share as rent. It is stated in the opinion that "the difference between a tenant and a cropper is: a tenant has an estate in the land for a term, and consequently has a right of property in the crops. It is he who divides off to the landlord his share, and until such division the right of property and of possession in the whole crop is his." On a similar lease and to the same effect is Sargent v. Courrier, 66 Ill. 245; Lacy v. Weaver, 49 Ind. 373; Rinehart v. Olwine, 5 Watts & S. 157; and Doremus v. Howard, 23 N. J. Law, 390. Under such a lease the lessee can bring trespass against an intruder upon the land or a disturber of the crops without joining his landlord, for the exclusive possession of both are in him. Larkin v. Taylor, 5 Kan. 433. In Walls v. Preston, 25 Cal. 59, the contract was substantially the same as in this case, and it was held in law a lease. It is held in one of these cases that the use of the words "deliver to the landlord" his share, is strong ground for holding the agreement a lease. See also to the same effect, Alwood v. Ruckman, 21 Ill. 200; Blake v. Coats, 3 G. Greene, 548; Hoskins v. Rhodes, 1 Gill & J. 266; Moulton v. Robinson, 7 Fost. (N. H.) 550; Aikin v. Smith, 21 Vt. 180; Hatch v. Hart, 40 N. H. 98; Tayl. Landl. & Ten., § 25, and note 6. By the strong current of authority this agreement is in every essential a lease, and the relation of the parties as landlord and tenant precludes the tenant from denying the title of the plaintiff or setting up title in himself to the premises, or any part of them. It would be a violation of the same principle to allow the defendant to show that plaintiff had no possession to give, or that he did not hold the possession from the plaintiff. He is equally estopped by his lease from denying the possession as the title of the plaintiff, for thereby he has acknowledged both. Strain v. Gardner. Opinion by Orton, J. [Decided Oct. 14, 1884.]

CONTRACT-CONSIDERATION-RELEASE OF DOUBTFUL CLAIM.-A materialman, who after filing a notice of a lien for material furnished a contractor to build a house, releases his claim and discharges the contractor in consideration of a promise by the owner to pay him the amount due for such material, may maintain an action against the owner on such promise. The discontinuance of an action brought in good faith upon a doubtful claim has always been held to be a good consideration for a promise to pay the amount of the claim. So a compromise of a doubtful claim is a good consideration for a promise to pay money, and it is no answer to an action brought upon such promise to show that the claim was invalid. Craus v. Hunter, 28 N. Y. 389; McKinley v. Watkins, 13 Ill. 140; Draper v. Owsley,57 Am. Dec. 218. Here the claim was not doubtful. The defendant's promise to pay was an implied confession that she was then indebted to Hire in at least

the amount she then promised to pay to the plaintiff. This being so, her block was then charged with the payment of the plaintiff's claim. The subsisting obligation of the defendant to pay the claim, or have it enforced out of her block was a sufficient consideration to support the promise of payment. Cook v. Bradley, 7 Conu. 57; Burr v. Wilcox, 13 Allen, 269. In Rippey v. Friede, 26 Mo. 523, it was held that the forbearance of a subcontractor to take the necessary steps to enforce his lien under the mechanics' lien law of that State was a good consideration for the promise of the owner of the building to pay the claim. The case is even stronger than this, for there the question whether the defendant made the promise was disputed, while here it is confessed that the defendant not only promised, but that the plaintiff had actually given the requisite notice of lien, and then released the lien, and also discharged the principal contractor in consideration of such promise. Such release and discharge must

Snell v.

be regarded as a sufficient consideration. Bray, 56 Wis. 156. It is urged that if the defendant made such oral promise, then it was within subd. 2, § 2307, Rev. Stat., and hence void. But the assumption that the promise was oral, and not in writing, is wholly unwarranted by any thing contained in the record. A promise and agreement being alleged, we are bound to assume that they are valid rather than invalid, even if such oral promise would be within the statute. But we are by no means prepared to say that such oral promise would have been within the statute. In fact the decision in Weisel v. Spence, 59 Wis. 301, seems to hold that it would not. In fact the case is stronger, because it is alleged not only that the lien was released, but that the original debtor was discharged, while in that case the original debtor was not released. Griswold v. Wright. Opinion by Cassoday, J. [Decided Oct. 14, 1884.]

PRACTICE-AMENDMENT TO PLEADING-DISCRETION -REFUSAL TO EXERCISE DISCRETION ERROR.-The allowance or disallowance of an amendment to a pleading setting up a statute of limitations or a plea of usunder all the circumstances of the case. In accordury, rests in the sound discretion of the trial court, ance with that principle, this court has frequently sustained orders of the trial court refusing to grant such amendment. Fogarty v. Horrigan, 28 Wis. 142; Eldred v. Oconto Co., 30 id. 206; Meade v. Lawe, 32 id. 261; Dehnel v. Komrow, 37 id. 336; Plumer v. Clarke, 59 id. 646. It has also sanctioned the right of the trial court in the exercise of such discretion, to grant such amendment. Newman v. Kershaw, 10 Wis. 340; Jones v. Walker, 22 id. 220; Orton v. Noonan, 25 id. 676; Baker v. Supervisors, 39 id. 444; Wisconsin Cent. R. Co. v. Lincoln Co.,57 id. 138. Where such discretionary power has in fact been exercised by the trial court in a given case, this court, in the review of such exercise, only determines whether there has been an abuse of such discretion. Dehnel v. Komrow, supra; Capron v. Supervisors, 43 Wis. 617; Plumer v. Clarke, supra; The Phoenix v. Walrath, infra; Willis v. White, infra; Jones v. Evans, 28 Wis. 168. In the case at bar the trial court expressly refused to exercise such discretion on the asserted assumption that it had no such power. This was error. Where a trial court has, in the exercise of a sound discretion in a given case, power to do or not to do a certain act, a refusal to exercise such discretion, upon the expressed assumption that it has no such power, is an error of law which eliminates from the case the question whether there was any abuse of discretion. Wallis v. White, 58 Wis. 28, 29; Phoenix Ins. Co. v. Walrath, 53 id. 669; King v. Justices, 14 East, 395; Russell v. Conn., 20 N. Y. 83; Tracey v. Altmyer, 46 id. 598; Tilton v. Beecher, 59 id. 176; Attorney-General v. Insurance Co., 88 id. 77; Opinion by Cassoday, J. Tolman v. Railway, 92 id. 353. Smith v. Duggert. [Decided Oct. 14, 1884.]

MARYLAND COURT OF APPEALS ABSTRACT.*

AGENCY-DURATION OF EMPLOYMENT.-The B. & W. Co., engaged in the manufacture of steam boilers in the city of New York, entered into an agreement with M. "in regard to selling boilers in Baltimore and vicinity," signed by both parties, and dated December 9, 1881, and containing the following terms: "Mr. M. to open an office in Baltimore to represent the B. & W. Co., and work for their best interest in every thing. On all sales made by him, he is to take charge of erecting, and collecting money and remit same to us; all contracts to be subject to the approval of home

*To appear in 62 Maryland Reports.

office. The B. & W. Co. to pay office rent and incidental expenses of same, necessary travelling expenses, and $25 per week to Mr. M., charging the same to Baltimore office; five per cent on all sales by Mr. M. to be credited to Baltimore office, and any surplus credits at end of year to be paid to Mr. M." Held, that this contract is to be construed as continuing for a year, and the company had no right to discharge M. during that time, merely because the sales effeeted in the Baltimore district did not in their judgment warrant a continuance of his employment for that period. Babcock, etc., Co. v. Moore. Opinion by Miller, J.

CONTRACT-BREACH-DAMAGES-COMPOSITION— ACTION FOR DAMAGES BARRED.-T. made a contract with H. for the purchase of a large number of shooks, to be delivered and paid for in different quantities and at specified intervals between the 1st of Oct., 1875, and the last day of Feb. 1877. On the 26th of April, 1876, T. wrote to H. not to send him any more shooks. Held, that this action amounted to a repudiation of the contract, and it entitled the seller to consider it entirely at an end. Whether it entitled the injured party to an immediate action to recover damages in respect to each and every future delivery stipulated in the contract, quaere? (2) On June 9, 1876, T. made

a composition with certain of his creditors, including H., by which he agreed to pay in cash, to every creditor accepting the agreement, one-fourth of his claim, and to deliver to him two indorsed notes, each for one other fourth; it being stipulated that said cash and notes should be accepted by the creditors in full satis faction of their respective claims. The claim of H., as stated by him was duly settled according to the terms of the composition, and did not include any damages for the breach of the contract for the shooks. In an action subsequently brought by H. against T. to recover said damages, it was held that the action was barred by the composition proceedings. Payler v. Homersham, 4 Maule & Sel. 423. Textor v. Hutchings. Opinion by Bryan, J.

PAYMENT APPLICATION OF.-A continuous account between the plaintiffs and J. D., extending from the 4th of February, 1880, to the 30th of March, 1882, was kept by the plaintiffs alone. A draft drawn on and accepted by the plaintiffs, and signed by J. D. for whose accommodation it was drawn, and by the defendant's intestate, as surety for J. D., was charged in the account on 7th of June, 1880, as one of the debits against J. D. The credits were more than sufficient to extinguish the draft and all the debits antecedent to it. In an action against the administrator of the surety, to recover a balance due on the draft, it was held that the credits should be applied to the settlement of the earlier items on the debit side of the account; and the draft was therefore in point of law paid. Harnnett V. Dudley. Opinion by Bryan, J. [See 16 Eng. Rep. 273.]

INFANT-PROCHEIN AMI-ATTORNEY--RATIFICATION. -An infant brought a suit by her prochein ami, in a court of law. Afterward she employed an attorney, and requested him to dismiss the suit, which was accordingly done. A motion was subsequently made in the name of the infant by her prochein ami, asking the court to strike out the entry of "off," which had been made in the case, and re-instate it on the docket for trial. On appeal from the order of the court overruling this motion, it was held that the infant, until she reached the age of twenty-one years, was incompetent to appoint an attorney, or to take any step in the suit which could bind her rights. Greenwood v. GreenWood, 28 Md. 386; DeFord v. State, 30 id. 200; Baltimore & Ohio R. Co. v. Fitzpatrick, 36 id. 624. The ap

pointment of an attorney by the infant being nugatory, his dismissal of the suit was simply void. The court was therefore in error when it refused to re-instate the case. This case has been compared in the argument to a nonsuit regularly entered. We do not so regard it. When the plaintiff in a cause submits to a nonsuit, it is well settled that he has no right of appeal. This is an appeal from an order of the court refusing to correct an entry of nonsuit, made against the will of the only person who had the right to authorize it. The prochein ami had as much right to the protection of the court in this particular as in any other. The erroneous entry subjected her to a liability for costs, and an error of the court in refusing to relieve her ought certainly to entitle her to redress. It has been settled by many decisions of this court, that appeals may be taken from refusals to strike out judgments, as well as from orders striking them out. In Montgomery v. Murphy, 19 Md. 576, this court entertained an appeal from the refusal of the court below to strike out a judgment by confession erroneously entered, and being satisfied of the error, ordered the judgment by confession to be stricken out. In Powhatan Steamboat Co., Garnishee, etc., v. Potomac Steamboat Co., 36 Md. 238, the appeal was from an order refusing to strike out and set aside a

judgment of condemnation in attachment; and the

order below was reversed. In Johnson v. Lemmon, 37 Md. 336, there was a similar appeal and a reversal in this court. We do not think that the circumstances of the case show luches on the part of the prochein ami in applying to have the entry stricken out. It is stated that the infant, after she arrived at the age of twenty-one, ratified and approved the act of her attorney. It was not in her power to do so. Her act in appointing an attorney was void, and in violation of the rights of her prochein ami. It is in the power of the court to remove the prochein ami, but while she sustains such relation, she must have the entire control of the conduct of the suit. Wainwright v. Wilkenson. Opinion by Bryan, J.

DEED-REFORMATION-MISTAKE-MUST BE MUTUAL -DAMAGES MINING UNINTENTIONAL TRESPASS.—

D. and the Maryland Coal Co., by deed of exchange conveyed to each other certain adjoining parcels of coal land. D. afterward conveyed by deed to the Atlantic and George's Creek Consolidated Coal Co., the same land obtained by him from the Maryland Coal Co. Subsequently the M. C. Co. sued the A. and G. C. C. C. Co. for mining coal on the land conveyed to the M. C. Co. by D. Whereupon the A. and G. C. C. C. Co. filed a bill against the M. C. Co. for an injunction to restrain the prosecution of said suit, and for specific performance, and other relief. The A. and G. C. C. C. Co. claimed that the land conveyed to D. did not contain the quantity and quality of coal it was intended he should receive, and that by mistake the land conveyed to D., as described in the deed of exchange, did not include the locus in quo, and that by a true location the alleged trespasses complained of in the suit at law were committed on the land that should have been originally conveyed by the M. C. Co. to D. It was alleged by the complainant that it had been agreed that the M. C. Co. by R., its agent, should survey and lay off for D. the land to be conveyed to him, and that in conducting its operations after the purchase from D., the boundaries of the land not being sufficiently marked by visible calls in R.'s survey, S. the complainant's engineer, applied to R. to show him the outlines, in order that no trespass might be committed, and that R. (since dead), in the capacity of agent of the M. C. Co., pointed out the lines, and that the coal which was the subject of the action of trespass was taken within the lines of the complain

ant's lands as so pointed out by R., and that if in fact there was a trespass, it was due to the acts and statements of said R. The mistake was denied by the M. C. Co. On appeal from an order dissolving a preliminary injunction which had been granted, it was held (1) that in such a case as this, averring a mistake to have been made in the deed of exchange, and setting up a verbal contract differing from the deed (which expressed the consideration to be the exchange of the lands described therein), and asking a specific performance of the verbal contract, the law was well settled that the terms of the contract must be accurately stated in the bill, and the proof must in every essential particular correspond with the terms of the contract thus set up. Semmes v. Worthington, 38 Md. 318. It is also well established that any agreement to merit the interposition of a court of equity to enforce it must be certain in all its parts and mutual; to correct a mistake by one of the parties as to what the contract was, is not the ground of such interposition, but a mistake in the execution of an agreement clearly understood and entered into by both parties. Griffith v. Frederick Co. Bauk, 6 G. & J. 424; Gelston v. Sigmund, 27 Md. 334; Shepherd v. Shepherd, 1 Md. Chan. Dec. 244; 1 Story Eq., $767. The contract set up by the appellant is not, we think, upon the proof, in the light of the principles recognized by the authorities cited, satisfactorily made out. (2) A court of equity has no inherent power to ascertain the amount of damages sustained by reason of tortious acts unattended with profits to the wrong-doer. Kerr on Inj. (Eng. ed.) 221. There must be some joint interest or interest in common of the parties in the property for a court of equity to assess the damages. In a case of trespass where no such relations exist, we are aware of no ground upon which a court of equity can set up any other rule of damages than that which prevails at law. The rule for trespass in mining coal is well settled in Maryland. The right to maintain the action of quare clausum fregit exists in this State, whether the defendant committed the trespass unwittingly (as the complainant claims to have done) or willfully and wantonly. The owner of adjoining property is held to know the boundaries between him and his neighbor. If he has made a mistake bona fide as to his title or boundaries in mining coal, the lowest measure of damages applicable is the value of the coal immediately upon its conversion into a chattel without abatement of the cost of severance. If the trespass

has been committed through negligence or design, punitive damages in addition may be recovered. Barton Coal Co. v. Cox and Cox Ex'rs, 39 Md. 1; Franklin Coal Co. v. McMillan, 49 id. 549; Blaen Avon Coal Co. v. McCulloh, 59 id. 403. An unwitting trespasser, merely as such, could not change the amount of his liability by simply changing the forum. No lower measure of damages for trespasses, not negligent nor willful, could be substituted in equity for that fixed at law, on general principles, for such trespasses. If a lower measure could be there applied merely because the trespasser was honestly mistaken, all such trespassers would seek the courts of equity when sued, and thus evade the rule established as applicable to them in the aforegoing authorities. Atlantic, etc., Coal Co. v. Maryland Coal Co. Opinion by Ritchee, J.

TRUST AND TRUSTEE-INVESTMENTS-GOOD FAITHDISCRETION.-The general rule applying to discretionary trusts is, that if trustees exercise discretionary powers conferred on them in good faith and without fraud or collusion, courts of equity will not undertake to control their discretion. Perry on Trusts, $$ 510 and 511. And the learned author cited says this is so, notwithstanding the court has taken jurisdiction of the trust, for it to be executed under its eye. In re

spect to the rule regulating the investment of trust funds, the same author says in sections 452 and 460, that if there are special directions in the instrument creating the trust as to the kind of securities in which trust funds shall be invested, those directions must be followed; but that in the absence of such directions and powers the trustee must be governed by the statute law or rules of the court in the State where the trust is to be executed; and if there be no such law or rules of court, then they are to be guided by sound discretion and fair dealing or good faith. The authorities cited are all English, and this court has declared that the English rule has never been adopted in this State; because there is no law or rule of court of general operation which regulates the matter. Gray v. Lynch, 8 Gill, 405; Evans v. Iglehart, 6 G. & J. 192. In section 459, of Perry ou Trusts, it is also stated that the rule he laid down was not adopted in Maryland. The learned judge, who decided this case below, certifies a general rule of that court respecting trusts administered in it, but he adds that the court was in the habit of ordering investments in other securities than those named in the rule certified. The general rules for equity practice recently promulgated by this court, under constitutional authority, make no provision on the subject. In Gray v. Lynch, 8 Gill, 419, the question was whether the trustees should be held liable for investments in bank stock of the United States Bauk, which failed; and the court held they were not answerable for the loss; and that it would be grossly inequitable to charge them with it. The court said such investment was analogically justified by the act of 1831, ch. 315, respecting investments by administrators and guardians under order of the Orphans' Court, which authorized investment in "bank stock or any other good security." That provision still exists and forms the 237th section of article 93 of the Code, aud supplies the same analogical justification in this case, of the investment made in gas stock, which when bought was probably deemed quite as safe and profitable an investment as any which could have been selected. We have had no suggestion that at that time it was not so regarded. Too much caution cannot be exercised by trustees in the investment of funds confided to their management, but when a discretion is clearly given, and its exercise is conceded to have been honest and with fairest intent, a court of equity will not charge such trustee, who is really faultless, with the results of an honest mistake in judgment. McCoy v. Hortirtz. Opinion by Irving, J. [See ante, 188.]

CRIMINAL LAW.

CHALLENGE TO ARRAY-IRREGULARITY - "BEER" PRESUMED INTOXICATING.-(1) A challenge to an array of jurors ought not to be sustained on account of mere irregularities in the drawing of the jurors, or mere informalities on the part of the officers charged with the drawing of the same; yet where the statute specifi cally prescribes the class or list of persons from which the jurors are to be selected, the failure on the part of the officers to draw the jurors from the class or list prescribed is a sufficient ground to sustain a challenge to the array. State v. Yordi, 30 Kans. 221; Thomp. Mer. Juris., § 143; Jones v. State, 3 Blackf. 37; Baker v. Steamboat, 14 Iowa, 214; Anon., 1 Browne (Pa.), 121; McCloskey v. People, 5 Park. 308. (2) In the absence of evidence to the contrary, beer will always be presumed to be an intoxicating liquor. Beer, according to Webster, is a fermented liquor made from any malted grain, with hops and other bitter flavoring matter. "When therefore the word 'beer' is used in court by a witness, the court will take judicial notice that it means malt and intoxicating liquor, or such

meaning will be a presumption of fact, and in the meaning of the word itself there will be prima facie proof that it is malt or intoxicating liquor that is meant." State v. Teissedre, 30 Kans. 477, 479, 484. When the defense is made that the beer sold is spruce beer, or ginger beer, or any other non-intoxicating beer, evidence thereof is competent; but the mere fact that under some formula a nou-intoxicating liquor may be made, which is sometimes called beer, is wholly irrelevant, in the absence of proof that the liquor or beer sold was made from the formula. Sup. Ct Kans. State v. Jenkins. [ (2) See 46 Am. Rep. 621.] (32 Kans. 477.)

EX-JUDGE FULLERTON has been the recipient of

many congratulations on the subject of the suc cessful production at the Empire Theatre, London, of his son's comic opera, "The Lost Locket." The exjudge is as much surprised as those who did not know he had a musical son. I went to see him on Saturday to find out if he could give me some particulars concerning the work. "I dont know any more about it," he said, "than what the cablegrams in the papers say. My son came to me about five years ago and told me he wanted to go to Europe. As he'd been a good deal of a home-boy I thought it might do him good to knock around the world a little, so I told him if he had the money he could go. I think he studied music pretty thoroughly in Germany and then went to London, where he seems to have made some valuable connections. I don't know any thing about music and don't care for it, and always thought he was wasting time over it, so in his letters he's said very little about his

operetta." When I told Judge Fullerton that Duff of the Standard thought of bringing out the operetta next fall, he instantly became interested. "We'll have to protect the copyright," he said, at once. Lucky composer to have your good father a good lawyer!

A batch of cases of considerable importance to admiralty lawyers are expected to come up in the United States District Court in a short time. They all grow out of the burning of the Inman Pier two winters ago. The legal questions are complicated by the fact, that while the goods for whose value various importers are suing, were destroyed by fire on the Inman Pier, many of them were unladen from the Egypt, of the National Line, and were shipped under National Line bills of lading; and further by the fact that owing to an accident to the City of Brussels, of the Inman Line, many cases of goods intended for that steamer were shipped from Liverpool on the Egypt under Inman bills of lading. Some plaintiffs have sued the latter line, some the National. As many legal questions of the same nature will be raised in all the suits, and much of the evidence will bear upou the whole batch, Judge Browne has ordered that they be tried together. Whatever Judge Browne's decision may be the cases will undoubtedly be carried to the Supreme Court, as many questions of vital importance to merchants and steamship companies are involved. Certainly every clause in the bills of lading limiting the liability of the companies will have to be passed upon. The plaintiffs propose to press a novel point very strongly, viz.: That the goods were illegally on the wharf at the time the fire occurred, the so-called "lay permit" of the collector, granting to the steamship companies permission to allow the discharged goods to remain on the wharf forty-eight hours, being contrary to law. It is claimed that the duties of the collector are defined and limited by statute; that there is no statute authorizing the issue of the "lay permit," and that the simple instructions of the secretary of the treasury (Sherman) to the collector that he might issue such permits did not give him the necessary legal authority to do so.

One of our judges is known among the younger members of the profession as "the weak sister," because he is more frequently reversed than any other judge of his court. The other day I was discussing with a friend of mine, a motion which he was to argue the next morning before "the weak sister." "There's only one disadvantage under which our side will have to labor," he said, "but it's a great disadvantage.' "What's that?" I asked. "We're in the right!" And he was beaten.

Roscoe Conkling has not been in court very frequently of late, which in one sense is a pity. For however greatly opinions as to his legal abilities may differ, there is no doubt of his ability to entertain the court, counsel and spectators. He does not confine himself to witticisms in his native tongue, but will even encroach upon the sacred precincts of the ancient languages. I once heard him make a Latin pun, which has not yet, that I am aware of, found its way into print. During the taking of some testimony he had been indulging in several Latin phrases, when in some way one of the counsel was led to remark, "What's sauce for the goose is sauce for the gauder; " he added, "The Senator cannot translate that, because he does not know the Latin for sauce." "Not know the Latin for sauce!" exclaimed Mr. Conkling; "why, it's mentioned twice in half a line of Virgil'gravi jampridem saucia cura."

The counsel of Mr. Paul Bauer, the Coney Island pool seller, who has been pining for the ocean breezes the past week during an inforced occupation as nurse in Raymond street jail, Brooklyn, is protesting against Judge Moore's sentence on Mr. Bauer, not because it