The fact that Gaver was a debtor to the plaintiff as guardian to the extent of the entire amount of funds in her hands as guardian not being known to the appellees, it was not considered by them in the execution of the bond, and it cannot be said that their purpose in signing the bond was to further secure the payment of the indebtedness of Gaver unknown to them at the time. Both in their sworn answer and in their testimony they say that under no circumstances would they have become surety for Joseph W. Gaver upon a straight obligation to pay $2,500 or $5,000 to Mrs. Cora J. Gaver, and that they did not intend it to be payable to any obligee other than the state of Maryland. $5,000 dated as of March 23, 1905, filed in | derstood the effect of their suretyship to be the office of the register of wills, etc. The that they were merely guaranteeing his fidelinterest upon this note seems to have been ity in the administration of the fund so held regularly paid by Joseph W. Gaver to Oc- by him as custodian, and thus they regarded tober 17, 1908, some months before his death. him as under the supervision and direction This note for $1,930.76, although in the pos- of the orphans' court, for which reason they session of the plaintiff at the time of the concluded the bond was properly made paydeath of Gaver, was never filed against his able to the state of Maryland. estate, either in the orphans' court or in the equity proceedings instituted for the sale of his lands, nor was its existence disclosed until it was asked for by the counsel for the appellees and produced by the plaintiff while she was upon the witness stand in the progress of these proceedings, but the plaintiff filed in said equity proceedings an open account, evidently based upon said note, against Joseph W. Gaver for an amount said to be due by him to her as guardian, with interest at the rate of 51⁄2 per cent. from October 17, 1908, the date to which interest was paid on said note, but no reference whatever was made to the note. The said sum, with interest computed to March 8, 1910, amounted to $2,078.26. Upon this account filed there was paid to the plaintiff the sum of $266.07. It is only to recover from the appellees, upon the bond when reformed, the indebtedness owing from Joseph W. Gaver to the appellant that the attempt is here made to reform the bond, for in no other sense was Joseph W. Gaver, at the time of his death, the holder or custodian of any part of the funds that were paid to the appellants as guardian of said infants. Therefore we should consider the question here to be determined in the light of such purpose or object. Their unwillingness to sign a bond making themselves liable for a long-standing debt of their principal, incurred for money borrowed and used by him, although willing and ready to become sureties for his fidelity in the administration of the fund in his hands as custodian and holder, subject, as they understood it, to the supervision and direction of the orphans' court, is based upon a reasonable distinction as to the amount of risk assumed. For as was said by the court below in its opinion: "There is a manifest and material difference between the suretyship for the payment of a debt and one for the faithful administration of a fund in hand. The former liability is concerned with the financial responsibility of the principal, while the latter looks simply to his honesty." [3] The effect intended to be given to the bond by the appellees was one not recognized by law, but this fact cannot have the effect of varying the intention of the appellees as to the purpose of the bond, and it can in no wise support the contention of the plaintiff that the effect intended to be given to the bond by the appellees was that contended for by her. It is disclosed by the facts stated that two years prior to the execution of the bond in this case the entire fund in the hands of the plaintiff as guardian had been paid over to Joseph W. Gaver, and that from such, time the relation of debtor and creditor existed between them. As disclosed by the evidence, the plaintiff became concerned and uneasy as to the safety of the investment in the unsecured notes of Gaver, and demanded of him that he should further secure the indebtedness. It was in response to this demand that the bond was executed, and there can be no doubt that in the mind of the plaintiff such was the purpose of the bond. But was it so understood by the appellees? There is no evidence tending to show that the defendants had any knowledge whatever of the existence of the indebtedness from Gaver to the plaintiff as guardian, nor is there anything in the bond to indicate that at such time he was the debtor of the plaintiff in the sense that he had borrowed from her the entire fund, and as evidence of said indebtedness had given to her his promissory notes therefor. He is described in the bond merely as the holder and custodian of the fund, and it was in this capacity that he was [4] But the plaintiff relies upon what was known to the appellees, and, as they con- said by this court in the former case of State Gaver, as admitted by the plaintiff, was her attorney, but there is no proof that he was authorized to act for the appellees in any agreement or contract to be made with her. The extent of their liability is to be found only in the provision of the bond executed by them. The purpose and effect of the bond as intended by the plaintiff was, no doubt, to secure the payment of the indebtedness owing by Gaver to her, but there is no evidence to support the contention that the appellees intended that such was to be the purpose and effect of the bond. 1 have full force and effect in all cases in which they were applicable. Section 160n imposed a penalty upon any judge or clerk of a primary election who should be guilty of any willful violation of the Primary Election Law, or any neglect or corrupt practice in executing the same. In 1912 (Laws 1912, c. 2) section 1601 was repealed and re-enacted in the same words, except that it provided for no penalty for sale of a vote. By the same act of 1912, which contained no saving clause, two additional sec tions were added, but section 160n of the Act of 1910 was not affected. The traverser was tried in 1912 under an indictment charging the violation of section 160n at a primary election in 1911. Held that the re-enactment of section 1607 in 1912 did not impose any additional penalty or affect the rights of any person under that section or under section 160n, and the demurrer to the indictment on the the bond, which we have above quoted, it [ the act of 1910 (sections 160m to 160v) should This is, indeed, a very unfortunate case, inasmuch as it appears the money of the infants will be lost to them; but we cannot relieve them of their loss, resulting from the misplaced confidence of their mother, by placing upon the appellees a burden differing from that which they had agreed to assume, and one which they are not legally required to assume. We deem it unnecesary to pass upon the numerous exceptions to the testimony filed by the respective parties, inasmuch as our decision would not be affected by the elimination of any testimony which, in our opinion, can be regarded as objectionable. From what we have said, we will affirm the decree of the court below. Decree affirmed, with costs to the appellees. (119 Md. 539) COCHRAN v. STATE. (Court of Appeals of Maryland. Jan. 22, 1. CRIMINAL LAW (§ 1024*)-APPEAL-RIGHT Where an indictment contained ten counts, [Ed. Note.-For other cases, see Criminal 2. ELECTIONS ($311*)-OFFENSES-PRIMARIES ground that section 160n had been repealed by the act of 1912 was properly overruled. [Ed. Note.-For other cases, see Elections, Cent. Dig. § 336; Dec. Dig. § 311.*1 3. STATUTES (§ 170*)-RE-ENACTMENT BY REPEALING ACT-EFFECT. stantial re-enactment of the previous law, the Where a repealing law contains a suboperation of the previous law continues uninterrupted. [Ed. Note. For other cases, see Statutes, Cent. Dig. §§ 245, 248, 249; Dec. Dig. § 170.*] 4. ELECTIONS (§ 328*)-CRIMINAL PROSECUTIONS INDICTMENT. Counts of an indictment which charge that an election judge unlawfully neglected to count the ballots cast at an election for each and turns falsely showed the returns of the ballot, every candidate, as a result of which the reand that he unlawfully neglected to canvass each ballot separately and to look at each ballot as it was canvassed by the judges of elec tion, as a result of which the returns falsely showed the returns of the ballots cast, correctly charge offenses under Code Pub. Civ. Laws, art. 33, § 160n, imposing a penalty upon any judge of election who unlawfully violates any provision of the Primary Law (Laws 1910, c. 741), or is guilty of any neglect or corrupt practice in executing the same. [Ed. Note. For other cases, see Elections, Cent. Dig. §§ 355, 357-363; Dec. Dig. § 328.*1 5. CRIMINAL LAW (§ 1090*)—APPEAL-BILL OF EXCEPTIONS NECESSITY MOTION FOR CHANGE OF VENUE. Where the petition, affidavit, and exhibits for removal of a criminal prosecution to another jurisdiction are not contained in a bill of exceptions as required by Code Pub. Civ. Laws, art. 5, $$ 10 and 80, they will not be reviewed by the Court of Appeals, even though they appear in the transcript of record; since they are not a part of the record unless made so by the bill of exceptions. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. $$ 2653, 2789, 2803-2822, 2825-2827, 2927, 2928, 2948, 3204; Dec. Dig. § 1090.*] 6. CRIMINAL LAW (§ 1023*)-APPEAL-DECISIONS REVIEWABLE-DEMURRER TO INDICTMENT. The ruling of the court on a demurrer to an indictment is not a proper subject for a bill of exceptions. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 2583-2598; Dec. Dig. & 1023.*] 7. CRIMINAL LAW (§ 400*) EVIDENCE BEST EVIDENCE-BALLOTS. Under Code Pub. Civ. Laws, art. 33, § 78, providing for the keeping of ballots by the - Code Pub. Civ. Laws, art. 33, § 1601, enacted by Laws 1910, c. 74, provided that the penalty in sections 87 to 115 of that article prescribed for offenses in connection with general elections should apply to primary elections, except that the succeeding sections of proper officers and their destruction at the end of six months, unless the officers are notified to produce them to be used in evidence in some contested election, or judicial or legislative investigation, primary election ballots which have been kept as required by the statutes are the best evidence in a prosecution of an election judge for the violation of the Primary Election Law (Laws 1910, c. 741). [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 879-886, 1208-1210; Dec. Dig. § 400.*] judicial investigation, the grand jury investigating violations of the Primary Election Law (Laws 1910, c. 741) has a right to have the ballot boxes and ballots before them. [Ed. Note. For other cases, see Grand Jury, Cent. Dig. §§ 70, 71, 79, 80; Dec. Dig. § 33.*1 14. GRAND JURY (§ 39*)—PRESENCE OF OTHER PERSONS EFFECT. In such a case the election judge is not prejudiced by the presence of the custodians of the boxes in the grand jury room while the ballots are being examined; it appearing that the grand jury did not deliberate upon any 8. ELECTIONS (§ 329*) - CRIMINAL PROSECU-matter in their. presence.. TION-EVIDENCE-OPENING BALLOT BOXES. Where an indictment has been returned charging an election judge with the violation of the Primary Election Law (Laws 1910, c. 741), a sufficient prima facie case has been made out to justify the opening of the ballot boxes. [Ed. Note.-For other cases, see Elections, Cent. Dig. §§ 364-366; Dec. Dig. § 329.*] 9. CRIMINAL LAW (§ 1172*)-APPEAL-HARMLESS ERROR-INSTRUCTIONS. A traverser who was convicted on only two counts of an indictment is not prejudiced by error in instructions as to the counts on which he was acquitted. [Ed. Note.--For other cases, see Criminal Law, Cent. Dig. $ 3128, 3154-3157, 3159 3163, 3169; Dec. Dig. § 1172.*] 10. CRIMINAL LAW (§ 1172*) HARMLESS ERROR-INSTRUCTIONS. APPEAL Even though under Const. art. 15, § 5, making the jury in criminal cases judges of the law as well as of the fact, the court cannot be required to instruct the jury, if it does give rroneous advisory instructions, which the jury follow to the prejudice of the traverser, it is reversible error. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 3128, 3154-3157, 31593163, 3169; Dec. Dig. § 1172.*] 11. CRIMINAL LAW (§ 814*)-INSTRUCTIONSAPPLICATION TO CASE. In a prosecution under Code Pub. Civ. Laws, art. 33, § 160n, punishing any unlawful neglect in executing the Primary Election Laws, it is erroneous for the court to give an advisory instruction as to Code Pub. Civ. Laws, art. 33, § 96, making willful neglect of duty the offense and prescribing a different penalty. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. $8 1821. 1833, 1839. 1860, 1865, 1883, 1890, 1924, 1979-1985, 1987; Dec. Dig. § 814.*] [Ed. Note. For other cases, see Grand Jury, Cent. Dig. § 82; Dec. Dig. § 39.*] 15. CRIMINAL LAW (§ 1188*)-APPEAL-DISPOSITION OF CASE-EXCESSIVE SENTENCE. Where a trial court imposes a sentence of fine and imprisonment in the city jail in excess of the maximum allowed by the statute, the Court of Appeals, upon a reversal of the judgment, can remand the record under Code Pub. Civ. Laws, art. 5, § 81, to the lower court for a proper judgment. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 3222-3224; Dec. Dig. § 1188.*] Appeal from Criminal Court of Baltimore City: Thomas Ireland Elliott, Judge. "To be officially reported." Albert A. Cochran was convicted of a violation of the Primary Election Law, and he appeals. Reversed, and new trial awarded. Argued before BOYD, C. J., and BRISCOE, BURKE, THOMAS, PATTISON, and STOCKBRIDGE, JJ. Edward L. Ward and Harry B. Wolf, both of Baltimore, for appellant. Roland R. Marchant, Wm. F. Broening, and Edgar Allan Poe, all of Baltimore, for the State. BRISCOE, J. The traverser was indicted in the criminal court of Baltimore for a violation of the Primary Election Law of the state as applicable to Baltimore city. The indictment contains 10 counts. He was tried, convicted on the ninth and tenth counts of the indictment, and acquitted on the first to the eighth counts, inclusive. He was then sentenced to be confined in the Baltimore city jail for the period of two years, and 12. CRIMINAL LAW (§ 1172*) to pay a fine of $500 and costs. From the HARMLESS ERROR-ADVISORY INSTRUCTIONS. judgment so entered he has taken this apIn the prosecution of a judge of election peal, and as the appeal brings up for review for the violation of the Primary Election Law the rulings of the court on the whole record (Laws 1910, c. 741), a general advisory instruction which practically directed a verdict properly before us, including the demurrer, of guilty upon certain segregated facts, which we will now proceed to consider them. Arit assumed as proved, is reversible error, even ticle 5, § 80, Code Public General Laws (Bagthough the court told the jury that it was giv-by's); Avirett v. State, 76 Md. 515, 25 Atl. en simply to assist them, and that they were the judges of the law and the facts. APPEAL 676, 987; Kendrick v. Warren, 110 Md. 76. 72 Atl. 465; State v. Mercer, 101 Md. 537. 61 Atl. 220; State v. Floto, 81 Md. 602, 32 Atl. 315. The ninth count charges, in substance, that the traverser on the 29th day of August, 1911, was a judge of election in the eighth precinct of the twenty-third ward of the city of Baltimore, at a primary election duly had and held under and by virtue of the laws •For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes of the state of Maryland, "and that the trav- | ing no saving clause in the latter statute of erser on the said day of the year named at the offenses charged in the ninth and tenth the city, as such judge of election, at said counts, the indictment must fall and the primary election, unlawfully did neglect then prosecution fail. and there to count the ballots cast in the precinct, for each and every candidate whose name did then and there appear on the ballots, opposite whose name a cross-mark` had been then and there placed by the voter casting each of the ballots, in said precinct in said ward, at said primary election. And that as the result of the aforesaid unlawful negligence of the traverser, as such judge of election, the tallies, statements and returns of the votes and the result of the canvass of the votes cast in said precinct, at the primary election, did then and there wrongfully and falsely show that the ballots cast in the precinct, in the ward aforesaid, were as follows." The tenth count charges, as set out in the indictment, that the traverser "on the said day, in the year aforesaid at the city as such judge of election, in the precinct, of the ward, in said city of Baltimore, at the primary election, unlawfully did neglect then and there to canvass each of the ballots separately, and to then and there look at each of the ballots as the ballot was then and there canvassed by the judges of election, and tallied by the clerks of election, in said precinct, at said primary election; and that as the result of the aforesaid unlawful negligence of the traverser, as such judge of election, the tallies, statements and returns of the votes, and the result of the canvass of the votes cast in said precinct, in said ward, at said primary election, did then and there wrongfully and falsely show that the ballots cast in the precinct, in the ward, were cast therein and thereat for the several candidates for the Democratic nominations for the aforesaid offices, as follows." [1] It must be borne in mind that we are now dealing exclusively with the ninth and tenth counts of the indictment upon the traverser's appeal. He was acquitted upon the other counts of the indictment, and as was said by this court in State v. Shields, 49 Md. 301, that after an acquittal of a party upon a regular trial on an indictment for either a felony or misdemeanor the verdict of acquittal can never afterward be set aside and a new trial granted, and it matters not whether such verdict be the result of a misdirection of the judge on a question of law or of a misconception of fact on the part of the jury. Birkenfeld v. State, 104 Md. 258, 65 Atl. 1; 3 Wharton's Crim. Law, § 3221; 1 Bishop's Crim. Law, §§ 992, 993. [2] It will be seen by reference to the various acts of Assembly upon the subject of primary elections in this state that chapter 737 of the Acts of 1908 was repealed by chapter 741 of the Acts of 1910, as will appear by the following title of the Act of 1910: "An act to repeal sections 3, 4 and 5 of chapter 737 of the Acts of 1908, relating to primary elections in the state of Maryland, and known as the Primary Election Law, and all the several and various provisions of said three sections of said act, and to enact in lieu thereof new and other sections of article 33 of the Code of Public General Laws, title 'Elections,' to be known as sections 160a, 160b, 160c, 160d, 160e, 160f, 160g, 160h, 160i, 160j, 160k, 1607, 160m, 160n, 1600, 160p, 160q, 160r, 160s, 160t, 160u and 160v, to come in after section 160 of said article 33, under the sub-title 'Primary Elections,' regulating primary elections in the state of Maryland, for all candidates for public office of certaîn political parties in and for Baltimore city and the several counties of the state, and to elect delegates to legislative, district, city and state conventions, and all members of managing bodies of certain political parties in and for Baltimore city and the several counties of the state, and all precinct, ward, city and county executives or executive com The traverser demurred to the indictment and to each count thereof, and the demurrer was overruled by the court below. In the course of the trial he reserved 12 bills of exceptions to the rulings of the court upon questions raised and set out in these exceptions, and after the verdict he filed a motion for a new trial and a motion in arrest of judgment, which were overruled by the su-mittees." preme bench of Baltimore city. As the important questions for our determination are presented by the demurrer and on the bills of exceptions, we find it more convenient to consider them first. The remaining questions will be passed upon and discussed in so far as we find them necessary for the decision of the case. It is contended upon the part of the appellant, that certain sections of chapter 741 of the Acts of 1910, known as the Primary Election Law in this state, and the sections upon which the ninth and tenth counts of the indictment rest, have been repealed by As our inquiry here has special reference to section 160 and section 160n of the Acts of 1910, we will set those sections out in full. By section 1601, it is provided that, "the provisions, all and singular, from section 87 to 115 of this article, both inclusive, and the offenses defined and the penalties and punishments prescribed therefor in said sections, respectively, shall be fully applicable in all respects to the same persons, matters and omissions in connection with or pertaining to the primary elections or any primary election held under this article, subtitle 'Primary Elections;' and said sections are hereby decisions and returns of judges of election, and recount and recanvass of the ballots and declaration of the results thereof in primary elections; and repealing all other acts and parts of acts inconsistent with this act." vided for and held hereunder; and any judge, | primary elections; and said added section clerk or other officer of any primary elec-160y providing for appeals from the actions. tion, or any voter or other person who would be deemed guilty of any offense against the general election law, or under provision or provisions thereof, in a general election, who is found guilty of the same offense in any primary election, as herein provided for, shall be deemed guilty of the same crime of which his offense is made to consist by and under the general election law, and particularly under any of the above-mentioned sections, respectively, thereof, and shall be liable to the same punishment or penalty as is prescribed for such sections thereof; provided, that sections 160m, 160, 1600, 160p, 160q, 160r, 160s, 160t, 160u, and 160v, hereof, with respect to offenses, penalties and punishments under the Primary Election Law shall have full force and effect in all cases to which the same are applicable." By the act of 1912, section 1601 of the act of 1910 was repealed, but re-enacted in the same words, except the penalty upon the vote seller, etc., so as not to conflict with section 160w, which placed the penalty on the vote buyer alone. Section 160n of the Act of 1910, it will appear, was not repealed nor in any way affected by the act of 1912, and was clearly in force at the date the alleged offenses charged in the ninth and tenth counts of the indictment were committed, and in order to remove any doubt that might arise as to the repeal of section 160n it was distinctly provided in the re-enactment of By section 160n of the Act of 1910, it is section 1601, by the act of 1912, that secprovided that, "any judge or clerk of such tions 160m, 160n, etc., of this article with reprimary election, or any member of any com- spect to offenses, penalties, and punishments mittee, or of the governing body of any po- under the Primary Election Law shall have litical party participating in primary elec- full force and effect in all cases to which the tions under this subtitle, or any delegate to same are applicable. There is nothing in a convention or party executive, on whom section 1601 as re-enacted by the Act of 1912 any duty is required in this subtitle to be which can be construed to impose any addiperformed, who shall be guilty of any wil- tional penalty or to affect the rights of any ful violation of any provision of this sub-person under that section or under section title, or of any neglect or corrupt practice in executing the same, not otherwise provided for herein, he or they shall, upon conviction thereof, be punished by a fine of not less than one hundred dollars ($100) nor more than five hundred dollars ($500), or by imprisonment in jail for not less than thirty days, nor more than ninety days, or by both such fine and imprisonment, in the discretion of the court." 160n of the Act of 1910 of which the appellant can complain. 21 Atl. 700. ing the Act of 1884, c. 485, did not repeal it away with its object and effect, but was in the sense of obliterating it and doing enacted in furtherance of the object of the act which it thus repealed and re-enacted. The latter was substantially re-enacted, and the main and fundamental provisions thereof were preserved and embodied in the new [3] It is well settled by a long line of authorities "that where a repealing law contains a substantial re-enactment of the previous law the operation of the latter continues uninterrupted." Lynn v. State, 84 Md. 67, 35 Atl. 21; Swan v. Kemp, 97 Md. 686, 55 Atl. 441; Beard v. State, 74 Md. 130, As was said by this court in At the January session of the General As- Swan v. Kemp, supra, the subsequent legislasembly of the state of 1912 the following action of 1888 and 1900 repealing and re-enact(chapter 2, Acts 1912) was passed, the title of which reads as follows: "An act to repeal and re-enact with amendments sections 160a, 160b, 160e, 160f, 160g, 160h, 160k, 1607, 160u, and 160v of article 33 of the Code of Public General Laws of Maryland, title 'Elections,' sub-title 'Primary Elections,' as the said sections were enacted by chapter 741 of the acts of the General Assembly of 1910, and to add two new sections to said article 33 of the Code of Public General Laws, to be known as sections 160w and 160y, of said article 33, to come in after section 160v of said article 33 under said sub-title 'Primary Elections', all of said sections re-enacted with amendments and all of said added sections relating the motion to quash the indictment presents to the subject of primary elections; said section 160e, re-enacted with amendments, including provisions for a new general registration throughout the counties of Maryland and for registering the 'party affiliation' of voters; and said added section 160w prohibiting and penalizing bribery, corruption, in law. [4] We have examined the ninth and tenth counts of the indictment and find they correctly charge the offenses set out in section 160n of the Act of 1910, and as this section was in no way repealed or affected by chapter 2 of the Acts of 1912 we think the trayerser's demurrer was properly overruled. As the identical question as the demurrer upon the question of repeal that motion was also properly overruled. [5] In the first bill of exception the trav erser seeks to have us review the ruling of the court in overruling a motion for a removal of the case to another jurisdiction for |