppellant contends that the Supervisor assessed the 105 unsold subdivision lots at more than their full cash value because the Supervisor failed to consider the length of time necessary to sell all of the lots. Because this case focuses upon the Supervisor's determination of the full cash value of the subdivision lots, we begin our analysis by examining the statutory requirement of \\\"full cash value.\\\" Article 81, \\u00a7 14(b)(l)(i) provides that \\\"[a]ll real property required by this article to be assessed shall be valued at its full cash value on the date of finality.\\\" In Rogan v. Commrs. of Calvert County, 194 Md. 299, 71 A.2d 47 (1950), this Court addressed the determination of full cash value. Judge Delaplaine, writing for the Court, declared:\\nOrdinarily the cash value of property is the market value. Schley v. Montgomery County Com'rs, 106 Md. 407, 410, 67 A. 250. But, as Justice White said in San Francisco National Bank v. Dodge, 197 U.S. 70, 25 S.Ct. 384, 386, 49 L.Ed. 669, the market value of property is the value a willing purchaser will pay for it to a willing seller in open market, eliminating exceptional and extraordinary conditions giving the property temporarily an abnormal value.\\nId. [194 Md.] at 311, 71 A.2d at 54.\\nSince Rogan, we have repeatedly recognized the willing purchaser\\u2014willing seller standard as the ordinary mode of measuring full cash value. See, e.g., Supervisor v. Ort Children Tr., 294 Md. 195, 201, 448 A.2d 947, 950 (1982), Samet v. Supervisor of Assess., 290 Md. 357, 359-60, 430 A.2d 73, 74 (1981); Shell Oil Co. v. Supervisor, 278 Md. 659, 666, 366 A.2d 369, 373-74 (1976); State Dept. of A & T v. Greyhound Comp., 271 Md. 575, 586, 320 A.2d 40, 45-46 (1974); Tax Comm. v. Brandt Cabinet Works, 202 Md. 533, 545, 97 A.2d 290, 295 (1953). Thus, for purposes of measuring full cash value, the assessor should assume that a willing buyer and a willing seller wish to engage in a hypothetical sale of the property to be assessed.\\nIn disputing the Supervisor's assessment of the 105 unsold lots, appellant emphasizes that \\\"[t]he problem . is that you didn't have 105 buyers, you had twelve\\u2014seven the first year and five the next year.\\\" Appellant's argument misses the point. Regardless of whether a buyer for each lot actually exists, the assessor is required to assess each lot as if a willing buyer exists. This is not to say that a glut on the market should not be considered. We think, however, that the condition of the real estate market is adequately reflected in the price that the hypothetical buyer would be willing to pay. Therefore, we reject appellant's contention relating to the \\\"sell-out period\\\" of the lots.\\nII\\nAppellant also contends that the Tax Court's decision is not supported by substantial evidence, as required by Maryland Code (1957, 1980 Repl.Vol., 1985 Cum.Supp.), Art. 81, \\u00a7 229(o). This section provides, \\\"In any case, the circuit court for the county shall determine the matter upon the record made in the Maryland Tax Court. The circuit court shall affirm the Tax Court order if it is not erroneous as a matter of law and if it is supported by substantial evidence appearing in the record.\\\" Id. (emphasis supplied).\\nWe have often addressed the scope of judicial review where an administrative agency's decision is attacked on the ground that it is not supported by substantial evidence. See e.g., Ramsay, Scarlett & Co. v. Comptroller, 302 Md. 825, 838-39, 490 A.2d 1296, 1302 (1985); Balto. Lutheran High Sch. v. Empl. Sec. Adm., 302 Md. 649, 660-63, 490 A.2d 701, 708 (1985); Comptroller v. Haskin, 298 Md. 681, 693-94, 472 A.2d 70, 76-77 (1984); Annapolis v. Annap. Waterfront Co., 284 Md. 383, 397-400, 396 A.2d 1080, 1088-89 (1979); Bulluck v. Pelham Wood Apts., 283 Md. 505, 512-17, 390 A.2d 1119, 1123 (1978); Shell Oil Co. v. Supervisor, 278 Md. 659, 670, 366 A.2d 369, 375 (1976); Insurance Comm'r v. Nat'l Bureau, 248 Md. 292, 309-10, 236 A.2d 282, 291-92 (1967). As set forth in these cases, our task is to determine \\\"whether a reasoning mind reasonably could have reached the factual conclusion that the agency reached.\\\" Balto. Lutheran High Sch. v. Empl. Sec. Adm., supra, 302 Md. at 662, 490 A.2d at 708 (citing Bulluck v. Pelham Wood Apts., supra). See also Comptroller v. Diebold, Inc., 279 Md. 401, 407, 369 A.2d 77, 81 (1977); Fairchild Hiller Corp. v. Supervisor, 267 Md. 519, 521, 298 A.2d 148, 149 (1973). In carrying out this task, it is not our function to engage in judicial fact-finding or to substitute our judgment for that of the agency. See Ramsay, Scarlett & Co. v. Comptroller, supra, 302 Md. at 838, 490 A.2d at 1303; Annapolis v. Annap. Waterfront Co., supra, 284 Md. at 398, 396 A.2d at 1089; Comptroller v. Diebold, Inc., 279 Md. 401, 407, 369 A.2d 77, 81 (1977); Insurance Comm'r v. Nat'l Bureau, supra, 248 Md. at 309-10, 236 A.2d at 292. Moreover, we have stated that it is \\\"the province of the agency to resolve conflicting evidence, [and] where inconsistent inferences from the same evidence can be drawn, it is for the agency to draw the inferences.\\\" Bulluck v. Pelham Wood Apts., supra, 283 Md. at 513, 390 A.2d at 1124, quoted in Balto. Lutheran High Sch. v. Empl. Sec. Adm., supra, 302 Md. at 663, 490 A.2d at 708.\\nWith these principles in mind, we examine the facts of the instant case. Appellant argues that the record provided no basis upon which the circuit court might have affirmed the Tax Court's decision. We disagree. Appel lant's argument simply overlooks a key portion of the record before the Tax Court: the testimony of the Supervisor as to the manner in which he assessed the property. The Supervisor testified that he valued \\\"each of the hundred and five lots, as of the date of finality, . based upon its market value; which was determined by the sales in St. Leonard Shores as well as comparable subdivisions.\\\" The record indicates that twelve lots in St. Leonard Shores had been sold within three years of the date of finality. We think that these sales, as well as the sales in similar subdivisions, provided an ample basis from which the Tax Court could reasonably conclude that the Supervisor had correctly assessed the subdivision lots.\\nMoreover, the Tax Court expressly rejected the method of valuation upon which appellant relies. The hearing examiner, in his written opinion and recommendation, declared that\\n[appellant's approach to fair market value is a staged sell-out over a period of years, with [appropriate] conveying charges etc., and finally reducing the end result to a net profit figure. This is good, sound business practice. Unfortunately, it is not the way the assessment process works. To implement [appellant's approach to value, would be to put the Assessor in the position of being a joint venturer with [appellant]: if all the lots sold in one year, we have a value certain; if all lots sell over a period of years, we have a value dependent upon the future whims of the market place.\\nWe have often stated that the assessment of property is not an exact science and that assessors have reasonable latitude in selecting a method of valuation that arrives at full cash value. See, e.g., Supervisor v. Southgate Harbor, 279 Md. 586, 593, 369 A.2d 1053, 1057 (1977); Macht v. Dep't of Assessments, 266 Md. 602, 608-09, 296 A.2d 162, 166 (1972); Sears, Roebuck v. State Tax Comm., 214 Md. 550, 557-58, 136 A.2d 567, 571 (1957). Here, the Supervisor chose to use the comparable sales approach in valuing each of the unsold lots in the subdivision. We think that this method of valuation provided a reasonable means of determining full cash value. Further, it complied with the SDAT directive, which required the assessment of subdivision lots on an individual basis. We conclude that the Tax Court was correct in affirming the Supervisor's assessment.\\nJUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED. APPELLANT TO PAY THE COSTS.\\n. Maryland Code (1957, 1980 Repl.Vol.), Art. 81, \\u00a7 14(b)(l)(i) provides, 'All real property required by this article to be assessed shall be valued at its full cash value on the date of finality.\\\"\"}"

md/2064105.json

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+"{\"id\": \"2064105\", \"name\": \"ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. James Sommervell DAWSON III\", \"name_abbreviation\": \"Attorney Grievance Commission v. Dawson\", \"decision_date\": \"1986-09-04\", \"docket_number\": \"Misc. Docket (Subtitle BV) No. 22\", \"first_page\": \"404\", \"last_page\": \"405\", \"citations\": \"307 Md. 404\", \"volume\": \"307\", \"reporter\": \"Maryland Reports\", \"court\": \"Court of Appeals of Maryland\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-11T02:38:14.924356+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. James Sommervell DAWSON III.\", \"head_matter\": \"514 A.2d 23\\nATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. James Sommervell DAWSON III.\\nMisc. Docket (Subtitle BV) No. 22,\\nSept. Term, 1985.\\nCourt of Appeals of Maryland.\\nSept. 4, 1986.\\nMelvin Hirshman, Bar Counsel and Kendall Calhoun, Asst. Bar Counsel to the Atty. Grievance Com\\u2019n of Md., for petitioner.\\nJames Sommervell Dawson III, pro se.\\nArgued before MURPHY, C.J., and SMITH , ELDRIDGE, COLE, RODOWSKY, COUCH and McAULIFFE, JJ.\\nSmith, J., now retired, participated in the hearing and conference of this case while an active member of this Court; after being recalled pursuant to the Constitution, Art. IV, Sec. 3A, he also participated in the decision and the adoption of this opinion.\", \"word_count\": \"387\", \"char_count\": \"2297\", \"text\": \"ORDER\\nPER CURIAM.\\nWHEREAS, the Court passed an Order on April 18, 1986 suggesting the possibility of an agreement between James S. Dawson III and Bar Counsel that Respondent seek resignation with prejudice from the Maryland Bar along with payment of costs in these proceedings in exchange for Bar Counsel's willingness to dismiss all pending charges against the Respondent, and\\nWHEREAS, James S. Dawson III, a member of the Bar of the State of Maryland, filed on August 1, 1986, an application to resign from the Bar of Maryland in which he admits that he was convicted in Federal Court of illegal possession of controlled dangerous substances and he further states that his resignation will avoid the need for any further proceedings in this matter, and\\nWHEREAS, Bar Counsel thereafter filed a notice with the Court stating that he had no objection to the Court's dismissal of the charges pending against Dawson,\\nNOW, THEREFORE, it is this 4th day of September, 1986\\nORDERED, by the Court of Appeals of Maryland, that the application to resign with prejudice from the further practice of law in this State filed by James S. Dawson III be, and it is hereby, accepted, and it is further\\nORDERED that all charges pending against the Respondent in the above captioned case be, and they are hereby, dismissed, and it is further\\nORDERED that the Clerk of this Court shall strike the name of James S. Dawson III from the register of attorneys, and pursuant to Maryland Rule BV13, shall certify that fact to the Trustees of the Clients' Security Trust Fund and the Clerks of all judicial tribunals in this State.\"}"

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+"{\"id\": \"2071743\", \"name\": \"FERRERO CONSTRUCTION COMPANY v. DENNIS ROURKE CORPORATION\", \"name_abbreviation\": \"Ferrero Construction Co. v. Dennis Rourke Corp.\", \"decision_date\": \"1988-02-10\", \"docket_number\": \"No. 139\", \"first_page\": \"560\", \"last_page\": \"586\", \"citations\": \"311 Md. 560\", \"volume\": \"311\", \"reporter\": \"Maryland Reports\", \"court\": \"Court of Appeals of Maryland\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-10T17:34:20.667745+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"FERRERO CONSTRUCTION COMPANY v. DENNIS ROURKE CORPORATION\", \"head_matter\": \"536 A.2d 1137\\nFERRERO CONSTRUCTION COMPANY v. DENNIS ROURKE CORPORATION\\nNo. 139,\\nSept. Term, 1985.\\nCourt of Appeals of Maryland.\\nFeb. 10, 1988.\\nMotion for Reconsideration Denied March 24,1988.\\nRobert C. Park, Jr. (Michael J. Gugerty and Linowes & Blocher, on the brief), Silver Spring, for appellant.\\nMarilyn J. Brasier (Thomas J. Walker, Jr., on the brief), Rockville, for appellee.\\nBefore MURPHY, C.J., and SMITH , ELDRIDGE, COLE, RODOWSKY, COUCH and McAULIFFE, JJ.\\nSmith and Couch, JJ., now retired, participated in the hearing and conference of this case while active members of this Court; after being recalled pursuant to the Constitution, Article IV, Section 3A, they also participated in the decision and adoption of this opinion.\", \"word_count\": \"8446\", \"char_count\": \"50529\", \"text\": \"ELDRIDGE, Judge.\\nThe principal question in this case is whether the Rule Against Perpetuities applies to a right of first refusal to purchase an interest in property.\\nThe pertinent facts are as follows. On April 27, 1981, the plaintiff Dennis Rourke Corp. and the defendant Ferrero Construction Co. entered into a contract for the purchase of two lots on Mercy Court in Montgomery County, Maryland. This contract contained the following clause:\\n\\\"In consideration of this contract, the Seller [Ferrero] agrees to extend to the Purchaser [Rourke] a first right of refusal on the future sale of any of the seven lots remaining on Mercy Court.\\\"\\nRourke never recorded this contract. Settlement under the contract apparently occurred in May 1981.\\nOn March 12, 1984, Ferrero notified Rourke by mail of a third party offer to purchase Lot 27, one of the remaining lots on Mercy Court. The letter contained the terms of the third party's offer and afforded Rourke the opportunity \\\"to submit a contract\\\" by March 21, 1984, for it \\\"to be considered.\\\" Rourke immediately stated that it was exercis ing its right of first refusal and requested that Ferrero provide a copy of the third party's offer so that Rourke could prepare a contract with identical terms and conditions. On March 21, 1984, Rourke received a copy of the third party's offer. The next day, Rourke submitted a contract that in its essential terms conformed to the third party's offer. Subsequently, Rourke stated that it was prepared to settle on April 24, 1984. Ferrero responded that it had decided to reject both offers and that it would not appear at settlement. Ferrero in fact did not appear at the settlement and, on April 26, 1984, returned both offers, unsigned.\\nRourke brought this action for specific performance in the Circuit Court for Montgomery County. In the first count of its amended complaint, Rourke claimed that it was entitled to a conveyance of Lot 27 by virtue of its exercise of the right of first refusal. In the second count, Rourke alleged that, independent of the exercise of the right of first refusal, Ferrero and Rourke had agreed upon a contract for the purchase and sale of Lot 27.\\nAt trial, after the conclusion of Rourke's case, the trial court granted Ferrero's motion for judgment on count one, ruling that Rourke's right of first refusal violated the Rule Against Perpetuities and was, consequently, void. As to the second count, after the presentation of all of the evidence, the trial court held that Ferrero's letter of March 12, 1984, constituted an offer and that Rourke accepted the offer by stating its intent to exercise the right of first refusal. Nevertheless, the court ruled that Ferrero's offer was premised on the parties' mistaken belief that the right of first refusal was valid. Consequently, the court concluded that the parties had not formed a contract, as both had proceeded under a mutual mistake of law.\\nThe Court of Special Appeals reversed on the ground that the Rule Against Perpetuties was inapplicable and that the right of first refusal was valid. Dennis Rourke Corp. v. Ferrero Constr. Co., 64 Md.App. 694, 498 A.2d 689 (1985). Although in Iglehart v. Jenifer, 35 Md.App. 450, 452-453, 371 A.2d 453 (1977), the Court of Special Appeals had assumed that the Rule Against Perpetuities applied to rights of first refusal, the court in this case expressly held the Rule inapplicable to such rights. The intermediate appellate court also indicated its view that the parties had entered into an independent contract for the purchase and sale of Lot 27. Thereafter, we granted Ferrero's petition for a writ of certiorari.\\nI.\\nSubject to a few statutory exceptions, the common law Rule Against Perpetuities remains in effect in Maryland. Maryland Code (1974), \\u00a7 11-102 to -103 of the Estates and Trusts Article. See also Code (1974), \\u00a7 4-409 of the Estates and Trusts Article. In Fitzpatrick v. Mer.-Safe, Etc. Co., 220 Md. 534, 541, 155 A.2d 702, 705 (1959), this Court adopted Professor Gray's formulation of the Rule Against Perpetuities: \\\" '[n]o interest is good unless it must vest, if at all, not later than twenty-one years after some life in being at the creation of the interest.' \\\" Gray, The Rule Against Perpetuities, \\u00a7 201 (4th ed. 1942). The Fitzpatrick Court described the Rule Against Perpetuities as follows (220 Md. at 541, 155 A.2d 702):\\n\\\"It is a rule of law, not one of construction, and it applies to legal and equitable estates of both realty and personalty. It is not a rule that invalidates interests which last too long, but interests which vest too remotely; in other words, the Rule is not concerned with the duration of estates, but the time of their vesting.\\\"\\nA.\\nThe vast majority of courts and commentators have held that rights of first refusal, which are more commonly known as \\\"preemptive rights,\\\" are interests in property and not merely contract rights. 5A Powell on Real Property, \\u00b6 771[2] (1987). See also Westpark Inc. v. Seaton Land Co., 225 Md. 433, 449-450, 171 A.2d 736, 743 (1961). This is so because, if the property owner attempts to sell to someone other than the owner of the right of first refusal (\\\"the preemptioner\\\"), the latter may have a court of equity enter a decree of specific performance ordering that the property be conveyed to him. 5A Powell on Real Property, supra, \\u00b6 711[1], n. 9. Thus, the preemptioner acquires an equitable interest, which will vest only when the property owner decides to sell. See Note, Real Property\\u2014Pre-emptive Right or Right of Refusal\\u2014Violative of The Rule Against Perpetuities?, 40 Mo.L.Rev. 389, 391-392 (1975) (a right of first refusal \\\"is in the nature of a springing executory interest\\\").\\nAs rights of first refusal are interests in property, the great majority of American jurisdictions have applied the Rule Against Perpetuities to such rights. See, e.g., Estate of Johnson v. Carr, 286 Ark. 369, 691 S.W.2d 161 (1985); Taormina Theosophical Community, Inc. v. Silver, 140 Cal.App.3d 964, 977, 190 Cal.Rptr. 38, 46 (1983); Atchison v./City of Englewood, 170 Colo. 295, 307-308, 463 P.2d 297, 303 (1970); Neustadt v. Pearce, 145 Conn. 403, 143 A.2d 437 (1958); Watergate Corp. v. Reagan, 321 So.2d 133 (Fla.App. 1975); Martin v. Prairie Rod & Gun Club, 39 Ill.App.3d 33, 348 N.E.2d 306 (1976); Weitzmann v. Weitzmann, 87 Ind.App. 236, 242, 161 N.E. 385, 387 (1928); Henderson v. Millis, 373 N.W.2d 497, 505 (Iowa 1985); Barnhart v. McKinney, 235 Kan. 511, 682 P.2d 112 (1984); Three Rivers Rock Co. v. Reed Crushed Stone Co., 530 S.W.2d 202, 208 (Ky.1975); Old Mission Peninsula School Dist. v. French, 362 Mich. 546, 549, 107 N.W.2d 758, 759 (1961); Beets v. Tyler, 365 Mo. 895, 903, 290 S.W.2d 76, 82 (1956); Davies v. McDowell, 549 S.W.2d 619 (Mo.App.1977); North Bay Council Inc. v. Grinnell, 123 N.H. 321, 461 A.2d 114 (1983); Ross v. Ponemon, 109 NJ.Super. 363, 370, 263 A.2d 195, 199 (1970); Peele v. Wilson Co. Bd. of Educ., 56 N.C.App. 555, 560-561, 289 S.E.2d 890, 893-894, petition denied, 306 N.C. 386, 294 S.E.2d 210 (1982); Melcher v. Camp, 435 P.2d 107 (Okla.1967); Hale v. Scanlon, 88 Pa.D. & C. 506, 508 (1953); Clark v. Shelton, 584 P.2d 875, 876-877 (Utah 1978); Skeen v. Clinchfield Coal Corp., 137 Va. 397, 402, 119 S.E. 89, 90 (1923); Smith v. VanVoorhis, 296 S.E.2d 851, 853-854 (W.Va.1982). Cf. Hall v. Crocker, 192 Tenn. 506, 510, 241 S.W.2d 548, 549-560 (1951) (option on condition precedent to repurchase if grantee either died or wished to sell held subject to Rule Against Perpetuities); Smith v. Mitchell, 301 N.C. 58, 66, 269 S.E.2d 608, 613 (1980) (whether a right of first refusal constitutes an unreasonable restraint on alienation depends, inter alia, on whether the duration of the right is greater than the period of the Rule Against Perpetuities).\\nIn addition, the Restatement has adopted the majority position. IV Restatement of Property \\u00a7 413 comment e (1944). See also Iglehart v. Jenifer, supra, 35 Md.App. at 452-453, 371 A.2d 453; Note, Real Property\\u2014Preemptive Right or Right of First Refusal\\u2014Violative of the Rule Against Perpetuities?, supra, 40 Mo.L.Rev. at 391-392; 5A Powell on Real Property, supra, \\u00b6 771[2] (\\\"Options to purchase or to repurchase land, unconnected with a lease, commonly denominated options in gross, have generally been held bad under the common law rule against perpetuities, when not restricted in duration so as to comply with the permissible period under that rule\\\") (collecting right of first refusal cases); 4A Thompson on Real Property, \\u00a7 2020, at 655 (1979 Repl. Vol.); L. Simes & A. Smith, The Law of Future Interests, \\u00a7 1154, at 61 (2d ed. 1956) (rights of first refusal are \\\"normally subject to the rule against perpetuities\\\").\\nIn light of this widespread acceptance of the majority view, we should hesitate before attempting to fashion an exception to the Rule Against Perpetuities for rights of first refusal. In this area of property law, vested rights and settled expectations are at stake. A departure from settled law might introduce doubt as to the value of vested rights. Moreover, the contours of an exception for rights of first refusal might prove difficult to define. Consequently, the policies favoring certainty and stability strongly support our following the majority of courts and applying the Rule Against Perpetuities to rights of first refusal.\\nA right of first refusal is a type of option. IY Restatement of Property, supra, \\u00a7 413 comment b (rights of first refusal are \\\"analogous to options on a condition precedent\\\"). See Ensor v. Wehland, 243 Md. 485, 487-488, 221 A.2d 699 (1966); Westpark, Inc. v. Seaton and Co., supra, 225 Md. at 445, 171 A.2d 736; Iglehart v. Jenifer, supra, 35 Md.App. at 451 n. 1, 371 A.2d 453. Again, the majority rule, in England as well as in this country, is that the Rule Against Perpetuities generally applies to options. Commonwealth Realty v. Bowers, supra, 261 Md. 285, 302-303, 274 A.2d 353, and authorities cited there; IV Restatement of Property, supra, \\u00a7 393. In the area of options, courts in the 300 years since the High Court of Chancery decided the Duke of Norfolk's Case, 3 Ch. Cas. 1, 22 Eng.Rep. 931 (1681), have developed three exceptions to the Rule Against Perpetuities. The Rule does not apply to a lessee's option to renew a lease, Bridges v. Hitchcock, 5 Br.P.C. 6, 2 Eng.Rep. 498 (1715); IV Restatement of Property, supra, \\u00a7 395(b). It does not apply to a lessee's option to purchase all or part of the leased premises, IV Restatement of Property, supra, \\u00a7 395(a); Hollander v. Central Metal & Supply Co., 109 Md. 131, 71 A. 442 (1908). And it is inapplicable to a usufructuary's option to extend the scope of an easement or profit, IV Restatement of Property, supra, \\u00a7 393 comment j, 399. See generally, 5A Powell on Real Property, supra, \\u00b6 771[2]. All options may violate the Rule Against Perpetuities. Nevertheless, courts have justified these three narrow exceptions because these three types of optipns yield social benefits that offset the consequences of that violation. Ibid.\\nIn urging us to exempt rights of first refusal from the Rule Against Perpetuities, Rourke would have us undertake such a balancing process. Again, however, it is significant that a majority of courts have struck the balance against creating the exception Rourke seeks.\\nB.\\nWe recognize that a minority of courts have held the Rule Against Perpetuities inapplicable to certain rights of first refusal. Cambridge Co. v. East Slope Investment Corp., 700 P.2d 537, 542 (Colo.1985); Shiver v. Benton, 251 Ga. 284, 304 S.E.2d 903, 906-907 (1983); Metropolitan Transp. Auth. v. Bruken Realty Corp., 67 N.Y.2d 156, 492 N.E.2d 379, 384, 501 N.Y.S.2d 306, 311 (1986); Forderhause v. Cherokee Water Co., 623 S.W.2d 435, 438-439 (Tex.Civ. App.1981), rev'd on other grounds, 641 S.W.2d 522 (Tex. 1982); Robroy Land Co. v. Prather, 95 Wash.2d 66, 622 P.2d 367, 369-371 (1980); Weber v. Texas Co., 83 F.2d 807, 808 (5th Cir.), cert. denied, 299 U.S. 561, 57 S.Ct. 23, 81 L.Ed. 413 (1936). See also Hartnett v. Jones, 629 P.2d 1357, 1362-1363 (Wyo.1981). This minority view appears to stem from a law review article written in 1935 by Professor Merrill I. Schnebly. Schnebly, Restraints Upon the Alienation of Legal Interests: III, 44 Yale L.J. 1380, 1390-1395 (1935). Professor Schnebly was the editor of the section of the American Law of Property which relates to this issue and which adopts the same view. VI American Law of Property, \\u00a7 26.67 (1952). The Court of Special Appeals in the present case, and many of the other cases reaching the same conclusion, rely on Professor Schnebly's writings. See, e.g., Dennis Rourke Corp. v. Ferrero Constr. Co., 64 Md.App. 694, 703, 498 A.2d 689 (1985); Shiver v. Benton, 251 Ga. 284, 304 S.E.2d 903, 906 (1983); Robroy Land Co. v. Prather, 95 Wash.2d 66, 622 P.2d 367, 369 (1980). In fact, the relatively few cases espousing the minority view all arose after the publication of Professor Schnebly's article in 1935. We reiterate that, in this area of the law, where certainty and stability are important values, it is undesirable to adopt such a recent and minority position.\\nMoreover, most of the cases adopting the minority position involve unique interests in land, rather than the traditional fee estate involved in this case. For example, Weber v. Texas Co., 83 F.2d 807 (5th Cir.), cert. denied, 299 U.S. 561, 57 S.Ct. 23, 81 L.Ed. 413 (1936), Producers Oil Co. v. Gore, 610 P.2d 772 (Okla.1980), and Forderhause v. Cherokee Water Co., 623 S.W.2d 435 (Tex.Civ.App.1981), rev'd on other grounds, 641 S.W.2d 522 (Tex.1982), all involve rights of first refusal in connection with oil, gas, and mineral leases. As the Supreme Court of Oklahoma stated in the Producers Oil case (610 P.2d at 774):\\n\\\"Mineral leases and their accompanying operating agreements have built in duration. Oil and gas production cannot last indefinitely and rights are always terminable _ [T]he provision for preemptive rights . can last only as long as the agreement and the lease itself continu[e].\\\"\\nIn Cambridge Co. v. East Slope Investment Corp., 700 P.2d 537, 542 (Colo.1985), the court held that the Rule Against Perpetuities did not apply to rights of first refusal contained in a condominium declaration. Condominium ownership was a form of property interest unknown to the earlier common law. Thus, an exception for rights of first refusal to purchase this specialized type of property interest has little bearing on whether rights of first refusal in general should be exempt from the Rule Against Perpetuities.\\nIn Metropolitan Transp. Auth. v. Bruken Realty Corp., 67 N.Y.2d 156, 492 N.E.2d 379, 384, 501 N.Y.S.2d 306, 311 (1986), the Court of Appeals of New York held that, in commercial and governmental transactions, it would not assess the validity of a right of first refusal under the Rule Against Perpetuities. Again, however, that case involved a unique transaction. The right at issue arose out of the State of New York's buyout of the bankrupt Long Island Railroad, a transaction that the trial court described as \\\"thoroughly sui generis.\\\" Metropolitan Transp. Auth. v. Broken Realty Corp., 125 Misc.2d 497, 479 N.Y.S.2d 646, 655 (1984). Thus, it would again seem that an exception for a right of first refusal in a transaction such as this should have little bearing on whether rights of first refusal in general should be exempt from the Rule Against Perpetuities.\\nThe Court of Special Appeals in the present case and other courts adopting the minority view reach their conclusion by assuming that the sole policy underlying the Rule Against Perpetuities is the elimination of restraints on alienation. See, e.g., Dennis Rourke Corp. v. Ferrero Constr. Co., supra, 64 Md.App. at 704, 498 A.2d 689; Forderhause v. Cherokee Water Co., supra, 623 S.W.2d at 438-439; Robroy Land, Co. v. Prather, supra, 95 Wash.2d 66, 622 P.2d at 370; Hartnett v. Jones, 629 P.2d 1357, 1361 (Wyo.1981); Weber v. Texas Co., supra, 83 F.2d at 808. Thus, in effect, the minority view postulates that an interest should not be subject to the Rule unless the interest constitutes a restraint on alienation. The minority view then distinguishes rights of first refusal from ordinary options. As stated in VI American Law of Property, supra, \\u00a7 26.64, at 507:\\n\\\"An option creates in the optionee a power to compel the owner of property to sell it at a stipulated price whether or not he be willing to part with ownership. A pre-emption does not give to the pre-emptioner the power to compel an unwilling owner to sell; it merely requires the owner, when and if he decides to sell, to offer the property first to the person entitled to the pre-emption, at the stipulated price. Upon receiving such an offer, the pre-emptioner may elect whether he will buy. If he decides not to buy, then the owner of the property may sell to anyone.\\\"\\nBased on this distinction, the minority view contends that, unlike ordinary options, at least some rights of first refusal do not restrain alienation; consequently, the minority view concludes that such rights of first refusal should not be subject to the Rule Against Perpetuities. VI American Law of Property, supra, \\u00a7 26.67, at 511-512; Dennis Rourke Corp. v. Ferrero Constr. Co., supra, 64 Md.App. at 704, 498 A.2d 689; Cambridge Co. v. East Slope Investment Corp., supra, 700 P.2d at 542; Shiver v. Benton, supra, 251 Ga. 284, 304 S.E.2d at 906; Forderhause v. Cherokee Water Co., supra, 623 S.W.2d at 439; Robroy Land Co. v. Prather, supra, 95 Wash.2d 66, 622 P.2d at 369-371; Weber v. Texas Co., supra, 83 F.2d at 808. See also Metropolitan Transp. Auth. v. Bruken Realty Corp., supra, 67 N.Y.2d 156, 492 N.E.2d 379, 385, 501 N.Y.S.2d 306, 312.\\nEven assuming the validity of the distinction between rights of first refusal and other options, the minority view errs in assuming that an interest should not be subject to the Rule unless the interest constitutes a restraint on alienation. In making this assumption, courts adopting the minority view confuse the Rule Against Perpetuities with the rule against unreasonable restraints on alienation. Admittedly, both rules belong to \\\"a family of related rules that regulate the devolution of wealth from generation to generation.\\\" R. Lynn, The Modern Rule Against Perpetuities 9 (1966). These two rules are nonetheless distinct. The Rule Against Perpetuities prevents property interests from vesting remotely. J. Cray, The Rule Against Perpetuities 3-4 (4th ed. 1942); L. Simes, The Law of Future Interests, \\u00a7 120, at 253 (2d ed. 1966). See Safe Deposit & Trust Co. v. Sheehan, 169 Md. 93, 106, 179 A. 536, 542 (1935). The rule against restraints on alienation, on the other hand, prevents grantors from unreasonably depriving grantees of the power to alienate their estates. See Restatement (Second) Property (Donative Transfers) Intro. Note, Pt. II, at 143; Three Rivers Rock Co. v. Reed Crushed Stone Co., 530 S.W.2d 202, 205 (Ky.1975).\\nThe policies underlying these two rules are likewise not identical. Obviously, the rule against restraints on alienation serves to facilitate the alienability of property. Similarly, one of the purposes of the Rule Against Perpetuities is to facilitate the alienability of property. See Commonwealth Realty v. Bowers, supra, 261 Md. at 297, 274 A.2d 353; Hollander v. Central Metal & Supply Co., supra, 109 Md. at 159, 71 A. 442. Contrary to the minority view, however, the Rule Against Perpetuities is not simply a rule against restraints on alienation. L. Simes, supra, \\u00a7 120, at 253. Instead, the Rule Against Perpetuities is concerned with restrictions that render title uncertain. See 2 H. Tiffany, The Law of Real Property, \\u00a7 392 (3d ed. 1939). Without the Rule Against Perpetuities, it would be possible at some distant point for a remotely vesting future interest to divest the current owner's estate. Because of this threat of divestment, the owner might be deterred from making the most effective use of the property, even if he never has any desire to alienate his estate. Thus, by voiding certain remotely vesting future interests, the Rule Against Perpetuities eliminates this deterrent both for owners who wish to alienate their estates and for owners who have no intention of ever doing so. See 2 H. Tiffany, The Law of Real Property, supra, \\u00a7 392. Consequently, from the standpoint of the Rule Against Perpetuities, it is irrelevant whether a particular future interest imposes a light burden, a heavy burden, or no burden at all upon the alienability of property. See Smith v. VanVoorhis, 296 S.E.2d 851, 854 n. 3 (W.Va.1982). See also IV Restatement of Property, supra, \\u00a7 413.\\nC.\\nEven if the minority view were correct that an interest should not be subject to the Rule Against Perpetuities unless that interest constitutes a restraint on alienation, we would disagree that rights of first refusal should not be subject to the Rule. In our opinion, rights of first refusal do restrain the alienability of property. In this respect, however, it is necessary first to distinguish among the various types of rights of first refusal.\\nSome rights of first refusal permit the right's owner to purchase property at a fixed price if the property owner, his heirs, or assigns should ever desire to sell. Plainly a right of first refusal at a fixed price inhibits alienability. Often, with the passage of time, the fixed price will bear no relationship to the property's actual market value. See, e.g., Peele v. Wilson Co. Bd. of Educ., 56 N.C.App. 555, 289 S.E.2d 890, petition denied, 306 N.C. 386, 294 S.E.2d 210 (1982) (property owner had received bid at $4,300, while right of first refusal would have permitted heirs to pay only $50). Because the owner must often offer the property to the preemptioner at an artificially low price, the owner is deterred from selling the property or from increasing its value by making improvements. Consequently, even the minority view acknowledges that the Rule Against Perpetu ities should apply to rights of first refusal at a fixed price. VI American Law of Property, supra, \\u00a7 26.67, at 510.\\nA second type of right of first refusal permits the preemptioner to purchase the property at \\\"market value\\\" if the owner, his heirs or assigns should ever desire to sell. Some authorities would find the Rule Against Perpetuities inapplicable to such a right. Metropolitan Transp. Auth. v. Bruken Realty Corp., supra, 67 N.Y.2d 156, 492 N.E.2d 379, 501 N.Y.S.2d 306; VI American Law of Property, supra, \\u00a7 26.67, at 511. Nevertheless, a right of first refusal to purchase at market value also effects a substantial restraint on alienability. A potential purchaser's offer might, in the preemptioner's opinion, exceed market value. The preemptioner could then contend that he need pay only some lesser amount. Fearing that a determination of the parties' rights would have to await the uncertain outcome of litigation, a prospective purchaser might be deterred from ever making an initial offer. 40 A.L.R.3d 920, 927 (1970).\\nThe third type of right of first refusal permits the preemptioner to purchase the property at a price equal to any bona fide offer that the owner, his heirs or assigns desire to accept. In this situation, however, many prospective purchasers, recognizing that a matching offer from the preemptioner will defeat their bids, simply will not bid on the property. This in turn will depress the property's value and discourage the owner from attempting to sell. Moreover, even a right of first refusal tied to a bona fide offer may constitute an unreasonable restraint on alienation if the right is of unlimited duration. See Restatement of Property, supra, \\u00a7 406 comment i. Similarly, if, as in this case, the right of first refusal is unrecorded, the task of ascertaining and locating the holder of the preemptive right at some remote point in the future might also become so difficult that the right of first refusal could constitute an unreasonable restraint on alienation. Atchison v. City of Englewood, 170 Colo. 295, 307-308, 463 P.2d 297, 303 (1970).\\nThus, contrary to the minority view, we conclude that rights of first refusal restrain alienation.\\nD.\\nFinally, as indicated earlier, the General Assembly has recognized by statute a limited number of exceptions to the common law Rule Against Perpetuities. Code (1974), \\u00a7 11-102 to -103 of the Estates and Trusts Article. See also Code (1974), \\u00a7 4-409 of the Estates and Trusts Article. In this case, however, the Court of Special Appeals undertook to create an additional exception. When the legislature has expressly enumerated certain exceptions to a principle, courts normally should be reluctant thereafter to create additional exceptions. Cf Pennsylvania Nat'l Mut. v. Gartelman, 288 Md. 151, 156, 416 A.2d 734, 737 (1980), and cases there cited.\\nFor all of the foregoing reasons, we hold that the Court of Special Appeals erred in adopting the minority view in this case. We choose to follow the majority of courts that apply the Rule Against Perpetuities to rights of first refusal.\\nE.\\nIt remains to assess the validity of Rourke's right of first refusal under the Rule Against Perpetuities.\\nWe first observe that Rourke's right of first refusal was not limited to a term of years but was of unlimited duration. Compare Westpark, Inc. v. Seaton Land Co., supra, 225 Md. 433, 171 A.2d 736. Moreover, in this case, the right was conveyed between two corporations, which theoretically have a perpetual existence. Thus, under the conveyance as drafted, the right of first refusal might vest well beyond the period of some life in being plus twenty-one years that is prescribed in the Rule, Consequently, the circuit court correctly held that the right of first refusal in this case violated the Rule Against Perpetuities and, therefore, was unenforceable.\\nII.\\nAs mentioned early in this opinion, Rourke also sought specific performance on the theory that the March 1984 correspondence between the parties, in connection with the purported exercise of the invalid right of first refusal, itself created a contract for the purchase of Lot 27. The March 12, 1984, letter from Perrero to Rourke was as follows:\\n\\\"We have in hand an acceptable contract for the sale of Lot 27, Block 2, McAuley Park. The essential data is as follows:\\nDeposit: \\u00a75,000.00\\nSettlement: 30 days\\nContract amount: \\u00a770,000.00\\nTerms: All cash\\nPlease let us know whether you intend to submit a contract on this parcel. If you do submit a contract, it must be in our hands by March 21, 1984 in order to be considered.\\\"\\nIn response to this letter, Rourke stated that it was exercising its right of first refusal, and thereafter Rourke submitted a contract to Ferrero. Ferrero then stated that it had decided to reject both offers.\\nThe actions of the parties in March 1984, at most, constituted simply a first-step towards compliance with the right of first refusal contained in the 1981 contract. Nevertheless, both the trial court and the Court of Special Appeals believed that this March 1984 correspondence independently created a contract for the purchase of Lot 27. Both courts below were apparently of the view that, whenever the parties to a prior contractual right of first refusal act to implement that right, their actions should be deemed to constitute an independent offer and acceptance even if the right of first refusal was invalid under the Rule Against Perpetuities. The trial court, however, did not grant relief on the basis of an independent contract because of its holding that there was a mutual mistake. The Court of Special Appeals, in light of its holding that the right of first refusal was valid, did not have to reach the matter of an independent contract.\\nIn our view, the mere initial implementation by both parties, as in this case, of a right of first refusal which is invalid under the Rule Against Perpetuities, does not itself create a contract to sell the property. To hold otherwise would negate the applicability of the Rule Against Perpetuities and contravene the policy underlying the Rule.\\nOf course, if the parties go beyond the initial steps of merely complying with the prior right of first refusal, and engage in conduct creating a new contract for the sale of property, that contract will be enforced. The parties' actions in this case, however, were not of this character. Ferrero's letter of March 12, 1984, was clearly not an independent offer to sell Lot 27. The letter was, at most, the taking of the initial step under the 1981 right of first refusal. Moreover, the language of the March 12, 1984, letter represents only an effort to solicit an offer from Rourke. The letter requests information as to whether Rourke \\\"intend[ed] to submit a contract.\\\" In addition, the March 12th letter states that Rourke's contract had to be in Ferrero's hands by March 21, 1984, \\\"in order to be considered.\\\" The letter thus suggests that Ferrero intended only to learn whether Rourke would \\\"submit\\\" an offer/\\\"contract\\\" which Ferrero might \\\"consider\\\" accepting. An invitation to submit an offer is not itself an offer; the submission of an offer, pursuant to the invitation, is not an acceptanc\\u00e9. See Rofra Inc. v. Board of Education, 278 Md. 102, 358 A.2d 562 (1976), aff'g, 28 Md.App. 538, 346 A.2d 458 (1975); Restatement (Second) of Contracts \\u00a7 26 comment d; 1 Williston on Contracts, \\u00a7 27 (3d ed. 1957).\\nUnder the circumstances of this case, Rourke's subsequent actions could not constitute an acceptance. At best, Rourke's submission of a \\\"contract\\\" was the initial offer. Ferrero, however, never accepted that offer, as it returned the \\\"contract\\\" unsigned and stated that it did not intend to sell Lot 27.\\nIn light of our holding, we do not reach the trial court's \\\"mutual mistake of law\\\" theory.\\nJUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED, AND CASE REMANDED TO THAT COURT WITH DIRECTIONS TO AFFIRM THE JUDGMENT OF THE CIRCUIT COURT FOR MONTGOMERY COUNTY. RESPONDENT TO PAY COSTS.\\n. On March 6, 1984, Ferrero had received a third party offer to purchase Lot 21 on Mercy Court. Ferrero notified Rourke of the offer to purchase Lot 21, but Rourke declined to exercise its right of first refusal as to that lot.\\n. In full, Ferrero's letter stated as follows:\\n\\\"We have in hand an acceptable contract for the sale of Lot 27, Block 2, McAuley Park. The essential data is as follows:\\nDeposit: $5,000.00\\nSettlement: 30 days\\nContract amount: $70,000.00\\nTerms: All cash\\nPlease let us know whether you intend to submit a contract on this parcel. If you do submit a contract, it must be in our hands by March 21, 1984 in order to be considered.\\\"\\n. In full, Rourke's response was as follows:\\n\\\"Pursuant to your notification of March 12, 1984, please be advised of my intent to exercise my 'first right of refusal' on Lot 27, Block 2 of McAuley Park Subdivision. As I have indicated from the beginning, it has always been my intention to build out the balance of Mercy Court.\\n\\\"If you would be kind enough to provide me with a copy of your contract on Lot 27,1 will prepare my contract with exactly the same terms and conditions as the offer you now have.\\\"\\n. From the outset of this case, both parties and both courts below have proceeded as though Rourke would be entitled to specific performance if the right of first refusal in the 1981 contract did not violate the Rule Against Perpetuities. Thus, the parties and the lower courts assumed that Ferrero had made an actual decision to sell Lot 27 so as to activate Rourke's right of first refusal. See Straley v. Obsorne, 262 Md. 514, 522, 523, 278 A.2d 64 (1971); VI American Law of Property \\u00a7 26.65, at 507 (1952). Moreover, the parties and the lower courts assumed that the right of first refusal required Rourke to submit a bid that equaled a third party's offer rather than market price. For purposes of this case, we shall proceed as though these assumptions are valid.\\n. In addition, in Producers Oil Co., supra, the owner of the mineral rights and the lessee owned reciprocal rights of first refusal to purchase each other's interest. Thus, the court concluded that these rights fell within the well-established exception to the Rule Against Perpetuities for options to purchase that are contained within a lease. 610 P.2d at 775-776. See Restatement of Property, supra, \\u00a7 395; Hollander v. Central Metal Supply Co., 109 Md. 131, 71 A. 442 (1908).\\n. The Court of Special Appeals concluded that Rourke's right of first refusal did not constitute an unreasonable restraint on alienation under IV Restatement of Property, supra, \\u00a7 406. Section 406, the general rule on unreasonable restraints on alienation, expressly states that its provisions are subject to IV Restatement of Property, supra, \\u00a7 413. Section 413 provides that a right of first refusal is not an unreasonable restraint on alienation \\\"unless it violates the rule against perpetuities.\\\" Thus, \\u00a7 413 and not \\u00a7 406 contains the final word as to the reasonableness of rights of first refusal. Nevertheless, the Court of Special Appeals did not assess Rourke's right of first refusal under \\u00a7 413.\\n. Corporations such as Rourke and Ferrero cannot be used as measuring lives for purposes of the Rule Against Perpetuities. Fitchie v. Brown, 211 U.S. 321, 334, 29 S.Ct. 106, 110, 53 L.Ed. 202 (1908); L. Simes & A. Smith, supra, \\u00a7 1223, at 108.\\n. It is not clear, however, that a mistake of law such as that which was found to have occurred in this case would be grounds for relief in Maryland. Prince de Bearn v. Winans, 111 Md. 434, 477, 74 A. 626, 634 (1909) (\\\"[M]oney paid, with a full knowledge of all the facts of the case, under a mistaken conception of the law cannot be recovered back in an action at law____ Nor will contracts resting upon a proper consideration fairly made with a full knowledge of the facts under a mistake or ignorance of the law, be set aside in equity in the absence of special grounds of equitable relief.''). See abo Sibert v. McAvoy, 15 Ill. 106, 109 (1853); Restatement of Restitution \\u00a7 7 (1937); 13 Williston on Contracts, \\u00a7 1549, at 135 (3d ed. 1970). Compare Atchbon v. City of Englewood, 193 Colo. 367, 372, 568 P.2d 13 (1977); Dover Pool & Racquet Club, Inc. v. Brooking, 366 Mass. 629, 632-634, 322 N.E.2d 168 (1975); Peterson v. First National Bank of Ceylon, 162 Minn. 369, 375, 203 N.W. 53 (1925); Rosenblum v. Manufacturers Trust Co., 270 N.Y. 79, 84-85, 200 N.E. 587 (1936); Restatement (Second) of Contracts \\u00a7 151 comment b (1981); E. Farnsworth, Contracts, \\u00a7 9.2, at 649 (1982).\"}"

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+"{\"id\": \"2073591\", \"name\": \"William HULL et al. v. COMPTROLLER OF the TREASURY, INCOME TAX DIVISION\", \"name_abbreviation\": \"Hull v. Comptroller of the Treasury\", \"decision_date\": \"1988-03-08\", \"docket_number\": \"No. 122\", \"first_page\": \"77\", \"last_page\": \"92\", \"citations\": \"312 Md. 77\", \"volume\": \"312\", \"reporter\": \"Maryland Reports\", \"court\": \"Court of Appeals of Maryland\", \"jurisdiction\": \"Maryland\", \"last_updated\": \"2021-08-11T02:38:16.695702+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"William HULL et al. v. COMPTROLLER OF the TREASURY, INCOME TAX DIVISION.\", \"head_matter\": \"537 A.2d 1188\\nWilliam HULL et al. v. COMPTROLLER OF the TREASURY, INCOME TAX DIVISION.\\nNo. 122,\\nSept. Term, 1987.\\nCourt of Appeals of Maryland.\\nMarch 8, 1988.\\nCharles C. Shelton (T. Scott Basik and Semmes, Bowen & Semmes, all on brief), Baltimore, for appellants.\\nJohn K. Barry, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., and Gerald Langbaum, Asst. Atty. Gen., all on brief), Annapolis, for appellee.\\nArgued before ELDRIDGE, COLE, RODOWSKY, McAULIFFE, ADKINS and BLACKWELL, JJ., and CHARLES E. ORTH, Jr., Associate Judge of the Court of Appeals of Maryland (retired), Specially Assigned.\", \"word_count\": \"4501\", \"char_count\": \"26630\", \"text\": \"CHARLES E. ORTH, Jr., Judge\\n(retired), Specially Assigned.\\nThis case is about the assessment of income taxes by the Comptroller of the State of Maryland against two nonresident former Maryland bay pilots.\\nPilots are covered by Article 74 of the Maryland Code (1957, 1983 Repl.Vol.). Section 10 provides:\\nEvery foreign vessel and every American vessel engaged in foreign trade, including such vessels towing or being towed, when underway on navigable waters and within the boundaries of the State of Maryland, except when maneuvering during berthing or unberthing operations or shifting within the confine of a port with tug assistance and a docking master aboard the vessel, shall employ a pilot holding a valid warrant of appointment and license issued by the Board of Examiners of Maryland Pilots, or in case of refusal to take such a pilot shall themselves, their master, shipowner, charterers or ship's husband pay the said pilotage as if a pilot had been employed.[ ]\\nThe Board of Examiners of Maryland Pilots was created by the legislature. Sections 1-2. \\\"No person shall be authorized or permitted to be a pilot unless he shall have first received a license from the Board,\\\" \\u00a7 5, and after serving an apprenticeship, \\u00a7 3-4. The Board \\\"may make such rules and orders for the government and regulation of pilots licensed by them as they may think proper, not contrary to the provisions of [Art. 74]____\\\" Section 9. The Board is \\\"authorized and directed to establish, at just and reasonable rates, pilotage fees and charges____\\\" Section 14. See \\u00a7 13 for liability for pilot's compensation.\\nThe pilots licensed by the Board formed the Association of Maryland Pilots. Each pilot becomes a member of the Association upon obtaining his license. As a member he has a vote in the management and operations of the Association and makes a capital contribution. A \\\"full member pilot\\\" is\\na pilot who holds a warrant of appointment and license for any draught of water issued by the Board of Examiners of Maryland Pilots and is a member in good standing of the Association of Maryland Pilots.\\nSection 12(c). A \\\"lawfully licensed pilot\\\" is\\na pilot who holds any warrant of appointment and license issued by the Board of Examiners of Maryland Pilots and is a member in good standing of the Association of Maryland Pilots.\\nId. A pilot\\nshall be deemed to be inactive within the meaning of this section from and after the last day of the month (i) in which such pilot attains the age of seventy (70) years, or (ii) in which such pilot elects to be placed upon the inactive list after having been a full member pilot of the Association of Maryland Pilots for twenty-five (25) years or more.\\nId. A pilot\\nshall be considered permanently incapable of performing his duties within the meaning of this section from and after the date upon which (1) said pilot has been certified as such by two doctors selected by the Board of Examiners of Maryland Pilots and until such incapacity ceases to exist, or, (2) said pilot's federal or State license has been revoked for reasons of physical disability and until such license or licenses have been reissued.\\nId.\\nThe pilotage fees are payable to the Association as collection agent for its members. Each month a certain portion of the fees received by the Association are first turned over to the Board in\\nan amount equal to two hundred dollars ($200.00) or 33Vs% of the said monthly distributive portion to which a full member pilot engaged in full active service is entitled to receive for such calendar month, whichever is the greater, times the number of living pilots of the Association of Maryland Pilots who at the beginning of such month are either inactive or permanently incapable of performing their duties as hereinafter defined and who prior to becoming inactive or disabled were full member pilots of the Association of Maryland Pilots; the Board of Examiners of Maryland Pilots shall within ten (10) days after receipt of the sum or sums fixed in this subsection disburse the same equally to such of the living pilots of the Association of Maryland Pilots, who, at the beginning of the calendar month for which said payment is made, were either inactive or permanently incapable of performing their duties as pilots as hereinafter defined and who prior to becoming inactive or disabled were full member pilots of the Association of Maryland Pilots.\\nSection 12(a). The balance of said money available for distribution,\\nafter the payment of all expenses, shall be distributed monthly in accordance with the bylaws of the Association of Maryland Pilots among the regular working lawfully licensed pilots of the Association; provided, however that the board of supervisors of the Association of Maryland Pilots is empowered, authorized and directed to deduct from such money collected and before such monthly distribution among the regular working lawfully licensed pilots, a certain percentage of said money, said percentage to be fixed by the Board of Examiners of Maryland Pilots to be set aside in a separate or reserve fund for replacement and repairs of major equipment. The Board of Examiners of Maryland Pilots shall hold said replacement and repair funds in trust for the benefit of the Association of Maryland Pilots. In making investments or reinvestments of the funds the Board of Examiners of Maryland Pilots shall not be limited or restricted to property of the character designated as strictly suitable for the investment of trust funds by any law of the State of Maryland, but is hereby expressly authorized and empowered to invest or hold such property as may be, in its opinion, be desirable, considering the nature and purposes of the trust; or may at its election, place the management and control of the fund, or a portion thereof, in a bank or trust company subject to State or federal regulation. The assets held in trust under the authority of this section shall not be subject to attachment or execution.\\nSection 12(b). The amount paid to each pilot who, before becoming inactive or disabled were full members of the Association, is identical, and does not depend upon length of service in the Association. He is guaranteed a minimum of $200 a month regardless of the Association's profits or losses.\\nUpon becoming inactive or upon being declared permanently disabled, a pilot loses his membership in the Associa tion and is paid his capital investment. He no longer receives the monthly distribution paid by the Association to regularly working full members pursuant to \\u00a7 12(b). He has no voice in the management of the Association, loses his license to pilot and has no relationship with the Association. He is then neither a \\\"full member pilot,\\\" nor a \\\"lawfully licensed pilot,\\\" as statutorily defined. In short, he is no longer a pilot or a member of the Association.\\nWilliam Hull and Thaddeus Smurlo were full member pilots, each holding a warrant of appointment and license issued by the Board for any draught of water. Each was a member in good standing of the Association. Hull elected to be placed on the inactive list in 1970 after 40 years of service. In 1976, after 20 years of service, Smurlo was considered to be permanently incapable of performing his duties. Each of them, Hull upon becoming inactive, and Smurlo upon being declared disabled, lost his license to pilot and his membership in the Association and was no longer the recipient of the monthly distribution made to the \\\"regular working lawfully licensed pilots of the Association\\\" pursuant to \\u00a7 12(b). The capital contribution of each of them was returned. Neither of them then had a vote or any voice in the management of the Association's affairs and performed no services for or on behalf of the Association. All their connections with the Association were severed. They had nothing at all to do with it.\\nEffective upon Hull's becoming inactive and Smurlo's disablement, each of them began to receive the monthly distribution from the Board pursuant to \\u00a7 12(a). The Association is treated as a partnership for tax purposes. The monthly distribution paid to the active members of the Association pursuant to \\u00a7 12(b) is reported by the Association on tax form K-l. The monthly distribution made by the Board to inactive and disabled former members of the Association is reported by the Board on tax form 1099. Inasmuch as the inactive and disabled former pilots are not considered by the Association or the Board to be members of or partners in the Association, that portion of the pilot- age fees collected by the Association which is turned over to the Board for distribution is not treated or reported as partnership income but as an expense of the Association.\\nEarly in 1984, the Comptroller of the Treasury of Maryland issued a Notice of Assessment for Maryland income taxes to Hull for tax years 1980-1982 and to Smurlo for tax years 1980-1983. During the years covered by the assessments Hull and Smurlo resided in Florida and were not domiciled in Maryland. They owned no property in Maryland and performed no services in Maryland. The assessment was based on the monies received from the Board pursuant to \\u00a7 12(a). Hull and Smurlo appealed to the Maryland Tax Court. It held in a combined order that the nonresident taxpayers were not subject to tax in Maryland and abated the assessments. The Comptroller appealed to the Circuit Court for Baltimore City. It reversed the order of the Tax Court and reinstated the assessments. Hull and Smurlo appealed to the Court of Special Appeals. We ordered the issuance of a writ of certiorari on our own motion before decision by that court.\\nMaryland Code (1957, 1980 Repl.Vol.) Art. 81, \\u00a7 287, provides, in relevant part:\\nA nonresident individual shall be taxable in this State on that portion of his federal adjusted gross income as is derived from . income from business, trade, profession or occupation carried on in this State____[ ]\\nThe Maryland Tax Court thought that \\u00a7 287 of Art. 81 \\\"only seeks to tax income derived from activities conducted in Maryland in which a nonresident plays some direct role.\\\" The Tax Court declared that \\\"[t]he parties themselves appear to agree to this interpretation,\\\" and following that construction, the Tax Court found that\\nthe income [Hull and Smurlo] received during the subject years would not be taxable under Section 287 because [they] were no longer members of the Association of Maryland Pilots, did not provide it with any services, and did not assist in its management. [They] also did not have any capital invested in the partnership.\\nThe Tax Court noted, \\\"Nonetheless, the Comptroller contends that [Hull's and Smurlo's] income is taxable under Section 315 [of Art. 81]____\\\" That section provides, inter alia:\\nIndividuals carrying on business in partnership shall be liable for income tax only in their individual capacity, and no income tax shall be assessable hereunder upon the income of any partnership. All such income shall be assessable to the individual partners; it shall be reported by such partners as individuals upon their respective individual income returns, and it shall be taxed to them as individuals along with their other income____\\nThe Comptroller argued that \\\"[s]ince the active members of the Association of Maryland Pilots obviously do carry on business in Maryland, . [Hull and Smurlo] are liable for tax under Sections 315 and 287.\\\" The Tax Court disagreed. It thought that Maryland Code (1975, 1985 Repl.Vol.) \\u00a7 9-101(f) of the Corporations and Associations Article was dispositive. It defines a partnership to mean \\\"an association of two or more persons to carry on as co-owners a business for profit.\\\" The Tax Court concluded:\\nSince [Hull and Smurlo] have no ownership interest in the Maryland Pilots Association, the income they receive is not partnership income for purposes of Sections 287 and 315.\\nThe Circuit Court for Baltimore City reversed the Tax Court. The court recognized that Hull and Smurlo\\nare retired Maryland Bay Pilots who do not reside in Maryland and who are not domiciled in Maryland. They receive income from the Maryland Bay Pilots Association ., a partnership for federal tax purposes, pursuant to Md.Code, Art. 74, \\u00a7 [12]. [They] do not have capital accounts with the Association, do not actively participate in the Association and are not considered members of the Association.\\nBut the court pointed out Art. 81, \\u00a7 287 provided that a nonresident shall be taxable on \\\"income from business, trade, profession or occupation carried on in this State____\\\" The court said, \\\"The test to determine whether the income arises within the State is whether the taxing power exerted by the State bears fiscal relation to protection, opportunities and benefits given by the State, Wisconsin v. J.C. Penney Co., 311 U.S. 435 [, 61 S.Ct. 246, 85 L.Ed. 267] (1940).\\\" The court noted: \\\"It is clear that [the income of Hull and Smurlo] that is sought to be taxed is completely dependent on the protection, opportunities and benefits provided by Maryland.\\\"\\nThe Association conducts its business in Maryland and it is from this business that the income has its origin. The income is then distributed to [Hull and Smurlo] pursuant to a State statutory scheme.\\nThe court thought that the nexus required by Penney was satisfied, and thus, the income was taxable under Art. 81, \\u00a7 287.\\nWe do not believe that Penney, relied on by the circuit court, is controlling. Wisconsin had a general income tax on corporate income that was taken in. It superimposed on this tax an income tax on dividends\\u2014a tax on corporate income that was paid out. 311 U.S. at 442, 61 S.Ct. at 248-49. The case involved a Delaware corporation with its principal office in New York, where the dividends were voted and the dividend checks, drawn on New York banks, were sent out. The exaction of the tax in dispute was\\napportioned to the earnings derived from Wisconsin. The court held:\\nThe substantial privilege of carrying on business in Wisconsin, which has here been given, clearly supports the tax, and the state has not given the less merely because it has conditioned the demand of the exaction upon happenings outside its own borders. The fact that a tax is contingent upon events brought to pass without a state does not destroy the nexus between such a tax and transactions within a state for which the tax is an exaction.\\nId. at 444-445, 61 S.Ct. at 250. Penney is legally and factually inapposite. We do not think that Penney is decisive of the resolution of this case.\\nThe Comptroller agrees, of course, with the conclusion reached by the circuit court. But it seems that he is not enamored with the reasoning of the court in reaching that conclusion. He does not cite or refer to Wisconsin v. J. C. Penney Co., supra, relied on by the circuit court.\\nThe Comptroller disagrees, of course, with the conclusion of the Tax Court. But although the conclusion he reaches is the opposite of that of the Tax Court, he approaches it along the same path followed by the Tax Court. Both the Comptroller and the Tax Court look to see whether Hull and Smurlo continued to be partners in the Association after they became inactive and disabled respectively. The Tax Court said they did not; the Comptroller says they did. The Comptroller boils the issue down:\\n[R]etired partners were once members [of the Association], and the sole question is whether they continue as partners.\\n(Emphasis in original.) The Comptroller, as did the Tax Court, recognizes that the answer to this question is decisive.\\nThe Comptroller does not dispute the significant changes, pointed out supra, in the status of a pilot and in his relationship with the Association by reason of his becoming inactive or disabled. He claims, however, that \\\"[njone of this matters one iota in the result.\\\" He urges that, under the conformity rule, whether Hull and Smurlo are partners in the Association depends upon what the federal law considers them to be. He argues that under the federal law they are still partners. He bottoms his argument on this premise. The premise is apparent in the question he presents:\\nDoes Maryland tax the income of a non-resident partner when the partnership business is carried on in Maryland and the income to be taxed is partnership income under federal tax law?\\n(Emphasis added.) It shows in his statement of his argument:\\nINCOME THAT IS PARTNERSHIP INCOME UNDER FEDERAL LAW IS TAXABLE BY MARYLAND WHEREVER THE PARTNER MIGHT BE LOCATED AND WITHOUT REGARD TO HIS OWN ACTIVE PARTICIPATION IN THE BUSINESS.\\n(Emphasis added.) He points out that Art. 81, \\u00a7 315 \\\"makes explicit that partners, not the partnership, are subject to tax.\\\" (Emphasis added.) In maintaining that Hull and Smurlo are still partners in the Association, the Comptroller refers to various federal laws and regulations. He observes:\\nAll these rules may seem complex but are, in fact, quite simple and provide a simple answer for this case. The Pilot's Association, while certainly an unusual entity, is, nonetheless, a partnership for federal tax purposes. That has real consequences for its members\\u2014active or retired. They are partners.\\n(Emphasis added.)\\nThe gap between the fact that the Association is treated as a partnership for tax purposes and the assumption that, therefore, Hull and Smurlo upon becoming respectively inactive and disabled, each remained a partner in the Association, is too wide to traverse. The Comptroller tries to leap the gap by way of I.R.C. \\u00a7 736(a)(1) (1982), but he falls short. That provision of the Internal Revenue Code prescribes, in relevant part, that \\\"[pjayments made in liquidation of the interest of a retiring partner . shall . be considered as a distributive share to the recipient of partnership income if the amount thereof is determined with regard to the income of the partnership____\\\" The monthly payments to Hull and Smurlo under Art. 74, \\u00a7 12(a), sought to be taxed, were not made in liquidation of any interest in the Association. Their capital investment had been returned to them and they had no other interest to be liquidated. The provisions of \\u00a7 12(a) are plain and unambiguous. No reasonable construction of them could lead to the conclusion that the payments, prescribed by legislative mandate, were in liquidation of a partnership interest. They simply reflected what the legislature, in its wisdom, determined was to be paid to an inactive or disabled former member of the Association for the balance of his life for past services rendered. Treas.Reg. \\u00a7 1.736-l(a)(l)(i), T.D. 6832, 30 Fed.Reg. 8,574 (1965), flatly states that I.R.C. \\u00a7 736 applies \\\"only to payments made to a retiring partner . in liquidation of such partner's entire interest in the partnership.\\\" Nor were the amounts paid Hull and Smurlo necessarily determined with regard to the income of the partnership. They were guaranteed a minimum amount each month regardless of the partnership income, even if the Association had to borrow money to fulfill that obligation. Furthermore, the federal regulations to \\u00a7 736 make perfectly clear that local law governs who is a partner. Treas.Reg. \\u00a7 1.736-l(a)(l)(i) states that \\u00a7 736 does not apply \\\"if the estate or other successor in interest of a deceased partner continues as a partner in its own right under local law.\\\" Treas.Reg. \\u00a7 1.736\\u2014l(a)(l)(ii) provides: \\\"A partner retires when he ceases to be a partner under local law.\\\" The short of it is that I.R.C. \\u00a7 736 does not do what the Comptroller would like it to do, namely, establish that Hull and Smurlo were still partners in the Association.\\nThe Maryland law is of no more help to the Comptroller. Md.Code (1975, 1985 Repl.Vol.) \\u00a7 9-101(f) of the Corporations and Associations Article defines \\\"partnership\\\" to mean \\\"an association of two or more persons to carry on as co-owners a business for profit.\\\" See Madison Nat'l Bank v. Newrath, 261 Md. 321, 329, 275 A.2d 495 (1971). It follows that a person is a \\\"partner\\\" when he is associated with one or more other persons to carry on as co-owners a business for profit. We have spelled out earlier in this opinion the effect that the inactive and disabled status of Hull and Smurlo had on their relationship with the Association and with its active members. It is clear that Hull and Smurlo were no longer associated with the members of the Association to carry on as co-owners a business for profit. Therefore, in the contemplation of the law of Maryland, Hull and Smurlo then were not partners of the members of the Association in the trade of piloting through any connection with the Association or its members or in the operation of the piloting business.\\nWe now look to the monthly distribution made to Hull and Smurlo to see if, in the light of Maryland law, that resulted in their being partners in the Association. We first note that the money due for pilotage services, which was the source of the contributions, was not collected by the Association as the agent of Hull and Smurlo. The Association was paid the pilotage fees as the agent for its members, and Hull and Smurlo were no longer members. So Hull and Smurlo had no tie to the collection of the funds. The monies allocated by law for inactive and disabled former members of the Association were not paid to Hull and Smurlo, but to the Board, which then sent Hull and Smurlo the amount due them. The monies paid the Board were fixed by law, Art. 74, \\u00a7 12(a). The Association had no say as to the amount to be paid to the Board nor could it control the amount to be received by each inactive or disabled former member. Section 12(a) requires that the Board disburse the funds equally to such persons within 10 days after receipt. On the other hand, the Association controls the balance of the money available for distribution after the sums have been paid to the Board and after the payment of all expenses. It is disbursed \\\"in accordance with the bylaws\\\" of the Association, among its \\\"regular working lawfully licensed pilots.... \\\" Section 12(b). Therefore, the payments to the Board are an expense of the Association like any other expense except that such payments have first priority. The distribution by the Association to the active members of what is left after the payment of all expenses is a distribution of income earned by the Association. As we have seen, the distributions are treated as such by the Board and the Association and so reported by them on the appropriate federal forms. The legislative scheme is plain on the face of \\u00a7 12. As Hull and Smurlo assert, the statute \\\"clearly contemplates that payments by the Association to the Board . for retired and disabled former pilots are not payments to partners, but rather the payment of expenses that are merely calculated according to the amount distributed to partners [except for the $200 minimum requirement].\\\"\\nThe upshot of the matter is that, on the undisputed facts, neither the federal law nor the law of this State supports the view that Hull and Smurlo were partners of the members of the Association during the years involved here. On the contrary, the law of Maryland, which is controlling, clearly reflects the view that they were not partners.\\nWe have noted that the Comptroller deems \\\"the sole question\\\" in this case to be whether Hull and Smurlo continued as partners in the Association after they became respectively inactive and disabled. We have answered that question in the negative for the reasons hereinbefore set out. Our determination that Hull and Smurlo did not continue as partners disposes of the Comptroller's contention that the monthly payments that Hull and Smurlo received from the Board were \\\"income from business, trade, profession or occupation carried on in this State____\\\" Art. 81, \\u00a7 287. Therefore, as nonresidents, they were not taxable on those payments in Maryland.\\nThe essential facts were undisputed. We hold that the Tax Court was not erroneous as a matter of law in abating the assessments. Maryland Code (1957, 1980 Repl.Vol., 1987 Cum.Supp.) Art. 81, \\u00a7 229 (o). The Circuit Court for Baltimore City was wrong in reversing the judgment of the Tax Court and reinstating the assessments.\\nJUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE CITY REVERSED;\\nCOSTS TO BE PAID BY APPELLEE.\\n. This case involves the years 1980-1983. Maryland Code (1957, 1983 Repl.Vol.) Art. 74, \\u00a7 20 prescribed that the provisions of the article and any regulations promulgated under it \\\"are of no effect and may not be enforced after July 1, 1984.\\\" Therefore, in this opinion, references to Article 74 are to its provisions as they were in effect prior to 1 July 1984 and covered the years 1980-1983. The provisions appeared in the 1983 replacement to volume 6 of the Code. Citations herein to sections are to sections of Article 74 as then codified, unless otherwise indicated.\\nArticle 74 was reenacted effective 1 July 1984. Its sections were rearranged but there were no substantive changes in the law. See the 1985 cumulative supplement to the 1983 replacement of volume 6.\\n. American vessels in the coasting trade are exempt from the duty of employing a pilot. Md.Code, Art. 74, \\u00a7 11.\\n. Maryland Code (1957, 1980 Repl.Vol.) Art. 81, \\u00a7 280(a) declares: The taxable net income of an individual taxpayer of this State shall be that taxpayer's federal adjusted gross income as defined in the laws of the United States, as amended from time to time and in effect for the corresponding taxable year, with the modifications and less the deductions and personal exemptions provided in this subtitle.\\nArt. 81, \\u00a7 287, in effect in the years here involved, was repealed by Acts 1987, ch. 717, and a new section was enacted in lieu thereof, effective 1 July 1987. For provisions comparable to former \\u00a7 287, see Maryland Code (1957, 1980 Repl.Vol., 1987 Cum.Supp.) Art. 81, \\u00a7 280(c)(23)(i)2.\\n. In the light of our decision we do not reach the constitutional question presented by Hull and Smurlo, namely, whether the Comptroller was barred from imposing the taxes by due process of law.\"}"