See, also, People v. Zucker, 154 N. Y. 770, 49 N. E. 1102; note to People v. Mollineux,

62 L. R. A. 194.

Freud to adjust the loss at her place, at Capitol Heights. (Exception noted.)

"Mr. Rees also excepted to a statement by Mr. Marchant to the effect that Freud interviewed Mrs. Plotkin in this courtroom. Mr. Marchant said, 'I will ask the court to instruct the jury not to pay any attention to that remark.' "A. Mr. Fluegel excepted to Mr. Marchant's remark to the jury, 'Here is a contract by Mrs. Mary Plotkin.'

We find no reversible error in the rulings of the court set out in the remaining exceptions from 44 to 64, inclusive. These exceptions consist largely of rulings of the court in overruling motions to strike out evidence which had been admitted without objections “B. Mr. Fluegel: Your honor, I except to the statement of Mr. Roland R. Marchant that the on the part of the traversers, and also excep-statement of Mr. Miller as to the $40 is alone tions to rulings of the court in admitting sufficient to convict these vile criminals. (Excompetent evidence, and in excluding that ception noted.) which was not admissible or relevant to the issue. What has been said as to the other exceptions will dispose of these.

"Whereupon each of the defendants excepted · to the above remarks A and B made by Mr. Roland Marchant to the jury, and pray the court to sign and seal this their exception."

cludes two different questions, and as a gen[12] This exception, it will be seen, in

[11] The sixty-fifth exception was taken to the statement of the court at the close of the testimony, explaining its rulings on tes-eral rule such an exception will not be contimony. It is as follows:

"The Court: Gentlemen of the jury, inasmuch as this case has been quite a long one, and the taking of testimony has been quite extensive, I have made certain rulings on the admissibility of evidence in the course of the trial, as such evidence was admitted. I want to repeat to you now, for the purpose of refreshing your recollection, the rulings that I have made, so that you can be guided by them.

"Evidence has been offered by the state and admitted which tends to connect the traversers, or some of them, with other burnings and attempts to burn which are in no way connected with the charge in the indictment. This testimony was admitted solely because it tends to give criminal intent, design, or system on the part of those traversers as against whom such testimony was admitted. This evidence must be considered only for this purpose by you. Certain other testimony was admitted as against certain defendants who were named by the court at the time such testimony was admitted. Such testimony must be considered by you only as to those traversers against whom it was admitted, and not against the other or others.

"I would suggest to counsel that, inasmuch as it is a matter of some amount of difficulty to determine what is conspiracy and what is not conspiracy, in their arguments, they should make quite plain to the jury, by the citation of authority, just what conspiracy consists of; and I think also in their arguments they should make plain to the jury the use that can be made by the jury of the matters which I have just alluded to, which were admitted only for certain limited purposes."

It is admitted that the statement made by the court was but a repetition of the rulings that had been made in the course of the trial, and, as the statement was but an explanation of those rulings, it is difficult to see if the rulings were correct how the traversers were injured by it.

The sixty-sixth exception was taken to certain remarks of Mr. Marchant, the deputy state's attorney, in the course of his speech to the jury. The record sets out the excep

tion as follows:

"Mr. Edward Rees, attorney for Freud, took exception to a statement that he, Mr. Rees, talked with Mrs. Mary Plotkin, and also to Mr. Marchant's reading from a paper in the case, being the return of the sheriff, Mary Plotkin, summoned to testify for Gottlieb Freud;' Also to Mr. Marchant's saying, 'I will show you Mary Plotkin signed a contract authorizing

sidered on an appeal. Tall v. Steam Packet Co., 90 Md. 248, 44 Atl. 1007, 47 L. R. A. 120; Frick v. State, 128 Md. 122, 97 Atl. 138.

[13, 14] The remarks noted A, excepted to, were practically withdrawn by Mr. Marchant, the deputy state's attorney, and the comment noted as remark B we do not regard as such a statement by counsel as could have prejudiced the rights of the traversers, under the facts of the case. Esterline v. State, 105 Md. 637, 66 Atl. 269; Dunlop v. U. S., 165 U. S. 486, 17 Sup. Ct. 375, 41 L. Ed. 799; Graves v. U. S., 150 U. S. 120, 14 Sup. Ct. 40, 37 L. Ed. 1021.

The law bearing upon cases of conspiracy, the requisites of good pleading, and the rules pertaining to the admission of evidence In such cases have been so carefully and fully discussed and stated in State v. Buchanan, 5 Har. & J. 317, 9 Am. Dec. 534, Lawrence v. State, 103 Md. 27, 63 Atl. 96, Lanasa v. State, 109 Md. 602, 71 Atl. 1058, and Garland v. State, 112 Md. 88, 75 Atl. 631, 21 Ann. Cas. 28, that we deem it unnecessary to extend this opinion by a further discussion of it.

We have examined this case with much care, and find no reversible errors in the rulings of the court as would require or justify

plaintiff was not entitled to an injunction requiring the defendants to remove the building from his lot or denying defendants the right to repair or remodel it.

[Ed. Note.-For other cases, see Principal and Agent, Cent. Dig. § 557.] 2. SPECIFIC PERFORMANCE

DAMAGE TO DEFENDANT.

16-DEFENSES

was in a dilapidated condition, but the plaintiff was assured by the agent that the old building was to be removed and the ground occupied by it used as part of the cemetery; and that, relying upon this assurance, the plaintiff bought the lot for the sum of $12 and caused to be interred there the body of his mother-in-law, whose death was the immediate occasion of the purchase. It is then averred that some of the trustees have re

It would be an unwarranted exercise of the powers of the court to specifically enforce an agreement requiring the removal of a $1,500 building to release a disputed fraction of a $12 lot, instead of awarding compensation in dam-cently announced their intention not to raze ages, since specific performance of an agreement will not be decreed when the injury to the defendant will be far greater than the benefit which plaintiff might derive.

the old church building, but to remodel and repair it, and to use it as an amusement hall to be rented out for various purposes of en

[Ed. Note.-For other cases, see Specific Per-tertainment, and it is charged that this, if formance, Cent. Dig. §§ 29, 35, 36.]

3. INJUNCTION 57 - RULES GOVERNING SUBSTITUTE FOR SPECIFIC PERFORMANCE.

A suit for an injunction which seeks to accomplish all the purposes of a decree for specific performance is subject to the principles which apply to an application for the latter remedy.

[Ed. Note. For other cases, see Injunction, Cent. Dig. §§ 111-113, 130.]

4. INJUNCTION 11-DEFENSES-DISCLAIMER OF DEFENDANT OF INTENTION TO DO THE ACT SOUGHT TO BE ENJOINED.

Where defendants expressly disclaim all intention of using the building as a place of public entertainment or amusement, or for any other than church purposes, and it has not been heretofore used for any inappropriate purpose, and no action has been taken for the adoption of a different policy in the future, plaintiff is not entitled to an injunction restraining such action in the future in the face of such disclaimer.

[Ed. Note.-For other cases, see Injunction, Cent. Dig. §§ 9, 10.]

Appeals from Circuit Court, Baltimore County, in Equity; Allan McLane, Judge. "To be officially reported."

Suit for injunction by Enos Meyers against Seymour Smith and others, trustees of the Wilson Methodist Episcopal Church. From the decree, both parties appeal. Affirmed in part, and reversed in part.

T. Scott Offutt, of Towson, for plaintiff. J. Le Roy Hopkins and Osborne I. Yellott, both of Baltimore, for defendants.

permitted, will not only deprive the plaintiff of a portion of the lot he bought and paid for, but will be a serious invasion of the privacy and quietude he is entitled to have maintained for the resting place of his dead. It was further alleged that the plaintiff has protested against the proposed action of the trustees, but without avail. An injunction was prayed by the bill to restrain the trustees from remodeling or repairing the old building, and from using it as a place of public entertainment or amusement, and to enjoin them to raze and remove the building from the portion of the plaintiff's lot which it occupies. The court below granted a preliminary injunction for the purposes mentioned in the prayer for relief, except as to the removal of the building.

In their answer to the bill of complaint the trustees denied that the plaintiff's burial lot had been sold to him upon the assurance that the old building would be removed, and they aver that their agent for the sale of lots in the cemetery had no authority to make such a promise. They state that the lot sold to the plaintiff is 20 feet wide and 24 feet long, except for a small triangular strip, 18 inches in its greatest breadth, and 181⁄2 feet in length, which is cut off by the building in

Argued before BOYD, C. J., and BURKE, controversy. The answer describes the buildTHOMAS, PATTISON, URNER, STOCK-ing as a solid stone structure which it would BRIDGE, and CONSTABLE, JJ. cost at least $1,500 to replace, and several hundred dollars to remove. While it is conceded to be in a state of disrepair, it is used for the housing of an acetylene gas plant which lights the new church, and also occasionally for church suppers, entertainments, and lectures under the supervision of the church authorities. The trustees admit that it is their purpose to repair and remodel the old building, and that this work was in progress when the preliminary injunction was issued, but they deny that they had, or now have, any intention of renting out the building as an amusement hall, and assert that it will continue to be used for the "purpose of holding church entertainments, suppers, lectures, etc., all of which will be conducted under the direct supervision and authority of the trustees, and will be of such a character as can in no way wound the feel

URNER, J. The bill of complaint in this case alleges, in effect, that the plaintiff is a member of Wilson's Methodist Episcopal Church, located near Long Green post office, in Baltimore county; that the defendants, as trustees of the church, own a small tract of land adjacent to the church building which has been devoted to cemetery purposes; that in the month of July, 1914, the plaintiff purchased a lot in the cemetery from an agent of the trustees, duly authorized to represent them in the sale of burial lots; that the lot selected by the plaintiff was partly covered by an old church building, which had not been used as a church for many years and

ings or sense of propriety of any person of | and used for its appropriate objects. Indeed ordinary sensibilities."

[1] The testimony offered in the case was in conflict upon the question as to whether the agent who sold the lot to the plaintiff stated positively that the old building would be removed, or merely expressed the belief that this would some time be done, but there is no contradiction whatever upon the point that the agent was in fact unauthorized to bind the trustees to such an agreement. The proof is conclusive that the agency was limited to the care of the cemetery and the sale of burial lots. There was nothing in the terms or circumstances of the employment and service of the agent to justify the inference that he was empowered to sell any part of the ground under the old church or to contract for its removal. This being the clear effect of the evidence, we can have no hesitation in holding, with the court below, that there is no ground upon which the plaintiff's demand for the removal of the building can be sustained.

there appears to be no objection by the plaintiff to the repair and improvement of the building, except upon the theory that it ought not to remain standing, and that the use to which it is to be devoted will disturb the seclusion of the adjacent cemetery. The court below was clearly right in dissolving the preliminary injunction so as to allow the work on the building to proceed, and we think it might also properly have rescinded the restraining order in its entirety.

[4] The only remaining effect of the injunction, as continued and made permanent by the final decree, is to prohibit the trustees from using the old building "as a place of public entertainment or amusement for any other than proper church purposes." The intention to use the building for any other objects was expressly disclaimed by the trustees both in their answer and in their testimony. It has not heretofore been used for any inappropriate purpose, and no action has been taken for the adoption of a different policy in the future. In Whalen v. Dalashmutt, 59 Md. 252, it was said by Judge Alvey to be—

[2, 3] Even if it be assumed, though we do not so decide upon the evidence, that the plaintiff was induced to make the purchase by a definite promise by the agent that the "a well-settled principle in the practice of inbuilding should be taken away, and even if junction that, where a defendant asserts posisuch an assurance could be held to have been tively that it is not his intention to do a certain act, or to violate any particular right aswithin the apparent scope of the agent's au- serted by the plaintiff, and there be no evidence thority, it would be a most unusual and unto show to the contrary, the court will not interwarranted exercise of the equitable powers continue an injunction in the face of such disfere by injunction. It will neither grant nor of the court to specifically enforce the agree- claimer. Woodman v. Robinson, 2 Sim. (N. S.) ment by requiring the removal of a $1,500 204, 210; Fooks v. Wilts, Somerset & Weybuilding in order to release a disputed frac-mouth R. Co., 5 Hare, 199, 202: Hanson v. Gartion of a $12 lot, instead of awarding the diner, 7 Ves. 305; Kerr on Inj. 198." compensation in damages which could be so readily measured and so completely afforded. In fact, the trustees offered before the suit to increase the width of the plaintiff's lot in order to more than compensate for the slight reduction in its length of which he complains. A suit for an injunction which seeks to accomplish all the purposes of a decree for specific performance is subject to the principles which apply to an application for the latter remedy, and it is a settled rule that specific enforcement of an agreement will not be decreed when, as in this case, the injury to the defendant would be far greater than the benefit which the plaintiff might | RICKARD et ux. v. NEFF et ux. derive from that result. McDowell v. Biddi

son, 120 Md. 127, 87 Atl. 752; Phoenix Pad Co. v. Roth, 127 Md. 543, 96 Atl. 762; Linthicum v. W. B. & A. Elec. R. Co., 124 Md. 272, 92 Atl. 917; Whalen v. B. & O. R. R. Co., 108 Md. 23, 69 Atl. 390, 17 L. R. A. (N. S.) 130, 129 Am. St. Rep. 423; Fralinger v. Cooke, 108 Md. 688, 71 Atl. 529.

The decision that the plaintiff is not entitled to a mandatory injunction for the removal of the building naturally leads to the further conclusion that its owners ought not to be denied the right to repair and remodel it in order that it may be preserved

An appeal was taken by the defendants on the ground that the prohibition in the decree is unnecessary, and the plaintiff appealed because the effect of the preliminary injunction was reduced.

The decree will be reversed in so far as it continues the injunction, but in other respects it will be affirmed.

Decree affirmed in part, and reversed in part; the appellant in No. 85 to pay the costs of both appeals.

(130 Md. 89)

(No. 91.)

(Court of Appeals of Maryland. Jan. 12, 1917.) 1. SPECIFIC PERFORMANCE 8-NATURE OF REMEDY.

Specific performance will not be granted as a matter of right, but in the sound discretion of the court to be exercised upon consideration of all the circumstances of the particular case.

[Ed. Note.-For other cases, see Specific Performance, Cent. Dig. §§ 17, 18.]

3. SPECIFIC PERFORMANCE 119-RIGHT TO | tate was not susceptible of partition without -BURDEN OF PROOF.

Those seeking specific performance of a contract for the exchange of lands have the burden of proving that the contract was entered into.

[Ed. Note. For other cases, see Specific Performance, Cent. Dig. §§ 382, 383.] 4. SPECIFIC PERFORMANCE

TO EVIDENCE.

121(4)-RIGHT

Where defendants in a partition suit sought specific performance of an alleged contract, whereby complainants were to convey the land sought to be partitioned to them, evidence held insufficient to establish complainant's execution of the contract so as to warrant specific performance.

[Ed. Note. For other cases, see Specific Performance, Cent. Dig. §§ 391-393.]

Appeal from Circuit Court, Worcester County, in Equity; Robley D. Jones, Judge. Bill by John E. Neff and wife against William H. Rickard and wife, who filed a cross-bill. From a decree for complainants, defendants appeal. Affirmed.

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

John W. Staton and George M. Upshur, both of Snow Hill (Upshur & Upshur, of Snow Hill, on the brief), for appellants. William F. Johnson, of Snow Hill, and Frank S. Tavenner, of Woodstock, Va., for appellees.

material loss and injury to the parties enti-
tled to interests as above stated, and that in
order to make division of said interests it
would be necessary to sell the property, and
divide the proceeds of the sale between the
parties according to their respective inter-
ests. The relief prayed for was: (1) That a
decree be passed for the sale of the prop-
erty; and (2) that the proceeds of said sale
may be distributed between your orator,
John E. Neff, and the said William H. Rick-
ard according to their respective rights and
interests; and for other and further relief.
The defendants answered the bill. Their
answer denied that the plaintiff John E. Neff
and the defendant William H. Rickard are
seised in fee simple as tenants in common,
each in an undivided one-half interest there-
in, of the tract of land mentioned and re-
ferred to in the bill. It admitted that an un-
divided one-half interest in said land was
conveyed to John E. Neff by the deed from
John L. Wisman and wife dated August 26,
1911, referred to in the bill, and that the
lien reserved by the deed for the unpaid
purchase money had been released and the
purchase money paid.
that a one-half undivided interest in the land
was acquired by William H. Rickard from
Joseph F. Wisman by deed dated the 27th
of August, 1913, and that the lien reserved
by the deed for unpaid purchase money had
been released and the purchase money paid,
as alleged in the bill. The answer then set
up the following contract:

It further admitted

BURKE, J. John E. Neff and Lelia S. Neff, his wife, the appellees on this record, filed a bill in the circuit court for Worcester county against William H. Rickard and "This contract made this 21st day of August, Amanda Rickard, his wife, in which they 1913, by and between W. H. Rickard, of Harasked that a decree be passed for the sale risonburg, Va., of first part, and John E. Neff, of Shenandoah county, Va., of second part, witof a tract of land called "Seaside Rest," sit-nesseth: That for and in consideration of one uated in that county, and for the distribution dollar in hand paid, the receipt of which is of the proceeds of sale between the com- hereby acknowledged by first party, and the further considerations as hereinafter set out plainant, John E. Neff, and William H. that will accrue to both parties, first party does Rickard, one of the defendants. The bill al- this day sell unto second party one-half unleged that John E. Neff and William H. Rick- divided interest in the farm known as the Jonaard were seised in fee simple as tenants in than Shaeffer or Starke farm, containing 611 acres more or less situated about 8 miles south common, each owning an undivided one-half of Lexington, Va., on the Plank road, together interest therein, of a tract of land called with all its belongings and easements as set out "Seaside Rest" situated at or near Sinepux- in the deed that is to be executed to the said ent Bay, in Worcester county, the undivided Rickard by W. E. L. Stark and wife on or about September 2, 1913, upon the following one-half interest of John E. Neff having terms and conditions, to wit: Second party is been conveyed to him by a deed from John to execute a deed of general warranty to first L. Wisman and wife, dated August 26, 1911, party, of his one-half undivided interest in a farm known as Seaside Rest, situated near Newand recorded among the land records of Wor- ark, Md., containing about 360 acres more or cester county, and that the lien reserved for less, being the same farm deeded to said J. E. unpaid purchase money in said deed had Neff and Joseph F. Wisman by J. L. Wisman been released and the purchase money paid, and wife and formerly owned by Gordon Gones, known as Seaside Rest, free of incumbrance, that the one-half undivided interest of Wil- said Neff obligating himself to pay all obliliam H. Rickard in said land had been ac- gations upon his one-half interest in said propquired by him by a deed from Joseph F. erty as is understood between himself and JosWisman and wife, dated August 27, 1913, eph Wisman and is to execute his notes or bonds to first party for $9,250.00, with interest from and recorded among the land records of September 2, 1913, said $9,250.00 to be evidencWorcester county, and that the lien reserved ed by 4 bonds of $2,312.25, dated September 2, for unpaid purchase money in said deed had 1913, and due 3 years after date, interest payable annually. Second party agrees to unite been released and the purchase money paid. in the contract that first party has made with The bill further alleged that said real es- C. E. Rice as tenant on said farm for the en

suing year. The bonds above referred to are to mentioned in the proceedings be sold, and apbe recited in deed from first to second party as pointed William F. Johnson and George M. vendor's bonds retaining a lien upon the interest conveyed. This contract is subject to Rick-Upshur trustees to make the sale. The apard securing a deed with satisfactory title to peal before us was taken by the defendants said 611 acres from W. E. L. Stark, with whom from that decree. he has a contract in writing to deliver said deed about September 2, 1913, possession of all the property herein mentioned is to be given September 2, 1913, subject, however, to the present tenant's rights on said properties. "Witness, the following signatures this 21st day of August 1913: "W. H. Rickard. [Seal.] "J. E. Neff. [Seal.]" The answer averred that William H. Rickard did secure a deed with satisfactory title to said land in Virginia from said W. E. L. Stark and wife and that said Rickard had performed all the requirements of said agreement on his part, to be performed, and had tendered himself ready and willing to convey