or building of any kind or character, or other- applicant filing plans and specifications for wise add to, build upon, or generally improve the building. The court held that the ordior change any house or building, without hav-nance was a mere pretense at the exercise of ing first applied to the aldermen and obtained the police power.

(111 A.)

Individual rights may under the police power be restricted by some uniform rule of action, but never by the arbitrary will of the governing authorities.

approval or withholds it, at its discretion., official.
When the board has approved the warden
may issue his permit. So far as the terms
of the ordinance go, the action of the warden
is neither controlled nor influenced by the
approval of the board. The warden issues
the permit or he withholds it; his course is
governed by his own discretion.

The ordinance obviously was not passed for the public safety, to prevent fires, or for the public health. The business it regulates is a lawful one and one not inherently dan

Upon this ground, at least, the demurrer was properly sustained.

There is no error on either appeal.
The other Judges concurred.

CO. et al.

(Supreme Court of Errors of Connecticut. July 20, 1920.)

gerous. It may be regulated following gen- BOWNE v. STAMFORD ROLLING MILLS eral rules and prescribing the conditions upon compliance with which a permit will issue. Instead of these the warden issues the permit under only one condition that the board of warden and burgesses have ap-. Master and servant 419-Award of comproved the petition. The approval made, the warden may then refuse the permit to one citizen and grant it to another upon precisely similar grounds. It may be issued or denied with or without reason.

pensation can be considered in determining modification.

The original award of compensation, though not subject to be set aside on appeal because not taken within the time specified in Subjecting property rights in a legitimate Gen. St. 1918, § 5366, can be considered to deundertaking and one not inherently danger-termine whether the circumstances justify a ous to the will of any official, and thus giv- modification of the award under section 5355 ing him the opportunity for discriminatory to meet changed conditions. ruling and arbitrary action is not due pro- 2. Master and servant cess of law, and hence beyond the power of government. The ordinance in question was not, as the authorities we cite show, a legitimate exercise of the police power.

Welch v. Hotchkiss, 39 Conn. 140, 12 Am. Rep. 383, and Hine v. New Haven, 40 Conn. 478, are upon their face ordinances in protection of the public safety, and hence the erection of buildings within the first district may properly be made to depend upon the issuance of a permit, even though the ordinance be silent as to the conditions under which buildings may be erected.

Fellows v. Charleston, 62 W. Va. 664, 59 S. E. 623, holds a building ordinance valid which required a permit and the person proposing to build to lay before the inspector of buildings plans and specifications, secure his approval and that of the council from whom the permit is to be obtained.

The decision is not in harmony with the authorities and certainly is not supported by some of the authority it cites; for example, Smith on Municipal Corporations, & 526. Further, the ordinance differs materially from the Fenwick ordinance.

387-Supplemental award improper after original award erroneously allowed compensation equal to that for subsequent disability.

Where the original award, in addition to the full compensation authorized by Gen. St. 1918, § 5352, for the loss of claimant's toes, which was in lieu of all other compensation for the consequences of that particular loss, awarded further compensation for a period equal to that allowed for the loss of a foot, which award had been paid, it was not proper for the commissioner, after the amputation of the foot became necessary, to make a supplemental award of compensation for the period authorized for loss of the foot.

3. Master and servant 387-Compensation for incapacity from amputation improper as included in award for loss of member.

The award of compensation for 130 weeks authorized by Gen. St. 1918, § 5352, for the loss of a foot, includes compensation for incapacity

following the amputation, so that additional compensation for such incapacity is improper.

Case Reserved from Superior Court, Fairfield County; Howard J. Curtis, Judge.

Proceedings under the Workmen's Compensation Act by Walter S. Bowne, Jr., employé, against the Stamford Rolling Mills Company and others. From a supplemental award of the Compensation Commissioner, the Stamford Rolling Mills Company and others appealed to the superior court, and the appeal was reserved for the advice of the Supreme Court. The superior court advised to vacate supplemental award of the Commissioner.

The authority of the borough of Fenwick is ample to pass any ordinance reasonably regulating the erection or removal of buildings within its limits; but it may not under the guise of protecting the public interest arbitrarily interfere with their erection or removal by making these dependent upon the uncontrolled discretion of the warden. Municipal regulations of this character must conform to some standard of action and can- The supplemental finding and award, which not be left to the uncontrolled will of any together with the appeal therefrom comprise

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

the record before us, recites the following acterizes judgments in civil actions is not atfacts:

The claimant was injured September 12, 1916, suffering thereby the loss of four outer toes and one-half the great toe of his left foot. On February 13, 1917, an award for that injury was made entitling the claimant to receive, in the language of the award, "compensation at the rate of $8.40 per week for a period of 71 weeks for the loss of four outer toes and one-half the great toe and payment of further compensation for disability commencing on September 23, 1916, for a period not to exceed 130 weeks, the number of. weeks allowed for the loss of one foot at or above the ankle." Satisfaction of this award to the extent of 130 weeks was made before the events hereafter recited took place.

tached to awards of compensation, and the power of modification to meet new conditions as they arise is expressly conferred upon the compensation officials. Gen. Stat. § 5355; Saddlemire v. American Bridge Co., 94 Conn. 618, 110 Atl. 63. Therefore it is that upon every application where a modification of an award by an increase of its amount or an additional one is sought, regard must be had to its terms to determine whether or not the existing circumstances and conditions call for such modification in justice and right and if so to what extent.

It is by no means easy to understand the exact meaning and purport of the award of February, 1917, and the reasons which prompted it. The claimant had then suffered On August 21, 1918, an informal hearing the loss of four toes and one-half of the great was held before the commissioner in regard toe of his left foot, and as far as appears no to the amputation of the injured foot and it other injury separately compensable. His was at that time agreed that the operation foot minus the toes remained with him and should be performed. On August 26, 1918, continued to for 17 months. Notwithstanding the foot was amputated at the ankle, and these facts, he was awarded compensation at thereafter the respondent furnished the the rate of $8.40 per week, being one-half of claimant an artificial foot. Following the the average amount of his weekly wages prior claimant's discharge from the hospital where the operation was performed he was incapacitated for a period of approximately 6 months.

The commissioner, upon a reopening of this award and a supplemental hearing, held that the incapacity following the amputation was compensable, and the claimant entitled to compensation in addition to the 130 weeks already paid, “being the number of weeks allowed under the act for the loss of the foot," and made award accordingly. From this award the appeal was taken.

to receipt of his injury, for 71 weeks, in strict accord with the specific provision of statute in such case (Gen. Stat. § 5352), and in addition a further compensation at the same rate for not to exceed 130 weeks, stated in the award to be the number of weeks allowed for the loss of one foot at or above the ankle. In fact, the statutory period prescribed for the payment of the weekly payment compen sation in the case of the loss of one foot at or above the ankle is 130 weeks, neither more nor less. The language of the award which states that the 130-week additional award

Wilson H. Pierce, of Waterbury, for de- was made for disability, the fact that it was fendants.

But that matter is perhaps one of no great present importance.

made for a maximum and not a definite term of 130 weeks, and the reference in it PRENTICE, C. J. (after stating the facts to its period as being that of the number of as above). [1] The respondents, while in weeks allowed for the loss of one foot at or form appealing from the supplemental modi- above the ankle import into it elements of fying order of award of April 20, 1920, seek uncertainty as to its meaning and purport. a review of the original award made February 13, 1917. To this review for the direct purpose of having the terms of the original [2] Certain it is that an award was made award set aside they are not entitled at this for a substantial sum in excess of that predistance of time subsequent to its having scribed by statute for the compensable inbeen made. Gen. Stat. § 5366. It does not juries the claimant had then suffered. and follow, however, that the terms of the first that the excess thus awarded as subsequentaward may not be and ought not to be taken ly fully paid strictly conformed to that preinto consideration when a hearing is being scribed for the loss of a foot at the ankle had and a determination made upon a reo- such as this claimant later suffered. If that pening of the matter to determine whether or extra compensation was awarded for disabilinot changed conditions do not call for a modi- ty attendant upon the loss of the toes, it fication of the award already made in order was improperly awarded, since the 71 weeks' that full and exact justice under the law | compensation fixed by the statute and awardmay be done. The aim of our remedial work- ed was exclusive. It is by statute prescribed men's compensation legislation is to accom- in lieu of all other compensation for the plish that result in so far as is reasonably consequences of that particular loss. Gen. possible, and its informal machinery and pro- Stat. § 5352; Kramer v. Sargent, 93 Conn. cedure is arranged with that end in view. 26, 104 Atl. 490. If, on the other hand, it Hence the fixed and final quality which char- was made with prophetic provision that the

(111 A.)

foot would be lost at some time in the future, only demand that the mortgage be delivered unit would appear and must have apppeared to canceled.

not to be set aside.

the commissioner upon the supplemental hear-5. Mortgages 367-Sale on foreclosure held ing, who was aware that the 130-week award had been fully satisfied, that the claimant Where the evidence was to the effect that had received the full compensation permitted mortgaged property brought its full market valby law for the loss of his foot in addition ue, and there was no showing that the mortto an award of the full permissible compen-gagee repudiated an agreement to assign, no sation for the prior loss of his toes. tender of the amount due being shown, held, that the sale of the premises by a trustee should be confirmed.

[3] In either event the commissioner, in examining the award he was being asked to modify, would have seen that the claimant, who was seeking additional compensation subsequent to the amputation of his foot, had already had, although perhaps erroneously, an award or awards for as large a sum er sums as the statutes permitted, and that he was not, in justice or right, entitled to further compensation. Furthermore, additional award was made, as the commissioner expressly states, for incapacity following the amputation. Compensation for that incapacity, following as it did the loss of the foot and by reason of that loss, is included in that given for the loss of the member, and not separable from it. Kramer v. Sargent, 93 Conn. 26, 104 Atl. 490.

The superior court is advised to vacate the supplemental award of the commissioner. The other Judges concurred.

SHIRK V. CORNELL. (No. 17.)

Appeal from Circuit Court of Baltimore City; James P. Gorter, Judge.

Suit by Hugh Doyle, Jr., and wife, against Henry Shirk to foreclose a mortgage, in which Charles G. Baldwin filed a petition to require the trustee to pay over to him any surplus after payment of the mortgage claim. From an order ratifying a sale, made by John L. Cornell, appointed trustee, defendant appeals. Affirmed.

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

Henry Shirk, of Baltimore (James W. Bowers, of Baltimore, on the brief), for appellant. John L. Cornell and Charles F. Stein, both of Baltimore (Allan Cleveland, of Baltimore, on the brief), for appellee.

BOYD, C. J. This is an appeal from an order ratifying a sale made by John L. CorInell, who was appointed trustee to make sale of a leasehold property known as No. 2305 Maryland avenue, in the city of Baltimore, under a decree authorized by article 4 of the

(Court of Appeals of Maryland. April 28, 1920. Code of Public Local Laws for the foreclo

Rehearing Denied June 18, 1920.)

1. Mortgages 367-Evidence held to show that mortgaged property brought full price.

Evidence in proceedings to confirm a mortgage foreclosure sale held to show that mortgaged property brought the full price on fore

closure.

2. Attorney and client 81 Attorney for mortgagee, appointed trustee, has no authority to assign.

An attorney for the mortgagee, though appointed trustee, has no authority by reason of his appointment and office as attorney to assign a mortgage.

3. Mortgages 270 Mortgagor asserting agreement to assign has burden of proof.

A mortgagor asserting an agreement by the mortgagees to assign the mortgage has the burden of proof.

Mortgagee cannot be

4. Mortgages 267
compelled to assign.
A mortgagee cannot be compelled by the
mortgagor to assign the mortgage, but can only
be required to release or discharge the same,
for even a junior incumbrancer redeeming can

sure of mortgages, in case of default. The mortgage is dated the 8th of January, 1903, and was given by Mortimer S. Lawrence to the Merchants' & Mechanics' Permanent Building & Loan Company of Baltimore City for $1,500. It contains the usual assent of the mortgagor to an ex parte decree, as authorized by the local law. It was on the 8th of February, 1907, assigned to Hugh Doyle, Jr., and Cora M. Doyle, his wife. A decree for the sale was passed on the 13th of June, 1919, and the sale was made on the 8th of July. According to the statement of the mortgage debt filed in the case, there was the sum of $1,545 still due on the mortgage. On the day it was executed by Lawrence he conveyed the property subject to it to Henry Shirk, the appellant. On the 6th of March, 1916, he conveyed it to Charles G. Baldwin, who has filed a petition in the case seeking to require the trustee to turn over to him any surplus of income or corpus in his hands, after the payment of the mortgage claim and costs. The deed to Baldwin was made to secure the payment of a loan of $2,000, as seems to be admitted by the parties to this

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

called up Mr. Cornell and told him that they were ready to take the assignment, and he said:

proceeding. The property is subject to an irredeemable ground rent of $100 per annum. [1] The appellant testified that the amount due Baldwin was not over $2,600, and ac"My understanding of the matter is that we cording to a statement filed by him there had an absolute agreement that he [Mr. Cerwere judgment liens prior to the Baldwin nell] would assign the mortgage to Mr. Tippett claim amounting to $1.477.35, and also and I considered the incident closed. That ground rent, taxes, and water rent amount- was one afternoon. The next morning I calling to $234.88 against the property, which ed up Mr. Cornell to actually execute the asbrought $4,200, subject to the ground rent, signment and pay the money and Mr. Cornell at the sale. The witnesses of the appellant, then told me he would not be able to do it. He outside of his own evidence, testified that it said that the agreement which he had made brought all, if not more, than it is worth. client's approval, and his client did not approve, with me the day before was subject to his Mr. Tippett testified that he believed it sold and would not do it, and I would not be able to for as high a price as is possible to get for get the assignment. I told Mr. Cornell at that it, and Mr. Lindsay said it was "a very big time that there were not any strings added to price; it was considerably more than the the agreement that we had made, that it was property is worth in my estimation." As not to be submitted to anybody's approval, will be seen later, those gentlemen were act- that I understood it was an absolute agreement ing in the interest of the appellant about the to assign it, and that I considered we were entitled to it." time of the sale. There is nothing to the contrary in the evidence as to the value, excepting Mr. Shirk's estimate, which is $10,000; but it is manifest that the price realized was the result of two parties interested in property in the immediate vicinity bidding against each other, and there can be no doubt under the evidence that its full mar

ket value was obtained.

There can therefore be no ground for setting the sale aside, unless the appellant's contention that he had arranged to borrow the money to take up the mortgage, and that Mr. Cornell had agreed to assign it to Mr. Tippett, who had agreed to take it and hold it for his (appellant's) benefit, until he could get his finances in better shape, can authorize the court to do so. As the mortgage debt is admitted, and the principal had been due for over 12 years, even if there was no other default, it cannot be said that there was any undue haste in enforcing payment of it. Just how Mr. Cornell was authorized to collect the rent is not clearly explained in the record, but he seems to have had such authority in some way, and to have kept the interest paid. The property had been previously sold under another mortgage, but the sale was set aside because the court deemed the amount realized from another property contained in that mortgage sufficient to pay it. Much of the evidence in the record has no bearing on the exceptions before us, although it shows that Mr. Shirk was very much involved and that Mr. Tippett, as a brother attorney, was endeavoring to aid him in straightening out his affairs. The only conflict in the testimony that can have any bearing on this appeal was between that of Mr. Lindsay and Mr. Cornell, in reference to a proposed assignment of the mortgage to Mr. Tippett. Mr. Lindsay testified that Mr. Shirk had told him that Mr. Cornell was willing to assign the mortgage and he spoke to Mr. Tippett about it, who said that he was willing to take an assignment of it; that he

It is not shown in Mr. Lindsay's testimony just when the conversation took place, but apparently it was the day before or the day of the sale. Mr. Cornell testified that he told Mr. Shirk that at any time he had the amount he would submit to his client the proposition of assigning the mortgage and advise him to accept it; that Mr. Lindsay spoke to him about taking the assignment, and he told him that whenever he was ready to do so he would take it up with Mr. Doyle; that on July 7th, about 3 o'clock (which was the day before the sale), Mr. Shirk and Mr. Lindsay came to his office, and Mr. Lindsay said they were ready to take an assignment of the mortgage; that he told him he would see his client that evening and would let him know the next day; that after he reached his home Mr. Lindsay called him on the telephone, and he again told him that he would see Mr. Doyle that evening; that Mr. Lindsay said, "All right, do the best you can for me;" that he talked it over with Mr. Doyle that evening, and they came to the conclusion that, if they sold the mortgage to Mr. Lindsay, they ought to sell a judgment which the building association had, as he had "laid the judgment in this case," and the association would probably recover the loss it had sustained in one of the foreclosures spoken of by Mr. Shirk, and Mr. Doyle told him he should take it up with Mr. Lindsay; that he called Mr. Lindsay on the telephone the next morning, and told him he wanted to dispose of the judgment, as well as the mortgage; that Mr. Lindsay became very much excited and said that he would not have anything more to do with him. The building association spoken of was, we understand, one in which Mr. Doyle was an officer and Mr. Cornell was attorney.

Mr. Cornell further testified that later Mr. Shirk came to his office, and Mr. Doyle happened to be there on another matter; that was Tuesday morning prior to the sale, which