required to conform "to the rules, regulations, discipline and orders of the owning company." But that would certainly not have the effect of making them employés of the owning company, any more than it would the porter on a Pullman car, or an express agent, or mail agent traveling on the train. In Oliver v. Northern Pac. Ry. Co., 196 Fed. 432, it was held by the United States District Court that a porter on a Pullman car could recover under the federal act under the circumstances of that case, but the decision was based on the ground that he was employed by an association composed of the railroad company and the Pullman company, which were joint owners of 50 cars. In Mo., K. & T. Ry. v. Blalack, 105 Tex. 296, 147 S. W. 559, an agent of an express company who handled baggage, but there was no proof of employment by the railroad company, was held to be a passenger and not an employé within the meaning of the act. See, also, same company v. West, 38 Okl. 581, 134 Pac. 655, to the same effect. It is the duty of the owning company to use all reasonable efforts to protect the employés of what we might call the "visiting company," and, even if there was no agreement on the subject, the owning company could enforce such rules and regulations as are necessary for the protection of its own employés and property, as well as those of the other company.

language of the act, under the agreement between the two companies, so far as it is binding (and the appellant put it in evidence), and under what we regard as the reasonable and practicable view of the question, as well as under such authorities as we deem applicable, we must hold that the federal Employers' Liability Act does not apply to this case. As that conclusion must result in an affirmance of the judgment, it is unnecessary to discuss the question of negligence. Judgment affirmed, the appellant to pay the costs.

(132 Md. 464) STATE, to Use of DUNHAM, v. FIDELITY & DEPOSIT CO. OF MARYLAND. (No. 28.)

(Court of Appeals of Maryland. April 3, 1918.) 1. GUARDIAN AND WARD 177-SURETIES -DISCHARGE OF GUARDIAN-EFFECT.

Code Pub. Civ. Laws, art. 93, §§ 155, 165, 181, as to liability on guardian's bond, do not impose a liability where guardian under direction of orphans' court has accounted for and paid over all funds of estate, and court has made order discharging her and her surety, for money expended by plaintiff for education of wards, and not included in guardian's account, order being unquestioned. GUARDIAN AND WARD

2.

OF GUARDIAN-CORRECTION.

160-ACCOUNT

Orphans' court would have authority to correct errors in account of guardian after final ratification, and to abrogate and modify dis-orders when necessary to promote ends of jus3. GUARDIAN AND WARD 178-BREACH.

tice.

Refusal of guardian to pay for maintenance and education of ward out of property under her control would constitute breach of bond, and creditor could resort to suit upon it. 4. GUARDIAN AND WARD 58-DEMANDS AGAINST WARDS-PRIORITY.

It is duty of guardian to pay all demands against ward, having regard to priorities, in full, or, if estate is insufficient, pro rata.

Appeal from Baltimore City Court; Chas. W. Heuisler, Judge.

"To be officially reported."

We have not thought it necessary to cuss the case of Standard Oil Co. v. Anderson, 212 U. S. 215, 29 Sup. Ct. 252, 53 L. Ed. 480, and other cases cited by the appellant, as we do not think they are applicable to the facts of this case. That a general servant or employé of one company may become the servant or employé of another in some special employment cannot be doubted. For convenience we cited above 28 Cyc. 1285, where many such cases are referred to. We cannot agree, however, with the appellant that when Hull was killed he was engaged in work for the appellee in the sense the authorities speak of such employment. His crew was then taking a train to their regular employer's road-one of the very things they were employed by the Western Maryland Railway Company to do. The distance between Hagerstown and Rutherford, as shown by the agreement, was 81 miles, and a regular run of the crews was from Hagerstown to Ruth-THOMAS, PATTISON, URNER, STOCKerford and return, just as it was with the crews of the appellee from Rutherford to Hagerstown and return. But, after all, this case does not turn on nice distinctions as to whether a person can be said to be an employé under certain facts and not under other facts, but whether John M. Hull was an employé of the appellee within the meaning of the federal Employers' Liability Act. For reasons we have stated, we feel constrained to hold that he was not.

Suit by the State, to the use of James A. Dunham, against the Fidelity & Deposit ComA demurpany of Maryland and another. rer on behalf of defendant named to the declaration was sustained, and from judgment for costs in favor of such defendant plaintiff appeals. Affirmed without prejudice,

Argued before BOYD, C. J., and BRISCOE,

BRIDGE, and CONSTABLE, JJ.

George Ross Veazey, of Baltimore, for appellant. Benjamin A. Stansbury, of Baltimore, for appellee.

BRISCOE, J. This suit was brought on the bond of Mrs. Agatha W. McShane, guardian of Mary W. Vest, George Graham Vest, Jr., and John W. Vest, beneficiaries under the will of George P. Vest, deceased, of the state of Missouri, in the name of the state,

We are of the opinion, then, that under the for the use of James A. Dunham, a creditor,

to recover the sum of $465.86, alleged to be due him, for the education of two of the infant children of the testator. The trial of the case, in the Baltimore city court, resulted in a judgment for the plaintiff against the guardian, one of the defendants, for the sum of $450, with interest and costs. From this judgment, no appeal has been taken. A demurrer to the declaration, on behalf of the appellee, the surety on the bond, the other defendant in the case, was sustained by the court below, and from a judgment for costs, in favor of this defendant, the plaintiff has taken this appeal.

The main question to be considered is the liability of the appellee, the surety on the bond, and this is presented by a demurrer to the plaintiff's declaration. As the facts appear from the declaration and are somewhat unusual, we will set out the declaration, at length. It is as follows:

"(1) That in the year 1904 G. G. Vest, a citizen of the state of Missouri, died in that state, leaving a will, one of the provisions of which was as follows: 'One-third of my estate, after carrying out the provisions heretofore set forth in regard to my wife, shall be held by my said trustees and executors for the benefit of the three children of my deceased son, George P. Vest, namely: Mary W. Vest, George Graham Vest, Jr., and John W. Vest, for whose education and support the rents, property and proceeds of said one-third part of my estate shall be applied by my said trustees and executors at such times, and in such amounts as they may deem necessary, and when each of the three children shall be twenty-one years of age, the share of such child shall be paid over to her or him.'

"(2) That on or about February 28, 1911, Mrs. Agatha W. McShane, now residing in Centreville, Md., was duly appointed and qualified in the orphans' court of Baltimore county, as guardian of the infant children above mentioned; that as such guardian it was her duty to account to the orphans' court, upon request, for all moneys received by her while acting as said guardian, it being further her duty to pay all bills incurred by her on the behalf of said infant wards, out of income received by her for that purpose.

"(3) That on February 28, 1911, said Agatha W. McShane and Fidelity & Deposit Company of Maryland bound themselves jointly and severally unto the state of Maryland in the penalty of $3,000, for the full and faithful performance by the said Agatha W. McShane, guardian as aforesaid, of all the duties imposed upon her by the laws of the state of Maryland, including the duty to faithfully account with the orphans' court of Baltimore county for the management of the property and estate of the orphans under her care, and further including the duty aforesaid to pay all bills incurred by her on the behalf of the said infant wards out of income received by her for that purpose. "(4) That on the 15th day of April, 1914, after the filing of a petition on the part of Fidelity & Deposit Company of Maryland, asking to be released from the above bond, and also after the filing of a petition by the guardian herself in the orphans' court of Baltimore county, the following order of court was passed by the said orphans' court: 'Ordered by the orphans' court for Baltimore county this 15th day of April, 1914, upon the foregoing petition and exhibits that Agatha W. McShane is hereby discharged from her position as guardian of the minors and wards named in the foregoing petition, she having failed and refused for reasons

set forth in said petition to file a new bond in accordance with the provisions of the order of this court passed in this cause on the 7th day of October, 1913, upon the petition of the said Fidelity & Deposit Company of Maryland, and as it is represented to this court that no property exists in the state of Maryland which should be taken possession or control of by a guardian for said minors, and as the court knows of no such property, the court refrains from passing any further order at this time on Company of Maryland is hereby discharged such subject. And the said Fidelity & Deposit from further liability as surety on the said bond given by it.'

ship, the said Agatha W. McShane became indebted unto James A. Dunham, of the city of Baltimore, state of Maryland, for the education of two of the infant children above mentioned, to wit, George Graham Vest, Jr., and John W. Vest; that said bill now amounts, including interest, to the sum of $465.86; and that the said bill has long been outstanding and remains unpaid.

"(5) That during the period of her guardian

(6) That this bill was frequently presented to Mrs. Agatha W. McShane for payment; that on or about March 3, 1914, she filed a lengthy account of her guardianship in the orphans' court of Baltimore county, showing that she had received income from the trustees under the will of G. G. Vest aforesaid to the sum of $5,344.10; that she had disbursed $6,597.76, the overpayment of $1,253.66 having been advanced by the husband of the said Agatha W. McShane; that the said guardianship account contains many items, such as amounts paid to the Chesapeake & Potomac Telephone Company of Baltimore City, and other items consisting of a single name such as 'Ridgely' or 'sundry expenses $85,' which do not tend to show that these disbursements were made for the education and maintenance of the children, to which the guardian was limited by law in the use of such funds; that furthermore no mention at all is made in such guardianship account of the bill which the said guardian well knew was rightfully owing to James A. Dunham, the plaintiff in the aboveentitled case.

"(7) That the defendant Fidelity & Deposit Company has its place of business in Baltimore city, in the state of Maryland, and that Agatha W. McShane is a resident of Centreville, in Queen Ann's county, Md.

"And, therefore, the plaintiff claims from the defendant herein named the sum of $465.86."

The condition of a guardian's bond, as provided by section 155, article 93, of the Code, is that the guardian shall faithfully account with the orphans' court, as directed by law, for the management of the property and estate of the infant under his care, and shall also deliver up the property agreeably to the order of the court or the directions of law, and shall in all respects perform the duty of guardian according to law. It is quite clear that any failure to perform any of the condi

tions or requirements of the bond, as ordered by the orphans' court, would render the bona liable, and the bond could be, at once, put in suit. By section 181 of article 93 of the Code, it is specially provided that on a guardian's failure to account, as herein directed, his bond shall be liable to be put in suit. section 165 of article 93 of the Code it is provided:

By

"Once in each year, or oftener if required by the court, a guardian shall settle an account of his trust with the orphans' court, and the said

- SERVICE

be affirmed, but without prejudice as herein 10. COURTS 13-JURISDICTION WITHIN STATE ON NONRESIDENT. stated. Where a nonresident is served within a state Judgment affirmed, without prejudice, the in which she has been living off and on for costs to be paid by the appellant.

(132 Md. 389)

HIESTON V. NATIONAL CITY BANK OF
CHICAGO. (No. 11.)

(Court of Appeals of Maryland. April 2, 1918.)
1. CORPORATIONS 642(7)—FOREIGN CORPO-

RATION DOING BUSINESS.

The bringing of an action in Maryland by a National Bank engaged in the banking business in Illinois does not constitute "doing business" in former state under Code Pub. Civ. Laws, art. 23, § 93, 94, requiring foreign corporations "doing business" in the state to file certificate with secretary of state; and the bank is not precluded from bringing such action by section 94, providing that failure to file certificate as required by section 93 bars right of corporation to maintain action in state courts.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Doing Business.]

2. GUARANTY 90-ACTION BY CREDITOR

EVIDENCE-ADMISSIBILITY.

In an action on a guaranty of the debt of another, evidence as to the cause of the indebtedness and the manner in which it was incurred is irrelevant, where debt, having been admitted, is not in dispute. 3. EVIDENCE

271(1)—ADMISSIBILITY-ACTION ON GUARANTY STATEMENTS BETWEEN DEBTOR AND GUARANTOR.

In an action on a guaranty of the debt of another, statements made by debtor to guarantor before signing of contract of guaranty are inadmissible in evidence, the debtor being no party to such contract. 4. WITNESSES 240(4) LEADING QUESTIONS. Question, "Was that the moving thing that led you to the signing of the agreement?" held leading.

5. APPEAL AND ERROR

EXAMINATION

1058(2)-HARMLESS

ERROR EVIDENCE. Court's refusal to permit witness to answer a question as to her reason for signing a guaranty, if error, was harmless, where she had already testified, and was subsequently permitted to testify as to her motive and intent in signing the guaranty.

6. FRAUDS, STATUTE OF 108(3)-PROMISE TO PAY DEBT OF ANOTHER-CONSIDERATION. Written guaranty to pay debt of another was good, where consideration was expressed in a letter, although guaranty itself did not show consideration, Code Pub. Gen. Laws 1904, art. 35, § 38, providing that consideration for promise to answer for debt of another need not be in writing.

7. FRAUDS, STATUTE OF 33(3)-PROMISE TO ANSWER FOR DEBT-ORIGINAL PROMISE -FORBEARANCE OF CREDitor.

Forbearance to sue is a good consideration for a promise to pay the debt of another, although no actual benefit accrues to promisor. 8. TRIAL 252(1)—REQUESTED INSTRUCTIONS -EVIDENCE.

Requested instructions, unsupported by the evidence, are properly refused. 9. GUARANTY 25(3)-ACTION BY CREDITOR -DURESS-EVIDENCE-SUFFICIENCY.

In an action on a guaranty, evidence held sufficient to show that guarantor did not sign guaranty under duress.

three years, such service is sufficient to give court jurisdiction.

Appeal from Baltimore City Court; Chas. W. Heuisler, Judge.

"To be officially reported."

Action by the National City Bank of Chicago, a corporation, against Grace Hieston. Judgment for plaintiff and defendant appeals. Affirmed.

Plaintiff's second prayer, referred to in the opinion, is as follows:

The plaintiff, National City Bank of Chicago, prays the court to instruct the jury that if they shall find that on or about the 5th day of January, 1914, one Walter Hieston was indebted to the plaintiff, National City Bank of Chicago, in an amount exceeding $5,000, and that the plaintiff was then about to enforce by suit its claims against the said Walter Hieston, and that on or about the 5th day of January, 1914, the defendant, Grace Hieston, executed the following guaranty:

the National City Bank of Chicago to give and
"Individual or Corporation. I hereby request
continue to Walter Hieston credit as he may de-
sire from time to time, and in consideration of
all and any such credit given him I hereby guar-
antee prompt payment when due of any and all
indebtedness now due or which may hereafter
created, or arising, or evidenced, to the extent
become due from him to said bank, howsoever
of five thousand dollars ($5,000), and waive no-
tice of the acceptance of this guaranty, and of
any and all indebtedness at any time covered by
the same.
written notice from me of the discontinuance
This guaranty shall continue until
thereof shall be received by said the National
City Bank of Chicago.
Grace Hieston.

"Chicago, Ill., Jan'y 5, 1914."

And that upon receipt of said guaranty the plaintiff notified the defendant by letter dated January 5, 1914, that the plaintiff, in consideration of the aforesaid guaranty, agreed that it would start no suit looking toward the recovery of a judgment on the indebtedness due by the said Walter Hieston to the said plaintiff for a period of 30 days from the 5th day of January, 1914; and if the jury shall further find that the plaintiff, National City Bank of Chicago, relying on said guaranty, took no proceedings looking toward the recovery of a judgment on the indebtedness due by the said Walter Hieston to the said plaintiff, for a period of 30 days from the 5th day of January, 1914, and that the said Walter Hieston, after the expiration of said 30 days, did not and has not at the present time paid his said indebtedness, and that said indebtedness exceeds the sum of $5,000, then the verdict of the jury must be in favor of the plaintiff, National City Bank of Chicago, for the sum of $5,000, with interest in the discretion of the jury from such time as they shall find the plaintiff made demand upon the defendant to pay said indebtedness to the extent of $5,000.

(Granted.)

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

Herbert B. Stimpson, of Baltimore, for appellant. L. Vernon Miller and George Weems Williams, both of Baltimore, for appellee.

BRISCOE, J. This is a suit upon a contract of guaranty, dated the 5th day of January, 1914, and executed in the city of Chicago, in the state of Illinois, by the defendant to the plaintiff. The appellant, the defendant below, is a married woman, temporarily residing in Baltimore city, in this state, but her husband is a citizen and a resident of the state of Illinois. Service of summons was obtained upon her in this state, where she had been residing, on or about the period of three years, prior to the institution of the suit. The appellee, the plaintiff below, is a nonresident corporation, duly incorporated under the laws of the United States, and carrying on the banking business in the city of Chicago, in the state of Illinois. The contract of guaranty, is attached to and made a part of the declaration, and is as follows:

"Individual or Corporation. I hereby request the National City Bank of Chicago to give and continue to Walter Hieston credit as he may desire from time to time, and in consideration of all and any such credit given him I hereby guarantee prompt payment when due of any and all indebtedness now due or which may hereafter become due from him to said bank, howsoever created, or arising, or evidenced, to the extent of five thousand dollars ($5,000), and waive notice of the acceptance of this guaranty, and of any and all indebtedness at any time covered by the same. This guaranty shall continue until written notice from me of the discontinuance thereof shall be received by said the National City Bank of Chicago.

"[Signed] Grace Hieston. "Chicago, Ill., Jan'y 5, 1914."

and upon a motion to postpone or to discontinue the case; but, as we find no reversible error in the last-named rulings, we will first consider the controlling questions which are presented by the record, in their regular order.

[1] The first exception presents the ruling of the court. in refusing the defendant's motion to postpone the case, upon the ground, that the plaintiff bank could not maintain this action because it had not filed with the secretary of state, prior to the trial, the certificate required by article 23, §§ 93, 94, of the Code. The answer to this contention is very obvious, and that is the bringing of a suit by a National Bank in our state courts cannot be held to be "doing business herein," and that article 23, §§ 93, 94, has no application to a case of this kind. There was no error in overruling and refusing the defendant's motion, set out in this exception.

The second, third, and fourth bills of excep tion contain the rulings upon evidence. The second and third exceptions embrace the ruling of the court in sustaining objections to the following questions asked the witness Walter Hieston, in the course of the trial:

"Q. What was the immediate cause of your getting indebted to the bank? Q. What did you say to Mrs. Hieston, in reference to her signing this (meaning the guaranty)?"

[2] The debt due by the husband to the bank, it will be observed, was admitted and not in dispute. The cause of the indebtedness and the manner in which it was incurred were clearly irrelevant to the issues in the case.

[3] Statements made by the husband, who was not a party to the contract of guaranty, to the defendant, before she signed the guaranty, were inadmissible, and properly exclud

[4, 5] There was no error in the ruling set out in the fourth exception. The question, "Was that the moving thing that led you to the signing of the agreement?" propounded to the witness, the defendant in the case, was not only leading, but she had testified fully as to her reason for signing the guaranty, and was permitted to repeat in her subse quent examination her motive and intent in executing the guaranty. She could not therefore have been injured by the ruling, in sustaining the objection, in this exception.

The declaration contains three counts in assumpsit, and a fourth count declaring upon the guaranty. This count avers, in substance, that Walter Hieston, the husband of the defendant, was indebted to the plaintiff in a large amount, exceeding $5,000, and the plaintiff was then about to enforce by suited by the court. its claim against him, and thereupon the defendant executed the guaranty set out and stated in the declaration. It further avers that upon receipt of the guaranty the plaintiff notified the defendant by letter dated January 5, 1914, which letter was duly received by the defendant, that the plaintiff in consideration of the guaranty agreed that it would start no suit, looking toward the recovery of a judgment on the indebtedness due by the husband to the plaintiff, for a period of 30 days, from the 5th day of January, 1914, that the husband had not paid the whole or any part of the debt due by him, at the time of the execution of the guaranty, and that the debt, exclusive of interest, largely exceeds the sum of $5,000. And that the plaintiff has notified the defendant of this fact, and has demanded the payment by her, but she has failed and refused to pay the same, in accordance with the guaranty. At the trial of the case, in the Baltimore city court, the defendant reserved four bills of exceptions, to the rulings of the court upon the evidence and prayers. There were also

This brings us to the rulings upon the prayers. The court below granted the plaintiff's second prayer, but refused all the other prayers presented, on behalf of both the plaintiff and defendant, in the case.

The plaintiff's second prayer, it will be seen (the reporter will set out this prayer, in his report of the case), not only stated the cause of action as set out in the fourth count of the declaration, but all of the necessary facts, if found by the jury, to permit a recovery in the case.

The testimony in the case, upon the main