motion being overruled, the second exception was taken. Dr. Reiche, the family physician, testified: That he was called in Monday night. That the girl laughed, and said there was nothing the matter with her, and he made no examination. That he was called in again in the middle of the day on Tuesday, and that as soon as he saw her he knew she was suffering agony. That she said: "'Oh, doctor, I am dying now. I want you to relieve me.' I said: 'What is the matter? You said last night there was nothing.' She replied, 'I will have to tell you there was an abortion performed.' She was in intense agony. I found a hard tumor on the abdomen. She told me all the time she was dying, and I must help her, and I gave her a bypodermic injection, and told her she would be relieved in a little while, and sent for Dr. Prentiss, as her case was not 'in my line of practice.' That he was called in about four, o'clock next morning. That she then said she was dying fast, and she died about an hour and a half later. That both before and after stating to witness the cause of her suffering she repeatedly said she was dying, and said he must do something for her. Here the state offered her declaration, which was admitted over the objection of counsel for defense, and Dr. Reiche testified she said the operation was performed by Dr. Hawkins and Mrs. Bell; that he asked her whether a man or woman did it, and she said both did. To the ruling under which this was admitted the third exception was taken. The admissibility of dying declarations under circumstances nearly the same as the present has recently been considered in the case of Worthington v. The State, 92 Md. 222, 48 Atl. 355, 56 L. R. A. 353, 84 Am. St. Rep. 506, and that case we thought at the argument was conclusive of this. The importance and responsibility, however, in cases where life or liberty is involved is such that we have been led to review the Worthington Case, and to re-examine the authorities upon the question. It is suggested, rather than contended, by the appellant, that no sufficient foundation was laid for the admission of the declaration in this case, because it does not certainly appear that the declarant spoke under a sense of impending death, and without any visible hope of recovery. That the declaration would be inadmissible if there is evidence of any expressed or clearly visible hope of recovery is undoubtedly true, since the obligation to speak the truth would not be that supposed to be created when every hope of this world is gone, and is not in legal contemplation equal to that imposed by a positive oath in a court of justice. But is there evidence of any hope of recovery? The ground of the first exception is that on the day the declaration was first made, when the mother was first called to her daughter, she said: "Do get me help. If you don't send for the doctor, I will die." If the declaration rested upon this foundation alone, we should be compelled to exclude it, because the form of the expression implies a hope of recovery, however faint, if the doctor should be procured. But the proof is clear that subsequent to this, and before making the declaration admitted, she constantly said she "knew she was dying," and the mother testified that "she could see death in her eyes." This belief of the mother would not avail if not shared by the daughter, but it is confirmation of the sincerity of her utterance when she said she knew she was dying, and we think there was no error in the ruling on this exception. The second exception is founded on the theory that Mrs. Briele's testimony was so weakened on cross-examination that it became necessary to strike out the declaration admitted under the first exception. During this cross-examination Mrs. Briele was asked if she did not testify at a former trial of this case that the declaration was made when she was first called upstairs Tuesday morning, and before her daughter had referred at all to her dying. This she denied, and said that at the former trial she testified that at that time her daughter said, "Send for a doctor, 1 am dying;" that she said, "What is the matter?" Her daughter said she had had an abortion performed. She asked by whom, and then she told her; but she still adhered to her statement that before the declaration as to Dr. Hawkins was made she repeatedly said she knew she was dying. Whatever contradiction or inconsistency in the statements of this witness were developed on cross-examination was for the jury to reconcile, and we discover no error in the refusal to strike out the declaration previously admitted. The third exception is based upon Dr. Reiche's testimony that when he was called in on Tuesday she said: "Oh, doctor, I am dying. I want you to relieve me," and it is argued that this was rather a cry for help than the utterance of an abandonment of hope. Again, it is said that she continued to repeat she was dying, and that he must help her-must relieve her in some way. But to assume, in the face of all the testimony in this case, that her cry for relief disproved the sincerity of her statement that she knew she was dying, would be to deny to her the privilege of asking the alleviation of what the doctor said he knew as soon as he saw her was intense agony. Nor is it a natural or reasonable conclusion that the doctor did not think death impending because he gave her a hypodermic injection, and told her she would be relieved in a little while. This injection was plainly given to relieve the agony, and it is common knowledge that such treatment does mercifully render suffering or dying persons insensible to pain. The relief the doctor promised was what she asked-a respite from agony, not an escape from death. And it must not be forgotten that it is not material the physician may think the patient may or will recover if he fully believes death is actually impending. People v. Simpson, 48 Mich. 474, 12 N. W. 662. In John's Case, 6 Car. & Payne, 386, it is said that, though the deceased does not state he is conscious of impending death, if the declaration is made under such circumstances as, in the judgment of the court, will reasonably warrant such inference, it is admissible as a dying declaration; and in Hall v. Commonwealth, 2 Grat. 594, it is said that proof of expectation of death is not confined to declarations of the deceased, but may be satisfactorily established by the circumstances of the case. In People v. Simpson, 48 Mich. 474, 12 N. W. 662, the court said: "In this case there was certainly evidence from which the court below, under the ruling made, must have been satisfied that the deceased was under the belief that death was impending, and the case would require to be a very strong one to justify this court, who did not see the witnesses, in arriving at a different conclusion." The case now before us was tried before a careful and humane judge, in whose wise discretion in these rulings we can safely repose the confidence to which the above case declares they are entitled. The views we have expressed are sustained in 1 Greenleaf on Evidence, § 158; 1 Roscoe's Crim. Evidence, 53 to 61; Bishop's New Crim. Proc. § 1213; Regina v. Peel, 2 Foster & Frulason, 21; and McLean v. State, 16 Ala. 672. We cannot adopt the view of the Kentucky court in Matherly v. Commonwealth, 19 S. W. 977, that the desire to have a physician sent for clearly indicates in any case that the deceased had hope of living, though he said he was going to die. This inference must be controlled by all the circumstances of the case. The case of Rex v. Hayward, 6 Car. & Payne, 160, relied on by the appellant, is not in conflict with anything we have said. There the declaration was made as to who had inflicted the injury, before anything was said about impending death. Then suddenly the declarant exclaimed: "Oh, God! I am going fast. I am far too gone to say more;" and the declaration was excluded because the court thought the conviction of impending death then for the first time forced itself upon his mind. We cannot discover any warrant for reversing the rulings in this case. Judgment affirmed, with costs above and below. (98 Md. 689) CONSOLIDATED GAS CO. OF BALTIMORE v. BALTIMORE COUNTY COM'RS et al. (Court of Appeals of Maryland. Feb. 25, 1904.) INJUNCTION-PRAYER FOR RELIEF RELIEF AUTHORIZED GAS COMPANIES - RIGHT TO EXCAVATE ROADS-PERMISSION OF COUNTY COMMISSIONERS CONSOLIDATION OF CORPORATIONS-RIGHTS OF CONSOLIDATED COM PANY. 1. Where a bill by county commissioners prayed for a preliminary injunction to restrain a gas company from excavating in a highway for the purpose of laying its pipes until it had obtained a permit from complainants, and an injunction issued as prayed, restraining defendant from laying its pipes until it had obtained permission from the commissioners, "or until the further order of the court," defendant, on obtaining the permit, might proceed with its work without being in contempt, though no further order of the court was made. 2. The board of county commissioners of Bal-* timore county, acting under authority of the general laws, and that vested in them by Laws 1900, c. 685, p. 1080, and by Laws 1902, c. 524, p. 764, adopted an order to the effect that after a certain date no water mains or pipes should be laid within the limits of a highway, or any such highway dug up for such purpose, without a permit in writing, signed by the county commissioners. The charter of a gas company, in substance, authorized it to lay pipes under roads, subject to any order that might be passed by the county commissioners for the filling up and repaving of any road, etc. Held, that an injunction would not lie, restraining the gas company from excavating a highway and constructing mains therein without having obtained a permit from the county commissioners. 3. A corporation formed by the consolidation of other corporations is vested with the powers, privileges, and immunities of the consolidated companies, except in so far as otherwise provided by the act under which consolidation takes place. 4. A bill by the commissioners of a county against a gas company alleged that defendant was excavating a public road for the purpose of laying gas pipes, the excavation being such as to greatly interfere with public use of the road, and the prayer was for an injunction restraining such conduct on the part of defendant until it should have obtained a permit from the board of county commissioners. Held that, it appearing that defendant was not required to secure a permit before making such excavations, the injunction would not be granted under such a prayer on the ground that the facts justified the interposition of a court of equity. Appeal from Circuit Court, Baltimore County; N. Charles Burke, Judge. Suit by the county commissioners of Baltimore county and others against the Consolidated Gas Company of Baltimore. From a decree granting a preliminary injunction, defendant appeals. Reversed. Argued before McSHERRY, C. J., and FOWLER, BRISCOE, BOYD, PAGE, PEARCE, SCHMUCKER, and JONES, JJ. Edgar H. Gans, for appellant. Osborne I. Yellott, for appellees. BOYD, J. This is an appeal from an order granting a preliminary injunction on a bill filed by the appellees against the appellant. The bill refers to the powers given to the county commissioners over the public highways by the general laws, and to those vested in the board of road commissioners of Baltimore county by chapter 685, p. 1080, of the Laws of 1900, as amended by chapter 524, p. 764, of the Laws of 1902, and alleges that the county commissioners have adopted certain rules and regulations governing the granting of permits to individuals and corporations desiring to go upon and dig up or disturb the beds of the public highways of Baltimore 3. See Corporations, vol. 12, Cent. Dig. § 2354. 30 57 ATLANTIC REPORTER. county, and requiring them to secure permits Baltimore county, and the gas company has swer, an appeal was entered from the order A copy of the rules and regulations adopted by the county commissioners was filed with the bill. By them it was ordered on the 30th of April, 1903: "First. That from and after this date no electric light, telegraph, or telephone poles shall be planted on, across, along, or within the limits of any of the public highways of Baltimore county, or wires strung thereon or thereover, and no electric, steam, or other railway tracks shall be laid down or constructed on, across, along, or within the limits of any of said public highways, and no water mains or pipes laid within the limits of said highways, or any other structure of any kind whatsoever constructed or erected thereon, or any such public highway be dug up, uncovered, or disturbed for said purpose or purposes, without a permit in writing duly signed by the county commissioners of Baltimore county, and recorded among the records of said body." Various provisions are then made for the issuing of the permits, regulation of the work, etc. It will be observed that the preliminary injunction simply prohibits the defendant from tearing up and disturbing the beds of those roads, and from laying gas mains and pipes therein, "until such time as it may obtain from the county commissioners of Baltimore county a written permit so to do, or until the further order of this court." If, then, a written permit was not necessary, it is manifest that the preliminary injunction was improperly issued, as the court could not prohibit the defendant from laying its mains and pipes until it did something which it was not | certainty whether the omission was intentional or accidental, but it possibly was because the county commissioners knew that the Legislature had already authorized gas companies to lay pipes on the public highways. Section 110 of article 23 of the Code of Public General Laws expressly authorizes gas companies formed under that article "to lay conductors or pipes, for the transmission of gas, in any city, town or county under the streets, squares, lanes, alleys and roads thereof subject, however, to any law or ordinance that may be passed by the municipal authorities of the city or town, or the county commissioners having jurisdiction, for the filling up and repaving any street, square, lane or alley or road, under which the said pipes may be laid." The constituent companies that were incorporated under the general laws and consolidated in the defendant com required to do. The bill does not pray for a preliminary injunction to prevent the defendant from laying its mains and pipes in an improper manner, or in a way that is injuring the roads and interfering with the public travel, as it alleges it was doing, but the relief sought in the first prayer of the bill is simply to enjoin the defendant until it obtained the written permit, and nothing else. The failure or refusal to obtain such written permit is the only ground upon which relief under that prayer is asked. The alternative, "or until the further order of this court," cannot enlarge the relief prayed for. The court could dissolve the injunction by its further order before a written permit was obtained by the defendant, but it could not continue it under that prayer after it determined that a permit was not necessary. In the recent case of Shipley v. Western Maryland Tide Water R. Co. (decided in Januarypany were therefore expressly authorized to of this year), 56 Atl. 968, it was contended that a preliminary injunction could not issue, because it was not specifically prayed for; but as the bill did pray for an injunction, and that was the only relief asked for, we said, "We are not aware of any decision in this state that requires the plaintiff to pray for a preliminary injunction under these circumstances." In Webb v. Ridgely, 38 Md. 364, this court had said "that, in order to obtain a preliminary injunction, there must be a formal prayer for such process, for, although a bill may pray for relief by way of injunction, yet, if it does not pray for the process of injunction, the process will not be granted." "Such process," as there used, referred to the "process by way of injunction," and not specially to a preliminary injunction, as is shown by the context and by the prayer set out on page 369, which this court said was sufficient to justify the issuing of a preliminary injunction. Now, by general equity rule 16, adopted by this court, if an injunction is asked for in the prayer for relief, it is not necessary to repeat it in the prayer for process. Article 16, § 134, of the Code of Public General Laws. But when, as in this case, there is a special prayer for a preliminary injunction, and an order is passed directing it to be issued as asked for in that particular prayer, we must look to it to ascertain the extent of it; and, when we do, we find that it only enjoined the defendant until it obtained a permit. If it had obtained one after the injunction was issued, it certainly could not be pretended that the defendant would have been in contempt if it had proceeded to lay its gas mains and pipes before a further order of the court. The regulation of the county commissioners above quoted, which was relied on by the appellees, does not include gas mains or pipes. It, in terms, only refers to electric light, telegraph, and telephone poles and wires, electric, steam, and other railway tracks, water mains and pipes, within the limits of said highways. It may be difficult to say with lay pipes on the county roads, and were only from time to time provide." Even conceding to the county commissioners the power to make reasonable regulations before the pipes are laid by the defendant, they had no power, under existing laws or existing rules and regulations, so far as shown by the record, to require a written permit to be first obtained by it. It would seem to be clear, then, that the appellees were not entitled to a preliminary injunction to prevent the appellant from laying its gas mains and pipes until it obtained a written permit so to do. We do not mean to intimate that the county commissioners of a county cannot prevent a gas company from making improper use of its public highways. It was urged with great zeal at the argument of this case that, even if the appellant was not required to obtain a written permit before proceeding with the work, the bill alleged such acts on its part as justified the interposition of a court of equity. But without determining how far that could be done, if such relief was asked, there is nothing in the prayer for a preliminary injunction to authorize its issue on that ground. If the defendant was doing the work in the manner alleged in the bill, with all the serious consequences therein stated, the county commissioners could never properly give a written permit for it to proceed; and hence we cannot see how it can be said that the application for a preliminary injunction was to afford relief against such acts as are alleged in the eighth paragraph of the bill, which, in effect, charged the defendant with committing a nuisance. It would establish a dangerous precedent to grant an injunction to prevent a nuisance on a prayer which is as specific as this is in asking for it on an entirely different ground, and for a different purpose. We do not feel called upon to consider the other questions referred to-whether the agreement between the appellant and the Maryland Steel Company is valid, or whether the appellant has the power to lay pipes for the purpose of conducting coal gas purchased of the steel company, as they are not involved in this appeal. They are intended to be presented by the second prayer of the bill, but the order of the court only requires the defendant to show cause why the perpetual injunction should not issue as therein prayed, and there is nothing in that part of the order from which an appeal could be taken. Under the views we have expressed as to the prayer for the preliminary injunction, nothing we might say on these other questions would have anything to do with what is now before us. So much of the order of the court as directs the preliminary injunction to issue must be reversed. Order granting preliminary injunction reversed, and cause remanded; the appellees to pay the costs. (207 Pa. 611) In re VILSACK'S ESTATE. (Supreme Court of Pennsylvania. Jan. 4, 1904.) WILLS-CONSTRUCTION-NATURE OF ESTATE. 1. Testator gave all his estate to his wife for life, and at her death gave the proceeds or interest thereon to his sons and his daughters during their natural lives, and after the death of either of them gave to their child or children, "should they leave any children at their death, the share held by my sons or daughters at the time of his or her death, but should neither of my sons or daughters leave no heirs, then their share is to be divided between all my grandchildren share and share alike." Held, that the word "children" meant heirs of the body, and that the testator's children took an estate in fee tail, which was enlarged by the statute into a fee simple. Appeal from Orphans' Court, Allegheny County. In the matter of the estate of George Vilsack. From decree dismissing petition of partition, William Kraus appeals. Affirmed. The following is the opinion of the court below by Over, J.: "This is a petition filed by the children of Elizabeth Kraus, a deceased daughter of George Vilsack, deceased, praying for a partition of the real estate devised by him, as follows: 'I give and bequeath to my beloved wife, Katherine, all my real and personal estate during her natural life, and at her death, I give the proceeds or interest thereon to my sons, George and Siebol, and my daughters, Elizabeth and Catherine, during their natural lives, share and share alike, and after the death of either of the above named sons or daughters I give and bequeath to their child or children (should they leave any children at their death) the share held by my sons and daughters at the time of his or her death, but should neither of my sons or daughters leave no heirs, then their share is to be divided between all of my grandchildren share and share alike.' The widow died October 21, 1886, and Elizabeth Kraus, testator's daughter, October 20, 1897. All of the other sons and daughters of the testator are still living. The question raised by the petition and answer is whether the children of testator take an estate in fee. After the death of his wife he gave his estate to his sons and daughters during their natural lives, and after their death to their children, should they leave any. Had he stopped here, there could be no question that the word 'children' was used in its ordinary sense as a word of purchase, and that his sons and daughters only took a life estate, but if any of them left no children there would be intestacy as to this share. This, however, does not seem to have been his intention, as he next provided that, if any of his sons or daughters left no heirs, their share was to be divided, share and share alike, between all of his grandchildren. "If the word 'heirs' here means children alone, and a son or daughter died, leaving no |