[4] As a result of this conclusion the exceptions must be overruled. The jury was recalled, and the testimony of the five witnesses named and of a sixth witness was submitted to them. To their testimony before the jury as to the declarations of the deceased the respondent's counsel has exceptions on the ground that sufficient foundation had not been laid for admitting the declarations. But at that stage of the case the declarations and all the conditions under which they were made were matters for the consideration of the jury. The court had ruled, correctly as we hold, that the declarations were admissible. After the evidence is admitted, its credibility is entirely within the province of the jury, who should have the opportunity to weigh all the circumstances under which the declarations were made, including those already proved to the presiding justice, and may give the testimony and the declarations such credit as they think they may deserve. 1 Greenleaf on Ev. §. 160; 4 Chamberlayne on Ev. § 2858; 2 Wigmore on Ev. § 1451; 2 Phillips on Ev. Cowen & Hill's Notes, p. 611, note 457.

conscious. Upon his head were six distinct | from all indication of malice or desire for cuts, such as could be made by a blunt in- revenge. strument with small striking surface. Five of these wounds were complicated by compound fractures of the skull. "These compound fractures," to quote the medical examiner, "were situated chiefly in the top and back part of the head. There was one line of fracture that ran from the most prominent portion of the skull practically through from before, backward through the skull into the frontal bone itself, and from each of these blows there were radiating lines of fractures. Practically the whole top of the skull was more or less broken up." The head and hands of the man were covered with dried blood. His clothes and the bedclothes were smeared with dried blood. Upon the floor was a pool of blood about 1 foot by 2 feet, which had dried, and around this spot were spots of dried blood, such as might be made with the hand. Into this room comes Pearl E. Young, an acquaintance of nearly 40 years. To the inquiry as to how he felt, the deceased replied, "Awfully bad; he pounded me all up; I am all in ;" and later he said that he was going to die. In a few minutes other friends and a physician arrived; as he is held up upon the bed in the arms of a friend, and while Under the procedure adopted by the prethe doctor is dressing the wounds upon the siding justice the evidence admitted was alhead, he said: "Let me back, Dan; I am aw-so a matter for the consideration of the jury. ful sick. I will die anyway. Let me die in In ruling upon the admissibility of the declapeace." Shortly afterwards he told the wit-rations of the deceased, the presiding justice nesses the details of the assault, and named the respondent as his assailant. This was on Saturday afternoon. He retained consciousness until about 10 o'clock Sunday night, and died about 4 o'clock Monday afternoon. No expression from him indicating any hope of recovery appears in the testimony of any witness. Later on Saturday afternoon, after he had been bathed and his clothes were changed, he said to Johnson Morgan, one of the witnesses, "Johnson, you think I am going to get around all right?" Morgan replied, "Yes, we will have you around in a day or two," to which deceased said, "Well, I shan't get around again; I am all done."

In view of such conditions, of the length of time which had elapsed since the assault, of his physical condition, so obvious to, and well understood by, himself, his positive declarations furnish convincing proof of the declarant's consciousness of speedy, certain death. The evidence meets even the stringent test of proof beyond a reasonable doubt adopted by some courts. People v. White, 251 Ill. 67, 75, 95 N. E. 1036; Guest v. State, 96 Miss. 871, 52 Souch. 211.

In the opinion of the court the presiding justice did not err in admitting in evidence the declarations of the deceased, stating the details of the assault upon him, and naming the respondent as his assailant. The declarations as given by the witnesses fully meet the

said, "I shall follow the Massachusetts practice, and ask the jury to find as a fact that they do come within the rule of admissibility before they can take them into consideration as dying declarations," and in his charge, to which exceptions do not appear to have been taken, he instructed the jury accordingly. Neither in his bill of exceptions nor in his brief does respondent's counsel question the correctness of this procedure. We have therefore no occasion to consider it. The reasons for the Massachusetts practice are set forth in Com. v. Brewer, 164 Mass. 577, 582, 42 N. E. 92; and the practice, when the evidence is admitted, of allowing the objecting party to reargue to the jury the preliminary question, as well as the truth of the declaration, is recognized in Com. v. Bishop, 165 Mass. 148, 152, 42 N. E. 560.

ibly stated by Mr. Wigmore in 2 Wigmore on The reasons for the opposite view are forcEv. § 1451.

In 1 Greenleaf on Ev. § 160, and in 1 Phillips on Ev. (2d Am. Ed.) p. 235, and in 2 Russell on Crimes (5th Am. Ed.) p. 761, it is said to have been decided by all the judges of England that the question whether the deceased made the declarations under the apprehension of death is a question for the judges, not for the jury, to determine. In 4 Chamberlayne on Ev. § 2830, this is said to be the prevailing rule. Judge Andrews, in People v. Smith, 104 N. Y. 491, 10 N. E. 873,

(108 A.)

generally accepted rule in this country. In | court, to be exercised after considering all cirDonnelly v. State, 26 N. J. Law, 463, on page cumstances of the particular case. 503, it is said:

"The jury were told that they were to consider, in the first place, whether Moses, when he made the declarations, was under the belief that he was at the point of death, and every hope of this world gone, and that they were to decide whether each of his declarations were made under the sense of impending death, and entirely to reject all declarations which in their opinion were not made under such apprehension. This instruction we regard as incorrect; and, if the court had themselves avoided the decision of that question, and shifted the responsibility to the jury, the instruction would have been fatally erroneous. *** The instruction being in favor of the prisoner, giving him not only the judgment of the court, but of the jury also, it affords no ground for error."

3. SPECIFIC PERFORMANCE 71 BUYER'S

FAILURE TO EXECUTE PURCHASE PRICE NOTES.

Under Code Pub. Civ. Laws, art. 16, § 231, allowing as against remedy at law specific performance unless defendant is financially responsible or gives bond, a contract for the purchase of patent rights, under which the buyer agreed to execute promissory notes for the purchase price, may be specifically enforced by the sellers, since, in an action at law for breaching the contract the sellers would be deprived of advantages as to burden of proof, etc., which they would have in an action on the notes.

Appeal from Circuit Court of Baltimore City; James P. Gorter, Judge. "To be officially reported."

order overruling a demurrer to the bill, the defendant appeals. Affirmed and remanded.

Argued before BOYD, C. J., and BURKE, THOMAS, PATTISON, URNER, STOCKBRIDGE, and ADKINS, JJ.

Bill by Oscar Falkenwalde and George NeuIn a later case in the same state (State v.meister against Oscar Teschner. From an Monich, 74 N. J. Law, 522, 527, 64 Atl. 1016 [1906]) a refusal to give an instruction, permitting the jury to revise the finding of the trial court upon the question of fact whether the declaration was made under a sense of impending death, and to disregard the declaration if they disagreed with the conclusion of the judge upon this point, was upheld. In Com. v. Bishop, 165 Mass. 148, 152, 42 N. E. 560, it is held that if the evidence is excluded, the decision of the trial judge is conclusive, unless some question of law is reserved.

[5] Without entering into the discussion, it is sufficient to say that the respondent was not prejudiced by the procedure adopted; it gave the opportunity for his counsel to reargue to the jury the question of fact upon which the presiding justice had ruled adversely to him on the preliminary hearing; he was thus allowed a second chance to have the declarations excluded from consideration. Com. v. Brewer, 164 Mass. 577, 582, 42 N. E. 92; Com. v. Tucker, 189 Mass. 457, 475, 76 N. E. 127, 7 L. R. A. (N. S.) 1056. Donnelly v. State, supra. The entry must be: Exceptions overruled.

Judgment for the State.

(135 Md. 114)

TESCHNER v. FALKENWALDE et al. (No. 9.)

(Court of Appeals of Maryland. Nov. 13,

1919.)

David Ash, of Baltimore, for appellant.

Tazewell T. Thomas, of Baltimore (Edwin F. Samuels, of Baltimore, on the brief), for appellees.

ADKINS, J. The sole question on this appeal is whether the court below erred in decreeing specific performance of a contract for the delivery of certain promissory notes in settlement of the balance of purchase price agreed to be paid by appellant to appellees for the assignment of a one-half interest in certain patent rights.

The bill filed in this case on November 21, 1918, alleges:

That Oscar Falkenwalde, one of the appellees, was the inventor of certain new and useful improvements in water gas burners, for which he filed application for letters patent in the United States Patent Office on January 3, 1917. That while this application was pending in the Patent Office by an instrument in writing dated January 15, 1917, recorded in the Patent Office May 25, 1917, the said Falkenwalde assigned to the appellant a one-half title and interest in said application and invention, and in all rights thereunder, with request that letters patent should be issued to said Falkenwalde

1. BILLS AND NOTES 493(2)-BURDEN OF and the appellant in accordance with said SHOWING WANT OF CONSIDERATION.

In action on promissory notes, defendant maker has the burden of showing want of consideration.

assignment; and that letters patent upon said application were issued on December 4, 1917, to said Falkenwalde and the appellant, each owning a one-half interest in said patent in

2. SPECIFIC PERFORMANCE 8-DISCRETION- accordance with the terms of said assignment.

ARY POWER OF COURT.

Granting specific performance of a contract rests within the sound discretion of the

That subsequently Falkenwalde assigned to George Neumeister, the other appellee, an undivided one-fourth interest therein, so that

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

That appellees again tender themselves

That appellees are without remedy in the premises except through the intervention of said court.

The bill prays for specific performance and for further relief.

the appellees then owned a one-half undivided [ its terms, and that the defendant has upon interest in said patent and all rights there- frivolous pretexts delayed, and still delays under, and the appellant the other one-half, and refuses, to deliver said notes to appelof which assignment the appellant was fully lees. cognizant on or prior to August 12, 1918. That on August 12, 1918, appellees contract-ready and willing, upon receipt of said notes, ed to sell to appellant, and appellant con- to deliver to appellant the memorandum as tracted to purchase from them, appellees' provided by its terms. one-half interest in and to said letters patent for the sum of $1,000, of which $200 was paid in cash, the balance ($800) to be in the form of notes of the appellant, payable in two, four, six, and eight months after the date of said assignment, and thereupon appellees, by an assignment in writing of that date, in consideration of $200 cash and other considerations evidenced by a supplemental memorandum later referred to in the bill, conveyed to appellant their one-half interest in and to said patent and all rights thereunder, which assignment appellant filed for record in the Unit-quate remedy at law." ed States Patent Office on August 14, 1918, and same was duly recorded, a certified copy of which assignment appellees averred was read in court to be produced and which, when so produced, they prayed should be taken as a part of the bill of complaint.

That by said supplemental memorandum in writing, appellant agreed that if it be found on examination of the Patent Office records that there was no recorded assignment of any interest to said patent, but that it stood on said records as it was originally to Falkenwalde and the appellant, he (the appellant) would deliver to said Falkenwalde his eight promissory notes for $100 each, payable respectively two, four, six, and eight months after date thereof, the said notes to be dated August 12, 1918, and one-half of said notes to be payable to the said Falkenwalde, and the other one-half thereof payable to the said Neumeister, the said memorandum containing the provision that it was to be returned to appellant upon receipt of said notes; a copy of which memorandum was filed as an exhibit.

That neither of appellees has made any assignment or conveyance other than those previously referred to in the bill of complaint, and all of which conveyances were known to appellant at the date of said contract of August 12, 1918.

That appellant has caused an examination to be made of the title records of the United States Patent Office to ascertain whether

conveyances relating to said patent averse to appellant's interest have been recorded and have made no objection to the title conveyed to the appellant.

To this bill a general demurrer was filed by appellant on the grounds:

"(1) That plaintiff has not stated in his bill such a cause as entitles him to any relief in equity against the defendant; and (2) that plaintiff, even though the allegations of the bill of complaint were true, has ample and ade

The lower court, Judge Gorter, overruled the demurrer with leave to the defendant to answer within five days. answer within five days. From this order an appeal was taken by the appellant, and the case is before us on said appeal.

This appears to be just one of that class of cases which Judge McSherry, speaking for this court in Neal v. Parker, in 98 Md. at page 270, 57 Atl. 214, had in mind when he said, in referring to the Act of 1888, c. 263, now section 231 of article 16 of the Code:

"It was doubtless the policy of the Legislature in adopting it to do away with technical defenses to proceedings in equity instituted to compel parties to live up to their undertakings, and it was designed to preclude individuals who had entered into binding contracts from repudiating them at pleasure by merely electing to pay such damages for their breach as a jury in an action at law might assess."

The act referred to provides as follows:

"No court shall refuse to specifically enforce a contract on the mere ground that the party seeking its enforcement has an adequate remedy in damages, unless the party resisting its spefaction that he has property from which such cific enforcement shall show to the court's satisdamages may be made, or shall give bond, with approved security, in a penalty to be fixed by the court, to perform the contract or pay all such costs and damages as may, in any court of competent jurisdiction, be adjudged against him for breach or nonperformance of such contract."

Here is the case of a defendant, assuming the facts alleged in the bill to be true, and they are admitted by the demurrer, refusing to perform his part of a plain contract where everything required to be done by That appellees have made repeated de- plaintiffs is admitted to have been done apmands for the delivery to them of said prom-parently with the sole purpose of getting a issory notes. That first payments on the better settlement by depriving plaintiffs of notes are about one month overdue. That the advantage of position the possession of appellees have offered to return said memo- the notes would give them and shifting the

(108 A.)

[1] The contract which he entered into was [ til he has been paid, or until he has provided for the purchase of a patent right with which for the delivery to him by the purchaser of he presumably was perfectly familiar, as he satisfactory evidence of indebtedness, if he already owned a half interest in it, and he can afterwards be denied the fruits of his had satisfied himself by an examination of prudence by the simple refusal of the debtor the records that there was no obstacle to the to furnish the evidence agreed upon, on the transfer of the other half interest which he plea that the whole case should properly be was purchasing. This was the sole condi- passed upon by a jury? tion to the delivery of the notes for the balance of purchase money. If he had any valid reason for refusing to carry out the contract to deliver said notes, he had ample protection in the court of equity where the bill was filed under the privilege to deny the allegations of the bill and to set up any fair defense he might have; and if, after a trial of the issues before said court, he should be required to carry out his contract and deliver the notes, he would still have the right to make his defense before a jury in a suit on said notes; but the burden of showing want of consideration would then be upon him, where it ought to be in a case of this character if he is unable to satisfy a court of equity that he ought to be relieved from carrying out his contract.

[2] It is a well-recognized principle that the granting of specific performance lies in the sound discretion of the court, "to be exercised upon consideration of all the circumstances of each particular case. The court will be controlled, of course, in the exercise of its discretion, by the established doctrines and settled principles upon the subject; but it does not follow, as matter of course, that because the legal obligation under the contract may be perfect, therefore, the equitable power of the court will be exercised to compel or effect specific execution. In every case, the question is whether the exercise of the power is called for to subserve the ends of justice; and unless the court is satisfied that the application to it, for this extraordinary assistance, is fair, just, and reasonable, in every respect, it will refuse to interfere, and leave the party to other remedies for redress."

Again:

In the case of Scarborough v. Scotten et al., 69 Md. 142, 14 Atl. 706 (9 Am. St. Rep. 409), this court reversed the lower court in refusing to require the surrender of certain promissory notes in the hands of a collector "The principles regulating the exercise by or his executor on the ground, as held by the courts of equity of their power to compel the lower court, that the plaintiff had a certain, specific performance of contracts are well setadequate, and complete remedy at law. It It tled. Specific performance is not a matter of is true the facts in that case were not just right in the litigant, but it is one of sound judithe same as in the present case, and the dif-ples of equity, and it will be granted or withheld cial discretion controlled by established princificulties of obtaining adequate relief at law were greater there than here; but at least one comment of the court in that case is applicable to this, viz.:

"A suit at law to give full measure of relief should not involve such delay and expense, nor the uncertainty of a jury's decision on the proof."

by the court upon a consideration of all the circumstances of each particular case."

See Rickard v. Neff, 130 Md. at page 94, 99 Atl. 942, and cases there cited.

None of the cases cited by appellant, certainly none of the Maryland cases, sustain the contention of the appellant, and we know of no case in this state with facts similar to those in the present case where appellant's

'Possessed of the notes in question, the plaintiffs would have only to prove the sig-position is supported. natures to make out a prima facie case on [3] In the present case, we are not asked the maturity of the notes respectively. In to deny the remedy on the ground that the the meantime, they could sell them or borrow contract sought to be enforced is not a fair on them. In this connection it must be re- and equal one, or because it would be inequimembered that only one or two of the notes table to enforce it; but we are asked to say would have been due at the time of filing the that the lower court improperly exercised its bill of complaint. In answer to appellant's discretion in granting the remedy in a case contention that, under section 84 of article 83 where it is admitted by the demurrer there of the Code, appellees on breach of the con- is no just ground for refusal to perform the tract by appellant had an immediate remedy contract, and that the only ground for obby suit at law for recovery of the entire bal-jection to relief being granted the plaintiffs ance of purchase money, it may be said that by a court of equity is the alleged ground a suit of this character would have involved that the plaintiffs have an adequate remedy proof by the plaintiffs of the breach, in addi- at law. In such a case, even if there were tion to affirmative proof of the contract itself, no other reasons, we would feel safe in susand performance by the plaintiffs, of which taining the ruling of the lower court on the burden possession of the notes would have re- ground that appellees would be deprived in lieved them. What advantageth it a prudent a suit at law of evidence to which, under the man to refuse to deliver up his property un-' admitted facts, they are entitled to, and

An order will therefore be passed affirming the order appealed from and remanding the case for further proceedings, with leave to appellant to file an answer within such time as shall be fixed by the trial court. Order affirmed, with costs to appellees, and case remanded.

(135 Md. 127)

would be subjected to a burden which they | ther proceedings. The case is reported in 133 should not be required to sustain. Md. 370, 105 Atl. 312. Thereafter, by leave of court, the plaintiffs filed an amended bill to which the defendant demurred. The court overruled the demurrer, and this appeal is taken by the defendant from that order. The demurrer admits the facts which are well pleaded. Those facts substantially are as follows: William H. Evans a resident of Baltimore city died in January, 1917, leaving a last will and testament by which he appointed the plaintiffs in this suit his executors, and they duly qualified. He left surviving him a widow and two children and two grandchildren. About the year 1890 the defendant was employed for some months as a domestic in the house of said deceased. She left the service of William H. Evans, and was absent for about six years, and in 1906 she returned and was again employed as a domestic in his home. When first employed her name was Mary Elizabeth Myers. Upon her return she gave her name as Mary Elizabeth Lipson, saying she had married a man named Lipson, who had died. She then had two little boys, who, she stated, were the children of herself and the said Lipson.

LIPSON v. EVANS et al. (No. 11.) (Court of Appeals of Maryland. Nov. 13, 1919.)

1. PLEADING 214(2)

MURRER.

ADMISSION BY DE

A demurrer to a bill admits the facts which are well pleaded.

2. PLEADING 214(5)

DEMURRER TO BILL

DOES NOT ADMIT CONCLUSIONS.

Where it appears from the bill that plaintiff executors have no knowledge as to the circumstances under which an assignment was made by decedent to defendant, a female, which assignment they attack as obtained without consideration, and by improper influence over decedent through illicit sexual relations, demurrer does not admit the truth of conclusions of law. 3. CANCELLATION OF INSTRUMENTS

In 1909 Wilhelmina H. C. Evans, the wife of William H. Evans, received information to the effect that sexual intimacy existed be37(7)—tween said Evans and the defendant. SUFFICIENCY OF PLEADING OF UNDUE INFLU- plaintiffs have no knowledge as to when this

ENCE TO SHOW EQUITY JURISDICTION.

In suit by executors to recover from their decedent's alleged mistress an assignment of, or receipt for, certain bonds given her, allegations that she obtained possession of the receipt without consideration, and solely as the result of her improper influence over decedent, held sufficient to give a court of equity jurisdiction to inquire into the delivery of the receipt to defendant.

illicit relation began, but they charge:

The

"Upon information and belief they aver that from a period as far back as 1909 and thence continuously down to the time of his death the defendant occupied towards the said William H. Evans the position of mistress, and the said defendant was guilty of relations with the said William H. Evans which were illicit on her part and adulterous on his part."

During his lifetime William H. Evans be

Appeal from Circuit Court of Baltimore came the owner of a large amount of bonds City; James P. Gorter, Judge.

of the Mapos Central Sugar Company, a corporation of the state of Delaware, whose secretary and treasurer is a resident of Philadelphia, where his office is located, and said

company has no officer or resident agent in this state.

On August 19, 1915, William H. Evans loaned to the Mapos Central Sugar Company bonds of said company to the amount of $126,000 par value for the purpose of permitting said company to pledge said bonds to the West India Finance Company of New York as collateral security for loans to said sugar company, which gave four receipts aggregating $126,000 par value to said Evans. One of these receipts was for $20,000.

After the death of William H. Evans, the plaintiffs found all of these receipts among his effects, except the receipt for $20,000 par value of said bonds. They thereupon made inquiry of the secretary and treasurer of the sugar company as to the missing receipt, and