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plaintiff than that which he was under to Mrs. Foss by virtue of the relation of landlord and tenant between them. [2] The law is Well Settled in this State that in the letting of a dwelling house there is no implied warranty that it is reasonably fit for use, and no obligation. On the part of the landlord to make repairs on the leased premises, unless he has made an express Valid agreement to do so; but the tenant, on the principle of caveat emptor, and in the absence of any fraud on the part of the landlord, takes the property in the actual condition in Which he finds it. Bennett V. Sullivan, 100 Me. 118, 60 Atl. 886; McKenzie v. Cheetham, 83 Me. 548, 22 Atl. 469; Libbey v. Tolford, 48 Me. 316, 77 Am. Dec. 229; Whitmore V. Pulp Co., 91 Me. 297, 39 Atl. 1032, 40 L. R. A. 377, 64 Am. St. Rep. 229. [3] In the absence of any evidence in this case as to the terms of the tenancy of Mrs. Foss, it must be held that the defendant Day was under no obligation to keep the premises in question in repair, and that Mrs. FOSS, and the plaintiff occupying by her permission, there being no fraud on the part of Day, took the house in the COndition in Which it Was for better or worse. Gregor v. Cady, 82 Me. 136, 19 Atl. 108, 17 Am. St. Rep. 466. Accordingly the defendant Day was not liable to the plaintiff for her injuries if they resulted from neglect to keep the house in repair. [4] But the plaintiff claims that the defendant Day is liable to her on the ground that the insecure condition of the plastering and consequent danger that it might fall was a Secret defect—a trap—in the premises, known to Mr. Day, and the existence of which he did not communicate to his tenant Mrs. Foss, and of which she had no knowledge. This claim is not Supported by the facts and circumStances in evidence. We need not here decide the question whether, if at the time Day let the house to Mrs. Foss there was an existing danger that the plastering might fall and he had knowledge of it, it was his legal duty to inform her Of it, because there is no evidence that any such danger existed when the tenancy of Mrs. Foss began, or, if it did then exist, that Day had any knowledge of it which he did not Communicate to her, or that she did not otherwise have knowledge of it. As has been noted, there is no evidence in the case relating to Mrs. FOSS tenancy. It does not appear how long she had been in occupation of the premises. It does appear, however, by the testimony of Judith K. Young, that when she began Occupying Some rooms in the house November 1, 1906—two years before the plaintiff's injuries—Mrs. FOSS Was then in Occupation Of the house. Day's duty and freedom from duty to Mrs. Foss, and consequently to the plaintiff, in respect to communicating information of any defects or dangerous conditions in the leased premises, must be determined as of the time

not appear that he had knowledge of the defect at that time, then no such duty is shown. If he then owed no such duty to his tenant, no subsequent knowledge on his part of a defective condition of the premises would create that duty. The Only evidence tending to show that Day had knowledge of the condition of the plastering before the plaintiff's injuries is in the testimony of Judith K. Young to the effect that, while she occupied rooms in this house from November 1, 1906, to April, 1907, she called Day's attention to a place in the kitchen ceiling, near where the plastering fell upon plaintiff, where there was a leak, and from Which Some plastering had then fallen. But that was after the beginning of Mrs. Foss' tenancy, for the witness testified that Mrs. FOSS Occupied the tenement at the time she went there and that she “hired with her.” * [5] Further, the plaintiff alleged in her declaration “that the defendant Day had undertaken to remedy said dangerous condition and had done the Work SO unskillfully and inCompletely as not to make Said kitchen Safe for occupancy.” In Support of this allegation the plaintiff testified that about a Week Or ten days after her accident Mr. Day was at the house, and Mrs. Foss called his attenticn to the leak in the kitchen, which presumably caused the plastering to fall, and that he said he had been up there to work on the roof with men, and Mrs. Foss replied, “You haven’t stopped the leak yet.” The plaintiff further testified that no Work was done on the roof from the time of her injuries to the time Of this COnVerSation. ASSuming that this testimony would justify an inference that Day had, prior to the time of the plaintiff's injuries, undertaken to repair the leak in the roof, and, in the language of the declaration “had done the Work So unskillfully and incompletely as not to make Said kitchen Safe for Occupancy,” that inference alone would not authorize the application of the principle which the plaintiff here in VOkeS. That principle is thus expressed in Gregor v. Cady, 82 Me. 137, 19 Atl. 108, 17 Am. St. Rep. 466: “And although the lessor's attention, after possession taken by the lessee, was called by the latter to the rickety condition of a portion of the premises, and he thereupOn agreed to repair it, still he was under no obligation to fulfill his promise. But when, upon the request of the lessee, the lessor gratuitously undertook to make the repairs, and negligently and unskillfully performed the work, whereby the lessee was subsequently injured, the lessor became liable by reason of his misfeasance, provided he undertook to repair the particular part of the premises to which his attention Was called and where the injury occurred.” “If a party makes a gratuitous engagement, and actually enters upon the execution of the business, and does it Del.)

damage ensues to the other party, an action Will lie for this misfeasance.” 2 Kent'S COm. 570. “The confidence induced by undertaking any service for another is a sufficient legal consideration to create a duty in the performance of it.” Note in Coggs v. Benard, Smith Lead. Cases (6th Am. Ed.) 335. It will be seen that this principle is not applicable to the case at bar. If Day undertook to repair the roof before the accident to the plaintiff, there is no evidence that the plaintiff Was a party to his gratuitous undertaking, or had any knowledge of it before her accident. To give the plaintiff a right of action against Day for misfeasance on his part, if he did actually enter upon the gratuitous service of repairing the roof, it must be proved at least that she had knowledge of his undertaking; otherwise, no confidence could have been induced in her by his acts, and, of course, Without such knowledge on her part, it could not be held that she relied upon the assumption that he had exercised reasonable care and skill in the performance of that work. No such proof is made. It is therefore the opinion of the court that the evidence in behalf of the plaintiff was not sufficient to entitle her to a verdict against the defendant Day, and that the nonsuit was properly ordered. [6] We assume that the plaintiff does not now urge the other exceptions taken, as no argument in their Support is presented in the brief of plaintiff's counsel. But we find no reversible error in the rulings excepted to. The testimony excluded was clearly incompetent and immaterial. “Agency cannot be established against an alleged principal by showing the Words and acts of the alleged agent.” Eaton V. Provident Association, 89 Me. 58, 35 Atl. 1015. The entry in this case must therefore be: Exceptions overruled.

(9 Del. Ch. 273) MAHONEY et al. V. HEALY et al. (Court of Chancery of Delaware. Nov. 1, 1911.)

(Syllabus by the Court.)

EQUITY (§ 150*)—PLEADING—MULTIFARIOUSNESS. W. C., while mentally incompetent, through the fraud of H., conveyed land to H., and transferred money in bank to R. T. C., and R. T. C. by will gave all his estate to H., who became executrix of R. T. C., and as sole beneficiary under the Will of R. T. C. Would receive the moneys which were obtained by R. T. C. from W. C. Held, a bill by grandchildren of W. C. to set aside the conveyance and transfer, brought against H. as an individual, H. as administratrix of W. C., and H. as executrix of R. T. C., was not multifarious.

[Ed. Note.—For other cases, see Equity, Cent. Dig. §§ 371-379; Dec. Dig. § 150.*]

Bill in equity by Teresa C. Mahoney, and others against Margaret A. Healy, individually, as administratrix of Winifred Cotting

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ham, deceased, and as executrix of Robert T. Cottingham, deceased. Demurrer On ground of multifariousness overruled, and defendant ordered to plead to or answer bill.

The bill is demurred to on the ground of multifariousness. It was brought by certain grandchildren Of Winifred COttingham, deceased, having a common interest, to recover their shares in certain real and personal property obtained, as is alleged, from Winifred Cottingham while she was mentally incompetent through fraud of the defendant, Margaret A. Healy, and OtherS unknoWn. In this way a deed conveying to the defendant, Margaret A. Healy, real estate in the name of Winifred Cottingham was obtained from Winifred Cottingham and Robert T. Cottingham, her husband, and money on deposit in a bank in the name of Winifred Cottingham WaS transferred to the joint names and Control of Winifred Cottingham and Robert T. Cottingham, her husband. Afterwards Robert T. Cottingham, by Will, gave all his property to his daughter, the defendant, who became executrix thereof, as well as adminiStratrix of the estate of her mother, Winifred Cottingham. The Suit is against Margaret A. Healy, individually, as executrix of Robert T. Cottingham, and as administratrix of Winifred Cottingham. By its prayers the bill seeks to avoid the deed for the land, and to require the defendant to account as administratrix of Winifred Cottingham for the money in her hands as executrix of Robert T. Cottingham, to the extent of the amount So obtained from Winifred Cottingham while she was mentally incompetent.

Saulsbury, Ponder & Morris, for defendantS.

This bill is multifarious on several grounds: It united distinct demands against the Same defendant in triple capacities; it joins demands pertaining to both real estate and personalty against the same defendant in triple

- Capacities; it sets forth matters So dissimi

lar as to require different decrees for their adjustment; in other words, there is misjoinder both of defendants and of demands. Story's Eq. Pl. § 271; Swift v. Eckford, 6 Paige (N. Y.) 22; Boyd v. Hoyt and Parcel, 5 Paige (N. Y.) 65, 78; Wilson v. Wilson, 23 Md. 162; Bovaird V. Seyfang et al., 200 Pa. 261, 49 Atl. 958, 960; Davoue v. Fanning, 4 Johns. Ch. (N. Y.) 199; Latting V. Latting, 4 Sandf. Ch. (N. Y.) 31, 36; Hunn V. Norton, Hopk. Ch. (N. Y.) 344; Ward et al. v. The Duke Of Northumberland and the Earl of Beverley, 2 AnSt. 469; Kirkpatrick W. Corning, 37 N. J. Eq. 54.

Robert H. Richards and Charles W. Bush, for complainants.

There can be no general rule as to what constitutes multifariousness, but each case must be decided according to its own peculiar circumstances, in the discretion of the court. Story's Eq. Pl. §§ 284. 530. Multifariousness consists in improperly joining in one bill several distinct and independent matters, and thereby confounding them. But the grounds must be wholly distinct from and independent of each other and if they are connected in any way, by having the same object, or relating to the same subject matter, they may be joined in the Same Suit; that is, in one bill. Lenz v. Prescott, 144 Mass. 505, 11 N. E. 923; Campbell v. Mackay, 1 Myl. & Cr. 603; Way V. Bragaw, 16 N. J. Eq. 213, 84 Am. Dec. 147; Randolph V. Daly, 16 N. J. Eq. 313; Potts v. Hahn (D. C.) 32 Fed. 660. In accordance With the aim Of equity to administer complete relief in One suit, a bill is not multifarious so long as it Seeks to carry out a single object, although this necessitates the investigation of Several matters and asks for relief of a complex nature and consisting of different elements. Knikel V. Spitz, 74 N. J. Eq. 581, 70 Atl. 992; Parker v. Simpson, 180 Mass. 334, 62 N. E. 401. Though in general the administration of estates of two different persons cannot be joined in the same suit, where the parties interested in such estates are different, yet Where the Same parties claim the benefit of both estates, and they are SO COnnected that the account of One cannot be taken Without the other, the joinder of them in the same Suit Will not be multifarious. 1 Dan. Ch. Pl. & Pr. 344. A bill is not multifarious Where there are several complainants or several defendants, provided the parties (whether complainants or defendants) have a common interest touching the matter of the bill, although they claim under distinct titles, or have independent interestS. Story'S Eq. Pl. $$ 285, 534. And the same defendant may be sued in different capacities in one bill, for instance, as an individual and as an executor. Beatty v. Hinckley (C. C.) 1 Fed. 385; Williams v. West, 2 Md. 174; Robinson W. Guild, 12 Metc. (Mass.) 323. The purpose and Object Of this bill are Single, Viz., to Secure for the heirs of Winifred Cottingham their respective shares of her estate. The fact that Several kinds Of relief are asked for in order to fulfill this object does not render the bill multifarious. 16 Cyc. 255; Parker V. Simpson, 180 MaSS. 334, 62 N. E. 401; Lenz v. Prescott, 144 Mass. 505, 11 N. E. 923; Way V. Bragaw, 16 N. J. Eq. 213, 84 Am. Dec. 147.

*For other cases see same topic and section NUMBER in Dec. Tig. & Am. Dig. Key No. Series & Rep’r Indexes

THE CHANCELLOR. It is easier to lay down general principles defining multifariOuSneSS than to apply them to particular cases. Courts Will not, on the one hand, enCourage an unnecessary multiplicity of Suits, and, on the other hand, will not allow the plaintiff to join in his bill a multiplicity of different and distinct matters, SO as to em

duce confusion, or to render the case compliCated and difficult to be understood. Several matters perfectly distinct and having no relation One to the other, and no common foundation, cannot be united in one bill against one defendant. Story's Eq. Pl. § 271. A bill for an accounting against two distinct partnel'Ships Would be multifarious, though One of the defendants be a partner in both firms. Griffin V. Merrill, 10 Md. 364. So, too, it WOuld be faulty to combine in One Suit a claim against one as an individual and anOther claim against him in a representative capacity. Davoue V. Fanning, 4 Johns. Ch. (N. Y.) 190. There is but one purpose in the bill, based On One Supporting fact, viz., to recover for the complainants their shares of the property of Winifred Cottingham, which would otherwise have come to them had not the defendant fraudulently taken advantage of the mental incapacity of Winifred Cottingham and Caused her to convey and transfer all her property. The mental incapacity of Winifred Cottingham and the fraud of the defendant run through the whole bill, acCOrding to the allegations thereof. It is not the case where by several sets of fraudulent representations, by different persons, at different times, a person was deprived of several parcels of property now in the hands of Several persons. In the absence of a combination, or conspiracy, a bill could not be maintained which would include all the Offenders and all the property, for there would be a diversity of interests, of subject-matter, of proofs and of relief, and neither party defendant would be interested in, or should be affected by, the case against any of the Other defendants. Where a person mentally incompetent is by the fraud of A. induced to convey land to A. and personal property to B., and B. gives to A. the property he obtained from the lunatic, a bill could surely be maintained against A. to recover both the real and perSonal property, and it Would not be multifarious. None of the authorities submitted establish any rule which would make it multifarious. Yet this is Substantially the case made by the bill. Margaret A. Healy is the sole beneficiary under the will of Robert T. Cottingham, and Will actually receive, aS Such, a Sum Of money equal to about fourfifths of the amount of money of which Winifred Cottingham, while mentally incompetent, Was defrauded by Margaret A. Healy by placing it under the control of Robert T. Cottingham. There is but one person defendant, viz., Margaret A. Healy, and in this case the bill is not made multifarious by making her a defendant aS an individual, aS administratrix of Winifred Cottingham and as executrix of Robert T. Cottingham. Indeed, it is probably necessary to do so, for if Winifred Cottingham was mentally incompetent, then Del.)

ings Fund Society to her credit, and removed therefrom by reason of the fraud of the defendant, must be accounted for by Margaret A. Healy as administratrix of Winifred Cottingham, and as executrix of Robert T. Cottingham she would also have duties to perform With respect to that money. As an individual She holds title to the real estate Of Winifred Cottingham, alleged to have been fraudulently obtained, while Winifred Cottingham WaS in COImpetent. The whole case concerning all the property hangs together properly (to paraphrase Lord Eldon’s language), and there is not a misjoinder of two or more causes of Suit in one action, or more than one defendant with different interestS. In Beatty V. Hinckley (C. C.) 1 Fed. 385, the beneficiaries in remainder under a trust brought a bill against One Who Was both executor of the deceased trustee and a grantee and holder of part of the trust property, the complainants Seeking by the Suit to recover from the estate and property Of the deceased reimbursement for breaches of trust Whereby the trust estate had been wasted. It was held not to be multifarious to join the claims against the estate of the trustee in the hands of his executrix, his widow, with the claim against the Widow to account for the trust property improperly conveyed to and improperly held by her. The court said: “The claims are not distinct. There is but One Claim and that in favor Of the OratorS against the estate of the testator in her hands as executrix. That property is claimed because as between her and the OratorS, it is a part of the same estate, to be reached in her hands in the Same manner as any other part.” This case is instructive and helpful. In Attorney General V. St. John's College, 7 Sim. 241, the Vice Chancellor Said that one test to ascertain Whether an information Was multifarious, or embraced one object only, WaS to ascertain Whether One defense can be made to the whole of it. Applying this test, it is clear that the bill now under consideration is not multifarious, because one defense can be made to the whole of it, Viz., that Winifred Cottingham was not mentally incompetent, but sane when the alleged fraud was praticed on her. In this case, then, as the combination of subject matter and parties cannot conceivably embarraSS the defendant in making her defense, or produce Confusion, render the case complicated or difficult to be understood, but will rather consolidate and simplify the determination of the rights Of all parties in interest, the discretion of the court is not moved to declare the bill multifarious. The demurrer Will be OVerruled and the defendant Ordered to plead to Or anSWer the bill Within a time to be fixed. Let an Order be entered accordingly.


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CURTIS, Ch. (delivering the opinion of the court). The freeholders having made return under the Order for the aSSignment of dower, the defendant, William B. Tomlinson, filed exceptions to the award, which were of three kinds: (1) That the freeholders did not view the premises. (2) That they did not value the land in accordance with the order. (3) That the assignment was inequitable in amount. At the hearing of the exceptions, the only Witnesses produced were the freeholders, and Objection WaS made to them as not COmpetent Witnesses to attack their own award, which was regular on its face and showed a full and particular Compliance With the Order of the court. Without argument the court declined to hear the testimony of the freeholders to contradict the award and ShoW that the Statements in their return Were not true, the return showing full compliance with the Order of the court for the assignment of dOWer. The Court Said that it WaS an unwise and unsafe proceeding to permit the freeholders, who were under oath, to deny what they had done, in the absence of allegations of fraud, or gross error. The decisions of the courts of the state are conflicting as to whether arbitrators, or referees, are to be admitted to testify on exceptions to awards. In the following cases cited in 1 Del. Ch. 381 et seq., as notes to Beeson v. Elliott, the Court refused to hear the testimony of referees on exceptions to an award: Crain V. Lowber, in the Supreme Court in 1804; Spruance V. Poovy, Supreme Court, 1829. In Bailey V. England, 1 Pennewill, 12, 39 Atl. 455, where on exceptions to an award an offer was made to show by one of the referees that he had not understood certain matters connected with the case, Judge Grubb said: “This is a case in which first thoughts Will have to be best; referees' Second thoughts after rendering their award Will not do.” In other CaSeS cited in the notes to BeeSOn W. Elliott, Supra, it appears that the arbitrators were examined as witnesses, but whether after objection or by consent does not appear. Miers V. Speer; McKinley V. Reynolds. And in one other case, Hudson V. McDonough, 1 Del. Ch. 381, note, an arbitrator Was examined without objection. In Allen V. Smith, 4 Har. 234, the court held, over objection, that an arbitrator was a COmpetent WitneSS On exceptions to an aWard to prove the facts Submitted to them and the grounds of their award. In view of this contrariety of views, this court in this proceeding considers that the better and Safer plan is to exclude the freeholders as witnesses to contradict or vary their OWn report in the absence of fraud. It does not seem wise to permit a commissioner to testify that statements in the return which he has signed are not true, in absence of Some allegation of fraud, or gross error. The return will be confirmed and approved.

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes

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On Rehearing.

5. CoSTs ($240*)—APPEAL–NoMINAL DEFENDANTS. Where, in a suit to set aside a deed, all the defendants but two filed an answer admitting the matters alleged in the complaint and consented to the passage of a decree as prayed, and the decree being in favor of the defendants, those consenting were mere nominal defendants, and, not being represented on the £, should not be taxed with costs on reVel"Sall.

[Ed. Note:—For other cases, see Costs, Dec. Dig. § 240.*]

Appeal from Circuit Court, Howard County, in Equity; Wm. Henry Forsythe, Jr., Judge.

Suit by John Renehan and another against JOSeph McAvoy and others. Judgment for defendants, and plaintiffs appeal. Reversed and remanded.


E. Allan Sauerwein, Jr., and Joseph L. DonOVan, for appellants. John G. Rogers, for appelleeS.

BRISCOE, J. The controversy in this case arises OVer the Validity of a certain paper Writing, purporting to be a deed, dated the 10th day of March, 1902, and executed by Hugh McAvoy, late of Howard county, Md., in his lifetime, and delivered to the clerk of the circuit court for Howard county for record after his death by the register of wills of that county, in whose custody it had been left, by the grantor to be kept until his death, and then to be placed upon record.

The deed, as Set out, in the record, is as follows: “This deed made this tenth day of March, 1902 by me Hugh McAvoy of Howard county, Maryland. Witnesseth, that in conSideration Of five dollars and Other good COnsiderations me thereunto moving I the said Hugh McAvoy do grant unto Joseph McAvoy and Elizabeth McAvoy, during their respective lives and no longer subject, however, to my life estate therein, all that farm situate, lying and being in Howard county, and described as follows, that is to say: the farm upon which I now reside, situated in the Third Election District of IIoward County, which my father, the late Francis McAvoy devised to me, and all the additions which I have made thereto by purchase or otherwise, and I charge said farm with ten dollars for Masses to be said for the repose of my Soul and those of my family; and after my death and the deaths of both my brother Joseph McAvoy, and my sister Elizabeth McAvoy and the charge aforesaid shall have been paid, I give and grant my said farm and all the additions thereto as aforesaid to my nephew Allie McAvoy Renehan for and during his natural life and after his death to the brothers and Sisters of the Said Allie McAvoy

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